United States v. Kevin Hartleroad ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1156
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN HARTLEROAD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:21-cr-00016-HAB-SLC-1 — Holly A. Brady, Judge.
____________________
ARGUED JANUARY 11, 2023 — DECIDED JULY 11, 2023
____________________
Before WOOD, BRENNAN, and SCUDDER, Circuit Judges.
BRENNAN, Circuit Judge. A jury found Kevin Hartleroad
guilty of attempting to sexually exploit a child in violation of
18 U.S.C. § 2251(a) and (e). That statute prohibits, among
other acts, employing or using a minor to engage in sexually
explicit conduct for the purpose of producing any visual de-
piction or transmitting a live visual depiction of such conduct.
The indictment charged him only with producing, but the
2 No. 22-1156
jury was instructed that Hartleroad could be found guilty un-
der either prong.
On appeal, Hartleroad contests the sufficiency of the evi-
dence sustaining his conviction. For the first time before us,
he also argues (1) that the jury instructions constructively
amended the indictment, and (2) that, in any event, the indict-
ment charged conduct not prohibited under § 2251(a). We dis-
agree with Hartleroad’s challenges and affirm his conviction.
I. Background
Kevin Hartleroad contacted the author of an online post
soliciting persons interested in participating in sexual con-
duct with minors. That post expressly excluded those inter-
ested in “role play” or “fantasy.” The author claimed to be a
stepfather who was engaged in sexual relations with his four-
teen-year-old daughter, but he was actually undercover FBI
Task Force Officer Christopher McCarty.
The two began exchanging messages and McCarty
learned that Hartleroad was interested in having sex with the
fictitious minor. Hartleroad told McCarty that such occasions
were “hard to find [for] real.” They discussed setting up a
Skype call before planning to meet in person, when
Hartleroad would engage in sexual conduct with the minor.
Due to the pandemic, Hartleroad initially agreed to limit
the interaction to the Skype meeting, during which
Hartleroad would view McCarty engaging in sexual conduct
with the minor. McCarty suggested that Hartleroad direct the
sexual conduct to be depicted during that meeting.
Hartleroad expressed no hesitancy with this idea. He re-
sponded it “sounds incredible” and “I love the idea of telling
you two what to do.” He also sent McCarty a photograph of
No. 22-1156 3
the child on which he had ejaculated, addressing it to the child
and telling McCarty the photo was “for [him] to show her.”
During a break in the conversation, Hartleroad reinitiated
contact and expressed his desire to speak over Skype and “di-
rect.” In later messages, McCarty told him the interaction gen-
erally “works best” when “whoever we are Skyping with
makes a list of what they want to see.” Hartleroad said this
suggestion sounded like an “excellent idea” to him and asked
if he should “come up with a script.” Hartleroad then drafted
a script of sexual conduct he expected to be depicted by the
minor and McCarty and sent it to McCarty. He expressed to
McCarty his hope that the child had liked the script.
The two continued to discuss setting a time for the Skype
meeting, with Hartleroad offering to join the call during work
hours. At one point Hartleroad thanked McCarty for “bearing
with” him as he determined whether his service would be
good enough to Skype from work using his phone, insisting
the three “will m[ak]e this happen.” They eventually agreed
on a date and before the meeting took place, McCarty asked
Hartleroad if he was “sure [he] want[ed] to do this” given that
the fictitious minor was “under age.” Hartleroad responded,
“It’s cool. I’m ready[,]” and he joined the Skype call. But
McCarty ended the call early by claiming his wife had come
home. McCarty testified at trial that Hartleroad sent him “a
message on Skype that said that [Hartleroad was] glad it
didn’t happen.”
McCarty later posted similar messages about the fictitious
stepdaughter on multiple online platforms. In response to
these new posts, Hartleroad reinitiated contact with McCarty
and admitted he “knew she was” a minor and he “spooked,”
but he was “glad to find [McCarty] again.” When McCarty
4 No. 22-1156
suggested they arrange another virtual meeting, Hartleroad
said he “would still love to do Skype with the two of you and
direct.”
