Petition for Writ of Certiorari — Colum Patrick Moran, Petitioner v. United States

Supreme Court briefJun 20, 2023

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COLUM MORAN,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

APPENDIX

Appendices

District Court’s Order ..................................................................... A

Eleventh Circuit’s Opinion.............................................................. B

Eleventh Circuit’s Denial of Petition for Rehearing ...................... C

APPENDIX A

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APPENDIX B

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

57 F.4th 977

United States Court of

Appeals, Eleventh Circuit.

West Headnotes (8)

[1]

Criminal Law

Inferences or

deductions from evidence

Court of Appeals reviews sufficiency

of evidence in criminal trial de

novo, viewing evidence in light most

favorable to government, resolving

any conflicts in government's favor,

accepting all reasonable inferences

that tend to support government's

case, and assuming that jury made

all credibility choices in support of

verdict.

No. 21-12573

Filed: 01/13/2023

[2]

[2] there was sufficient evidence to satisfy

interstate nexus element.

Affirmed.

Procedural Posture(s): Appellate Review;

Trial or Guilt Phase Motion or Objection.

Criminal Law

and Malice

Criminal Intent

Defendant's desire alone—wholly

without respect to his likelihood of

success—can establish his intent to

commit charged crimes.

Holdings: The Court of Appeals, Newsom,

Circuit Judge, held that:

[1] there was sufficient evidence of defendant's

intent to support his attempt convictions, and

Review De Novo

Criminal Law

Construction

in favor of government, state, or

prosecution

UNITED STATES of

America, Plaintiff-Appellee,

Colum Patrick MORAN,

Jr., a.k.a. Emily lover, a.k.a.

emilylover@aol.com, Defendant-Appellant.

Synopsis

Background: Defendant was convicted in

the United States District Court for the

Middle District of Florida, No. 3:19-cr-00040MMH-JBT-1, Marcia Morales Howard, J., of

possession of child pornography and attempted

production of child pornography, and he

appealed.

Criminal Law

[3]

Criminal Law

doubt

Reasonable

Criminal Law

Inferences or

hypotheses from evidence

sufficiency-of-the-evidence

review, it is not enough for defendant

to put forth reasonable hypothesis

of innocence, because sole issue is

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

whether jury reasonably could have

found guilt beyond reasonable doubt.

[4]

Infants

motive

Intent, state of mind, and

There was sufficient evidence of

defendant's intent to support his

convictions for attempted production

of child pornography, even if it

was unlikely that his comments

on otherwise-wholesome internet

parenting blogs asking mothers to

display sexually explicit images

of their young daughters would

succeed, and even if defendant

was harassing bloggers for his own

entertainment; sorts of pornographic

images that defendant requested

matched his particular preferences,

he used what might be viewed as

persuasive tactics in his messages

to increase likelihood of success,

defendant had more than 1,000

images of child pornography and 24

pairs of children's underwear, and

defendant denied making requests to

mothers.

[6]

18 U.S.C.A. § 2251(a).

Commerce

Federal Offenses

and Prosecutions

Infants

Exhibition or use

of child in indecent material or

performance

In prosecution for producing

child pornography, government must

prove that defendant knew that, if

produced, pornography he sought

would travel in interstate commerce.

18 U.S.C.A. § 2251(a).

[7]

Commerce

Federal Offenses

and Prosecutions

Infants

motive

websites.

18 U.S.C.A. §§ 2251(a),

2251(e).

[5]

would be transported or transmitted

using any means or facility of

interstate or foreign commerce to

support his federal convictions

for attempted production of child

pornography, even if defendant did

not know in advance whether his

requests to have mothers produce

pornographic images of their young

daughters would succeed, in light

of evidence that defendant's requests

were made on internet parenting

Intent, state of mind, and

There was sufficient evidence that

defendant knew or had reason to

know that visual depictions of child

pornography he sought, if produced,

Criminal Law

Necessity of

Objections in General

To establish plain error, defendant

must show that (1) error occurred;

(2) error was plain; (3) it affected

his substantial rights; and (4) it

seriously affected fairness of judicial

proceedings.

