United States of America v. Michael Porter

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2184
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL PORTER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cr-00837-1 — Sara L. Ellis, Judge.
____________________
A RGUED M AY 14, 2024 — DECIDED A UGUST 29, 2024
____________________
Before S YKES , Chief Judge, and PRYOR and K OLAR , Circuit
Judges.
K OLAR , Circuit Judge. This case is about the production of
child pornography. While statutory interpretation does not
usually require a prefatory disclaimer, here, it does. Deter-
mining whether Defendant-Appellant Michael Porter’s con-
duct was prohibited by the relevant statute requires us to dis-
cuss the contents of numerous videos of disturbing sexual
conduct that violates the criminal code.

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2 No. 23-2184
After an investigation by law enforcement, Michael Porter
was indicted on ten counts of receipt, possession, and produc-
tion of child pornography. Porter eventually pleaded guilty
to three of those counts. His guilty plea as to the production
charge, however, was a conditional one. Porter reserved the
right to challenge on appeal whether the conduct he admitted
to falls within the ambit of 18 U.S.C. § 2251(a). Specifically, he
argues on appeal that he did not “use” the minors or record
them engaged in “sexually explicit conduct” under the stat-
ute. He further argues that the district court incorrectly calcu-
lated his offense level at sentencing. We disagree entirely and
find Porter’s conduct was within the scope of the statute and
his arguments squarely foreclosed by precedent. We affirm.
I. Background
During an investigation into a suspected child pornogra-
phy trafficker, law enforcement identified Michael Porter as
someone who had purchased child pornography off the inter-
net. Law enforcement executed search warrants and recov-
ered voluminous amounts of child pornography in Porter’s
home.
Porter possessed more than 90,000 videos and images of
child pornography. Among the materials seized were numer-
ous videos depicting prepubescent boys showering in gym
locker rooms. The videos were created over the course of
more than a decade. But these videos were not purchased by
Porter off the internet—they were created by him.
A grand jury returned a superseding indictment charging
Porter with seven counts of production of child pornography
in violation of 18 U.S.C. § 2251(a) and (e); two counts of receipt
of child pornography in violation of 18 U.S.C. §

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No. 23-2184 3
2252A(a)(2)(A); and one count of possession of child pornog-
raphy in violation of 18 U.S.C. § 2252A(a)(5)(B).
Porter moved to dismiss the seven production charges,
and the district court denied the motion. Porter then pleaded
guilty to counts 2, 8 and 10 and stipulated to six additional
production of child pornography offenses pursuant to a plea
agreement. The plea was a conditional one, however, and Por-
ter reserved his right to appeal his guilty plea as to count 2
(the production count) based on the same arguments he had
raised in his motion to dismiss.
The plea agreement laid out the factual basis for Porter’s
conviction as follows. In connection with count 2, Porter ad-
mitted to placing a hidden camera in a gym locker room in
September 2008. The camera captured him in the showers
with a prepubescent boy. Throughout the video, Porter
pulled the boy’s swim trunks down several times, exposing
the child’s groin area and penis as Porter washed the boy with
soap. After exposing and touching the child, Porter proceeded
to dry him off with a towel, and while doing that, Porter
pulled the child toward his groin and pressed the child
against his visibly erect penis.
In addition to count 2,1 Porter admitted to six additional
stipulated offenses consisting of Porter recording himself and
at least eight prepubescent boys in gym locker rooms in six
different instances between 2006 and 2020. The additional
stipulated offenses were as follows:
1 Because Porter does not challenge his guilty plea as to count 8 (re-
ceipt of child pornography) or count 10 (possession of child pornography)
we do not summarize or discuss them further except as relevant to the
sentencing arguments Porter raises.

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4 No. 23-2184
• Stipulated offense 1. This video depicts a minor in
the shower who licks the palm of his hand and then
lowers his swim trunks to reveal his erect penis. He
later places a balloon on his penis, removes it, and
then puts the balloon in his mouth as the camera
zooms in on the boy’s penis.
• Stipulated offense 2. This video depicts Porter tell-
ing two showering minors that because of the chlo-
rine in the pool they need to remove their swim
trunks. One of them removes his swim trunks while
the other walks off camera, but then returns, is told
by Porter to remove his swim trunks, and does, ex-
posing his genitals.
• Stipulated offense 3. This video depicts a naked
minor in the shower touching his erect penis.
• Stipulated offense 4. This video shows a naked mi-
nor masturbating in the shower.
• Stipulated offense 5. This video shows two minors
showering with their swim trunks pulled down
and penises exposed. Porter adjusts the camera at
one point so that it shows one of the minors pulling
up his swim trunks while Porter is in the frame and
pulling his own swim trunks down.
• Stipulated offense 6. This video shows a minor in
a shower stall from above, with Porter in the adja-
cent shower stall. The minor removes his swim
trunks, exposing and then touching his erect penis.
Porter adjusts the camera to depict him and the mi-
nor in the same frame. Porter then lowers his swim
trunks and masturbates. While he masturbates,

