United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.
Before the Court is Defendant’s Motion for Bill of Particulars (Doc. 43), and Motion to Dismiss Indictment (Doc. 49). The motions are fully briefed and the Court heard argument on June 16, 2015. As described more fully below, Defendant’s motions are denied.
The Second Superseding Indictment (Doc. 48) in this case alleges two counts under 18 U.S.C. § 2251(a)&(e), the sexual exploitation of a child statute.
Counts One and Two are identical with the exception of the Dated: Count 1 charges conduct on April 13, 2014, and Count 2 charges conduct on May 4, 2014. Each count otherwise charges as follows:
within the District of Kansas, KENNETH THEIS, did knowingly and intentionally attempt to employ, use, persuade, induce, entice, and coerce a minor, to wit: V.V.O., an unaware prepubescent female, to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct, using materials that were mailed, shipped, or transported in or affecting interstate and foreign commerce, namely a Samsung Galaxy S2 cellular telephone, a PanTech cellular telephone, and an LG Optimus G Pro LGE980 cellular telephone which were manufactured outside the State of Kansas, in violation of Title 18, United States Code, Section 2251(a) and 2251(e).
The Government plans to prove that Defendant surreptitiously recorded V.V.O. and her adult sister in their bathroom while engaging in bathroom activities such as toileting and showering. Defendant then allegedly transferred the cellphone videos to his computer and used a video editing program to create still images of the minor that included her face and closeup images of her vaginal area.
A. Motion to Dismiss
Defendant moves to dismiss on two issues: (1) the term “uses” in the statute may not be applied to mere voyeuristic activity; and (2) the Government may not legally charge and convict Defendant for attempt to use a minor to engage in sexually explicit conduct when the theory of the case is that Defendant actually filmed V.V.O. and thus completed non-criminal conduct.
An indictment is sufficient if it meets minimal constitutional standards, which must be determined by “practical rather than technical considerations.” It is sufficient if it (1) sets forth the elements of the crime charged; (2) places the defendant on fair notice of the charges against which he must defend; and (3) enables the defendant to assert a double jeopardy defense. It is generally sufficient if the indictment sets forth the offense in the words of the statute, “as long as those words themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” “An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.”
1. Defining “Uses”
Defendant first argues that since V.V.O. was unaware that she was being videotaped, it is impossible to charge Defendant with violating § 2251(a) and (e) because the term “uses” in the statute requires active employment of a minor. Defendant argues that Defendant’s alleged conduct amounts to voyeurism and thus ...