As described above, a grand jury indicted Hartleroad with
a single count of attempting to sexually exploit a child in vio-
lation of 18 U.S.C. § 2251(a) and (e). He pleaded not guilty,
and the case went to trial. The government presented evi-
dence, including McCarty’s testimony, and rested. Hartleroad
moved for judgment of acquittal, which the district court took
under advisement. Hartleroad also testified and renewed his
acquittal motion at the close of evidence.
The district court and counsel discussed the jury instruc-
tions on more than one occasion. Revisions were proposed
and statements were made as to whether those changes con-
formed to the statute and the indictment, but the language of
the final jury instructions and the indictment ultimately dif-
fered. Hartleroad was indicted for attempting to employ, use,
persuade, induce, entice, and coerce a minor to engage in sex-
ually explicit conduct for the purpose of producing a visual de-
piction, or a live visual depiction, of such conduct. The jury
received a similar instruction but was told Hartleroad must
have acted for the purpose of transmitting a live visual depic-
tion of such conduct. The jury returned a guilty verdict, and
the court denied Hartleroad’s motion for judgment of acquit-
tal.
II. Discussion
A. Sufficiency of the Evidence
Hartleroad first challenges the sufficiency of the evidence
sustaining his conviction. We address only whether there is
sufficient evidence that he acted for the purpose of producing
No. 22-1156 5
a visual depiction, since he does not contest that crime was
properly charged in the indictment. We also limit our review
to whether Hartleroad attempted one of the acts the statute
prohibits, “employs” or “uses” a minor for purposes of pro-
ducing a visual depiction. The six verbs that appear in the first
phrase of § 2251(a) are listed in the disjunctive, so a conviction
may be sustained under any one of them. See § 2251(a); United
States v. Howard, 968 F.3d 717, 721–22 (7th Cir. 2020).
On a challenge to the sufficiency of the evidence support-
ing a conviction, we review the evidence in the light most fa-
vorable to the government, drawing all reasonable inferences
in its favor. United States v. York, 48 F.4th 494, 499 (7th Cir.
2022). “We will overturn a conviction only if, after reviewing
the record in this light, we determine that no rational trier of
fact could have found the essential elements of the offense be-
yond a reasonable doubt.” Id. (quoting United States v.
Hidalgo-Sanchez, 29 F.4th 915, 924 (7th Cir. 2022)). To sustain a
conviction for attempt, the government must prove the
defendant “acted with the specific intent to commit the un-
derlying crime and that he took a substantial step towards
completion of the offense.” Id. (quoting United States v. Coté,
504 F.3d 682, 687 (7th Cir. 2007)).
We divide our discussion into three topics:
• whether Hartleroad’s conviction may be up-
held even though he never directly commu-
nicated with the minor;
• whether Hartleroad’s conviction may be
sustained based on the nature of his commu-
nication with an adult; and
6 No. 22-1156
• whether the government has met its burden
of demonstrating Hartleroad acted with spe-
cific intent and that he took a substantial step
toward completing the offense.
Direct Communication with a Minor. Hartleroad contends
that his conviction cannot be upheld because he never spoke
with the minor. Even if direct communication is not neces-
sary, he submits that his messages with an adult are a step
removed from “using” or “employing” the minor to engage
in sexually explicit activity.
To us, the plain meaning of the verbs “uses” and “em-
ploys” in § 2251(a) do not require a defendant to communi-
cate directly with a child. The plain meaning of “use” is “[t]o
make use of, to convert to one’s service, to avail one’s self of,
to employ[,]” and “[t]o leave no capacity of force or use in.”
