United States of America v. Lorenzo Elias Mendez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LORENZO ELIAS M ENDEZ,
Defendant-Appellant.
No. 20-30007
D.C. No.
1:18-cr-02037-SMJ-1
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Argued and Submitted December 6, 2021
Seattle, Washington
Filed June 7, 2022
Before: M. Margaret McKeown, Morgan Christen, and
Eric D. Miller, Circuit Judges.
Opinion by Judge McKeown

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2 UNITED STATES V. M ENDEZ
SUMMARY*
Criminal Law
The panel affirmed a conviction under 18 U.S.C. §
2251(a), which criminalizes the conduct of any person who
“employs, uses, persuades, induces, entices, or coerces” a
minor “to engage in . . . sexually explicit conduct for the
purpose of producing any visual depiction of such conduct.”
The defendant, who placed Wi-Fi cameras in the eye of
a stuffed animal and surreptitiously filmed a teenage girl
masturbating, argued that the evidence was insufficient to
support his conviction because he taped the minor
surreptitiously and did not cause her “to engage in” sexually
explicit conduct. The appeal centered on whether the
defendant “used” his minor victim to engage in sexually
explicit conduct by taping her in her bedroom, without her
knowledge or participation.
The panel did not need to resolve whether the standard
of review is de novo or plain error because there was no
error, plain or otherwise. Applying the broad interpretation
of § 2251(a) adopted in United States v. Laursen, 847 F.3d
1026 (9th Cir. 2017), the panel wrote that the active conduct
that is required is that of the perpetrator, not the target of the
visual depiction; that the defendant’s placement of hidden
cameras in a teenage girl’s bedroom is active conduct in the
heartland of a statute criminalizing the production of child
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. M ENDEZ 3
pornography; and that the “use” element is satisfied
whenever a minor is the subject of the photography.
The panel concluded that the evidence was therefore
sufficient under 18 U.S.C. § 2251(a) and (e) to support the
conviction for attempting to “use” a minor “to engage in . . .
sexually explicit conduct” for the purpose of producing a
visual depiction of that conduct.
The panel addressed the defendant’s other challenges to
his conviction and sentence in a concurrently filed
memorandum disposition.
COUNSEL
Gilbert H. Levy (argued), Law Office of Gilbert H. Levy,
Seattle, Washington, for Defendant-Appellant.
Alison L. Gregoire (argued), Assistant United States
Attorney; Joseph H. Harrington, Acting United States
Attorney; United States Attorney’s Office, Spokane,
Washington; for Plaintiff-Appellee.
OPINION
McKEOWN, Circuit Judge:
Lorenzo Mendez placed Wi-Fi cameras in the eye of a
stuffed animal and surreptitiously filmed a teenage girl
masturbating. Prosecutors charged Mendez under a statute
that criminalizes the conduct of any person who “employs,
uses, persuades, induces, entices, or coerces” a minor “to
engage in . . . sexually explicit conduct for the purpose of

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4 UNITED STATES V. M ENDEZ
producing any visual depiction of such conduct.” 18 U.S.C.
§ 2251(a). Based on a careful reading of our precedent,
along with the weight of authority from six of our sister
circuits, we conclude that Mendez’s conduct falls within the
ambit of § 2251(a).
BACKGROUND
While living with his girlfriend and her fourteen-year-
old daughter, Mendez hid cameras in the eye of a stuffed
animal, then placed the stuffed animal in the girl’s bedroom.
Video footage recovered by police officers spanned six
months in 2018 and showed the girl in various states of
undress. Several videos showed her masturbating. The
victim testified that when she realized that the stuffed animal
had a camera in it, she threw it into the backyard because it
made her feel “disgusted.” While searching Mendez’s home
and car, police found several Wi-Fi enabled cameras,
“wiggle eyes” similar to those in the stuffed animal, batteries
for the cameras, and instructions for connecting the cameras
to a Wi-Fi network.
Mendez was convicted by a jury on count one of the
indictment, which charged him with attempting to violate
Subsections (a) and (e) of 18 U.S.C. § 2251:
(a) Any person who employs, uses,
persuades, induces, entices, or coerces any
minor to engage in . . . sexually explicit
conduct for the purpose of producing any
visual depiction of such conduct or for the
purpose of transmitting a live visual
depiction of such conduct, shall be punished
as provided under subsection (e), . . . .