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

[8]

Criminal Law

Necessity of

Objections in General

In absence of explicit language of

statute or rule, error cannot be plain

unless issue in question has been

specifically and directly resolved by

on point precedent from Supreme

Court or Court of Appeals.

*978 Appeal from the United States District

Court for the Middle District of Florida, D.C.

Docket No. 3:19-cr-00040-MMH-JBT-1

Attorneys and Law Firms

Sara C. Sweeney, U.S. Attorney's Office,

Orlando, FL, U.S. Attorney Service - Middle

District of Florida, U.S. Attorney, U.S.

Attorney's Office, Tampa, FL, for PlaintiffAppellee.

Melissa Fussell, Assistant Federal Public

Defender, Federal Public Defender's Office,

Orlando, FL, Maurice C. Grant, II, Federal

Public Defender's Office, Jacksonville, FL,

Alec Fitzgerald Hall, Federal Public Defender's

Office, Tampa, FL, for Defendant-Appellant.

Before Jordan, Rosenbaum, and Newsom,

Circuit Judges.

Opinion

Newsom, Circuit Judge:

Colum Moran, a collector of child

pornography, commented on several “mom

blog” posts asking mothers to display sexually

explicit images of their young daughters.

We must decide whether Moran's requests

constitute criminal attempts to produce child

pornography under

18 U.S.C. § 2251(a) and

(e).

Moran contends, in essence, that his requests

—posted on otherwise-wholesome mom-blog

sites—were so unlikely to succeed that they

can't support attempt liability. In particular,

he makes three related arguments. First, he

asserts that the unlikelihood of success negates

his intent to complete the production crime.

Second, he says that because he couldn't have

known—or even thought—that his plot would

succeed, it can't be shown that he “kn[ew] or

ha[d] reason to know that such visual depiction

w[ould] be transported or transmitted using

any means or facility of interstate or foreign

commerce,” as the production statute requires.

Finally, he argues that his verbal requests were

too insignificant to constitute the “substantial

step” necessary to prove attempt.

We reject all three of Moran's contentions.

First, the sheer unlikelihood that Moran's

requests to the mom-bloggers would result

in the production of child pornography does

not negate his desire—and thus his intent—

to produce child pornography, and there is in

any event plenty of evidence, even beyond the

messages themselves, that he intended to do

so. Second, contrary to Moran's suggestion,

§ 2251(a)’s interstate-nexus element does not

require that a defendant know ex ante that

his plot will succeed—only (as relevant here)

that if it succeeds, the forbidden images will

travel in interstate commerce. Finally, Moran's

substantial-step argument, which he failed to

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

clearly present to the district court, fails under

plain-error review.

“Mom blogs” are websites on which mothers

—and likely some fathers—share *979

parenting stories and tips. They are chockfull of family-oriented and family-friendly

content. One illustrative site, “Your Modern

Family,” is authored and maintained by a

mother and retired teacher and includes

sections about kids’ activities, parenting tips,

and marriage and home-management advice. 1

Posts range from ideas for playing with

sidewalk chalk to spring-cleaning suggestions

—the latter sponsored by a soap company—to

tips for the kids’ first day of school. 2 The point

—Moran's point—is that mom-bloggers aren't

likely to post child pornography on their sites.

When Moran left a disturbing comment

on one such blog, authorities launched an

investigation. Moran had complimented a

mom-blogger's young daughter's swimsuit and

graphically described how he liked to perform a

particular sex act with “pretty” “little girl[s]” in

swimsuits like hers. Unbeknownst to Moran,

that blogger's husband (and the little girl's

father) was an FBI agent.

The investigation that ensued revealed

that Moran, using the handle “Emily

lover” at Emilylover@aol.com, had on three

occasions asked other mom-bloggers to

post pornographic pictures of their children.

Warning: Moran's messages are vile. But to

fairly assess one of his main arguments—

namely, that the messages, while harassing,

weren't really attempts to produce child

pornography—we must analyze his comments

in some detail.