Use, BLACK’S LAW DICTIONARY (5th ed. 1979). The term “em-
ploy” means:
[t]o engage in one’s service; to hire; to use as an
agent or substitute in transacting business; to
commission and intrust with the performance
of certain acts or functions or with the manage-
ment of one’s affairs; … when used in respect to
a servant or hired laborer, the term is equivalent
to hiring, which implies a request and a contract
for a compensation[; and] … [t]o make use of, to
keep at work, to entrust with some duty.”
Employ, BLACK’S LAW DICTIONARY (5th ed. 1979). Neither term
suggests that direct communication with the object of the
verb, a minor, is necessary. See also United States v. Lee, 603
F.3d 904, 913 (11th Cir. 2010) (explaining that the terms
No. 22-1156 7
“employs” or “uses” in § 2251(a) do not “contemplate[] direct
interaction with a minor aimed at oral persuasion”). So
Hartleroad’s contention here falls short.
Nature of Communication with an Adult. Although direct
communication with a minor is not required to sustain a con-
viction, our court has not yet determined what types of com-
munication with an adult can support a conviction under
§ 2251(a). Hartleroad argues that he must have taken some ac-
tion to cause the minor’s direct engagement in sexually ex-
plicit conduct to sustain a conviction under § 2251(a), citing
Howard. As an example, he refers to United States v. McMillan,
744 F.3d 1033 (7th Cir. 2014), for the proposition that the court
has required some attempt to communicate with a child
through an intermediary to sustain a conviction under 18
U.S.C. § 2422(b). We understand him to argue that he neither
intended nor took a substantial step toward causing a child to
engage in sexually explicit conduct, but rather was simply en-
gaging in obscene speech with another adult.
Hartleroad’s arguments miss the mark. First, as a factual
matter, he attempted to communicate with the minor through
McCarty by sending the photograph addressed to the minor
and by asking whether the child liked his script.
Second, in Howard we considered whether a defendant
who filmed himself masturbating next to a clothed, sleeping
child violated § 2251(a) by “using” the minor “as an object of
sexual interest to produce a visual depiction of himself en-
gaged in solo sexually explicit conduct.” 968 F.3d at 718. How-
ard interacted with the minor in that case, see id. at 719, so
Hartleroad’s reliance on Howard does not help his case.
8 No. 22-1156
Third, Hartleroad cites McMillan as requiring an attempt
to communicate with a child through an intermediary. But
contrary to Hartleroad’s suggestion, McMillan did not hold
that such an attempt was required. See 744 F.3d at 1036 (not-
ing that “[s]ome courts would permit conviction solely on the
basis of an adult’s attempt to persuade another adult to allow
the defendant to engage in sexual conduct with the minor”
but declining to decide whether that reading is consistent
with the statutory language).
Government’s burden under § 2251(a). The government must
meet its statutory burden to prove Hartleroad acted with spe-
cific intent and took a substantial step toward completing the
crime.
1. Specific Intent
There is sufficient evidence that Hartleroad intended to
use a minor to engage in sexually explicit conduct for the pur-
pose of producing child pornography. 1
In Lee, the Eleventh Circuit sustained a defendant’s con-
viction under the “uses” prong of § 2251(a) based on his in-
teractions with an adult intermediary. 603 F.3d at 912–13, 918.
The defendant’s intent to use minors to produce child pornog-
raphy was evidenced by the fact that he “actively planned the
production of photographs that depicted … minor[s] … in
1 Hartleroad distinguishes between the meaning of “producing” and
“transmitting” as used in § 2251(a). “[P]roducing” is defined at 18 U.S.C.
§ 2256(3) as “producing, directing, manufacturing, issuing, publishing, or
advertising.” In this opinion, we use the term “producing” synonymously
with “directing.” We therefore need not address Hartleroad’s argument
that understanding the term “producing” to encompass “transmitting”
renders the latter superfluous.
No. 22-1156 9
graphic sexual poses” through an intermediary. Id. at 918.
