Attempted Child Exploitation via Intermediaries under 18 U.S.C. § 2251(a): Commentary on United States v. Carpenter (7th Cir. 2025)

Attempted Child Exploitation via Intermediaries under 18 U.S.C. § 2251(a): Commentary on United States v. Carpenter (7th Cir. 2025)

I. Introduction

The Seventh Circuit’s decision in United States v. Carpenter, No. 24‑2914 (7th Cir. Dec. 23, 2025), is a significant opinion at the intersection of online undercover operations and federal child-exploitation law. Building squarely on its prior decision in United States v. Hartleroad, 73 F.4th 493 (7th Cir. 2023), the court further clarifies when a defendant can be held liable for attempted sexual exploitation of a child under 18 U.S.C. § 2251(a), (e) based solely on communications with an adult intermediary—here, an undercover FBI agent posing as the father of a fictitious 8‑year‑old girl.

The case also has a procedural dimension. It confirms that, in the Seventh Circuit, a defendant preserves a sufficiency-of-the-evidence challenge for appeal by moving for a judgment of acquittal under Rule 29 at the close of the government’s case, even if he does not renew the motion after resting without presenting evidence. Additionally, the court approves a model jury instruction expressly telling jurors that a defendant may be found guilty of attempted sexual exploitation of a child “even when the defendant communicates only with an intermediary—for example, an undercover law enforcement officer.”

The opinion thus carries doctrinal weight in at least three areas:

  • Substantive scope of § 2251(a) and (e) when there is no direct communication with a minor;
  • The threshold between “fantasy talk” and a substantial step toward production of child pornography in online chats; and
  • Preservation of sufficiency challenges under Federal Rule of Criminal Procedure 29.

The parties are:

  • United States of America (Plaintiff–Appellee), and
  • Joseph Carpenter (Defendant–Appellant).

The district court (C.D. Ill., Judge Michael M. Mihm) presided over a jury trial in which Carpenter was convicted of:

  • Attempted sexual exploitation of a child to produce a visual depiction, 18 U.S.C. § 2251(a), (e); and
  • Attempted receipt of child pornography, 18 U.S.C. § 2252A(a)(2)(A), (b)(1) (conceded by defense at trial).

The court granted a Rule 29 motion on an attempted enticement charge under 18 U.S.C. § 2422(b). Carpenter received 180 months’ imprisonment, the mandatory minimum for the § 2251 count. On appeal, Carpenter only challenged his § 2251 conviction, raising:

  1. A sufficiency-of-the-evidence challenge; and
  2. A challenge to a jury instruction permitting conviction based solely on communication with an intermediary.

The Seventh Circuit (Judge Maldonado, joined by Judges Lee and Kolar) rejected both arguments and affirmed.

II. Summary of the Opinion

A. Factual Core

In late 2021 and early 2022, Carpenter engaged in online communications with FBI agent John Gerrity, who was posing as the father of an eight-year-old girl. Over several months:

  • Carpenter:
    • Described prior sexualized conduct with his stepdaughters, including obtaining “catfished nudes” and secretly recording them naked;
    • Expressed sexual interest in the fictitious daughter when told she was 8 (“nice”);
    • Posed graphic questions about the agent’s purported sexual activities with the child;
    • Suggested administering Benadryl or melatonin (“melatonin gummies” disguised as “candy”) to keep her asleep while the agent abused and photographed her; and
    • Repeatedly requested sexually explicit photos and videos, including “action shots” and images of the girl’s genitals, while advising not to capture her full face to avoid detection.
  • Agent Gerrity:
    • Played the role of a father who might take pictures of his daughter while she was sleeping;
    • Sent four fake video files labeled as child pornography; and
    • Recorded Carpenter’s attempts to access those links, which did not successfully open.

B. Procedural Posture

  • After the government’s case, Carpenter moved under Rule 29. The district court:
    • Granted the motion on the § 2422(b) enticement charge; but
    • Denied it on the § 2251(a), (e) attempted exploitation charge.
  • Carpenter then rested without presenting any evidence.
  • The jury convicted on attempted exploitation and attempted receipt of child pornography.
  • Carpenter appealed only the § 2251 conviction.

