United States v. Morgan

Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS November 5, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 24-3186 BRETT MORGAN, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 6:23-CR-10072-EFM-1) _________________________________ Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, with him on the briefs) Office of the Federal Public Defender for the District of Kansas, Kansas City, Kansas, for Defendant-Appellant. Bryan C. Clark, Assistant United States Attorney (James A. Brown, Appellate Division Chief; and Ryan A. Kriegshauser, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Kansas, Kansas City, Kansas, for Plaintiff-Appellee. _________________________________ Before CARSON, KELLY, and ROSSMAN, Circuit Judges. _________________________________ CARSON, Circuit Judge. _________________________________  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 2 When an adult exploits a child’s innocence to create pornography, the child suffers lasting harm. To prevent this harm, Congress criminalizes the production and possession of child pornography. Defendant Brett Morgan secretly filmed and photographed five young girls in his care, mostly while they were nude. A jury convicted him for production, attempted production, and possession of child pornography. Defendant raises several challenges to his convictions on appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. Defendant victimized five young girls in his care. He sexually abused his former stepdaughter (MV1) and used her friendships with other underage girls to gain access to new victims (MV2, MV3, MV4, and MV5). He then sexually abused at least one of these victims and secretly recorded each of them, mostly while they were nude. Defendant’s abuse surfaced after seven-year-old MV3, a friend of Defendant’s stepdaughter, pointed to a brush between her mother’s knees and said “you have a d-i-c-k.” Her parents contacted law enforcement. During a forensic interview, MV3 explained that Defendant engaged in sexually inappropriate conduct with her and MV1. She said that Defendant licked and touched their genitals every day, and that he tried to get her to “suck or play” with his penis, but she refused. She also said that Defendant tried to take pictures of their genitals with a red-and-black phone. 2  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 3 Detective Jonathan Elledge interviewed Defendant later that day and seized the red-and-black phone. Law enforcement then obtained search warrants for Defendant’s phone and home. Officers discovered secretly recorded videos and images of the five minors, several of which featured the minors nude in a bathtub. Law enforcement located the bathtub from the recordings in Defendant’s home along with a hidden camera pointed at the tub. A grand jury returned a ten-count indictment against Defendant based on these images and videos. In the indictment, the government charged Defendant with three counts of production of child pornography under 18 U.S.C. § 2251(a) and (e) (Counts 1, 2, and 9), six counts of attempted production of child pornography under 18 U.S.C. § 2251(a) and (e) (Counts 3, 4, 5, 6, 7 and 8), and one count of possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B), (b)(2) (Count 10). We describe the images and videos underlying each count in chronological order. On December 10, 2022, Defendant created a thirty-nine-second video and photo of MV2. The video and photo capture images of MV2’s covered genitals and up her nightshirt while she plays a virtual reality (“VR”) video game. The government charged Defendant with attempted production of child pornography involving MV2 based on this video and photo. This charge constituted Count 7. On December 22, 2022, Defendant created an hourlong video of MV1 and MV2 undressing and entering his bathtub. He recorded this video with a hidden camera that he placed across from the bathtub in his bedroom. The government 3  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 4 charged Defendant with attempted production of child pornography involving MV1 based on this video. This charge constituted Count 9. On January 7, 2023, Defendant created a zoomed-in screenshot of MV2’s genitals taken from the December 22, 2022 video underlying Count 9. The government charged Defendant with production of child pornography involving MV2 based on this screenshot. This charge constituted Count 8. On January 28, 2023, Defendant