Specifically, the defendant had “described how many photo-
graphs he wanted of each girl, how he wanted the girls to
pose, and provided his home address so that he could view
the finished product.” Id.Hartleroad drafted a script of sexual conduct to be per-
formed by a minor, sent that script to McCarty, and planned
and joined a Skype call for that conduct to be depicted. As in
Lee, a rational jury could have concluded that constitutes suf-
ficient evidence of his specific intent to use a minor in viola-
tion of § 2251(a).
A rational jury also could have concluded that Hartleroad
understood a real minor would be involved. After the Skype
meeting, Hartleroad admitted he “knew she was” a minor.
Further, he began the entire interaction by responding to a
post soliciting persons interested in sexual relations with mi-
nors and expressly excluding those interested in “role play”
or “fantasy.” Hartleroad additionally stated that opportuni-
ties to engage in sexual relations with minors were “hard to
find for real.”
Hartleroad also argues that the evidence demonstrated, at
most, his intent to view child pornography, rather than to pro-
duce it, and he stresses that he was just responding to
McCarty’s prompts. But the communications reflected in the
record were enough to permit a trier of fact to conclude that
his role was that of a producer, not a mere viewer. Requests
to have a minor take and send pictures matching certain de-
scriptions are sufficient to support specific intent to produce
child pornography. In the context of an ineffective assistance
of counsel claim, we suggested that sufficient evidence sup-
ported a conviction for producing under § 2251(a) when the
10 No. 22-1156
defendant directed children to take sexually explicit photo-
graphs matching his descriptions and send them to him. See
United States v. Merrill, 23 F.4th 766, 767–68, 770, 771 (7th Cir.
2022) (describing that the defendant “directed” a “real-time
photo shoot” in concluding that the evidence was sufficient to
sustain a production conviction). Other circuits have reached
a similar conclusion. In United States v. Isabella, 918 F.3d 816,
834 n.17 (10th Cir. 2019), the Tenth Circuit concluded that a
defendant’s “explicit requests for ‘naughty’ and ‘naked’ pho-
tos were more than sufficient to infer specific intent to per-
suade [a minor] to send him child pornography.” Likewise,
in Lee, the Eleventh Circuit held that a defendant intended to
produce child pornography where he actively planned and
directed the production of sexually explicit photographs of
minors and supplied his address to receive them. 603 F.3d at
918.
From the trial evidence, a rational jury could have con-
cluded that Hartleroad intended to produce a visual depic-
tion as opposed to reacting to McCarty’s prompting. The
length and graphic detail of the script Hartleroad sent could
provide a jury with a basis for rejecting his argument that he
only intended to view a live visual depiction. Moreover, in re-
sponse to the first time McCarty proposed that Hartleroad di-
rect the sexually explicit conduct, Hartleroad expressed that
he “love[d] the idea of telling you two what to do.” He also
continued to express a specific interest in directing the mi-
nor’s conduct when there was a break in the conversation.
And after the first Skype call, Hartleroad said he “would still
love to do Skype with the two of you and direct,” in response
to McCarty’s suggestion that they have another virtual meet-
ing.
No. 22-1156 11
2. Substantial Step
As previously discussed, the government must also prove
that the defendant took a substantial step toward completing
the offense. A substantial step “is the demonstration of dan-
gerousness, and has been usefully described as ‘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.’” Gladish, 536 F.3d at 648 (quoting United
States v. Manley, 632 F.2d 978, 988 (2d Cir. 1980)). In
Hartleroad’s view, his scriptwriting and his appearance at the
Skype meeting do not qualify because McCarty suggested
them. Hartleroad contends the writing of the script can also
constitute fantasy, and the joining of a Skype meeting is dif-
ferent than traveling to meet a minor.
But there is sufficient evidence to show that Hartleroad
took a substantial step. Despite scheduling conflicts and work
hours, he repeatedly attempted to initiate the creation of child
pornography that he directed by pursuing a date to hold the
Skype meeting, which he joined. These steps are overt acts to-
wards using a minor for the purpose of producing a visual
depiction of sexually explicit conduct, which show his dan-
gerousness.