C. Holdings

  1. Rule 29 Preservation: Carpenter’s sufficiency challenge was preserved. Because he moved for judgment of acquittal at the close of the government’s case and then rested without presenting evidence, that motion effectively occurred at the “close of evidence.” He was not required to renew his Rule 29 motion to preserve the issue.
  2. Sufficiency of the Evidence under § 2251(a), (e):
    • There was sufficient evidence, viewed in the light most favorable to the government, for a rational juror to find:
      • Specific intent to use a minor (the fictitious daughter) to engage in sexually explicit conduct for the purpose of producing visual depictions; and
      • Substantial steps toward the commission of that offense.
    • Carpenter’s conduct went beyond mere “fantasy talk.” His repeated, specific requests for images, his concrete coaching on how to drug the child and what to photograph, and his persistence when links did not work, collectively satisfied the attempt standard.
    • The case is not meaningfully distinguishable from Hartleroad; indeed, Carpenter’s drugging advice makes the case, if anything, more serious.
  3. Jury Instruction – Intermediary Communications:
    • The district court instructed: “A defendant may be found guilty of attempted sexual exploitation of a child even when the defendant communicates only with an intermediary—for example, an undercover law enforcement officer.”
    • The Seventh Circuit held that:
      • No constructive amendment of the indictment occurred. The indictment tracked § 2251(a)’s language (“attempted to use, persuade, induce, entice and coerce a minor…”), and under Hartleroad, the verbs “use” and “employ” do not require direct communication with a minor. Thus, instructing the jury about liability via an intermediary did not broaden the offense beyond what the grand jury charged; and
      • The instruction accurately stated the law, given Hartleroad and the statutory text.

Accordingly, the Seventh Circuit affirmed the judgment in full.

III. Analysis

A. Precedents Cited and Their Influence

1. Rule 29 Preservation and Sufficiency Review

  • United States v. Wright, 85 F.4th 851 (7th Cir. 2023)
    • Reiterates that to preserve a sufficiency challenge a defendant must move for judgment of acquittal “at the close of evidence or through a timely post-trial motion.”
    • Also characterizes the sufficiency standard as “nearly insurmountable.”
    • Carpenter uses Wright as the starting point but then clarifies what “close of evidence” means when the defense offers no evidence.
  • United States v. Owens, 301 F.3d 521 (7th Cir. 2002) and United States v. Farmer, 38 F.4th 591 (7th Cir. 2022)
    • Provide the standard for sufficiency review: whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could find all essential elements beyond a reasonable doubt.
    • Farmer reinforces the prohibition on reweighing evidence or reassessing witness credibility.
    • The Carpenter court leans on these cases to underscore the deferential posture toward the jury’s verdict.
  • United States v. Daniels, 723 F.3d 562 (5th Cir. 2013) and United States v. Wilson, 240 F.3d 39 (D.C. Cir. 2001) (non‑Seventh Circuit)

The court cites Daniels and Wilson to support its view that, when a defendant presents no evidence, a Rule 29 motion made at the end of the government’s case fully preserves a sufficiency challenge. This reliance on persuasive authority confirms that:

  • “Close of the government’s case” is effectively the “close of evidence” if the defense rests immediately; and
  • There is no need to mechanically renew a Rule 29 motion in the absence of new evidence.

Thus, Carpenter consolidates this approach as Seventh Circuit law.