created a twenty-two-minute video of MV1 and MV2 nude in his bathtub. Unlike the video underlying Count 9, Defendant positioned the hidden camera next to the tub rather than across the room. During this video, MV1 says to MV2 that Defendant wanted them to “do things” to each other. Defendant enters the frame and directs the girls to display their genitals to the hidden lightbulb camera and tells MV2 to spread her vagina in the light. MV1 and MV2 display their genitals to the hidden lightbulb camera. The government charged Defendant with production of child pornography involving MV1 and MV2 based on this video. These charges constituted Counts 1 and 2 respectively. On April 6, 2023, Defendant created a photo of MV1 and MV5 nude in his bathtub. Like Counts 1 and 2, Defendant positioned the hidden lightbulb next to the bathtub. The government charged Defendant with attempted production of child pornography involving both MV1 and MV5 based on this photograph. This charge constituted Count 6. On June 5, 2023, Defendant created a four-minute and forty-nine-second video of MV1, MV3, and MV4 nude in his bathtub. Defendant is heard off-screen saying 4  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 5 “let’s take off all of our clothes and get into the tub,” and “[b]efore you can get dressed and after you are out of the tub you need to get into the shower.” The government charged Defendant with attempted production of child pornography involving MV1, MV3, and MV4. These charges constituted Counts 3, 4, and 5 respectively. As of July 4, 2023, Defendant possessed a close-up image of a prepubescent vagina spread by adult fingers. Investigators discovered this image on Defendant’s phone in a password-protected folder. The government charged Defendant with possession of child pornography based on this image. This charge constituted Count 10. At trial, the jury heard testimony from law enforcement, some of the victims’ parents, and MV3. They also viewed the videos and photos. The jury convicted Defendant on all counts, and the district judge imposed an eighty-year prison term. Defendant appealed. II. Defendant raises six issues on appeal. He argues: (1) we should reverse his convictions for attempted production of child pornography (Counts 3, 4, 5, 6, 7, and 9) because the government presented insufficient evidence or that we should vacate these convictions because the district court erroneously instructed the jury; (2) we should reverse his conviction for production of child pornography under Count 8 because the government presented insufficient evidence; (3) we should vacate his convictions for production and possession of child pornography (Counts 1, 2, 8, and 5  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 6 10) because the district court’s jury instruction misstated the law; (4) the district court abused its discretion when it admitted evidence of uncharged sexual abuse; (5) Counts 1, 2, 3, 4, 5, and 9 are plainly multiplicitous under the Double Jeopardy Clause; and (6) these claimed trial errors cumulatively prejudiced him. We address and ultimately reject each of Defendant’s arguments below. A. Before we address Defendant’s issues on appeal, we pause to discuss the legal standard applicable to Defendant’s convictions. Defendant’s convictions for producing, and for attempting to produce, child pornography required the government to prove that he “use[d]” (or attempted to use) “any minor to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” § 2251(a), (e). “[S]exually explicit conduct” includes, among other things, “actual or simulated” “lascivious exhibition of the anus, genitals, or pubic area of any person.” 1 § 2256(2)(A)(v). The parties dispute the applicable legal standard. Specifically, the parties dispute whether the minor must do anything to engage in a lascivious exhibition of her genitals under the child exploitation statutes. 1 Defendant’s conviction for possessing child pornography required the government to prove that he knowingly possessed child pornography. § 2252A(a)(5)(B). Child pornography includes “visual depiction[s] involv[ing] the use of a minor engaging in sexually explicit conduct.” § 2256(8)(A). Like the production and attempted production counts, the relevant sexually explicit conduct is the “actual or simulated” “lascivious exhibition of the anus, genitals, or pubic area of any person.” § 2256(2)(A)(v). 