In Lee, the Eleventh Circuit concluded that a reasonable
jury could have found that the defendant took a substantial
step toward using minors to produce child pornography by
“repeatedly attempt[ing] to initiate the production” of sex-
ually explicit photographs, sending a photograph of his own,
and directing the creation and distribution of photographs to
his home address. 603 F.3d at 918. Just as Lee requested sex-
ually explicit photographs of minors and provided his ad-
dress to receive them, id. at 909, 911, Hartleroad sent a script
12 No. 22-1156
of sexual conduct the minor should engage in, planned a
Skype call, and joined that call during which the conduct was
to take place.
A rational jury could also conclude that Hartleroad was
not simply obliging McCarty when he planned and joined the
Skype call. Instead of ignoring McCarty’s messages after
sending the script or seeking to limit the interaction to ob-
scene speech, Hartleroad persisted in attempting to schedule
a time for the Skype. He thanked McCarty for “bearing with”
him as he determined whether his service would be good
enough to Skype from his phone during work, insisting that
the three “will m[ake] this happen.” Hartleroad expressed his
belief that it was “great” when a time was proposed by
McCarty, saying that “this [will] be the night finally.” And
when that date was postponed for another, Hartleroad said
that he could “make that work.” Before the Skype call,
McCarty asked Hartleroad if he was “sure [he] want[ed] to do
this” given that the fictitious minor was “under age.”
Hartleroad responded, “It’s cool. I’m ready.” Hartleroad’s
statements and actions could be understood to mean that the
offense would have been completed in the ordinary course of
events.
B. Constructive Amendment
Hartleroad’s second attack on his conviction is that the in-
structions the jury received constructively amended the in-
dictment. Those instructions included the producing and
transmitting prongs of § 2251(a), yet the indictment charged
only that he acted for the purpose of producing a visual de-
piction or a live visual depiction. But for this discrepancy,
Hartleroad contends, he may not have been convicted. Even
No. 22-1156 13
if the evidence is sufficient to sustain the conviction, he sub-
mits it was within the jury’s province to acquit him.
The government responds that the trial evidence con-
formed to the charge, so there was no constructive amend-
ment. To the government, Hartleroad has not explained how
the jury could have found him guilty of attempting to trans-
mit but not produce child pornography, and no rational juror
would have found accordingly.
Constructive amendment occurs where the evidence at
trial proves an offense not charged in the indictment. United
States v. Heon Seok Lee, 937 F.3d 797, 806 (7th Cir. 2019). The
evidence included McCarty’s proposal that Hartleroad “tell
[McCarty and the minor] what to do,” suggesting that
Hartleroad direct the sexually explicit conduct. Hartleroad
maintains that under that scenario, the jury could have found
him guilty only of attempting to transmit but not to produce
child pornography. Cf. United States v. Withers, 960 F.3d 922,
932 (7th Cir. 2020) (no evidence at trial exclusively supported
a lower mens rea requirement that was not charged in the in-
dictment); United States v. Pigee, 197 F.3d 879, 887 (7th Cir.
1999) (no evidence supported the charge excluded from the
indictment).
Where a different crime has been proved but the error was
not preserved, it is reviewed for plain error. Heon Seok Lee, 937
F.3d at 806, 806 n.4 (citing United States v. Remsza, 77 F.3d 1039,
1043–44 (7th Cir. 1996)). Federal Rule of Criminal Procedure
52(b) provides that “[a] plain error that affects substantial
rights may be considered even though it was not brought to
the court’s attention.” Under plain error review, three condi-
tions must be satisfied before this court may consider exercis-
ing our discretion to correct an error: (1) “there must be an
14 No. 22-1156
error that has not been intentionally relinquished or aban-
doned”; (2) “the error must be plain—that is to say, clear or
obvious”; and (3) “the error must have affected the defend-
ant’s substantial rights.” Rosales-Mireles v. United States, 138 S.