2. Attempt Liability and § 2251(a)

  • United States v. York, 48 F.4th 494 (7th Cir. 2022)
    • Defines the federal attempt standard: the government must prove:
      1. The defendant acted with the specific intent to commit the underlying crime; and
      2. He took a substantial step toward completion of the offense.
    • In Carpenter, this framework structures the analysis: did Carpenter specifically intend to use a minor to produce pornography, and did he do something that went beyond preparation?
  • United States v. Hartleroad, 73 F.4th 493 (7th Cir. 2023) (central precedent)
    • Interprets § 2251(a)’s verbs:
      • The statute punishes one who “employs, uses, persuades, induces, entices, or coerces any minor” to engage in sexually explicit conduct for the purpose of producing a visual depiction.
      • Because the verbs are disjunctive, any one suffices for conviction.
      • Crucially, the “plain meaning” of “employ” and “use” does not require direct contact with a child. A defendant can violate § 2251(a) by working through an intermediary.
    • Applies the attempt standard to online communications with an undercover agent posing as a parent of a minor, where the defendant:
      • Planned a Skype session; and
      • Prepared a graphic script describing sexual acts and visual depictions.
    • Holds:
      • “Requests to have a minor take and send pictures matching certain descriptions are sufficient to support specific intent to produce child pornography.”
      • Script-writing and persistent coordination of a Skype encounter constituted substantial steps.
    • Carpenter uses Hartleroad as the template and emphatically holds that this case is “not meaningfully distinct” from it.
  • United States v. Lee, 603 F.3d 904 (11th Cir. 2010)
    • From the Eleventh Circuit, cited in Hartleroad, and now used indirectly in Carpenter.
    • Lee upheld a conviction where the defendant directed an adult intermediary on how to pose minors, what photographs to take, and where to send them.
    • Carpenter parallels this pattern: instead of posing instructions, Carpenter gave drugging and content–selection instructions.

3. Distinguishing § 2251(a) from § 2422(b)

  • United States v. Baird, 70 F.4th 390 (7th Cir. 2023)
    • Clarifies the attempt standard for § 2422(b) (enticement) as distinct from § 2251(a).
    • Under § 2422(b), the government must show:
      • Intent to engage in sexual activity with a minor; and
      • A step designed to influence the minor to submit to that sexual activity.
    • Carpenter uses Baird in a footnote to explain why the district court could dismiss the enticement count but still allow the § 2251 count to go to the jury. The statutes criminalize different conduct, and their attempt standards are different.

This distinction is key: enticement focuses on influencing a minor’s will; production (§ 2251) targets the creation of visual depictions, encompassing “producer-level” conduct even when the defendant never expects to be physically present.

4. Constructive Amendment of the Indictment

  • United States v. Haas, 37 F.4th 1256 (7th Cir. 2022)
    • States the rule: constructive amendment occurs when jury instructions broaden the possible bases for conviction beyond those laid out in the indictment, raising Fifth Amendment concerns.
  • United States v. Turner, 836 F.3d 849 (7th Cir. 2016)
    • Defines constructive amendment as presenting an offense “materially different or substantially altered” from that charged, such that we cannot know whether the grand jury would have indicted on the offense actually tried.
  • United States v. Blanchard, 542 F.3d 1133 (7th Cir. 2008)
    • Emphasizes a key rationale behind the constructive-amendment doctrine: protecting the defendant’s ability to prepare a defense.
    • Carpenter notes that the transcripts of the intermediary communications were before the grand jury and disclosed early, undercutting any claim of impaired defense preparation.

5. Jury Instructions – Accuracy and Review

  • United States v. Lawrence, 788 F.3d 234 (7th Cir. 2015)
    • Sets the standard: courts review de novo whether an instruction correctly states the law, but the ultimate decision to give a particular instruction is reviewed for abuse of discretion.
  • United States v. Curry, 538 F.3d 718 (7th Cir. 2008)
    • The appellate court will reverse only if the jury was misled and the instructions prejudiced the defendant.
    • Carpenter applies this standard to reject the defendant’s challenge to the intermediary instruction.

B. The Court’s Legal Reasoning

1. Preservation of Sufficiency Challenge under Rule 29

The government argued for plain-error review because Carpenter did not renew his Rule 29 motion after he rested. The Seventh Circuit rejected this.