6  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 7 Under the government’s view, the minor’s conduct may be completely innocent. Even still, that minor engages in sexually explicit conduct when the defendant depicts their otherwise non-sexual conduct in a sexually explicit manner (by, for example, focusing the depiction on the child’s genitals). According to the government, then, a defendant uses a minor to engage in sexually explicit conduct when he “produce[s] a depiction of a lascivious exhibition of the minor’s genitals . . . .” Defendant instead insists that one cannot produce a depiction (or attempt to produce a depiction) of a “lascivious exhibition” by filming or photographing a minor’s non-sexual conduct (such as innocent nudity in a bathtub). Defendant’s argument runs along two strands. First, Defendant claims that an innocently behaving minor has not “engage[d] in any sexually explicit conduct.” Second, Defendant argues that the ordinary meaning of the phrase “lascivious exhibition of the genitals,” read in context, demonstrates that the minor’s conduct must “connote[] the commission of a sexual act” to be lascivious. The government’s position is correct. We adopted the Ninth Circuit’s interpretation of “lascivious exhibition” from United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987) in United States v. Wolf, 890 F.2d 241, 245 (10th Cir. 1989). In Wiegand, the Ninth Circuit viewed the term “lascivious” as “no different in its meaning than ‘lewd,’ a commonsensical term . . . .” Wiegand, 812 F.2d at 1243; see also United States v. Reedy, 845 F.2d 239, 241 (10th Cir. 1988). It then acknowledged that the term lascivious has a “connotation” that adults who engage in 7  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 8 lascivious exhibitions “intend . . . [a] sexual invitation by [their] pose.” Id. at 1244. The Ninth Circuit concluded, however, that it must interpret lasciviousness differently in the context of a statute that applies “to the conduct of children,” because children often will not comprehend or intend sexual connotations. Id. (noting that “it would be almost incredible” for a 10-year-old to “register sexual coyness”). Thus, in the context of the child exploitation statutes, the term lascivious does not refer to “a characteristic of the child photographed . . . .” Id. The child’s conduct need not “show[] sexual activity or willingness to engage in it,” nor must the child strike an “unnatural” pose for an exhibition of their genitals to be lascivious. Id. Instead, lasciviousness refers to “the exhibition which the photographer sets up for an audience that consists of himself or likeminded pedophiles.” Id.; accord United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999) (“The ‘lascivious exhibition’ is not the work of the child, whose innocence is not in question, but of the producer or editor of the video.”). A depiction of a child is lascivious, not because of the child’s conduct, but because it “feature[s] the child photographed as a sexual object.” Id. We adopted this understanding of lascivious in Wolf without qualification, quoting heavily from the Wiegand decision. See 890 F.2d at 244–247. To determine whether a minor engages in a lascivious exhibition under our cases, then, we “do not consider [the victim’s] actions or state of mind” or “place[] the onus of lust on the child being photographed.” United States v. Wells, 843 F.3d 1251, 1254–55 (10th Cir. 2016) (quoting Wolf, 890 F.2d at 245). Instead, lasciviousness turns on 8  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 9 the overall content of the visual depiction. Id. at 1254. And “a visual depiction of a minor is ‘a lascivious exhibition because the photographer array[s] it to suit his peculiar lust.” Id. at 1254 (quoting Wolf, 890 F.2d at 245) (emphasis altered). Returning to the parties’ dispute, our cases foreclose Defendant’s argument that a minor’s innocent conduct cannot be sexually explicit. Instead, we have explained that a depiction “of a child ‘engaged in sexually explicit conduct’ within the meaning of” § 2251 is a depiction “of a child’s sex organs displayed lasciviously—that is, so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.” Wolf, 890 F.2d at 245 (quoting Wiegand, 812 F.2d at 1244) (emphasis added). By producing such a depiction, a defendant uses the minor to engage in sexually explicit conduct. See United States v. Theis, 853 F.3d 1178, 1181–82 (10th Cir. 2017) (explaining that a defendant violates the “use” element of § 2251 when he