United States v. Encarnacion-Ruiz

United States Court of Appeals
For the First Circuit

No. 12-2030

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERTO ENCARNACIÓN-RUIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Thompson, Baldock,* and Lipez,
Circuit Judges.

Mary Davis, with whom Tisdale & Davis, P.A., was on brief, for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, was on brief, for appellee.

May 28, 2015

*
Of the Tenth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. This case presents an issue of

first impression, requiring us to decide the applicability of the

Supreme Court's decision in Rosemond v. United States, 134 S. Ct.

1240 (2014), to appellant's claim that the government has to prove

beyond a reasonable doubt that an aider and abettor to a production

of child pornography charge knew that the victim was a minor.

I.

Roberto Encarnación-Ruiz ("Encarnación") was charged with

one count of aiding and abetting the production of child

pornography in connection with a pornographic film that he made in

2010 with Rey Vilanova-Delgado ("Vilanova") and KMV, a 14-year-old

girl. In the district court, Encarnación argued that he was

mistaken as to KMV's age, and his mistake of age should be a

defense to the child pornography charge. The government moved in

limine to preclude Encarnación from arguing that he "lacked

knowledge of, or [was] mistaken about, the age of the minor

victim." The district court granted the motion in limine.

Encarnación subsequently entered a conditional guilty plea. In

entering this plea, he reserved his right to appeal "whether the

defendant's mistake of age of the victim can be raised as a defense

to a charge of production of child pornography under [18 U.S.C.

§] 2251(a)."

After this case was argued before us, the Supreme Court

issued its opinion in Rosemond, which clarified the mens rea

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requirement for aiding and abetting a crime. The Court held that

the government must prove that an aider and abettor of criminal

conduct participated with advance knowledge of the elements that

constitute the charged offense. 134 S. Ct. at 1248-49. We

requested supplemental briefing from the parties to address whether

Rosemond "requires the government in a prosecution for aiding and

abetting a violation of 18 U.S.C. § 2251(a) to prove the aider and

abettor's knowledge of the element that the victim is a minor."

Encarnación contends that Rosemond supports his argument that, to

aid and abet the production of child pornography, he must have had

advance knowledge that the victim was a minor. The government

counters that there is no knowledge requirement for principals of

a § 2251(a) offense,1 and, hence, Rosemond does not create such a

requirement for aiders and abettors.

After review, we agree with Encarnación that Rosemond

requires the government in a prosecution for aiding and abetting a

violation of 18 U.S.C. § 2251(a) to prove the aider and abettor's

knowledge that the victim was a minor. Therefore, we vacate

Encarnación's conviction and remand the case to the district court

for further proceedings.

1
As we shall explain, this case does not require us to decide
whether a principal can be found guilty of producing child
pornography without knowing the victim was a minor, and we offer no
view on that issue.

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 II.

Encarnación met KMV at a beach near San Juan, Puerto

Rico, when she was in the company of Vilanova. Vilanova in turn

knew KMV through one of her family friends, Félix Iván

Rodríguez–Acevedo. Because KMV lacked Internet access at home, she

would occasionally visit Vilanova's apartment to use his computer

and Internet connection. At some point during KMV's visits,

Vilanova and Rodríguez–Acevedo began to engage in sexual acts with

her. Other men, including Encarnación, came to the apartment when

she was there and also engaged in sexual acts with her.2

Encarnación and Vilanova were recorded engaging in sexual

acts with KMV in a video made in April or May 2010. KMV was 14

years old at the time. Police discovered the recording about a

year later, after Vilanova's neighbors became aware of his sexual

relationship with KMV and attacked him with a baseball bat. This

incident sent Vilanova to the hospital and the police to his door.

Encarnación was charged, in count three of a superseding

indictment, with aiding and abetting Vilanova to use KMV, a minor,

in the production of child pornography, in violation of 18 U.S.C.

§ 2251(a) and 18 U.S.C. § 2.3 Section 2, the aiding and abetting

2
We set forth further background facts in our opinion in
United States v. Ramos, 763 F.3d 45, 49-50 (1st Cir. 2014).
3
Co-defendants Vilanova, Rodríguez-Acevedo, Zairo Ramos, and
Félix Javier González–Morales were charged in other counts of the
superseding indictment. Those charges included a video of another
minor and another video of KMV recorded in May or June of 2010.

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statute, provides that a defendant "is punishable as a principal"

if he "aids, abets, counsels, commands, induces or procures" the

commission of a federal crime. After the district court rejected

Encarnación's mistake of age defense, he entered a conditional

guilty plea and was sentenced to a mandatory minimum of 15 years in

prison.4

III.