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UNITED STATES V. M ENDEZ 5
(e) Any individual who violates, or attempts
or conspires to violate, this section shall be
fined under this title and imprisoned not less
than 15 years nor more than 30 years, . . . .
Mendez appeals, arguing that the evidence was
insufficient to support his conviction because he taped the
minor surreptitiously and did not cause her “to engage in”
explicit sexual conduct.1 The parties dispute whether the
standard of review is de novo or plain error, but we need not
resolve the dispute because there was no error, plain or
otherwise, and therefore Mendez cannot prevail either way.
The statute encompasses Mendez’s surreptitious filming “to
produce a visual depiction” of the minor engaged in
“sexually explicit conduct.”
ANALYSIS
The key question is whether Mendez’s conduct falls
within the statutory language that makes it a federal crime to
employ, use, persuade, induce, entice, or coerce a minor “to
engage in . . . sexually explicit conduct for the purpose of
producing any visual depiction of such conduct.” 18 U.S.C.
§ 2251(a). The statute also has an interstate or foreign
commerce requirement that may be satisfied either by
creating the images using materials transported in or
affecting interstate commerce or by knowing (or having
reason to know) that the images will be transported or
transmitted in interstate commerce. Id. § 2251(a). By
definition, “sexually explicit conduct” includes
“masturbation” and “lascivious exhibition” of intimate body
1 Mendez raises several other challenges to his conviction and
sentence that are addressed in a memorandum disposition filed
concurrently with this opinion.

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6 UNITED STATES V. M ENDEZ
parts. Id. § 2256(2)(A)(iii), (v). There is no doubt that the
visual depictions of the minor fall within this definition. Nor
is there any serious defense to the charge that Mendez
produced the images in an effort to transmit them in
interstate commerce.2 The appeal centers on whether
Mendez “used” his minor victim to engage in sexually
explicit conduct by taping her in her bedroom, without her
knowledge or participation. The government does not
suggest that Mendez employed, persuaded, induced, enticed,
or coerced his victim—leaving only the question of “use.”
We have long understood § 2251(a) to criminalize “the
inducement of children into sexual conduct for the purpose
of creating visual depictions of that conduct.” United States
v. Smith, 795 F.2d 841, 845 (9th Cir. 1986). But the words
of the statute are broader than inducing, persuading,
enticing, or coercing. Congress also included “employs” or
“uses.” Those terms must be given effect, and their meaning
is not limited to luring.
We recently addressed the meaning of “use” in United
States v. Laursen, 847 F.3d 1026, 1032 (9th Cir. 2017). We
explained that the dictionary definition of “use” is “to put
into action or service,” “to avail oneself of,” or to “employ.”
Id. (citation omitted). Emphasizing the similarities between
“use” and “employ,” we reasoned that although the minor
took the nude, pornographic “selfies,” Laursen “used or
employed” his victim “to produce sexually explicit images”
by telling her that “the two ‘looked good together’ and that
2 The evidence showed that Mendez possessed a Chinese-made
camera purchased over the internet and shipped from another state. This
evidence was sufficient to satisfy the alternative requirement that the
“visual depiction was produced or transmitted using materials that have
been mailed, shipped, or transported in or affecting interstate or foreign
commerce by any means, including by computer.” § 2251(a).

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UNITED STATES V. M ENDEZ 7
‘he wanted to take pictures.’” Id. (emphasis removed). We
held that “active conduct alone suffices to sustain a
conviction under § 2251(a).” Id. at 1033. But the active
conduct that is required is that of the perpetrator, not the
target of the visual depiction.
Here, as in Laursen, Mendez did not necessarily induce
the minor’s sexually explicit conduct. But he did place
hidden cameras in a teenage girl’s bedroom—active conduct
in the heartland of a statute criminalizing the production of
child pornography.
Laursen drew upon and expressly approved the “rulings
of our sister circuits, which have broadly interpreted the
‘use’ element of the statute.” Id. As Laursen explained, the
Second Circuit has long held that the “use” element of
§ 2251(a) is satisfied “whenever a minor is the subject of the
photography.” Id. (citing United States v. Sirois, 87 F.3d 34,
42 (2d Cir. 1996)). The Sixth and Eighth Circuits have
followed suit, Laursen noted, because both circuits agreed
“that this element is ‘fully satisfied for the purposes of the
child pornography statute if a child is photographed in order
to create pornography.’” Id. (quoting United States v.
Wright, 774 F.3d 1085, 1090 (6th Cir. 2014)); accord United
States v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007). Laursen
also approvingly noted the First Circuit’s decision in Ortiz-
Graulau, which similarly held that “the statutory definition
of ‘use’ is met when a defendant makes a minor the subject
of a visual depiction by intentionally photographing the
minor engaging in sexually explicit conduct.” Id. (quoting
Ortiz-Graulau v. United States, 756 F.3d 12, 18–19 (1st Cir.
2014)). Although not cited in Laursen, we note that the
Fourth Circuit has also seemingly interpreted “use”
consistent with these cases. See United States v. Engle,
676 F.3d 405, 418 n.9 (4th Cir. 2012) (“A defendant ‘uses’