Moran's first request responded to a mother's

blog post about her five-year-old daughter

learning to take photographs. Moran sent a

comment asking the mother to have the girl—

whom we'll just call “A”—take pornographic

pictures of herself:

She did a great job with

these! The next time [A]

wants to take pictures, you

should suggest something

fun. Have [A] take all her

clothes off and take pictures

of herself in the mirror.

Especially when she's sitting

in front of the mirror with her

legs spread wide open so we

can see her vagina. Maybe

she could try spreading her

vagina lips apart with her

fingers so she can get a good

picture of her little pink hole.

My niece loves to have her

picture taken while she uses

the head of her toothbrush

inside her vagina. If [A]

wants to try it, my niece likes

to lick the white cream from

the brush when she's done.

[A] would look so cute with

her tasty girl goo smeared all

over her smiling mouth

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

Doc. 128-2.

Not quite a year later, Moran sent a second

request to the same blogger, also about A. This

time, Moran responded to a post about the

now-six-year-old's morning routine:

Great post! But the pictures

I would most like to see

are missing. [T]hose would

be the ones of [A] doing

her “morning stuff”. In

particular, some pictures of

her on the toilet would

be awesome. I'd like to

see her panties around her

ankles, with her legs spread

wide enough to see the pee

dribbling from between her

vagina lips. I'd also like a

couple of them to show her

beautiful smiling face, and a

couple of good closeups of

her vagina

Doc. 128-4. Moran later suggested that A’s

mother buy her a sex toy for her 7th *980

birthday—and even provided a link to facilitate

the purchase.

Moran sent his third request to a different

blogger, a mother who had recently advertised

flushable baby wipes on Instagram. In a

comment on one of the mother's blog posts,

Moran referenced the Instagram ad and the

mother's twin three-year-old daughters, whom

we'll call “B” and “C”:

I'm really interested in

the flushable wipes you

were talking about on IG

[Instagram]! Can you please

post some pictures or a

video of [B] and [C] using

them? I'm curious to see

how easily their little fingers

can navigate their crotches

with them and how well

they clean the girl's vaginas.

Thanks

Doc. 128-7.

Federal law-enforcement officers traced the

IP address from which Moran had sent

all three messages to his residence. When

officers searched Moran's apartment, they

seized his laptop and cell phone, which

together contained more than 1,000 images

of child pornography—many of toddlers.

Forensic computer evidence demonstrated

that Moran had specifically searched for

pornography involving seven- and eight-yearolds. It also revealed since-deleted file folders

called “Babies” and “Potty time,” as well as

files with names like “Toilet_Girls” and “8yo

school girl.” Separately, investigators found 24

pairs of children's underwear in Moran's house

—even though no children lived there. When

officers interviewed Moran during the search,

he denied ever posting messages as “Emily

lover.”

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

The government charged Moran with one

count of possession of child pornography, see

18 U.S.C. § 2252(a)(4)(B) and

(b)(2),

and three counts of attempted production of

child pornography, see id. § 2251(a) and (e).

The jury convicted Moran on all four counts,

and the judge sentenced Moran to 64 years’

imprisonment.

Moran now appeals the attempted-production

convictions. In relevant part, the production

statute makes it unlawful for any person to:

employ[ ], use[ ], persuade[ ],

induce[ ], entice[ ], or

coerce[ ] any minor to

engage in ... any sexually

explicit conduct for the

purpose of producing any

visual depiction of such

conduct ... if such person

knows or has reason to

know that such visual

depiction will be transported

or transmitted using any

means or facility of interstate

or foreign commerce.

Id. § 2251(a). Subsection (e) of the same

statute provides for the punishment of

“[a]ny individual who ... attempts ... to

violate” § 2251(a). Moran challenges his

attempted-production convictions on three

related grounds, which we will consider in

turn. 3

Moran first contends that the government

can't prove a necessary element of its case

—namely, that he had “the specific intent or

mens rea to commit the underlying charged

crimes.” United States v. Yost, 479 F.3d 815,

819 (11th Cir. 2007). Here, therefore, the

evidence must show that Moran intended, for

instance, to “entice[ ] ... any minor to engage

in ... any sexually explicit conduct for the

purpose of producing any visual depiction of

such conduct” *981 and that he “kn[ew] or

ha[d] reason to know that such visual depiction

w[ould] be transported or transmitted using

any means or facility of interstate or foreign

commerce.”

