“A Purpose” Is Enough: Eleventh Circuit Reaffirms §2251(a) Specific-Intent Standard and Clarifies §2422(b) Focus on Enticement, Not the Sex Act

Introduction

In United States v. Terry Johnson (No. 24-10502, Apr. 7, 2025) [Non-Argument Calendar; Unpublished], the Eleventh Circuit affirmed a jury’s verdict convicting Terry Johnson of:

• Production of child pornography, in violation of 18 U.S.C. § 2251(a); and
• Enticement of a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b).

Johnson challenged the sufficiency of the evidence on three principal grounds:

• That the government failed to prove producing a visual depiction was a purpose of his sexual activity (as required by §2251(a));
• That there was no evidence he used a cell phone to entice, persuade, induce, or coerce the minor for the April 2021 sexual activity or the video production (as required by §2422(b)); and
• That §2422(b) requires proof he “succeeded,” which he claimed the government failed to show.

The panel rejected all three arguments, relying largely on recent Eleventh Circuit precedent clarifying the specific intent standard under §2251(a) and the scope of the enticement offense under §2422(b). Separately, the court identified a discrepancy between the oral pronouncement of sentence and the written judgment with respect to a special condition of supervised release and remanded for the limited purpose of conforming the written judgment to the oral pronouncement.

Summary of the Opinion

The Eleventh Circuit held:

• Sufficient evidence supported the §2251(a) conviction because the jury could reasonably infer that producing a visual depiction of sexually explicit conduct was “a purpose” (not necessarily the sole or primary purpose) of Johnson’s sexual activity with the minor, based on the recording he made using the minor’s phone and his contemporaneous directive to the minor to place the phone in his room.
• Sufficient evidence supported the §2422(b) conviction because Johnson used a facility of interstate commerce (cell phone/text messages) to entice the minor through sexually explicit communications; the statute criminalizes the enticement conduct itself, not the sex act, and does not require proof of consummated sexual activity.
• Because the district court’s oral pronouncement expressly declined to impose a special condition banning adult pornography, but the written judgment included it, the case must be remanded to amend the written judgment to conform to the oral sentence.

Analysis

Precedents Cited and Their Influence

• United States v. Gatlin, 90 F.4th 1050 (11th Cir. 2024): The court relied heavily on Gatlin to reaffirm that §2251(a) requires proof that producing a visual depiction was “a purpose” of the sexual activity, not the sole or even primary purpose. Gatlin approved the use of circumstantial evidence to infer specific intent where the defendant, during intercourse with a minor, manipulated a phone to record the act, including unlocking the device, accessing the camera, filming from a telltale angle, and pausing to “pose.” Here, even though Johnson did not “pose,” the panel found comparable circumstantial indicators: Johnson admitted holding and recording with the minor’s phone, and evidence suggested he decided where and how to position it. His direction to the minor to “put the phone in my room” on the night of the sexual activity further supported the inference that recording was a purpose of the encounter.
• United States v. Lebowitz, 676 F.3d 1000 (11th Cir. 2012): Cited through Gatlin for the proposition that §2251(a) targets purposeful production, not incidental or purely mechanical capture (e.g., a passive security camera). The panel emphasized this was not a case of accidental recording—the defendant actively controlled the recording process, making the inference of purpose reasonable.
• United States v. Capers, 708 F.3d 1286 (11th Cir. 2013): Confirmed the sufficiency-of-the-evidence standard: reviewing de novo but in the light most favorable to the verdict and upholding a conviction if any reasonable construction of the evidence supports it. Capers provided the deferential framework in which the circumstantial evidence of intent was evaluated.
• United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004): Clarified §2422(b)’s focus on the persuasion/enticement conduct itself, as opposed to the sex act. Murrell also differentiates completed enticement (when an actual minor is involved) from attempt (where no actual minor exists). The panel used Murrell to reject Johnson’s “no success” argument: the government need not prove the sex act occurred to obtain a §2422(b) conviction; the offense is the enticement.
• United States v. Bates, 213 F.3d 1336 (11th Cir. 2000), and United States v. Chavez, 204 F.3d 1305 (11th Cir. 2000): These cases establish the sentencing rule that the oral pronouncement controls over a conflicting written judgment. Where the oral sentence is unambiguous, remand is appropriate solely to correct the written judgment to conform to the oral pronouncement.
• United States v. Rodriguez, 75 F.4th 1231, 1246 n.5 (11th Cir. 2023): Cited in a footnote for the point that when a defendant cannot object to a supervised-release condition because it appears for the first time in the written judgment, the issue is reviewed de novo. The panel did not need to reach that review question because the remedy was to conform the written judgment to the unambiguous oral sentence.

Legal Reasoning

1) Production of Child Pornography, 18 U.S.C. § 2251(a)

The statute targets those who “employ, use, persuade, induce, entice, or coerce” a minor to engage in sexually explicit conduct “for the purpose of producing” a visual depiction of such conduct. The key mens rea is purpose—specific intent to produce the depiction as at least one motivating reason for the sexual conduct.

The court, applying Gatlin, reiterated:

• The government need not show the defendant was “single-minded” or that production was the sole or primary purpose; proving it was “a purpose” is legally sufficient.
• Specific intent may be proven circumstantially. Here, the jury could infer intent from Johnson’s admitted act of holding and recording with the minor’s phone; the apparent control over camera placement and aim; and his contemporaneous text directing the minor to put the phone in his room on the night of the recording.
• This was not passive or incidental recording. By contrast to a fixed security camera inadvertently capturing an act, purposeful manipulation of a recording device supports the inference that producing the video was part of the defendant’s plan.