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8 UNITED STATES V. M ENDEZ
a minor for purposes of § 2251(a) if he photographs the
minor engaging in sexually explicit conduct to create a
visual depiction of such conduct.” (quoting United States v.
McCloud, 590 F.3d 560, 566 (8th Cir. 2009)).
Following Laursen, the Tenth Circuit affirmed the
§ 2251(a) conviction of a defendant who secretly videotaped
his minor victim while she showered and used the toilet.
United States v. Theis, 853 F.3d 1178, 1180–82 (10th Cir.
2017). The Tenth Circuit noted that “nearly every circuit to
address this issue has recognized that the ‘uses’ element ‘is
met when a defendant intentionally films or photographs a
minor’s sexually explicit conduct.’” Id. at 1182 (quoting
Ortiz-Graulau, 756 F.3d at 18). The court emphasized the
broad meaning of the word “use” and concluded that
§ 2251(a) does not require “a causal relationship between a
defendant’s actions and the minor’s sexually explicit
conduct.” Id.
More recently, the D.C. Circuit took up the task of
interpreting § 2251(a) and (e). In United States v. Hillie, the
court considered Hillie’s conduct in secretly producing two
videos in which the minor’s genitals and pubic area were
visible. 14 F.4th 677 (D.C. Cir. 2021). Concluding that the
bedroom videos depicted the minor “engaged in ordinary
grooming activities, some dancing, and nothing more,” the
D.C. Circuit rejected the government’s claim that the minor
was engaged in “sexually explicit conduct” and vacated the
conviction. Id. at 688–89. The opinion focused extensively
on the definition of “sexually explicit conduct,” an issue we
do not need to confront. Nonetheless, almost anticipating
the facts in our case, the court explained:
If a defendant, knowing that a minor
masturbates in her bedroom, surreptitiously
hides a video camera in the bedroom and

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UNITED STATES V. M ENDEZ 9
films her doing so, then he uses or employs,
i.e., avails himself of, a minor to engage in
sexually explicit conduct (with herself) with
the intent that she engage in sexually explicit
conduct for the purpose of producing a visual
depiction of such conduct.
Id. at 693–94. This interpretation is consistent with that of
the cases cited with approval in Laursen.
We take note that the circumstances of the minor-adult
relationship in these other cases did not mirror the situation
in Laursen. Nor do the facts in Laursen map onto the
surreptitious photographing that took place here. Thus,
writing on a clean slate, some of us might interpret § 2251(a)
differently by, for example, concluding that the statutory
language requires the perpetrator to cause the minor to “to
engage in sexually explicit conduct.” We do not have that
leeway, however, because of the broad interpretation of
§ 2251(a) adopted in Laursen. See Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc) (“As a general
rule, the principle of stare decisis directs us to adhere not
only to the holdings of our prior cases, but also to their
explications of the governing rules of law.” (quoting Cnty.
of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S.
573, 668 (1989) (Kennedy, J., concurring in part and
dissenting in part))).
Nor is our view changed by a recent Seventh Circuit
decision that confronted a completely different question of
interpretation—namely, whether the sexually explicit
conduct needs to be that of the minor. United States v.
Howard, 968 F.3d 717, 721 (7th Cir. 2020). The court’s
answer was yes. There, the offender masturbated over a
sleeping child. Id. at 719. The Seventh Circuit explained

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10 UNITED STATES V. M ENDEZ
that the “six verbs that appear in the statute—‘employs, uses,
persuades, induces, entices, or coerces’—all describe means
by which an exploiter might accomplish the end of having a
child engage in sexually explicit conduct in order to capture
a visual image of it.” Id. at 721–22. Noting that Howard
was an “odd” case, the court held that the government must
prove that the offender took one of the listed actions to
“cause the minor to engage in sexually explicit conduct for
the purpose of creating a visual image of that conduct.” Id.
at 721. But our precedent forecloses this interpretation. As
explained, we read the statute as focusing on the conduct of
the perpetrator—not the minor—and our decision in Laursen
holds that the “use” element is satisfied “whenever a minor
is the subject of the photography.” 847 F.3d at 1033 (citation
omitted).
The evidence was sufficient under § 2251(a) and (e) to
support Mendez’s conviction for attempting to “use” a minor
“to engage in . . . sexually explicit conduct” for the purpose
of producing a visual depiction of that conduct. § 2251(a).
AFFIRMED.

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