18 U.S.C. § 2251(a).

[1] Even viewing the evidence in the light

most favorable to the government, Moran

says, a jury couldn't conclude that he actually

wanted—intended—the bloggers to post child

pornography. 4 He says so for two related

reasons. First, he asserts that specific intent

requires that he “at least think [success] might

be plausible,” Br. of Appellant at 20, and

that his efforts to procure child pornography

via comments on mom-blogs were almost

surely destined to fail. Second, he insists that

he was obviously just “internet trolling”—

that is, harassing the bloggers for his own

entertainment—rather than actually trying to

produce child pornography. We find neither

argument persuasive.

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

[2] As to the first, Moran is simply mistaken.

A defendant's desire alone—wholly without

respect to his likelihood of success—can

establish his intent. The Supreme Court has

been perfectly clear about this:

[A] person who acts ...

intends a result of his

act ... under two quite

different circumstances: (1)

when he consciously desires

that result, whatever the

likelihood of that result

happening from his conduct;

and (2) when he knows

that the result is practically

certain to follow from his

conduct, whatever his desire

may be as to that result.

United States v. U.S. Gypsum Co., 438 U.S.

422, 445, 98 S.Ct. 2864, 57 L.Ed.2d 854

(1978) (citing W. LaFave & A. Scott, Criminal

Law 196 (1972)); accord, e.g.,

Tilton v.

Playboy Ent. Grp., 554 F.3d 1371, 1377

(11th Cir. 2009) (observing that “ ‘[p]urpose’

refers to the desire that a particular result

will occur”). Using the Supreme Court's

terminology, Moran could have “consciously

desired”—and thus intended—to produce child

pornography, however remote the “likelihood

of that result happening.”

[3] Moran's internet-troll theory suffers from

a similar flaw. On sufficiency-of-the-evidence

review, it isn't “enough for a defendant to put

forth a reasonable hypothesis of innocence”

because the sole issue is whether a jury

“reasonably could have found guilt beyond

a reasonable doubt.”

United States v.

Lebowitz, 676 F.3d 1000, 1013 (11th Cir.

2012) (citation omitted). And because evidence

of one purpose doesn't exclude another, the

government needn't prove that Moran “was

single-minded in his purpose.” Id. Moran

could have, for example, desired both outcomes

—that his messages would both (1) troll people

and (2) result in the production of child

pornography.

[4] The

fundamental

question

under

the deferential sufficiency-of-the-evidence

standard, then, is whether a jury could

reasonably conclude that Moran consciously

desired the bloggers whom he contacted

to post pornographic images. The jury had

ample evidence from which it could find that

Moran had the requisite intent: (1) Moran's

messages themselves; (2) his demonstrated

sexual interest in children; and (3) his false

exculpatory statements.

First, to state the obvious, evidence that

Moran asked for child pornography is

evidence that he desired to obtain—and

thus *982 to produce—child pornography.

To be sure, the unlikelihood that Moran's

mom-blog comments would actually net

child pornography—and their consistency

with a trolling theory—might weaken their

evidentiary value. But they are most assuredly

evidence. Two characteristics mark Moran's

messages, in particular, as probative. For

one, the sorts of pornographic images that

they requested matched Moran's particular

preferences. Two requests were for images

of children on the toilet, and Moran's stash

included a deleted folder called “Potty time”

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

and files named “Toilet_Girls.” And Moran's

collection of children's underwear included

some for kids the same age as the targeted

bloggers’—between three and six years old.

For another, Moran used what might be viewed

as persuasive tactics in his messages to increase

their likelihood of success: In one, he bragged

that his “niece loves to have her picture

taken” in a particular way, implying that the

blogger's children would as well; in another, he

emphasized that the blogger's children would

be “smiling”; and in yet another, he suggested

that a blogger buy her child a sex toy and sent

her a link to it.