The reasoning proceeds in three steps:

  1. Textual hook in Wright. Wright requires a Rule 29 motion at the “close of evidence” or in a post-trial motion.
  2. Practical definition of “close of evidence.” Where the defendant presents no evidence, the close of the government’s case is, in substance, the close of all evidence. There is no new evidentiary record after the defense rests; thus, a renewed motion would be purely duplicative.
  3. Persuasive alignment with other circuits. Citing Daniels (5th Cir.) and Wilson (D.C. Cir.), the court endorses the view that a Rule 29 motion made immediately after the government rests is sufficient if the defendant subsequently offers no evidence.

This holding is practically important: it spares defendants from a formalistic requirement to renew Rule 29 when nothing in the evidentiary record has changed. Nonetheless, as a matter of best practice, defense counsel may still choose to renew Rule 29 motions to avoid any possible dispute.

2. Elements of Attempt under § 2251(a), (e)

The court reiterates that, for an attempted violation of § 2251(a):

  • The government must prove the defendant:
    • Had the specific intent to commit the substantive offense: here, the intent to “use” or “employ” a minor to engage in sexually explicit conduct for the purpose of producing visual depictions; and
    • Took a substantial step—“some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.”

The analysis methodically examines both prongs.

3. Specific Intent: From “Mere Viewer” to “Producer”

Carpenter argued that he was:

  • Merely engaging in conversation initiated and steered by the undercover agent;
  • Fixated on receiving images only (which he conceded constituted attempted receipt), not on causing their production; and
  • Talking in a fantasy mode, with no genuine subjective purpose to direct the creation of child pornography.

The court rejected these characterizations by focusing on:

  • Origin of the idea of images. Carpenter himself:
    • Introduced the topic of explicit images of minors by describing “catfished nudes” of his stepdaughters and hidden-camera recordings;
    • Used that history to normalize and escalate the discussion.
  • Repeated, insistent requests for specific images. Over weeks, Carpenter:
    • Pressed at least five times for pictures and videos of the fictitious daughter;
    • Expressed that he “couldn’t wait” to see them;
    • Requested “action shots” depicting the progression of sexual acts;
    • Asked specifically for images of the child’s genitals; and
    • Followed up when Garrity was slow to respond (“did ya forget about me?”).
  • Content-direction and operational advice. Beyond passively awaiting material, Carpenter:
    • Told Gerrity what images not to capture (the girl’s identifiable face) to avoid detection;
    • Coached Gerrity on which substances (Benadryl vs. melatonin gummies) to use and in what quantity so that she would “not wake while you are doing things.”

The court frames these behaviors as “producer-level” direction, akin to Hartleroad:

  • In Hartleroad, the defendant’s detailed script and desire to direct the agent’s conduct with the fictitious child showed an intent to create pornography, not merely to view it.
  • In Carpenter, the drugging advice and content-focused instructions perform the same function—they show that Carpenter was attempting to orchestrate how the abusive images would be produced.

Thus, the court holds that a rational jury could readily find that Carpenter specifically intended to “use” the minor (via the agent) to create sexually explicit images.

4. Substantial Step: Moving Beyond “Fantasy Talk”

Attempt doctrine is designed to avoid punishing mere thoughts or fantasies. A “substantial step” must demonstrate dangerousness and be such that, “in the ordinary and likely course of things,” it would result in the commission of the crime.

Carpenter argued that their exchanges amounted to nothing more than obscene, hypothetical discussions. The Seventh Circuit disagreed, drawing heavily on Hartleroad and Lee:

  • Repetitive, purposeful planning.
    • Carpenter’s repeated coaching on drugs, explicit requests for “progress” photos and “action shots,” and his insistence even after link failures indicate an ongoing plan, not idle talk.
  • Operational instructions designed to facilitate the crime.
    • Encouraging Gerrity to drug the child so she would remain unconscious during abuse and photography is a particularly concrete and dangerous act, strongly indicating Carpenter intended actual production, not fantasy role-play.
    • Telling Gerrity how to disguise the melatonin as “candy” and how many gummies to give is the kind of detailed planning that, in the ordinary course, would help bring about the offense.
  • Comparable to script-writing and scheduling in Hartleroad.
    • In Hartleroad, the defendant’s preparation of a script and persistence in scheduling a Skype call were substantial steps.
    • In Carpenter, the repeated, specific directions about drugging, photographing, and hiding identity, coupled with the defendant’s persistent pursuit of the files, constitute comparable (if not greater) movement toward consummation.

