from the United States District Court for the District of
Kansas (D.C. No. 2:14-CR-20072-JAR-JPO-1)
on the briefs: [*]
Jenab, Jenab Law Firm, P.A., Olathe, Kansas, for
E. Beall, Acting United States Attorney, and Carrie N.
Capwell, Assistant United States Attorney, Office of the
United States Attorney, Kansas City, Kansas, for
BRISCOE, LUCERO, and HARTZ, Circuit Judges.
LUCERO, CIRCUIT JUDGE.
Theis appeals his conviction and sentence for attempted
sexual exploitation of a child. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
used hidden cell phones to secretly record his
girlfriend's eleven-year-old daughter while she showered
and used the toilet. He transferred the recordings to his
computer and created still images, some of which focused on
her genital and pubic area. As a result, Theis was indicted
on two counts of attempted sexual exploitation of a child in
violation of 18 U.S.C. § 2251(a) & (e), which
provides that any person "who employs, uses, persuades,
induces, entices, or coerces any minor to engage in . . . any
sexually explicit conduct for the purpose of producing any
visual depiction of such conduct . . . shall be punished . .
. ." § 2251(a).
operative facts were undisputed. However, Theis filed a
motion to dismiss the indictment arguing the facts were
insufficient to establish an offense under the statute. He
asserted that § 2251(a) requires a causal, interactive
relationship between the defendant and the minor, and that
his conduct-which amounted to mere voyeurism-was insufficient
to establish a violation of the statute. The district court
denied the motion. After a bench trial, the court denied
Theis' motion for judgment of acquittal, found him guilty
of both charges, and sentenced him to 292 months in prison.
Theis timely appealed his conviction and sentence, arguing:
(1) the district court erred by denying his motion to dismiss
the indictment; (2) there was insufficient evidence to
support his conviction; and (3) the district court committed
plain error by denying him a meaningful opportunity to
allocute. We reject these arguments and affirm.
first argues that the district court erred by denying his
motion to dismiss the indictment. A district court may
dismiss an indictment if the allegations are insufficient to
establish the charged offense. United States v.
Todd, 446 F.3d 1062, 1068 (10th Cir. 2006). In
considering a motion to dismiss, the court generally does not
examine the evidence. Id. However, it may consider
undisputed facts if the government does not object.
Id. Under this exception, the court may dismiss the
indictment if the "undisputed evidence shows that, as a
matter of law, the [d]efendant could not have committed the
offense for which he was indicted." Id.
"We generally review a district court's denial of a
motion to dismiss a criminal indictment for abuse of
discretion, but review any statutory interpretation issues
involved in the ruling de novo." United States v.
Berres, 777 F.3d 1083, 1089 (10th Cir. 2015).
to Theis, the undisputed evidence showed he "secretly
videotape[d] the unaware minor while she performed activities
over which he had no control or influence." He argues
this does not satisfy the "uses" element of §
2251(a), which he claims requires "a causal relationship
between the defendant and the minor's sexually explicit
conduct." We conclude the statute contains no such
determine the meaning of the term "uses" in §
2251(a), we look first to the language of the statute.
See United States v. Figueroa-Labrada, 780 F.3d
1294, 1298 (10th Cir. 2015). Section 2251(a) punishes any
person "who employs, uses, persuades, induces,
entices, or coerces any minor to engage in . . . any sexually
explicit conduct . . . ." (emphasis added). The statute
does not define "uses, " so we give the word its
ordinary meaning. See Nat'l Credit Union Admin. Bd.
v. NomuraHome Equity Loan, Inc., 764 F.3d
1199, 1227 (10th Cir. 2014). In doing so, we must also
consider both the specific ...