Ct. 1897, 1904 (2018) (quoting Molina-Martinez v. United States,
578 U.S. 189, 194 (2016)). If these conditions are satisfied, we
exercise discretion to correct the error if it “seriously affects
the fairness, integrity or public reputation of judicial proceed-
ings.” Id. at 1905 (quoting Molina-Martinez, 578 U.S. at 194).
The government does not argue that Hartleroad intention-
ally relinquished his constructive-amendment arguments,
nor do we conclude that he intentionally abandoned them.
The government also does not contest that the discrepancy be-
tween the jury instructions and the indictment was plain er-
ror, and this discrepancy is indeed plainly erroneous. See
United States v. Murphy, 406 F.3d 857, 860 (7th Cir. 2005) (con-
cluding that plain error was shown where the jury instruc-
tions differed from the indictment by adding another offense);
Remsza, 77 F.3d 1039 at 1043 (“[A]n amendment can result
where the evidence presented at trial proves a violation of
substantive law ‘materially different’ from that charged in the
indictment.” (quoting United States v. Kuna, 760 F.2d 813, 818
(7th Cir. 1985))). So, the first two requirements for plain error
are satisfied.
Even if Hartleroad can satisfy the third prong of plain er-
ror review based on the constructive amendment, he cannot
satisfy the fourth. In United States v. Haas, 37 F.4th 1256, 1267
(7th Cir. 2022), the defendant argued for the first time on ap-
peal that the jury instructions and evidence presented by the
government constructively amended the indictment, which
charged him only with transmitting threats in interstate
No. 22-1156 15
commerce. The jury instructions and evidence, however,
permitted the jury to convict him based on evidence of trans-
missions in foreign commerce. Id. We held that even if Haas
satisfied the first three prongs of plain error review, the result
did not impugn the integrity of the judicial process under the
fourth prong. Id. Specifically, we were “satisfied that this jury
could have found movement of these messages from or
through one state to another.” Id. We had “no doubt that if
[the defendant] had raised this point in the district court, the
government easily could have either supplemented its evi-
dence of interstate commerce or obtained a superseding in-
dictment charging foreign commerce.” Id.As explained above, sufficient evidence sustains
Hartleroad’s conviction under the production prong of
§ 2251(a). Like in Haas, we have no doubt that the government
could have obtained a superseding indictment charging
Hartleroad with acting for the purpose of transmitting a live
visual depiction.
C. Difference between Indictment and Statute
Hartleroad also asserts that “producing a live visual de-
piction” is not a criminal offense under § 2251(a). Under the
plain error standard, he contends his substantial rights were
affected by this phrasing in the indictment. The government
submits that “visual depiction” as used in § 2251(a) includes
live video.
We agree with the government, so Hartleroad’s argument
fails on the second prong of plain error review. If he satisfies
the first prong, then acting “for the purpose of producing any
visual depiction,” § 2251(a) (emphasis added), is criminal-
ized. “Any” visual depiction includes all subsets of visual
16 No. 22-1156
depictions, including live transmissions. Hartleroad contests
that a Skype call constitutes a “visual depiction” as defined
under 18 U.S.C. § 2256(5). That provision defines a “visual de-
piction” as including “undeveloped film and videotape, data
stored on computer disk or by electronic means which is
capable of conversion into a visual image, and data which is
capable of conversion into a visual image that has been trans-
mitted by any means, whether or not stored in a permanent
format.” Id. A live Skype call constitutes data capable of con-
version into a visual image that has been transmitted via a
computer. See United States v. Nicoson, 793 F.3d 761, 762–63
(7th Cir. 2015) (explaining that a web camera conveys images
through a cable to a computer where they may be viewed).
So, Hartleroad’s assertion here is incorrect.
* * *
Sufficient evidence supports Hartleroad’s conviction. His
constructive amendment argument fails under plain error, as
does his contention that the indictment charged conduct that
is not an offense. For these reasons, the district court is
AFFIRMED.