The court concludes that Carpenter’s actions:

“in the ordinary and likely course, would result in the crime: the creation of child pornography.”

This framing firmly places Carpenter’s conduct beyond the realm of protected speech or mere fantasy and into the domain of punishable attempt.

5. Distinguishing the Dismissed § 2422(b) Charge

Carpenter argued that the district court’s dismissal of the § 2422(b) enticement charge under Rule 29 (based on the same evidence) undermined the § 2251 conviction. The Seventh Circuit rejected this, relying on the doctrinal distinction clarified in Baird:

  • § 2422(b) criminalizes efforts to persuade or entice a minor to engage in illegal sexual activity, focusing on changing the minor’s mental state or will.
  • § 2251(a) targets the production of a visual depiction of sexually explicit conduct involving a minor, with an emphasis on the creation of child pornography.

Thus:

  • One can be guilty of attempted exploitation under § 2251 without meeting the attempt threshold under § 2422(b).
  • The judgment of acquittal on the enticement count is legally irrelevant to the sufficiency of the evidence on the § 2251 count.

6. Intermediaries and Constructive Amendment

Carpenter’s primary instructional attack was that the jury instruction about intermediaries:

  1. Constructively amended the indictment; and
  2. Stated the law inaccurately or incompletely.
a. No Constructive Amendment

The indictment charged Carpenter with attempting to “use, persuade, induce, entice and coerce a minor” to engage in sexually explicit conduct for the purpose of producing a visual depiction. It did not specify whether this would occur by direct communication with the minor or through an intermediary.

The court reasons:

  • The indictment tracked the statute.
    • § 2251(a) itself does not distinguish between direct and indirect methods of “using” or “employing” a minor.
    • As held in Hartleroad, the plain meaning of “uses” and “employs” encompasses action through intermediaries.
  • The instruction followed, rather than altered, the statutory charge.
    • By telling the jury that the defendant could be guilty even if he only communicated with an adult intermediary, the court merely articulated one permissible mode of violating § 2251.
    • This did not change the nature of the crime; it clarified the manner in which the statutory verbs could be satisfied.
  • No prejudice to defense preparation.
    • The transcripts of the communications with Gerrity—the alleged intermediary—were:
      • Presented to the grand jury; and
      • Disclosed early in discovery.
    • Thus, Carpenter knew the government’s theory of the case and could tailor his defense accordingly. The concern that constructive amendment deprives a defendant of a fair opportunity to defend is absent here.

Accordingly, the court finds no Fifth Amendment violation.

b. Accuracy and Completeness of the Instruction

The challenged instruction stated that a defendant “may be found guilty of attempted sexual exploitation of a child even when the defendant communicates only with an intermediary—for example, an undercover law enforcement officer.”

Carpenter argued this was unfair or misleading because:

  • In Hartleroad, the Seventh Circuit acknowledged it had not yet defined “what types of communication with an adult can support a conviction under § 2251(a).”
  • He asserted that this supposed uncertainty made an affirmative instruction on intermediaries improper.

The Seventh Circuit rejected the argument:

  • Hartleroad already resolved the core legal point.
    • The court explicitly held that § 2251(a) does not require direct communication with a child; communications with an intermediary can suffice.
    • The undecided aspect in Hartleroad was not whether intermediary communications were legally valid, but simply the development of a precise line-drawing test for all possible factual scenarios.
  • No need for a comprehensive test in a jury instruction.
    • Each case turns on its record; the statutory elements are to be applied to the facts, not replaced by a rigid taxonomy of communications.
    • The instruction accurately conveyed the legally settled proposition: intermediary-only communication is not categorically disqualifying for § 2251 liability.
  • No showing of confusion or prejudice.
    • There was no indication that the jury misunderstood the law or misapplied it in a way that prejudiced Carpenter.
    • Under Curry, this defeats any basis for reversal.

