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United States v. Theis

United States Court of Appeals, Tenth Circuit

April 11, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
KENNETH THEIS, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:14-CR-20072-JAR-JPO-1)

         Submitted on the briefs: [*]

          John Jenab, Jenab Law Firm, P.A., Olathe, Kansas, for Defendant-Appellant.

          Thomas E. Beall, Acting United States Attorney, and Carrie N. Capwell, Assistant United States Attorney, Office of the United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee.

          Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.

          LUCERO, CIRCUIT JUDGE.

         Kenneth Theis appeals his conviction and sentence for attempted sexual exploitation of a child. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         I

         Theis 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).

         The 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.

         II

         Theis 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).

         According 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 requirement.

         To 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 ...


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