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No. 23-2184 5
Porter turns toward the shower divider to face the
boy who is on the other side of the divider.
At sentencing, the district court calculated Porter’s total
offense level at 43. This calculation included, among others
which Porter is not challenging, several enhancements which
together added 15 levels to Porter’s offense level. Five levels
were added on the receipt and possession charges (counts 8
and 10, which were grouped) because Porter engaged in a pat-
tern of activity involving the sexual abuse or exploitation of a
minor. U.S.S.G. § 2G2.2(b)(5). Another five levels were added
pursuant to Guideline § 3D1.4 based on the six production of
child pornography offenses stipulated to under the plea
agreement; and a final five levels were added pursuant to
Guideline § 4B1.5(b)(1) because the production charge (count
2) is a “covered sex crime” and Porter “engaged in a pattern
of activity involving prohibited sexual conduct.”
The district court overruled Porter’s objections to the en-
hancements. This resulted in a guidelines-recommended sen-
tence of life imprisonment. The government asked for 30
years, the statutory maximum, while Porter asked for the
mandatory minimum of 15 years’ imprisonment. The district
court landed in the middle and sentenced Porter to a below-
guidelines prison sentence of 22 years’ imprisonment, fol-
lowed by 15 years of supervised release.
II. Discussion
Title 18 of the U.S. Code, Section 2251(a), governs the
crime commonly known as production of child pornography
and applies to ”[a]ny person who employs, uses, persuades,
induces, entices, or coerces any minor to engage in, … with
the intent that such minor engage in, any sexually explicit

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6 No. 23-2184
conduct for the purposes of producing any visual depiction
of such conduct ….”
“Sexually explicit conduct” is defined by statute as “actual
or simulated … sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between per-
sons of the same or opposite sex; bestiality; masturbation; sa-
distic or masochistic abuse; or lascivious exhibition of the
anus, genitals, or pubic area of any person.” 18 U.S.C.
§ 2256(2)(A). The word “use” is not defined in the statute.
Porter argues on appeal that most of the conduct he ad-
mitted in his plea agreement did not constitute “use” of any
minor within the meaning of 18 U.S.C. § 2251(a), and further
argues that even if he did “use” the minors, the nudity in the
images does not amount to a “lascivious exhibition of the
anus, genitals or pubic area” within the meaning of “sexually
explicit conduct.” In his briefing and at oral argument, Porter
posits that instead, the videos are passive in nature, depicting
“mere nudity” and “bathing activities.” Porter thus analo-
gizes himself to nothing more than a “Peeping Tom.”
This is not the first time this court has had occasion to con-
strue the statutory language of § 2251(a), including the term
“use.” And all of Porter’s arguments are foreclosed by settled
case law. Indeed, Porter’s counsel conceded at oral argument
that he was asking us to overturn our precedent. We decline
that invitation.
In United States v. Howard, we said that “[t]he most natural
and contextual reading [of “use”] requires the government to
prove that the offender took one of the listed actions to cause
the minor to engage in sexually explicit conduct…” United
States v. Howard, 968 F.3d 717, 721 (7th Cir. 2020) (emphasis in

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No. 23-2184 7
original). Accordingly, we held that where the images in ques-
tion depict (as they did in Howard) an adult defendant mas-
turbating in the same frame as a fully clothed, sleeping
child—and nothing more—a defendant does not “use” a mi-
nor within the meaning of 28 U.S.C. § 2251(a). We have reaf-
firmed that holding since. See United States v. Sprenger, 14 F4th
785, 791 (7th Cir. 2021) (vacating conviction of defendant who
“took photographs of Victim A while she was sleeping and in
them, he photographed his naked, erect penis next to Victim
A’s face, and his own face, with tongue sticking out, next to
Victim A’s clothed groin” because the defendant did not
“use” Victim A “to engage in sexually explicit conduct”).
Porter analogizes his conduct to that of the defendants in
Howard and Sprenger, but the conduct Porter admitted to in
his plea agreement is not remotely similar to the conduct at
issue in those cases. In count 2 of his plea, Porter admitted to
secretly recording a video of himself physically touching and
washing two naked prepubescent boys and removing their
swim trunks. That alone distinguishes Porter’s conduct from
the defendants in Howard and Sprenger. What’s more, at one
point during the video, Porter pulled the child towards him
and held the boy against Porter’s erect penis. Indeed, all of the
videos (both the one at issue in count 2 and the six stipulated
offenses) depict naked minors, with their genitals and pubic
areas exposed. There is thus a clear and meaningful distinc-
tion between Howard, Sprenger and this case—namely that
Porter touched and physically undressed minors in several
videos, instructed them to take their clothes off in others, or
otherwise filmed the minors while they were naked. This con-
stitutes “use” within the ordinary meaning of the word, as
consistent with our case law.