The court therefore upholds the instruction as both legally accurate and non-prejudicial, squarely endorsing its use in future § 2251 prosecution involving intermediaries.

IV. Complex Concepts Simplified

A. Attempt: Specific Intent and Substantial Step

An “attempt” crime punishes conduct that falls short of completion but is dangerously close. Two elements must be met:

  1. Specific intent. The person must genuinely mean to commit the underlying crime (here, using a minor to produce child pornography).
  2. Substantial step. The person must take real, concrete actions that move beyond mere talk or planning—actions that, if not interrupted, would likely result in the crime happening.

In Carpenter:

  • Intent is shown by Carpenter’s:
    • Repeated demands for sexual images of a particular minor;
    • Specific directions about what to photograph and how; and
    • Advice on how to drug the child to facilitate production.
  • Substantial step is shown by:
    • The repeated coaching and operational guidance that would, if followed, materially assist in creating the illegal images.

B. “Substantial Step” vs. Mere Preparation or Fantasy

Not every preparation qualifies as a substantial step. Courts often look for:

  • Concrete actions directed toward the victim or setting up the crime (e.g., traveling to a meeting, sending tools or equipment, providing precise instructions that can be immediately executed);
  • Evidence that the defendant has passed the stage of “just thinking about it” and is now actively trying to cause the crime to occur.

Talk that is obviously fanciful or not intended to be acted on is not usually enough. What moves Carpenter’s conduct over the line is:

  • His detailed advice on drugging a real, identified person (as he believed);
  • His step-by-step guidance on what kinds of photos to take and how to avoid detection; and
  • His persistent efforts to obtain the resulting material.

C. Constructive Amendment of an Indictment

An indictment is the formal charging document issued by a grand jury. A “constructive amendment” occurs when the trial goes forward on a basis that substantially differs from what the grand jury charged, typically via jury instructions that:

  • Introduce new theories of guilt not presented to the grand jury; or
  • Alter essential elements of the charged offense.

This can violate the Fifth Amendment because a defendant can be convicted of an offense the grand jury never approved.

In Carpenter, the indictment mirrored the statute and alleged an attempt to “use, persuade, induce, entice and coerce” a minor. The jury was told that such “use” or “employment” can be carried out through an adult intermediary; that is not a new crime or theory, but a clarification of how the statutory verbs operate. So there was no constructive amendment.

D. Difference Between § 2251(a) and § 2422(b)

  • 18 U.S.C. § 2251(a):
    • Focus: Using, employing, persuading, inducing, enticing, or coercing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions.
    • Key idea: The defendant acts as or directs the producer of child pornography.
  • 18 U.S.C. § 2422(b):
    • Focus: Using means of interstate commerce (such as the internet) to persuade, induce, entice, or coerce a minor to engage in illegal sexual activity, or attempting to do so.
    • Key idea: The defendant seeks to change the minor’s willingness or decision to engage in sexual activity, regardless of whether images are produced.

Thus, one can fail to meet the enticement standard (no sufficient step to influence the minor’s will) but still satisfy the production standard (clear intent to cause the creation of child pornography through an adult intermediary).

E. Sufficiency-of-the-Evidence Review

On appeal, sufficiency review is highly deferential:

  • The court looks at the evidence in the light most favorable to the prosecution.
  • It asks whether any reasonable juror could have found guilt beyond a reasonable doubt.
  • The reviewing court does not decide whether it personally believes the defendant is guilty; it only checks whether the jury had a legally sufficient evidentiary basis.

In Carpenter, the panel repeatedly underscores that this is a “nearly insurmountable” burden for defendants.

V. Likely Impact of the Opinion

A. Undercover Operations and § 2251 Prosecutions

Carpenter, together with Hartleroad, solidifies the legality and effectiveness of online stings that:

  • Use agents posing as parents or guardians of minors; and
  • Seek to develop evidence that defendants are not just consumers of existing child pornography, but active instigators of new production.