In sum, the government presented sufficient

evidence for a jury to conclude beyond a

reasonable doubt that Moran consciously

wanted the bloggers to make and send him child

pornography—and that he therefore had the

intent necessary for the attempted-production

charge.

Second, Moran's sexual interest in children

speaks to his desire to obtain child

pornography. A jury could reasonably conclude

that an individual who has more than 1,000

images of child pornography and 24 pairs

of children's underwear—despite having no

children living with him—meant what he said

when he asked the bloggers to post or send

part, § 2251(a) makes it unlawful for any

person to “employ[ ], use[ ], persuade[ ],

induce[ ], entice[ ], or coerce[ ] any minor to

engage in ... any sexually explicit conduct for

the purpose of producing any visual depiction

of such conduct ... if such person knows or has

reason to know that such visual depiction will

be transported or transmitted using any means

or facility of interstate or foreign commerce.”

him pictures. Cf. United States v. Gillis, 938

F.3d 1181, 1190 (11th Cir. 2019) (noting that

possession of child pornography is evidence of

intent to have sex with a minor).

Third, Moran's false exculpatory statements

—dishonestly denying that he had ever posted

under the pseudonym “Emily lover”—are

substantive evidence of his guilt. See United

States v. Hughes, 840 F.3d 1368, 1385 (11th

Cir. 2016). Because Moran lied about not

being “Emily lover,” a jury could reasonably

doubt his lawyer's suggestion during closing

argument that his posts were just part of an

elaborate joke and evidence of nothing but

trolling.

Moran separately contends that there is

insufficient evidence to satisfy § 2251(a)’s

interstate-nexus element. Again, in relevant

18 U.S.C. § 2251(a). 5

[5] Plenty of evidence would allow a jury to

reasonably conclude that Moran knew that,

if produced—i.e., if posted on the internet

or sent to emilylover@aol.com—the child

pornography that he sought would travel in

interstate commerce. But Moran insists that to

know that “such visual depiction” will travel

interstate, *983 he must first know that there

will be a visual depiction. See Br. of Appellant

at 34–38. That is, he says, he must know that

his attempt to produce the photo will succeed.

The government contends, by contrast, that he

needed to know only that the depictions would

move in interstate commerce if produced.

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

The government's reading is the better one.

As relevant here, § 2251(a) contains three

interrelated clauses. The first makes clear

that a completed violation requires proof of

conduct: A defendant must “employ[ ], use[ ],

persuade[ ], induce[ ], entice[ ], or coerce[ ]

any minor to engage in ... any sexually

explicit conduct.” The second specifies that the

defendant must have a “purpose of producing

[a] visual depiction of such conduct.” And

the third requires the defendant to “know[ ]

or ha[ve] reason to know that such visual

depiction will be transported or transmitted

using any means or facility of interstate

or foreign commerce.” Ordinarily, when one

clause refers to an action, a second requires

that action to be for the purpose of producing

a thing, and the third refers to what someone

“knows” about “such” thing, the final clause is

understood to be implicitly conditioned on the

successful production of the thing. Consider the

following illustrative example:

John takes notes on his hikes

for the purpose of producing

a book about hiking, and he

knows that such a book will

sell millions of copies.

The average reader wouldn't take the last clause

to mean that John knows that he will write a

book—only that John knows what will happen

if he does write one.

More generally, proscribing an action (e.g.,

inducing certain conduct) rather than the

outcome of that action (here, producing

depictions) contemplates that the outcome

might not result. But when we ask what one

“knows” about the product of “such” outcome,

the question is ordinarily understood as taking

for granted the attempt's success—and the

outcome's realization. So, for instance:

Jane is sending applications

to out-of-state colleges. She

knows that she will move

away to attend such schools.

The latter sentence doesn't communicate

anything about Jane's knowledge of whether

her application for admission will be accepted

—only her knowledge about what will happen

if it is.