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8 No. 23-2184
Porter next argues that the videos still do not fit within §
2251(a) because they constitute “mere nudity” rather than the
statutorily prohibited “sexually explicit activity” and in par-
ticular “a lascivious exhibition” of the minors’ genitals or pu-
bic areas. Porter’s arguments fail again because they are
firmly foreclosed by our precedent. We have previously said
that “more than nudity is required to make an image lascivi-
ous.” United States v. Greisbach, 540 F.3d 654, 656 (7th Cir.
2008). Rather, “a lascivious display is one that calls attention
to the genitals or pubic area for the purpose of eliciting a sexual
response in the viewer.” United States v. Russell, 662 F.3d 831, 843
(7th Cir. 2011) (emphasis added). In contrast, “mere nudity”
has some other ascertainably distinct purpose (for example, a
mother’s photograph of her infant daughter in the bath).
In United States v. Miller, 829 F.3d 519 (7th Cir. 2016), we
further elucidated how to determine whether an image
crosses the line into lasciviousness. Much like Porter does
here, the defendant in Miller challenged his conviction under
§ 2251(a) on the grounds that the videos he made of minors
showering and using the toilet in his basement bathroom
(which he secretly recorded after cutting a hole in the drywall
between the bathroom and the basement utility room) were
not “lascivious” and instead constituted “mere nudity.” Id. at
523. In resolving this challenge, we clarified that determining
lasciviousness requires consideration of multiple factors and
must be decided individually in “each case, applying com-
mon sense.” Id. at 525 (quoting Russell, 662 F.3d at 843). First,
“the focus of the image must be on the genitals or the image
must be otherwise sexually suggestive.” Id. at 524–25 (quoting
Griesbach, 540 F.3d at 656). But in determining “the focus, …
[t]here is no requirement in the statute that the creator zoom
in on the pubic area. Nor is there a requirement that the pubic

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No. 23-2184 9
area be the sole focus on the depiction.” Id. at 525. Second,
while the content of the images themselves must remain the
“primary focus” in determining lasciviousness, “[s]ubjective
intent—particularly of the creator—is a relevant, and quite
probative consideration.” Miller, 829 F.3d at 526 (emphasis in
original).
And in Miller there was ample evidence of the defendant’s
intent. There was the location of the recordings (an otherwise
private shower or bathroom, which the court observed to be
“frequent hosts to fantasy sexual encounters as portrayed on
television and in film”), as well as the defendant’s drilling of
a hole in the drywall and efforts to conceal the recording. Id.
at 525–26. Additionally, the defendant encouraged underage
girls to use the downstairs bathroom in his home. Id. at 526.
Likewise, the defendant had recorded adult women using the
same bathroom and then recorded himself masturbating to
his homemade pornography. Id. This all went to show lasciv-
iousness.
Here, each of the videos captured minors removing (or
having already removed) their swim trunks to expose their
genitals. The videos were also made using a concealed box
camera hidden in a locker room directed at the showers. In
multiple videos, Porter adjusts the cameras and zooms in on
the minors’ genitals. Furthermore, in the videos at issue in
count 2 and stipulated offense 6, Porter appears in the videos,
in one pressing a minor against his erect penis and in the other
masturbating simultaneously with a minor in the adjacent
shower stall. This is all very clear evidence that Porter in-
tended for the videos to elicit a sexual response in the
viewer—he even captured his sexual response on film in two
of them.