photographs a child “in order to create pornography” (quoting United States v. Sirois, 87 F.3d 34, 41 (2d Cir. 1996))). And for similar reasons, our cases foreclose Defendant’s argument that the minor’s conduct must “connote[] the commission of a sexual act” to be lascivious. We have “explicitly ‘rejected th[is] notion . . . .’” Wells, 843 F.3d at 1254 (quoting Wolf, 890 F.2d at 245). Again, the term lascivious describes the depiction—not the child’s conduct. See id. (citing Wolf, 890 F.2d at 245). Implicit in Defendant’s arguments is the idea that a minor does not suffer abuse when a defendant depicts their otherwise innocent conduct in a sexually explicit manner. Indeed, he claims that characteristics of the depiction, such as the 9  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 10 focal point, setting, and the intent behind it do not “tell us whether the child was abused . . . .” According to Defendant, understanding abuse requires an exclusive focus on “the conduct engaged in by (or forced upon) the minor.” Id. To the contrary, “the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.” New York v. Ferber, 458 U.S. 747, 758 (1982); see also Child Protection Act of 1984, Pub. L. No. 98–292, 98 Stat. 204 (1984) (legislative finding of the same). As we explained in Wolf, interpreting lasciviousness as characteristic of the depiction rather than the child’s conduct reflects the purposes underlying child exploitation statutes. Wolf, 890 F.2d at 247. Congress sought to protect “the invasion of the child’s ‘vulnerability’” by the voyeur. Id. (quoting Wiegand, 812 F.2d at 1245). The conduct criminalized is that of the “pornographic photographer,” who “subordinates the humanity” of the child to his own sexuality, makes the child “a mere means of serving the voyeur’s purposes,” and “treat[s]” the child “as a thing.” Id. (quoting Wiegand, 812 F.2d at 1245). Consistent with this understanding, we have affirmed convictions under § 2251 even when the child has not “done” anything sexually explicit aside from being the subject of the defendant’s lascivious depiction. In Wolf we affirmed a conviction under § 2251 even though the defendant photographed the child as she slept. 890 F.2d at 243. Although the child slept, the defendant used her to engage in sexually explicit conduct by creating a lascivious depiction of her genitals. Id. at 245–46. “To find otherwise,” we explained “would ignore the obvious exploitative 10  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 11 nature of the depiction” and “pervert both the language and logic” of the statute. 2 Id. at 246. In Wells we similarly upheld a conviction against the defendant’s sufficiency argument even though the evidence showed that the minor engaged only in “common bathroom activities” and “viewed her own actions as nonsexual.” 843 F.3d at 1255. In assessing evidentiary sufficiency, we did not “consider [the minor’s] actions or state of mind” but instead focused our analysis on the defendant’s actions and intent in creating the exploitative depiction. Id. at 1255–56. We found the evidence sufficient when the defendant filmed the victim in a sexually suggestive setting, focused the videos on the victim’s genitals, and had a sexual interest toward the victim. Id. at 1256–57. Thus, in Wells and Wolf, we “explicitly ‘rejected the notion that’” the minor’s conduct or state-of-mind must be sexual. See id. at 1254 (quoting Wolf, 890 F.2d at 245). Instead, a minor’s otherwise innocent conduct can become sexually explicit through the defendant’s exploitative depiction of that conduct. 3 2 Defendant agrees that the minor “engaged in” sexually explicit conduct in Wolf. But he argues that the defendant caused her to do so by manipulating her clothes and legs before photographing her. Neither we nor the district court made this finding. Wolf, 890 F.2d at 246 (quoting the district court as noting that the child’s clothes had been elevated “by some means”). And we did not suggest that any pre-photo conduct by the defendant, rather than his conduct in creating the overall depiction, was necessary for “the photograph to be a ‘lascivious exhibition’ in the meaning of 18 U.S.C. § 2256.” Wolf, 890 F.2d at 246. 