Moran's contrary reading—that a defendant

must know in advance that his scheme will

result in the production of child pornography—

is untenable. While he emphasizes the unusual

facts here—he says that he knew he would

fail—his argument sweeps much more broadly:

It would exculpate anyone who didn't know

that he would succeed. But can any criminal

ever really know ex ante that his scheme

will succeed? On Moran's understanding, if

a would-be child-pornography producer can

show that he harbored any uncertainty about

whether he might be arrested before he could

complete his crime—or even more so, if the

government couldn't prove that he had none—

an acquittal would be required. That's pretty

much every case. 6

*984

[6] We hold that in a prosecution

for producing child pornography under

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

2251(a), the government must prove that

the defendant knew that, if produced, the

pornography he sought would travel in

interstate commerce. Under this standard—

which applies to attempt prosecutions under

§ 2251(e) as well, see, e.g., United States

v. Lee, 603 F.3d 904, 913–14 (11th Cir. 2010)

(requiring the same mens rea for attempt as

for the completed crime)—the evidence against

Moran is clearly sufficient.

Finally, Moran contends that the evidence is

insufficient to satisfy attempted production's

actus reus element—namely, that he “took

actions that constituted a ‘substantial step

toward the commission of [the] crime.’ ”

Yost, 479 F.3d at 819 (quoting

United

States v. Root, 296 F.3d 1222, 1227–28 (11th

Cir. 2002)). The problem is that he didn't

challenge the sufficiency of the substantialstep element at trial when he moved for a

judgment of acquittal. Instead, he argued only

that the government hadn't presented sufficient

evidence of his intent. See Doc. 171 at 131–

32. Accordingly, we may review Moran's

sufficiency challenge to the substantial-step

element only for plain error. See

United

States v. Baston, 818 F.3d 651, 663–64 (11th

Cir. 2016); United States v. Dunlap, 279

F.3d 965, 966–67 (11th Cir. 2002).

[7] [8] To establish plain error, Moran must

show that “(1) an error occurred; (2) the error

was plain; (3) it affected his substantial rights;

and (4) it seriously affected the fairness of

the judicial proceedings.”

Ramirez-Flores, 743 F.3d 816, 822 (11th Cir.

2014). With respect to the second prong, in

particular, we have held that in the absence of

“explicit language of a statute or rule,” an error

“cannot be plain unless the issue” in question

has been “specifically and directly resolved

by ... on point precedent from the Supreme

Court or this Court.” United States v. Sanchez,

940 F.3d 526, 537 (11th Cir. 2019).

Moran hasn't met his burden of establishing

all four prongs of the plain-error standard.

See Greer v. United States, ––– U.S. ––––,

141 S. Ct. 2090, 2097, 210 L.Ed.2d 121

(2021). In an effort to satisfy the second prong,

Moran invokes just one relevant decision,

United States v. Lee, 29 F.4th 665 (11th Cir.

2022). But Lee is hardly “on point” within

the meaning of our plain-error precedents.

The portions of

Lee that Moran cites deal

with completed violations of § 2251(a), not

attempts. The critical language—“arrange for a

minor to engage in sexually explicit conduct,”

id. at 671—comes directly from United

States v. Ruggiero, 791 F.3d 1281, 1284–

85 (11th Cir. 2015), in which the defendant

pleaded guilty to a completed violation of

§ 2251(a) and an attempted violation of §

2422(b). Id. at 1284. Moreover, and in any

event, Moran hasn't even attempted to show

that he satisfies the last two prongs of the plainerror standard. Accordingly, he hasn't shown an

entitlement to plain-error relief.

*985 III

United States v.

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

For the foregoing reasons, we hold (1)

that a defendant's desire to produce child

pornography is sufficient to establish his

intent for purposes of proving an attempted

violation of

§ 2251(a), no matter how

unlikely his attempt is to succeed, and

that the evidence here was sufficient to

establish Moran's desire; (2) that § 2251(a)’s

interstate-commerce element does not require

a defendant to know ex ante that child

pornography will be produced, and that there

was sufficient evidence of Moran's knowledge

that the images, if produced, would travel in

interstate commerce; and (3) that Moran's

belated substantial-step argument fails plainerror review.

AFFIRMED.

