United States v. Theis, 2017 U.S. App. LEXIS 6205

Defendant Kenneth Theis secretly recorded his girlfriend’s 11-year-old daughter showering and using the toilet, transferred the recordings to his computer, and created still images focusing on genital/pubic areas.
Theis was indicted on two counts of attempted sexual exploitation of a child under 18 U.S.C. § 2251(a) for producing visual depictions of sexually explicit conduct.
Theis moved to dismiss the indictment, arguing § 2251(a)’s word “uses” requires a causal/interactive relationship—i.e., that the defendant caused or induced the minor’s sexually explicit conduct—so mere secret filming (voyeurism) is insufficient.
The district court denied the motion; after a bench trial Theis was convicted on both counts and sentenced to 292 months’ imprisonment. Theis appealed.
On appeal Theis challenged (1) denial of the motion to dismiss (statutory interpretation of “uses”), (2) sufficiency of the evidence, and (3) plain error in allocution at sentencing. The Tenth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2251(a)’s term “uses” requires a causal/interactive relationship between defendant and minor’s sexually explicit conduct	N/A (government sought conviction under §2251)	Theis: “uses” requires causing, inducing, or otherwise actively producing the minor’s conduct; mere secret filming without the minor’s knowledge is insufficient	“Uses” need not show causal relationship; it covers actively and directly producing a depiction (including secret filming) even without the minor’s conscious participation
Whether undisputed facts required dismissal of the indictment	N/A	Theis: undisputed facts (voyeurism) show as a matter of law he couldn’t commit §2251(a) offense	Denial of dismissal upheld; statutory text and context do not require causation
Sufficiency of the evidence to support conviction	N/A	Theis: evidence insufficient if “uses” requires causation; concedes sufficiency if court rejects that requirement	Evidence sufficient because statute does not require causal relationship
Whether the court committed plain error by announcing a tentative sentence before allocution	N/A	Theis: court effectively announced sentence before giving allocution, violating Fed. R. Crim. P. 32(i)(4)(A)(ii) and Landeros-Lopez	No plain error; defendant had meaningful opportunity to allocute, court’s statements were tentative and it considered mitigation before imposing final sentence

Ortiz-Graulau v. United States, 756 F.3d 12 (1st Cir. 2014) (interprets “use” to permit conviction for producing depictions without interpersonal pressure or identifiable complaining witness)
United States v. Wright, 774 F.3d 1085 (6th Cir. 2014) (rejects requirement that government prove defendant caused minor’s conduct when applying “uses”)
United States v. Vanhorn, 740 F.3d 1166 (8th Cir. 2014) (holds intentional filming/photographing of minor’s sexually explicit conduct satisfies "uses")
United States v. Finley, 726 F.3d 483 (3d Cir. 2013) (permits conviction where defendant ‘uses’ a minor without the minor’s conscious participation)
United States v. Sirois, 87 F.3d 34 (2d Cir. 1996) (concludes photographing a child to create pornography satisfies the “use” element)
United States v. Laursen, 847 F.3d 1026 (9th Cir. 2017) (upholds conviction where defendant directed minor’s actions but notes other circuits interpret “use” more broadly)
United States v. Landeros-Lopez, 615 F.3d 1260 (10th Cir. 2010) (explains allocution error occurs where court definitively announces sentence before permitting defendant to speak)
Toomer v. City Cab, 443 F.3d 1191 (10th Cir. 2006) (statutory-construction principle: interpret words in context and give effect to every clause and word)