Whether the statutory term 'lascivious exhibition' refers to the defendant's act of exhibiting a minor's genitals on film, or to a particular type of conduct in which the subject of the image must have engaged

QUESTIONS PRESENTED : 18 U.S.C. § 2251(a) provides, in relevant part, that no person shall “employ[], use[], persuade[], induce[], entice[], or coerce[] any minor to engage in ... sexually explicit conduct for the purpose of producing any visual depiction of such conduct[.]” 18 U.S.C. § 2256(2)(A)(v) defines “sexually explicit conduct,” as used in § 2251(a), to include the “lascivious exhibition of the anus, genitals, or pubic area of : any person[.]” ; The questions presented are: : 1. Whether the statutory term “lascivious exhibition” refers to the defendant’s act of exhibiting a minor’s genitals on film, or, in other words, to the visual depiction that the defendant attempted to produce, as the First through Eleventh Circuits hold; ; or whether it refers instead to a particular type of conduct in which the subject of the image must have engaged, as the D.C. Circuit holds; and 2. Ifthe D.C. Circuit is correct, whether a defendant may be convicted of attempting to violate § 2251(a) and sentenced therefor to 20 years of imprisonment . based solely on evidence that he surreptitiously filmed a minor masturbating? , RECENT PETITION On January 9, 2028, this Court denied certiorari in United States v. Skaggs, ~ : No. 22-6053, to resolve the following question: “Whether a defendant’s conduct of filming a minor using the bathroom and taking a shower caused the minor to engage . in sexually explicit conduct under 18 U.S.C. § 2251(a) where all of the minor’s actions on film do not qualify under the statutory definition of ‘sexually explicit conduct?” See also United States v. Close, petition for cert. pending, No. 22-6847 (filed Feb. 21, , 2023) (presenting similar question). : This petition differs from the petition in Skaggs in two important respects. , First, the questions presented here can be resolved simply by reference to the statutory text; they require no parsing of this Court’s precedents regarding the meaning of “sexually explicit conduct” of the kind advocated by the petitioner in Skaggs (and in Close). Second, the petitioner in Skaggs proceeded under the ; assumption that “use,” in the context of § 2251(a), means “cause.” Petitioner here does not; rather, he takes § 2251(a)’s prohibition on “us[ing] ... any minor to engage in ... sexually explicit conduct” to mean that no person shall engage in sexually explicit conduct by using a minor. See United States v. Heinrich, 57 F.4th 154, 159 (3d Cir. 2023) (Bibas, J.) (“Section 2251(a)’s actus reus starts with six active verbs. The first two verbs, ‘uses’ and ‘employs’ (as a synonym for ‘uses’), require that the defendant engage in sexually explicit conduct, with the child as an active or passive ; participant.”) (emphasis added). . ‘i ; ;