3 We are not the only circuit to reach this conclusion. See, e.g., United States v. Johnson, 639 F.3d 433, 440 (8th Cir. 2011) (explaining that lasciviousness “need not necessarily be ‘the work of the child, whose innocence is not in question, but of the producer or editor of the video’” (quoting United States v. Horn, 187 F.3d 781, 790 (8th Cir. 1999))); United States v. Holmes, 814 F.3d 1246, 1251–52 (11th Cir. 11  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 12 In sum, where the “sexually explicit conduct” at issue is the lascivious exhibition of a minor’s genitals, a defendant uses that minor to engage in sexually explicit conduct when he produces a visual depiction of a lascivious exhibition of that minor’s genitals. See Wolf, 890 F.2d at 245 (quoting Wiegand, 812 F.2d at 1244); Theis, 853 F.3d at 1181–82 (10th Cir. 2017) (use element met when a minor “is photographed in order to create pornography.” (quoting Sirois, 87 F.3d at 41)). Having described the applicable legal standard, we turn to Defendant’s arguments on appeal. B. Defendant first argues that we should reverse his convictions for attempted production of child pornography (Counts 3, 4, 5, 6, 7, and 9) because the government presented insufficient evidence to the jury. Alternatively, Defendant contends that we should vacate these convictions because the district court erroneously instructed the jury on the mens rea element for an attempt offense. We reject both arguments. 2016) (joining the Eighth, Ninth, and Tenth Circuits in concluding that “depictions of otherwise innocent conduct may in fact constitute a ‘lascivious exhibition of the genitals or pubic area’ of a minor based on the actions of the individual creating the depiction”); United States v. Donoho, 76 F.4th 588, 597–98 (7th Cir. 2023) (noting that whether “otherwise nonsexual” or “otherwise innocent” conduct is lascivious depends on context including “the manner in which the depiction is framed”); United States v. Sanders, 107 F.4th 234, 263–64 (4th Cir. 2024) (explaining that “a lascivious exhibition exists without any depiction of the minor engaging in sexual conduct or conduct connoting a sex act”). 12  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 13 1. We review a defendant’s challenge to the sufficiency of the evidence supporting a conviction de novo. United States v. Xiang, 12 F.4th 1176, 1184 (10th Cir. 2021) (citing United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004)). This review is “highly deferential,” and we will only reverse the jury’s verdict if “no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting United States v. Griffith, 928 F.3d 855, 868–69 (10th Cir. 2019)). In assessing what a rational juror could have found, we view all evidence in the “light most favorable to the government.” United States v. Simpkins, 90 F.4th 1312, 1318 (10th Cir. 2024) (citing Musacchio v. United States, 577 U.S. 237, 243 (2016)). The jury convicted Defendant on Counts 3, 4, 5, 6, 7, and 9 for attempted production of child pornography under § 2251(a) and (e). To prove an attempt, “the government must show (1) specific intent to commit the crime, and (2) a substantial step towards completion of the crime.” United States v. Isabella, 918 F.3d 816, 831 (10th Cir. 2019) (citing United States v. Faust, 795 F.3d 1243, 1248 (10th Cir. 2015)). We conclude the government presented sufficient evidence to prove, for each attempt count, that Defendant specifically intended to produce a visual depiction of a lascivious exhibition of a minor’s genitals and that he took a substantial step toward that end. 13  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 14 a. We begin with evidence of Defendant’s specific intent to produce depictions of his victims’ genitals displayed lasciviously. Defendant bought a light bulb with a hidden camera to secretly film his victims for an extended period in his bathroom— where he knew they would be nude. See United States v. Wilson, 142 F.4th 1045, 1051 (8th Cir. 2025) (finding sufficient evidence under similar circumstances). Nudity “further contributes” to a rational jury’s conclusion as to lasciviousness (or here, attempted lasciviousness). Wells, 843 F.3d at 1256. And the bathroom can be a “sexually suggestive setting.” 