A. Waiver and Forfeiture

The argument that Encarnación has raised on appeal — that

the government must prove that an aider and abettor of the

production of child pornography under 18 U.S.C. § 2251(a) knew that

the victim was a minor — was not the exact argument that he

presented in the district court. This fact raises two preliminary

issues: (1) whether Encarnación's argument is waived because it

exceeds the scope of the issue preserved in his plea agreement, or

(2) whether the argument is forfeited, and, therefore, we should

review it under the plain error standard. The dissent adds that

Encarnación waived his Rosemond argument because he only addressed

Encarnación was not charged in connection with this later video.
See Ramos, 763 F.3d at 50 & n.4. Vilanova, Rodríguez-Acevedo, and
González–Morales pleaded guilty as part of plea agreements with the
government. Id. at 50 n.4. Ramos was found guilty at trial. Id.
at 51.
4
Encarnación was also charged and convicted of statutory rape
of KMV in San Juan Superior Court under Article 142 of the Puerto
Rico Penal Code. The government could not have charged him under
the federal statutory rape statute because his sexual activity with
KMV did not occur on federal property. See 18 U.S.C. § 2243(a).

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it in a cursory fashion on appeal. We address the waiver and

forfeiture issues in turn.

1. Waiver

a. Plea Agreement

Encarnación's plea agreement contained a conditional

waiver provision where he agreed to "waive[] and permanently

surrender[] his right to appeal the judgment and sentence in this

case" but preserved the right to appeal "the unresolved legal issue

in the First Circuit of whether the defendant's mistake of age of

the victim can be raised as a defense to a charge of production of

child pornography under [18 U.S.C. §] 2251(a)." Plea Agreement at

10. When determining whether an appeal falls within a waiver's

scope, "we rely on basic contract interpretation principles,

construing the agreement where possible to give effect to every

term and phrase, and construing any ambiguities in favor of

allowing the appeal to proceed." United States v. Santiago-Burgos,

750 F.3d 19, 23 (1st Cir. 2014) (internal citation omitted).

Encarnación's appellate argument fits within the question

he preserved in the plea agreement. He contends that he was

mistaken as to KMV's age and, because he was charged as an aider

and abettor, his lack of knowledge that the victim was a minor is

a defense to a § 2251(a) charge. Put differently, the argument

that the prosecution cannot establish the mens rea element of

aiding and abetting because it cannot prove beyond a reasonable

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doubt that a defendant knew that the victim was a minor is a

"defense" to a § 2251(a) charge. See 1 Wayne LaFave, Substantive

Criminal Law § 5.6(a) (2d ed. 2014) (hereinafter LaFave)

("[I]gnorance or mistake of fact . . . is a defense when it

negat[es] the existence of a mental state essential to the crime

charged."). A defendant who successfully raises such a defense

would be acquitted by a jury because the government had failed to

prove his knowledge of the age of the victim beyond a reasonable

doubt. See Dixon v. United States, 548 U.S. 1, 23 (2006) (noting

that a defendant's mens rea "is always for the prosecution to prove

beyond a reasonable doubt"). Moreover, in this case, the

government itself is not arguing waiver, but instead does "not

object that the issue as raised was not the precise issue preserved

by the conditional plea." For these reasons, we find that

Encarnación's argument is not waived.

b. "Conclusory" argument

The dissent suggests that Encarnación waived his

appellate argument for another reason. Specifically, the dissent

claims that Encarnación waived the argument that "Rosemond requires

the government to prove an aider an abettor's knowledge of age as

an element of the crime" because "he gave us nothing more than

conclusory statements" on appeal.

We have repeatedly stated that "we deem waived claims not

made or claims adverted to in a cursory fashion, unaccompanied by

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developed argument." Rodriguez v. Municipality of San Juan, 659

F.3d 168, 175 (1st Cir. 2011). "We require parties to 'spell out

their issues clearly, highlighting the relevant facts and analyzing

on-point authority.'" United States v. Gray, 780 F.3d 458, 464

(1st Cir. 2015) (quoting Rodriguez, 659 F.3d at 175).

Here, Encarnación's supplemental brief argued that "a

person becomes an aider and abettor if and only if the person

'actively participates in a criminal venture with full knowledge of

the circumstances constituting the charged offense,' and the age of

the victim is one of the circumstances that constitutes the charged

offense." Appellant's Supp. Br. at 10-11 (quoting Rosemond, 134 S.

Ct. at 1248-49). Encarnación also identified four other passages

in Rosemond to support his on-point argument. Therefore, we find

the argument has been sufficiently developed and is not waived.

See Gray, 780 F.3d at 464 (finding that argument not waived where

defendant cited only one case but "offered a short but on-point

argument").