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10 No. 23-2184
Despite all of this, Porter still presses his argument and
asks us to overrule Miller and adopt in its place the reasoning
of United States v. Hillie, 39 F.4th 674 (D.C. Cir. 2022). In that
case, the D.C. Circuit looked to the Supreme Court’s First
Amendment and obscenity jurisprudence and drew from it a
more demanding definition of “lascivious exhibition” that re-
quires a minor to “display[] his or her anus, genitalia or pubic
area in a manner connoting that the minor, or any person or
thing appear[ing] with the minor in the image, exhibit[] sex-
ual desire or an inclination to engage in any type of sexual
activity.” Id. at 685. But we have recently considered Hillie and
rejected its holding in favor of our “well-established approach
to the construction of the term ‘lascivious exhibition’” as laid
out in cases like Miller, Russell, and Griesbach. United States v.
Donoho, 76 F.4th 588, 597 (7th Cir. 2023).2
2 As noted by the dissent in Hillie, see 39 F.4th at 700 (Henderson, J.),
the D.C. Circuit’s holding that the “lasciviousness be exhibited by the mi-
nor” stands contrary not only to our precedent but that of numerous other
circuits, including the Ninth, Third, Eighth, Tenth, Eleventh, and Fifth Cir-
cuits. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) (“The
picture of a child ‘engaged in sexually explicit conduct’ within the mean-
ing of 18 U.S.C. §§ 2251 … is a picture of a child's sex organs displayed
lasciviously—that is, so presented by the photographer as to arouse or sat-
isfy the sexual cravings of a voyeur.”); United States v. Knox, 32 F.3d 733,
745 (3d Cir. 1994) (“[A]s used in the child pornography statute, the ordi-
nary meaning of the phrase ‘lascivious exhibition’ means a depiction
which displays or brings forth to view in order to attract notice to the gen-
itals or pubic area of children, in order to excite lustfulness or sexual stim-
ulation in the viewer.”); United States v. Horn, 187 F.3d 781, 790 (8th Cir.
1999) (“The ‘lascivious exhibition’ is not the work of the child, whose in-
nocence is not in question, but of the producer or editor of the video.”);
United States v. Holmes, 814 F.3d 1246, 1252 (11th Cir. 2016) (same); United

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No. 23-2184 11
What’s more, it is difficult to see how Porter could prevail
even under the Hillie standard considering his own appear-
ance in the videos, as well as the fact that in many of the vid-
eos, the minors are shown masturbating or otherwise touch-
ing their genitals. In other words, most of the videos here
show an “actual depiction of the sex act rather than merely
the suggestion that it is occurring.” Hillie, 39 F.4th at 685 (ci-
tation omitted).
Lastly, we briefly address the specific sentencing enhance-
ment arguments that Porter raises. Our review of the district
court’s interpretation and application of the guidelines is re-
viewed de novo, but any factual findings made in connection
with sentencing are reviewed for clear error. United States v.
States, 72 F.4th 778, 791 (7th Cir. 2023); United States v. Red-
mond, 667 F.3d 863, 874–75 (7th Cir. 2012).
Our conclusion that the conduct Porter admitted to in his
plea agreement easily falls within the scope of § 2251(a) re-
solves almost all of Porter’s sentencing arguments which are
predicated on the idea that his conduct fell outside the statute.
First, the district court correctly calculated Porter as having
“10 units” under U.S.S.G. § 3D1.4 (two units for the three
counts he pleaded guilty to and eight for the six stipulated
offenses). Under U.S.S.G. § 3D1.4, anything more than five
units results in an added five levels. Second, because the con-
duct in count 2 and at least two (if not all) of the six stipulated
offenses each satisfy the elements of § 2251(a), the district
States v. Wells, 843 F.3d 1251, 1254 (10th Cir. 2016) (“We explicitly rejected
the notion that § 2251(a) places the onus of lust on the child being photo-
graphed.”) (cleaned up); see also United States v. McCall, 833 F.3d 560, 565
n.3 (5th Cir. 2016) (“[I]t is the depiction—not the minor—that must bring
forth the genitals or pubic area to excite or stimulate.”) (italics in original).

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12 No. 23-2184
court was correct to find that Porter engaged in a “pattern of
activity involving the sexual abuse or exploitation of a mi-
nor.”3 U.S.S.G. § 2G2.2(b)(5). Therefore, the district court ap-
propriately applied a five-level enhancement under the
guidelines. Third, Porter received a final five-level enhance-
ment because he pleaded guilty to a “covered sex crime” and
“engaged in a pattern of activity involving prohibited sexual
conduct.” U.S.S.G. § 4B1.5. While Porter concedes that count
2 qualifies as a “covered sex crime,” he claims the six stipu-
lated offenses do not because in those videos he is not shown
touching or otherwise making physical contact with any of his
victims. But there is no such requirement and “the production
of child pornography” is explicitly included as a “covered sex
crime.” U.S.S.G. § 4B1.5, cmt. 4(A); see also United States v. Hall,
780 F. App’x 710, 713 (11th Cir. 2019) (“Production of child
pornography under 18 U.S.C. § 2251(a) and (e) constitutes a
covered sex crime. The production of child pornography is
also considered “prohibited sexual conduct.”). The district
court accurately calculated Porter’s offense level.
III. Conclusion
For the reasons stated above, we AFFIRM.
3 The provision’s commentary defines “sexual abuse or exploitation
of a minor” to include conduct described in § 2251(a). U.S.S.G. § 2G2.2,
app. n.1. As already noted above, the videos in question meet this defini-
tion.

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