4 Id. Defendant initially placed the hidden camera across his bedroom and pointed it at the bathtub. After filming MV1 and MV2 in his bathtub for an hour from this vantage point (Count 9), he created a zoomed-in screenshot of MV2’s genitals (Count 8) and repositioned the camera to be closer to his victims (Counts 1–6). This pattern suggests that Defendant sought to depict more than “mere nudity,” Isabella, 918 F.3d at 831 (acknowledging that “mere nudity is not sufficient to constitute child pornography . . . .” (quoting United States v. Soderstrand, 412 F.3d 1146, 1151–52 (10th Cir. 2005)), and that he instead “‘intended or designed’ the videos” to focus 4 Defendant’s bathroom connects to his bedroom, and a partial wall with cutouts separates the two rooms. Some of the nudity captured by Defendant takes place in his bedroom. A rational jury could also conclude that Defendant’s bedroom was a sexually suggestive location. See Wells, 843 F.3d at 1256 (adopting the Third Circuit’s statement that a bathroom “is potentially as much of a setting for fantasy sexual activity as is an adult’s bedroom.” (quoting United States v. Larkin, 629 F.3d 177, 183 (3d Cir. 2010) (emphasis added)). 14  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 15 more closely on his victims’ genitals and to “elicit a sexual response.” Wells, 843 F.3d at 1254 (quoting Wolf, 890 F.2d at 244); see also id. at 1257 (repositioning camera “because of [] carnal response” to minor indicative of Defendant’s sexual intent toward the victim); Wilson, 142 F.4th at 1052 (finding screenshots of pubic area culled from footage of minor evinced intent). Defendant also sexually abused MV1 and MV3 while they were in his care. This evidence supports the jury’s findings because it demonstrates Defendant’s sexual interest toward the victims. See Wells, 843 F.3d at 1256–57 (considering the defendant’s actions that “demonstrated his sexual desires” toward the victim). That Defendant possessed child pornography and produced child pornography using the same hidden camera in the same bathroom involving some of the same victims is more evidence relevant to the intent element for each attempt count. See Isabella, 918 F.3d at 834 n.17 (noting that specific intent may be inferred from evidence that demonstrates a common scheme to violate § 2251). Defendant possessed an image of a minor’s genitals spread by adult fingers. As already mentioned, after failing to film his victims closely enough in the first hourlong video (Count 9), Defendant paused the video and zoomed it in to create a lascivious depiction of MV2’s genitals (Count 8) and repositioned his camera. During the twenty-two-minute video underlying Counts 1 and 2, Defendant directed MV1 and MV2 to display their genitals directly into his lightbulb camera. Also in this video, MV1 tells MV2 that Defendant wanted them to “do things” to each other. 15  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 16 The evidence underlying each count further supports the jury’s convictions. Beginning with Count 7, Defendant filmed a thirty-nine-second video of MV2 playing a VR video game in her nightgown and underwear. He also photographed her. Defendant positioned the camera up MV2’s skirt and between her legs “such that the genital/vaginal area is emphasized and is in fact the primary subject of the picture.” Wolf, 890 F.2d at 246; see also Wells, 843 F.3d at 1255–56 (a jury can reasonably consider the focal point of the videos in determining lasciviousness). Although MV2 is not completely nude, we have never held that a completed, let alone an attempted, violation of the statute requires nudity. See United States v. Helton, 302 F. App’x 842, 847 (10th Cir. 2008) (unpublished) (citing Horn, 187 F.3d at 789–90 (finding a lascivious exhibition when the depiction focused on the minor’s covered genitals)). The jury could have also inferred intent from the fact that, only a short time later, Defendant filmed MV2 nude in his bathroom and created a zoomed- in screenshot of her genitals. Count 9 involves a secretly recorded, roughly hourlong video of MV1 and MV2 undressing and getting into Defendant’s bathtub. As discussed above, the length and location of this video support the jury’s conclusion that Defendant intended to produce a lascivious display of MV1’s genitals when he secretly recorded her nude in the bathroom for about an hour. Defendant also perused this hourlong video to identify a suitable moment to screenshot and zoom-in to create a lascivious depiction of MV2’s genitals. See Wells, 843 F.3d at 1255 (highlighting Defendant’s reviewing and “cull[ing]” of footage). And Defendant positioned his hidden camera 16  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 17 closer to his victims after filming this video. Defendant’s later actions create a reasonable inference of his intent in creating the depiction underlying Count 9. Count 6 involves a photo that Defendant took of MV1 