2. Forfeiture

Although Encarnación's appellate argument is not waived

because it fits within the broad legal question he preserved in the

plea agreement, and the government does not argue to the contrary,

we also address whether his argument is forfeited because he did

not raise it in the district court. These two issues, though

related, are distinct. The first asks whether Encarnación's

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argument falls within the scope of the conditional waiver provision

in his plea agreement. The second asks whether Encarnación raised

the argument in front of the district court judge.

When a party fails to raise an argument in the district

court, we generally review the claim under the plain error standard

of review. See United States v. Pagán-Ferrer, 736 F.3d 573, 593

(1st Cir. 2013). However, in this case, the government has not

asked us to review Encarnación's argument for plain error and,

instead, agrees to de novo review. When the government fails to

request plain error review, we, and many of our sister circuits,

review the claim under the standard of review that is applied when

the issue is properly preserved below. See United States v.

Tapia-Escalera, 356 F.3d 181, 183 (1st Cir. 2004) (declining to

apply plain error review to unpreserved claim when not requested by

government); see also United States v. Williams, 641 F.3d 758, 763-

64 (6th Cir. 2011) (applying de novo review to unpreserved legal

claim because government did not request plain error standard);

United States v. Salem, 597 F.3d 877, 884 (7th Cir. 2010) (stating

that government "waived its right to rely on plain error review"

when it failed to request that standard of review); United States

v. Kortgaard, 425 F.3d 602, 610 (9th Cir. 2005) (refusing to apply

plain error standard because "[e]ven if Kortgaard failed to

preserve the error below, the government nonetheless elected to

address the merits of Kortgaard's challenge . . . without raising

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the issue of waiver"); United States v. Cyr, 29 Fed. Appx. 1, 4 n.

3 (D.C. Cir. 2001) (choosing not to apply plain error review

because government did not argue for it); but see United States v.

Bain, 586 F.3d 634, 639 n.4 (8th Cir. 2009) (stating that "a

party's concession on the standard of review does not bind the

court"). Therefore, even if Encarnación did not sufficiently raise

his appellate argument in the district court, we will review de

novo the question of law posed by this case. See United States v.

Carter, 752 F.3d 8, 13 (1st Cir. 2014); see also United States v.

Duquette, 778 F.3d 314, 317 (1st Cir. 2015) (applying de novo

review where "the government appears to have conceded that de novo

reviews applies").

B. The Supreme Court's Rosemond Decision

Rosemond involved a "drug deal gone bad," after either

the defendant (Rosemond) or his confederate (it was unclear who)

fired a gun at the buyers, who had taken the drugs and run away

without paying. 134 S. Ct. at 1243. Rosemond was charged with

violating 18 U.S.C. § 924(c) by using a firearm in connection with

a drug trafficking offense, or, in the alternative, aiding and

abetting that crime under 18 U.S.C. § 2. Id.

At trial, Rosemond contended that he "took no action with

respect to any firearm." Id. at 1246. More specifically, he did

not buy, borrow, carry, or use a gun in connection with the alleged

drug transaction. Id. Building on this factual premise, he argued

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that he could be found guilty of aiding or abetting a § 924(c)

violation only if he "intentionally took some action to facilitate

or encourage the use of the firearm, as opposed to the predicate

drug offense." Id. at 1244 (internal quotation marks omitted).

Disagreeing, the district court instructed the jury that Rosemond

was guilty of aiding and abetting if "(1) [he] knew his cohort used

a firearm in the drug trafficking crime, and (2) [he] knowingly and

actively participated in the drug trafficking crime." Id.

(internal quotation marks omitted). Rosemond was convicted by the

jury, and the Tenth Circuit affirmed.5 Id. at 1244.

The Supreme Court vacated Rosemond's § 924(c) conviction.

Id. at 1252. The Court first restated longstanding aiding and

abetting law: "[A] person is liable under § 2 for aiding and

abetting a crime if (and only if) he (1) takes an affirmative act

in furtherance of that offense, (2) with the intent of facilitating

the offense's commission." Id. at 1245. Regarding the affirmative

act requirement, the Supreme Court concluded that the district

court correctly instructed the jury that Rosemond could be

5
The jury's verdict form was general and "did not reveal
whether the jury found that Rosemond himself had used the gun or
instead had aided and abetted a confederate's use during the
marijuana deal." Rosemond, 134 S. Ct. at 1244. Even if the jury
could have found that Rosemond himself fired the gun, the Tenth
Circuit and the Supreme Court had to address his aiding and
abetting argument because "a conviction based on a general verdict
is subject to challenge if the jury was instructed on alternative
theories of guilt and may have relied on an invalid one." Id. at
1244 n.2 (internal quotation marks omitted).

