United States of America v. Tyrone E. Johnson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 30, 2025
Decided October 15, 2025
Before
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 24-2241
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYRONE E. JOHNSON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:20-cr-00127-PPS-JEM-1
Philip P. Simon,
Judge.
ORDER
A jury convicted Tyrone Johnson of producing child pornography and of
committing a felony involving a minor while required to register as a sex offender.
See 18 U.S.C. §§ 2251(a), 2260A. On appeal, Johnson argues that the district court erred
by refusing to give certain jury instructions relating to production of child
pornography. Because the court properly instructed the jury, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-2241 Page 2
I
In June 2020, police arrested Johnson—who was required to register as a sex
offender but had not done so since 2018—for unrelated charges while he was driving in
Illinois. While in jail, he asked a fellow detainee who was being released on bond to
gather his belongings and bring them—except for his cellphone—to his girlfriend. The
detainee did as Johnson asked, and gave Johnson’s personal effects to his girlfriend, but
gave the cell phone to a different person. That person then discovered videos on the
phone of Johnson having sex with a minor. Eventually, copies of the videos made their
way to police, who obtained the phone and recovered thumbnails—small still images of
videos—showing some of the content of the videos. A stamp on the phone noted that it
had been manufactured in Vietnam.
A grand jury in the Northern District of Indiana indicted Johnson for production
of child pornography in violation of 18 U.S.C. § 2251(a) and commission of a felony
involving a minor while required to register as a sex offender in violation of 18 U.S.C.
§ 2260A. Section 2251(a) prohibits any person from employing, using, persuading,
inducing, enticing, or coercing “any minor to engage in … any sexually explicit conduct
for the purpose of producing any visual depiction of such conduct.” § 2251(a), (e). But
the government must also prove either (1) the defendant knew, or should have known,
that the visual depiction would be transported in interstate commerce; (2) the “visual
depiction was produced or transmitted using materials that have been mailed, shipped,
or transported in or affecting interstate or foreign commerce”; or (3) the visual depiction
was actually transported “using any means or facility of interstate or foreign commerce
or in or affecting interstate or foreign commerce.” § 2251(a).
At trial, the government sought to prove the second and third, but not the first,
means of establishing the commerce element. To do so, it introduced evidence that (1)
Johnson made the videos on his phone, which was produced in Vietnam and entered
his possession through interstate commerce, and (2) Johnson carried the videos on his
phone when he crossed from Indiana into Illinois.
Johnson did not dispute that he produced child pornography. Instead, he argued
that the government was required, but failed, to establish that he intended to distribute
the videos. Counsel admitted that a legal challenge asserting that the statute exceeded
congressional authority under the Commerce Clause would fail. See U.S. Const. art. I,

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No. 24-2241 Page 3
§ 8. Still, he insisted that, as an element of the crime, the government must prove that
Johnson’s own conduct affected interstate commerce. Johnson proposed five jury
instructions, all concerning whether Johnson’s actions implicated interstate commerce
to the degree required by the Commerce Clause. The court rejected Johnson’s
instructions, observing that they contained “an academic discussion of the reasons why
the commerce clause expands so broadly,” but allowed counsel to present his
arguments to the jury.
The court instructed the jury that it must find beyond a reasonable doubt that the
individual depicted in the video was a minor, that Johnson induced her to engage in
sexually explicit conduct for the purpose of creating a visual depiction, and that either
Johnson produced the videos using materials that were “mailed, shipped or transported
in and affecting interstate and foreign commerce, or the visual depiction was actually
transported across state lines.” The court did not instruct the jury that they must find
that Johnson’s actions affected interstate commerce. The jury convicted Johnson of both
counts.
II
On appeal, Johnson argues that the district court erred by rejecting his proposed
jury instructions.1 He contends that his theory of defense was that the government was
required to prove his personal actions affected interstate commerce, so the jury should
have been instructed as he requested. This court reviews de novo a district court’s
denial of proposed jury instructions. United States v. Morales, 145 F.4th 792, 799 (7th Cir.
2025).
Johnson’s challenge faces an initial hurdle—the district court instructed the jury
consistently with the statute’s plain language, see § 2251(a), and the Pattern Criminal
Jury Instructions for the Seventh Circuit, which we presume accurately state the law.
See, e.g., United States v. Farias, 147 F.4th 764, 771 (7th Cir. 2025); United States v. Foy, 50
F.4th 616, 623 (7th Cir. 2022). Johnson does not contend that the instructions the court
gave were in error, but he insists that the jury should have also evaluated whether his
actions involved interstate commerce.
1 Johnson does not directly challenge his conviction under § 2260A, but if his
challenge to the § 2251(a) conviction is successful, there would be no predicate offense
for purposes of § 2260A.

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No. 24-2241 Page 4
Juries must decide the factual components of the essential elements of a criminal
offense, United States v. Gaudin, 515 U.S. 506, 511 (1995), and must be instructed on all
elements of the offense that the government must prove beyond a reasonable doubt.
United States v. Edwards, 869 F.3d 490, 499 (7th Cir. 2017) (citing Neder v. United States,
527 U.S. 1, 6–8 (1999)). But whether a statute reaches conduct that has an effect on
commerce sufficient to implicate the Commerce Clause is a “condition of the statute’s
constitutionality, presenting a pure issue of law for the court to resolve, rather than an
element of the crime, which is for the jury.” United States v. Hicks, 106 F.3d 187, 190 (7th
Cir. 1997) (citations omitted).2 Thus, the district court did not err when it refused to
instruct the jury that the government must prove Johnson’s conduct had an effect on
interstate commerce. The government needed to establish only “actual movement of the
[videos] across state lines,” United States v. Schaffner, 258 F.3d 675, 683 (7th Cir. 2001), or
production involving devices transported through channels of interstate commerce,
United States v. Foley, 740 F.3d 1079, 1083 (7th Cir. 2014).
In any event, the district court gave counsel considerable latitude to make his
preferred arguments before the jury. We observe that statements of the law in closing
argument cannot substitute for jury instructions, Taylor v. Kentucky, 436 U.S. 478, 488–89
(1978); Lewis v. City of Chicago Police Dept., 590 F.3d 427, 440 (7th Cir. 2009), but to the
extent that the statute encompassed aspects of Johnson’s defense, the court permitted
him to present them.
AFFIRMED
2 This court has already determined that 18 U.S.C. § 2251(a) is constitutionally
valid under the Commerce Clause. United States v. Wehrle, 985 F.3d 549, 557 (7th Cir.
2021). Johnson does not ask us to revisit this conclusion.

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