and MV5 nude in his bathtub. Although Defendant failed to capture a lascivious exhibition of either girls’ genitals, the jury could have rationally concluded that he intended to do so. Defendant created and stored this screenshot after he repositioned his hidden camera. Defendant angled the camera downward toward the inside of the tub. The nude minors are the central focus of the image. And as already discussed, Defendant used MV1 (featured in this photo) and another victim (MV2) to produce child pornography in his bathtub with the same hidden camera before taking this photo. Based on this evidence, a rational jury could infer that Defendant intended to create child pornography when he screenshotted MV1 and MV5 nude in his bathtub. Counts 3, 4, and 5 involve Defendant’s attempted use of MV1, MV3, and MV4 respectively to create child pornography. These counts involve a roughly five- minute-long video in which Defendant directs the three minors to “take off all of [their] clothes and get into the tub.” The camera retains the same proximity to the tub and the same angle as in Count 6, and the minors’ genitals are briefly visible as they enter the tub. Again, the jury could infer Defendant’s intent from the length of the video, its sexually suggestive location, and because Defendant told the minors to get nude and directed them toward the hidden camera. See Wells, 843 F.3d at 1256 (explaining that a jury could conclude that the bathroom is a sexually suggestive setting); Wilson, 17  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 18 142 F.4th at 1051 (finding sufficient evidence after the defendant placed cameras where minors were “most likely to be naked” and “set them to record for an extended period of time, and hid them to avoid detection”). Defendant also created this video after he produced lascivious exhibitions of MV1 and MV2’s genitals in the same bathtub with the same hidden camera, and after he had instructed MV1 to “do things” with another victim in his bathtub. See Isabella, 918 F.3d at 834 n.17 (jury may infer intent from evidence of a common scheme). Thus, the government presented sufficient evidence for the jury to conclude, for each count, that Defendant specifically intended to produce a depiction of a lascivious exhibition of his victims’ genitals. b. The jury also needed to conclude that Defendant took a substantial step toward producing child pornography. “[A] substantial step is appropriately found where the defendant undertook ‘an act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of [a] particular crime.’” United States v. Gordon, 710 F.3d 1124 (10th Cir. 2013) (quoting United States v. Fleming, 667 F.3d 1098, 1107 (10th Cir. 2011)). Whether the defendant took a substantial step is a “highly fact-specific inquiry,” United States v. Faust, 795 F.3d 1243, 1248 (10th Cir. 2015) (quoting United States v. Irving, 665 F.3d 1184, 1195 (10th Cir. 2011)), but we have said that the defendant must do “something more than mere preparation,” Gordon, 710 F.3d at 1150 (quoting Fleming, 667 F.3d at 1107). 18  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 19 Here, sufficient evidence existed for the jury to conclude that Defendant took a substantial step toward producing lascivious exhibitions of his victims’ genitals. Defendant used his stepdaughter’s friendships with other minor girls to gain access to them so he could exploit them. For Count 7, Defendant placed his phone between MV2’s legs and filmed and photographed her genitals. For the remaining attempt counts (Counts 3, 4, 5, 6, and 9), Defendant bought a hidden lightbulb camera and recorded the nude victims in his bathtub for extended periods of time. He repositioned this camera to film his victims more closely. Defendant told his stepdaughter (who is featured in every attempt count besides Count 7) that he expected her to “do things” with another victim in his bathtub. Although the videos and photographs underlying the attempt counts did not actually result in a lascivious exhibition of the genitals (at least as charged by the government), a substantial step “may be less than the last act necessary before the actual commission of the substantive crime.” Gordon, 710 F.3d at 1150 (quoting Fleming, 667 F.3d at 1107). Defendant took every step necessary to violate § 2251(a) for each attempt count aside from successfully capturing a lascivious display of his victims’ genitals. A jury could rationally conclude that these acts were “adapted to,” and “in the ordinary and likely course of things” would, result in Defendant completing the crime. Id. at 1151 (quoting Fleming, 667 F.3d at 1107). 