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convicted of aiding and abetting a § 924(c) offense even if he

facilitated only the drug trafficking element, and not the use of

the gun. Id. at 1247; see also id. at 1246 ("[A] defendant can be

convicted as an aider and abettor without proof that he

participated in each and every element of the offense." (internal

quotation marks omitted)).

Regarding the intent requirement, the Court stated that

a person must intend to facilitate "the specific and entire crime

charged." Id. at 1248; see also id. ("[A]n aiding and abetting

conviction requires . . . a state of mind extending to the entire

crime." (emphasis added)). Therefore, with a § 924(c) offense, the

aider and abettor must have knowledge of the full scope of the

crime, that is, "that the plan calls not just for a drug sale, but

for an armed one." Id. at 1249; see also id. (stating that a

defendant must intend to commit "the illegal scheme in its entirety

— including its use of a firearm").

The Court further held that this knowledge has to be

"advance knowledge," meaning "knowledge at a time the accomplice

can do something with it — most notably, opt to walk away." Id. at

1249-50. The jury instructions at Rosemond's trial were in error

because they did not require that Rosemond knew in advance that one

of his cohorts would be armed. See id. at 1251. By instructing

the jurors to consider merely whether Rosemond "knew his cohort

used a firearm," the district court failed to direct them to

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determine when Rosemond obtained the requisite knowledge — i.e., to

decide whether Rosemond knew about the gun in sufficient time to

withdraw from the crime. Id. at 1251-52.

C. Application of Rosemond to Encarnación

The application of Rosemond to the charge in this case is

relatively straightforward. The prosecution charged Encarnación

with aiding and abetting Vilanova in the production of child

pornography in violation of 18 U.S.C. § 2251(a) and 18 U.S.C. § 2.

An individual violates § 2251(a) if he "employs, uses, persuades,

induces, entices, or coerces any minor to engage in . . . any

sexually explicit conduct for the purpose of producing any visual

depiction of such conduct . . . using materials that have been

mailed, shipped, and transported in or affecting interstate or

foreign commerce." (emphasis added). Under Rosemond, to establish

the mens rea required to aid and abet a crime, the government must

prove that the defendant participated with advance knowledge of the

elements that constitute the charged offense. See 134 S. Ct. at

1248-49; see also id. (stating that an aider and abettor must have

"full awareness of [the crime's] scope," "full knowledge of the

circumstances constituting the charged offense," and "participate[]

in a criminal scheme knowing its extent and character"); United

States v. Diaz-Castro, 752 F.3d 101, 107 n.4 (1st Cir. 2014)

(stating that Rosemond clarified that a defendant needs "advance

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knowledge" of the elements of an offense to be convicted as an

aider and abettor).

Producing child pornography is illegal precisely because

the person in the visual depiction was a minor. If an individual

charged as an aider and abettor is unaware that the victim was

underage, he cannot "wish[] to bring about" such criminal conduct

and "seek . . . to make it succeed." Rosemond, 134 S. Ct. at 1248

(quoting Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)).

Therefore, under Rosemond, an aider and abettor of such an offense

must have known the victim was a minor when it was still possible

to decline to participate in the conduct.

D. Arguments Against the Applicability of Rosemond

While accepting, as it must, the principles of aider and

abettor liability set forth in Rosemond, the government argues that

Rosemond is not applicable to a charge of aiding and abetting the

production of child pornography for two reasons: (1) 18 U.S.C.

§ 2251(a) does not contain a knowledge requirement for principals

or aiders and abettors, and (2) Rosemond's analysis applies only to

offenses with two distinct actions. The dissent adds that we can

avoid the Rosemond issue because, in its view, Encarnación pleaded

guilty as both a principal and an aider and abettor, and, hence, we

can affirm his conviction as a principal. In the alternative, the

dissent argues that, on the facts of this case, Rosemond does not

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require Encarnación to have advance knowledge that the victim was

a minor to be convicted. We address each argument in turn.

1. Principal vs. Aider And Abettor

The government is correct that § 2251(a) itself contains

no mens rea requirement as to the victim's age, and the majority of

courts that have addressed the issue have held that knowledge of

the age of the victim is not required to convict a principal under

the statute. See, e.g., United States v. Fletcher, 634 F.3d 395,

400 (7th Cir. 2011); United States v. Pliego, 578 F.3d 938, 943-44

(8th Cir. 2009); United States v. Malloy, 568 F.3d 166, 172-73 (4th

Cir. 2009); United States v. Deverso, 518 F.3d 1250, 1257 (11th

Cir. 2008); United States v. Griffith, 284 F.3d 338, 349 (2d Cir.