All Citations

57 F.4th 977, 29 Fla. L. Weekly Fed. C 2147

Footnotes

To be clear, “Your Modern Family” isn't one of the sites that Moran targeted. To

protect the identities of the children at issue in this case, we won't identify the names

of those sites here.

See https://www.yourmodernfamily.com (last visited Nov. 4, 2022).

It is undisputed here that a defendant can violate

§ 2251(a) and

(e) even without

communicating directly with a minor. See United States v. Lee, 603 F.3d 904, 913

(11th Cir. 2010) (holding that those provisions apply to individuals who “attempt[ ]

to produce child pornography by communicating with only an adult intermediary”).

“We review the sufficiency of the evidence in a criminal trial de novo. We must: (1)

view the evidence in the light most favorable to the government; (2) resolve any

conflicts in favor of the government; (3) accept all reasonable inferences that tend

to support the government's case; and (4) assume that the jury made all credibility

choices in support of the verdict.” United States v. Lebowitz, 676 F.3d 1000, 1013

(11th Cir. 2012) (citation omitted).

Section 2251(a)’s interstate-nexus element contains three independently

sufficient clauses. See United States v. Smith, 459 F.3d 1276, 1289 (11th Cir.

2006). Here, however, the government relied only on the first.

To be clear, Moran's position wouldn't just insulate him from attempt liability; it would

exculpate anyone who actually induces a minor to engage in explicit conduct with

the hope of producing a depiction so long as the inducer wasn't certain that he

United States v. Moran, 57 F.4th 977 (2023)

29 Fla. L. Weekly Fed. C 2147

would succeed in producing a depiction. Consider an example. An individual equips

a room with cameras and connects them to a computer that randomly—i.e., without

any manual input—selects 50% of days to record. The individual then induces a

minor to engage in sexual conduct in the room, with the hope that the act produces

a visual depiction. If it was a recording day, he could argue, as Moran does here,

that he didn't “know” depictions would be produced such that they would travel in

interstate commerce. But as we have explained, § 2251(a)’s third clause requires

only knowledge that they will travel in interstate commerce if they are produced.

And the oddity of Moran's position doesn't end with

§ 2251(a).

Sections

2251(b)—which provides for punishment of parents who allow their children to be

used for child pornography—and 2251(d)—which provides for punishment of those

who solicit child pornography—contain similar language. See 18 U.S.C. § 2251(b)

(“such ... person knows or has reason to know that such visual depiction will be

transported”); id. § 2251(d)(2)(A) (“such person knows or has reason to know that

such notice or advertisement will be transported”).

End of Document

APPENDIX C

USCA11 Case: 21-12573

Document: 43-1

Date Filed: 03/20/2023

Page: 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court

For rules and forms visit

www.ca11.uscourts.gov

March 20, 2023

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 21-12573-AA

Case Style: USA v. Colum Moran, Jr.

District Court Docket No: 3:19-cr-00040-MMH-JBT-1

The enclosed order has been entered on petition(s) for rehearing.

See Rule 41, Federal Rules of Appellate Procedure, and Eleventh Circuit Rule 41-1 for

information regarding issuance and stay of mandate.

Clerk's Office Phone Numbers

General Information:

404-335-6100

New / Before Briefing Cases:

404-335-6135

Cases in Briefing / After Opinion: 404-335-6130

Cases Set for Oral Argument:

404-335-6141

Attorney Admissions: 404-335-6122

Capital Cases:

404-335-6200

CM/ECF Help Desk: 404-335-6125

REHG-1 Ltr Order Petition Rehearing

USCA11 Case: 21-12573

Document: 43-2

Date Filed: 03/20/2023

Page: 1 of 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 21-12573-AA

________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

COLUM PATRICK MORAN, JR.,

a.k.a. Emily lover,

a.k.a. emilylover@aol.com,

Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

ON PETITION(S) FOR REHEARING AND PETITION(S) FOR REHEARING EN BANC

BEFORE: JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc. (FRAP 35) The Petition for

Rehearing En Banc is also treated as a Petition for Rehearing before the panel and is DENIED.

(FRAP 35, IOP2)

ORD-42

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.