2. Defendant also asks us to vacate his attempt convictions because the district court erroneously instructed the jury. “We review jury instructions de novo, 19  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 20 examining whether[,] as a whole, the instructions accurately informed the jury of the issues and the governing law.” Wilson v. Schlumberger Tech. Corp., 80 F.4th 1170, 1173 (10th Cir. 2023) (quoting Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1221 (10th Cir. 2008)). Defendant claims that the district court failed to properly instruct the jury on the mens rea element required for an attempt conviction. Again, to prove an attempt, the government must show that the defendant had a specific intent to commit the crime. Isabella, 918 F.3d at 831 (citing Faust, 795 F.3d at 1248). The instruction told the jury that the government had to prove “[t]he defendant knowingly attempted to use [a] Minor Victim to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” It explained that this required the jury to find “the defendant (1) knowingly took a substantial step toward using the Minor Victim to engage in sexually explicit conduct; (2) with the intent to make a visual depiction of this sexually explicit conduct.” The instruction then defined attempt: “in order to prove an attempt, the government must prove beyond a reasonable doubt that (1) the defendant intended to commit the crime, and that (2) the defendant took a substantial step towards commission of that crime.” Defendant highlights two purported issues with this instruction. First, Defendant points out that the instruction required the jury to find only that he intended to make a visual depiction of the minors’ sexually explicit conduct. According to Defendant, this instruction failed to convey the requirement that he also intended to use the minors to engage in sexually explicit conduct 20  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 21 But we explained in Theis that a defendant “uses” a minor when he “intentionally films or photographs a minor’s sexually explicit conduct.” 853 F.3d at 1182 (collecting cases). Thus, by proving to the jury that Defendant “inten[ded] to make a visual depiction” of the minor victims’ “sexually explicit conduct,” the government also proved that he intended to use the minor victims to engage in sexually explicit conduct. Defendant next challenges the instructional phrase “knowingly attempted to use” because “knowingly” committing a crime is different than specifically intending to commit a crime. Defendant is correct that knowledge and intent describe different states of mind. Knowledge requires the government to prove the defendant’s “general intent” to commit the crime. United States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995) (citing United States v. Bailey, 444 U.S. 394, 405 (1980)). And general intent only requires that the defendant act “voluntarily and intentionally, and not because of mistake or accident.” Id. at 642 (quoting United States v. Hall, 805 F.2d 1410, 1420 (10th Cir. 1986)). Specific intent, meanwhile, requires that the defendant’s “act was committed voluntarily and purposely with the specific intent to do something the law forbids.” Id. (quoting Hall, 805 F.2d at 1420). Even still, we conclude that the jury instruction did not misstate the law when considered as a whole. Although the phrase “knowingly attempted to use” is inartful, this phrase did not permit the jury to convict Defendant on the lesser mens rea of knowledge. On its face, the instruction still required the jury to find that Defendant attempted to use each victim. The instruction twice specified the requirements of 21  Appellate Case: 24-3186 Document: 68-1 Date Filed: 11/05/2026 Page: 22 attempt. Right after discussing the elements of the crime, the instruction elaborated that “to prove the defendant attempted to commit the offense,” the government had to prove that the defendant “inten[ded] to make a visual depiction of [the Minor Victim engaged in sexually explicit conduct.]” This accurately states the law. The instruction then explained attempt one more time, stating explicitly that “the government must prove beyond a reasonable doubt that (1) the defendant intended to commit the crime . . . .” We conclude that the instructions, when read as a w