2002); see also United States v. X-Citement Video, Inc., 513 U.S.

64, 77 (1994) (stating that Congress intended to exclude a scienter

requirement from § 2251(a)); but see United States v. U.S. Dist.

Court, 858 F.2d 534, 538-43 (9th Cir. 1988) (holding that while

"[t]he defendant's awareness of the subject's minority is not an

element of [a § 2251(a)] offense," the First Amendment requires

reading a reasonable mistake of age affirmative defense into the

statute).

However, even assuming that a principal of a § 2251(a)

offense can be held strictly liable (that is, convicted without

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knowing that the victim was a minor),6 the government's argument

that an aider and abettor must also be held liable without fault

has been rejected by longstanding law.7 See 2 LaFave § 13.2(f)

("Under the general principles applicable to accomplice liability,

there is no such thing as liability without fault.").

In other contexts, courts have consistently found a mens

rea requirement for aiders and abettors of strict liability crimes.

See, e.g., United States v. Lawson, 872 F.2d 179, 181 (6th Cir.

1989) (upholding conviction after finding that aider and abettor

6
Again, we make no judgment here on that proposition.
Because the dissent argues that Encarnación pleaded guilty as a
principal, it chooses to address the question of whether a
principal of a § 2251(a) offense can raise a mistake of age defense
and concludes that a principal cannot raise such a defense.
However, that issue is not even in dispute in this appeal.
Encarnación concedes that a principal is not entitled to a mistake
of age defense. See Appellant's Supp. Br. at 3 n.1 (stating that
Encarnación "has always argued that [he] was entitled to knowledge
evidence as an aider and abettor while the principal was not").
7
The dissent similarly argues that because the offense in
Rosemond was not a strict liability crime, it does not support our
conclusion that an aider and abettor of the production of child
pornography must have knowledge that the victim was a minor even if
the principal does not require such knowledge. The dissent claims
that "the takeaway from Rosemond is that an aider and abettor must
have the same amount of knowledge as does the principal about the
scope of the contemplated crime." However, Rosemond never makes
such a claim. Instead, the Supreme Court recognized that the mens
rea requirement for aiders and abettors may be different from that
of principals of the underlying offense. See 134 S. Ct. at 1251
n.10 (noting that Rosemond's holding "is grounded in the
distinctive intent standard for aiding and abetting someone else's
act"). Therefore, even when there is no knowledge requirement for
a principal, the government still must prove that an aider and
abettor intended to facilitate "the specific and entire crime
charged." Id. at 1248.

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"knew that [principal's] possession of the unregistered guns would

be illegal" under 26 U.S.C. § 5861(c)); United States v.

Baumgarten, 517 F.2d 1020, 1027 (8th Cir. 1975) (stating that aider

and abettor of 26 U.S.C. § 5861 offenses must have a "purposeful

attitude" to be found guilty (internal quotation marks omitted));

State v. Bowman, 656 S.E.2d 638, 651 (N.C. Ct. App. 2008) (holding

that government must prove that aider and abettor of statutory rape

"acted with knowledge that the [victims] were under the age of

sixteen"); id. at 650 ("Although statutory rape is a strict

liability crime, aiding and abetting statutory rape is not.")

(citing People v. Wood, 56 Cal. App. 431, 205 P. 698 (1922)).

Professor LaFave explains that in the situation where an

"alleged accomplice is aiding another with intent to do so, but the

aid is given without knowledge of the facts which make the

principal's conduct a crime," the argument that the "accomplice may

be held on a liability-without-fault basis if the crime committed

by the principal is of the strict liability variety . . . has been

rejected [and] is not sound." 2 LaFave § 13.2(f). LaFave

adds,"the special circumstances which justify the imposition of

liability without fault on certain persons who themselves engage in

the proscribed conduct are not likely to exist as to those

rendering aid." Id.

LaFave's analysis is directly applicable to the § 2251(a)

charge in this case. Encarnación admits that he aided Vilanova in

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producing pornography, but his aid was given without knowledge of

the only fact which makes Vilanova's conduct a crime, namely that

one of the participants was a minor.8 Criminalizing non-obscene

adult pornography would violate the Constitution's right to free

speech. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 240

(2002); United States v. Hilton, 386 F.3d 13, 14 (1st Cir. 2004).