The decision confirms:

  • Prosecutors in the Seventh Circuit can safely bring § 2251(a), (e) charges based on adult-only communication via an undercover agent, without needing:
    • Actual contact with a real minor, or
    • Direct communication between the defendant and the child.
  • Jury instructions can explicitly state this theory, consistent with the statutory language and precedent.

B. Boundary Between Viewer and Producer Liability

The case helps sharpen the line between:

  • Those who merely receive or view child pornography; and
  • Those who cause or direct its production.

Under Carpenter, a defendant crosses into “producer” territory when:

  • He repeatedly requests that new images or videos be created, tailored to his specifications; and
  • He gives concrete guidance designed to facilitate that production (e.g., how to keep the child unconscious, what body parts to photograph, how to avoid leaving identifying features in the images).

This distinction matters because:

  • Production offenses under § 2251 carry far harsher mandatory minimums (15 years), significantly affecting plea bargaining and sentencing exposure.

C. Defense Strategy in Online-Speech Cases

Defense attorneys often try to cast online sexual communications as “fantasy” or “role-play” to negate specific intent and substantial step. Carpenter suggests that courts and juries in the Seventh Circuit will be skeptical of such arguments when:

  • The defendant’s conduct includes operational planning, detailed instructions, or real-world logistical advice aimed at making abuse possible;
  • The defendant persistently pushes for execution of the plan; and
  • The communications are not obviously couched in unreal or fantastical terms, but present themselves as genuine plans involving a real child.

This decision thus raises the bar for defenses rooted in “it was just talk” narratives in § 2251 attempt cases.

D. Model Jury Instruction on Intermediaries

The specific approved instruction—that a defendant can be guilty of attempted child exploitation even when communicating only with an intermediary—is likely to become standard in § 2251 prosecutions involving undercover agents in the Seventh Circuit.

Trial courts now have appellate confirmation that:

  • Such an instruction accurately reflects the statute and existing case law (Hartleroad and Carpenter); and
  • It does not, by itself, risk constructive amendment or unfair prejudice.

E. Rule 29 Practice

From a procedural perspective, Carpenter offers useful clarification:

  • A Rule 29 motion at the end of the government’s case preserves a sufficiency challenge if the defense then offers no evidence.
  • This gives litigants and district judges clear guidance and may prevent unnecessary appellate disputes over the standard of review.

Defense counsel should still consider renewing Rule 29 motions as a cautionary measure, but this decision reduces the stakes of failing to do so when the evidentiary record is unchanged.

VI. Conclusion

United States v. Carpenter reinforces and extends the Seventh Circuit’s robust interpretation of 18 U.S.C. § 2251(a), (e) in the context of online undercover operations. It confirms that:

  • A defendant can be convicted of attempted sexual exploitation of a child even if he never communicates with a real child or directly with a minor at all; communicating with an adult intermediary, such as an undercover agent, can satisfy the “use” or “employ” elements of § 2251(a).
  • Specific intent to produce child pornography and a substantial step toward that end can be inferred from persistent, detailed, and operationally focused online communications, especially where the defendant instructs an intermediary how to drug, abuse, and photograph a child.
  • Jury instructions explicitly stating the sufficiency of intermediary communications are both accurate and permissible, and they do not constitute a constructive amendment of indictments that track the statutory text.
  • A Rule 29 motion made after the government rests preserves a sufficiency challenge when the defendant then presents no evidence, providing welcome procedural clarity.

In the broader landscape of child-exploitation law, Carpenter underscores that the law reaches beyond physical proximity or direct contact. Those who orchestrate abuse from behind screens—by directing, encouraging, and facilitating the production of child pornography—are exposed to the same severe penalties as hands-on perpetrators. The opinion solidifies an approach that prioritizes the protection of minors and equips law enforcement to address the realities of online-facilitated exploitation.

Case Details

Year: 2025
Court: Court of Appeals for the Seventh Circuit

Judge(s)

Maldonado

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