The defense argued it would be irrational for someone intending to produce child pornography to save the video on the minor’s phone. The panel rejected that inference as dispositive, emphasizing the deferential standard and the contrary inference the jury could reasonably draw from Johnson’s own actions and messages. Under Capers, any reasonable view of the evidence supporting guilt must be credited, and the record permitted the conclusion that producing a depiction was one purpose of the sexual encounter.

2) Enticement of a Minor, 18 U.S.C. § 2422(b)

Section 2422(b) prohibits using the mail or any facility or means of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in sexual activity for which any person can be charged with a criminal offense, or attempting to do so.

The panel’s reasoning proceeded in two steps:

• Means/Facility of Interstate Commerce: The evidence showed Johnson used a cell phone to send sexually explicit text messages to the minor. That use satisfies the statute’s interstate commerce element as a matter of Eleventh Circuit practice.
• Focus on Enticement Conduct: Citing Murrell, the court emphasized that the crime is the enticement—the persuasive communicative effort—not the consummated sexual act. Consequently, Johnson’s contention that the government had to prove he “succeeded” by consummating sex was a “nonstarter.” Even without a sex act, a defendant can violate §2422(b) by enticing a minor to agree to unlawful sexual activity. Here, sexually explicit texts by Johnson (and responsive, sexualized messages from the minor) provided adequate evidence for a jury to find that he enticed the minor to engage in sexual activity.

3) Sentencing Discrepancy: Oral Pronouncement Controls

The district court, at sentencing, explicitly declined to impose a special condition of supervised release prohibiting possession of adult pornography. The written judgment nevertheless included such a condition. Under Bates and Chavez, the oral pronouncement governs; the proper remedy is a limited remand to conform the written judgment to the oral sentence. The parties agreed on the discrepancy, and the panel ordered correction on remand.

Impact and Practical Implications

• Reinforcement—and a factual variation—of Gatlin’s “a purpose” standard under §2251(a): This opinion confirms that prosecutors can prove specific intent to produce a depiction even when the recording is made on the minor’s device. Ownership of the recording device is not determinative; what matters is evidence that the defendant purposefully created the depiction. Directions about phone placement and admitted control over filming are potent circumstantial evidence.
• Enticement under §2422(b) does not require a consummated sex act: The panel reiterates that the offense is the enticement communication itself. Defense strategies hinging on the absence of a sex act—or framing the case as “unsuccessful” because sex was not proven—will not defeat a §2422(b) charge when persuasive communications are shown, particularly via text or other electronic messages.
• Use of electronic communications remains central: Text messages and cell phone use readily satisfy the “facility or means of interstate commerce” element. The content and context of messages can independently support inferences of enticement and intent.
• Sentencing practice: The case underscores the importance of ensuring supervised-release conditions in the written judgment match the oral pronouncement. Parties should scrutinize the written judgment for discrepancies, especially with frequently litigated conditions like adult pornography bans.
• Persuasive, not binding: As an unpublished decision, this opinion is not binding precedent in the Eleventh Circuit. Nonetheless, it is consistent with, and reinforces, published decisions like Gatlin and Murrell, and thus will likely be treated as persuasive authority in future cases with similar facts.

Complex Concepts Simplified

• “A purpose” under §2251(a): The government need not prove that making a video was the defendant’s only or main motive. It is enough if producing the recording was one of the reasons for the sexual activity. Jurors can infer this intent from how and when the recording was made.
• Enticement vs. the sex act under §2422(b): The crime is the act of persuading or enticing a minor to engage in unlawful sexual activity. Whether sex actually happens is not an element. Attempt applies when there is no real minor; when there is an actual minor, the persuasive communications can complete the offense.
• Sufficiency-of-the-evidence review: Appellate courts view the evidence in the light most favorable to the jury’s verdict and ask whether any reasonable interpretation supports guilt beyond a reasonable doubt. This is a highly deferential posture toward the jury’s findings.
• “Facility or means of interstate commerce”: Using a cell phone to send text messages qualifies. The government does not need to prove the messages crossed state lines; the device’s use typically suffices.
• Oral pronouncement vs. written judgment: If there is a conflict, the sentence the judge stated in open court controls. The written judgment must be corrected to match the oral pronouncement.

Conclusion

United States v. Johnson fortifies two pillars of Eleventh Circuit law. First, it reaffirms Gatlin’s “a purpose” standard for §2251(a), showing how circumstantial evidence—such as the defendant’s hands-on control of recording and contemporaneous texts about the device—can prove specific intent to produce child pornography even when the video is made on the minor’s phone. Second, it reinforces Murrell’s teaching that §2422(b) criminalizes enticement itself, not consummated sex; explicit text messages can suffice to establish the offense, and “success” measured by a sex act is irrelevant. Finally, the opinion provides a procedural reminder that oral sentences govern over conflicting written judgments, requiring correction on remand.

Although unpublished, the opinion aligns with and operationalizes controlling Eleventh Circuit precedents. For prosecutors, it underscores the evidentiary value of digital communications and recording behavior in proving intent. For defense counsel, it highlights the limits of arguments premised on device ownership, the absence of a sex act, or alleged lack of “success.” And for sentencing courts and practitioners, it is a clear directive to ensure the written judgment faithfully mirrors the oral pronouncement, especially regarding supervised-release conditions.