If the government's argument were correct, individuals

could be convicted of aiding and abetting the production of child

pornography even when they had only a fleeting connection to the

crime. For example, a set decorator who believes he is working on

the production of a legal adult pornographic film could be held

liable as an aider and abettor even if he had no knowledge that one

of the participants in the film was underage. This outcome would

be possible, because, as Rosemond explains, a "defendant can be

convicted as an aider and abettor without proof that he

participated in each and every element of the offense . . . even if

that aid relates to only one (or some) of a crime's phases or

elements." 134 S. Ct. at 1246. Therefore, as long as the set

8
As the dissent points out, LaFave acknowledges that, in "the
situation where the crime is not totally of a strict liability
type, but no awareness is required as to some attendant
circumstance to convict either the principal or the accomplice"
then no mens rea may be required to convict both the principal and
aider and abettor as to that "attendant circumstance." 2 LaFave §
13.2(f). The "attendant circumstance" exception does not apply to
this case. As stated above, the element that the victim was a
minor is not simply an "attendant circumstance" of a § 2251(a)
charge. It is the reason why producing child pornography is
illegal.

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decorator participated in any aspect of producing the child

pornography, he would meet aiding and abetting's affirmative act

requirement.

Principals, the argument goes, "may be convicted under §

2251(a) without proof they had knowledge of [the victim's] age"

because they "confront[] the underage victim personally and may

reasonably be required to ascertain that victim's age." X-Citement

Video, Inc., 513 U.S. at 76 n.5, 72 n.2. The same justification

would not apply to a set decorator or other similarly situated

aider and abettor, who may never even see the victim, much less

interact with him or her.

To be sure, in this case, the government alleges that

Encarnación had a previous relationship with KMV, including

repeated sexual activity, and, as a main actor in the film, saw her

face-to-face. At this juncture, however, these alleged facts are

irrelevant. The government decided to proceed against Encarnación

as an aider and abettor, even though it arguably would have been

justified charging him as a principal. As we just discussed, this

decision meant the government had to prove Encarnación knew the

victim's age in advance. That the evidence strongly points to such

knowledge means nothing until the government convinces a jury — not

us — of this fact.

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 2. Double-barreled Crime

The government also contends that Rosemond is

distinguishable, and thus inapplicable here, because "it dealt with

a statute which requires two distinct actions." The statute at

issue in Rosemond, 18 U.S.C. § 924(c), is a "double-barreled

crime," requiring (1) using or carrying a gun while (2) engaging in

a violent or drug trafficking offense. See 134 S. Ct. at 1245.

However, nothing about the Supreme Court's mens rea

analysis limits its applicability to statutes requiring two

distinct actions. When discussing the mens rea requirement for

aiding and abetting liability, the Court states generally that the

requirement is satisfied "when a person actively participates in a

criminal venture with full knowledge of the circumstances

constituting the charged offense." Id. at 1248-49. The Court then

explains that it has previously employed this knowledge requirement

in a variety of contexts, including aider and abettor liability for

mail fraud and the evasion of liquor taxes. Id. at 1249. Two

distinct actions are not required to convict a defendant under

either the mail fraud or the evasion of liquor taxes statutes. See

18 U.S.C. § 1341 (proscribing, inter alia, the mailing of a letter

for the purpose of executing a scheme to defraud); 26 U.S.C. § 5602

(proscribing the operation of a distilling business to defraud the

government of liquor taxes). Finally, the Court applies this "same

principle" — that an aider and abettor must "participate[] in a

-20-
criminal scheme knowing its extent and character" — to a § 924(c)

offense. Id. That general principle is not limited to double-

barreled crimes. See also United States v. Goldtooth, 754 F.3d

763, 768 (9th Cir. 2014) (applying Rosemond's mens rea analysis to

the charge of aiding and abetting robbery on an Indian

reservation).

3. The Dissent's Arguments

a. Pleading Guilty as a Principal and an Aider and
Abettor

The dissent contends that Rosemond is not applicable to

this case because Encarnación pleaded guilty as both a principal

and as an aider and abettor, and, thus, we can affirm his

conviction as a principal without addressing whether the government

must prove that an aider and abettor of a § 2251(a) offense knew

that the victim was a minor. According to the dissent, because the

indictment charged Encarnación and Vilanova with "aiding and

abetting each other," and Encarnación never indicated at his change

of plea hearing that he was pleading guilty as an aider and abettor

only, he must have pleaded guilty as both a principal and as an

aider and abettor.9

9
Neither party has raised the issues presented by the
dissent, and we have received no briefing on them. Yet, the
dissent "would leave for another day" the Rosemond issue, claiming
that it was not "squarely raised and . . . fully fleshed out in the
parties' briefs." In fact, however, we explicitly requested, and
received, supplemental briefing from the parties regarding how
Rosemond affects this case.

-21-
 The dissent is incorrect for a number of reasons. First,

the dissent argues that when an indictment charges two defendants

with "aiding and abetting each other," the government always

charges them both as aiders and abettors and as principals. We,

however, have not definitively determined that issue. In some

instances, we have treated this language as the dissent proposes to

do in this case. See, e.g., United States v. Hilario-Hilario, 529

F.3d 65, 69 (1st Cir. 2008); United States v. Matos-Quinones, 456

F.3d 14, 20 (1st Cir. 2006); Ramirez-Burgos v. United States, 313

F.3d 23, 31 (1st Cir. 2002). In other instances, where the nature

of the charges was unquestioned by the parties, we have treated

this language as indicting the defendant only as an aider and

abettor. See, e.g., United States v. Downs-Moses, 329 F.3d 253,

259, 261 (1st Cir. 2003); United States v. Ramirez, 884 F.2d 1524,

1525, 1532 (1st Cir. 1989); United States v. Bonfant, 851 F.2d 12,

13, 15 (1st Cir. 1988). Importantly, in this case, neither party

questions that Encarnación was only charged as an aider and

abettor. Therefore, we do not need to reach the question of

whether the "aiding and abetting each other" language always

charges a defendant as both an aider and abettor and as a

principal.10

10
The dissent claims that Hilario "decided the very question
before us" that the "aiding and abetting each other" language
always indicts a defendant both ways. However, the defendants in
Hilario were not even indicted under the general aiding and
abetting statute, 18 U.S.C. § 2, utilized in this case. See 529

-22-
 Second, even assuming that the indictment charged

Encarnación as both an aider and abettor and as a principal,

neither the record nor our case law supports the dissent's

conclusion that Encarnación pleaded guilty both as a principal and

as an aider and abettor. As the dissent acknowledges, in his

written plea agreement, Encarnación only admitted to appearing in

a video showing him "aiding and abetting another co-defendant . . .

engaging in sexually explicit conduct with the minor 'KMV.'" Plea

Agreement at 13 (emphasis added); see also id. (stating that

Encarnación, "while aiding and abetting others charged in the

Superseding Indictment, did . . . coerce a female minor . . . to

engage in sexually explicit conduct") (emphasis added). Nothing in

F.3d at 69, 75. Instead, they were charged "with both the central
offense of smuggling an alien into the United States or attempting
to do so, 8 U.S.C. § 1324(a)(1)(A)(i)(2000), and the separately
enumerated offense of aiding and abetting such an offense, id. §
1324(a)(1)(A)(v)(II)." Id. at 69. The court recognized that the
aiding and abetting the smuggling of an alien statute was "unusual"
because, unlike 18 U.S.C. § 2, it called for a lower statutory
maximum sentence for an aider and abettor than for a principal.
Id. at 75 & n.2. Thus, the court never addressed the question of
whether defendants charged with "aiding and abetting each other"
under 18 U.S.C. § 2--like Encarnación--are always indicted as both
principals and aiders and abettors. Moreover, the parties in
Hilario did not question the court's interpretation that the
indictment charged the defendants as both principals and aiders and
abettors. See id. at 69, 75. That situation is the opposite of
this case, where the parties agree that Encarnación was only
charged as an aider and abettor.

-23-
the plea agreement indicates that Encarnación also admitted guilt

as a principal.11

Furthermore, nothing in the change of plea hearing

demonstrates that Encarnación pleaded guilty as a principal. The

dissent assumes that because Encarnación acknowledged at the change

of plea hearing that he was "charged with production of child

pornography" and "participated in acts of a sexual nature" with a

minor without referring to his role as an aider and abettor, he

admitted guilt as a principal. The dissent's assumption is

incorrect. An aider and abettor to the production of child

pornography is also "charged with production of child pornography"

(as an aider and abettor) and could also "participate[] in acts of

a sexual nature" with a minor. Encarnación did not plead guilty as

a principal simply because he did not explicitly acknowledge his

role only as an aider and abettor during the change of plea

hearing.

Additionally, on appeal, both parties agree that

Encarnación was only charged as an aider and abettor. In its

11
The dissent argues that because the plea agreement made an
"explicit reference to both the production of child pornography
statute and the aiding and abetting statute," it "demonstrates that
Encarnación admitted he acted as both a principal and an aider and
abettor when he pleaded guilty." The dissent's contention has no
merit. Even when a defendant pleads guilty only as an aider and
abettor, his plea agreement necessarily must reference both the
substantive offense statute and the aiding and abetting statute.
Otherwise, the plea agreement would contain no indication of what
substantive offense the aider and abettor was charged with
supporting.

-24-
briefing, the government repeatedly acknowledges this fact. See,

e.g., Gov't Br. at 15 (stating that "Encarnación-Ruiz was charged

as an aider and abettor"); id. at 17 (stating, in title of Argument

section, that "Defendant Encarnación-Ruiz . . . Was Charged As An

Aider And Abettor"); id. at 24 (referring to Encarnación "as an

aider and abettor"); Gov't Supp. Br. at 3 (noting that "defendant

ha[s] been charged as aider and abettor"); id. at 5 (noting that

Encarnación "was charged under § 2251(a) only as an aider and

abettor").

Despite these clear statements, the dissent claims that

the government also proceeded against Encarnación as a principal

because its brief quotes 18 U.S.C. § 2 and argues that Encarnación

"must be punished as a principal" since he "actively assisted and

participated in the substantive offense." We do not understand how

quoting 18 U.S.C. § 2, universally known as "the federal aiding and

abetting statute," Rosemond, 134 S. Ct. at 1243 (emphasis added),

can be any indication that the government proceeded against

Encarnación as a principal. Moreover, the statement that

Encarnación should be "punished as a principal" provides further

support that the government proceeded against him as an aider and

abettor. The entire purpose of 18 U.S.C. § 2 is to punish "as a

principal" those who aid and abet a crime. 18 U.S.C. § 2(a); see

Rosemond, 134 S. Ct. at 1245 (noting that "§ 2 reflects a

centuries-old view of culpability: that a person may be responsible

-25-
for a crime he has not personally carried out if he helps another

to complete its commission"). If the government were indeed

proceeding against Encarnación as a principal, it simply would have

no reason to state that he "must be punished as a principal."

Finally, any argument by the government that it proceeded against

Encarnación as a principal would likely violate the written plea

agreement because the agreed upon statement of facts incorporated

into the agreement clearly states that Encarnación was "aiding and

abetting another co-defendant." Plea Agreement at 13.

The dissent contends that our decision in United States

v. Grant, 114 F.3d 323 (1st Cir. 1997), stands for the proposition

that "when a defendant charged with multiple counts enters an

unqualified guilty plea, that defendant admits guilt as to all

counts." Because Encarnación was charged as both a principal and

aider and abettor, and Encarnación entered an unqualified guilty

plea, the dissent argues that he admitted guilt under both theories

of liability.

In Grant, the defendant argued that "the imposition of

consecutive sentences for four counts that amounted to the same

offense" violated the Double Jeopardy Clause. Id. at 328. We

rejected that argument because the defendant failed to meet his

burden of showing that the indictment was facially multiplicitous.

Id. at 329. In doing so, we noted that "[a]t the plea hearing, the

district court repeatedly directed Grant's attention to the fact

-26-
that he had been charged with four different crimes," and he

subsequently "entered an unconditional plea on each count." Id.

Grant "conceded guilt to [four] separate offenses" because he

admitted "to each of the distinct factual predicates underlying the

separate counts." Id.

Encarnación did not plead guilty to two separate crimes

consisting of distinct factual predicates, and the government did

not charge him under two separate counts. Instead, the government,

at most, charged him under two alternative theories of the same

crime — as an aider and abettor and as a principal — under a single

count consisting of the same factual predicate, and chose to

proceed against him only as an aider and abettor. See, e.g.,

United States v. Shea, 150 F.3d 44, 50 (1st Cir. 1998) (noting that

"direct principal liability" and "aider and abettor liability" are

"alternative theories of liability on [the same] charge"),

abrogated on other grounds by United States v. Mojica–Baez, 229

F.3d 292 (1st Cir. 2000). Moreover, the district court never

"repeatedly directed" Encarnación's attention to the fact that he

had been charged both as an aider and abettor and as a principal.

In fact, neither the court nor the government ever informed

Encarnación that he was pleading guilty under both theories of

liability, which, as explained above, have distinct mens rea

requirements.

-27-
 The dissent has cited no case — and we are not aware of

any — which holds that when a defendant pleads guilty to a charge

containing the "aiding and abetting each other" language, and there

is no indication from the government or the district court at the

change of plea hearing under which theory the government intends to

proceed, the defendant necessarily pleads as both an aider and

abettor and a principal as a matter of law. Regardless, in this

case, the government clearly stated in the plea agreement that

Encarnación was only "aiding and abetting another co-defendant."

The dissent's proposed outcome would raise a significant

due process concern regarding whether Encarnación's plea was

knowing and voluntary. A defendant "must be instructed in open

court on 'the nature of the charge to which the plea is offered.'"

United States v. Broce, 488 U.S. 563, 570 (1989) (quoting Fed. R.

Crim. P. 11(c)(1)). A plea "cannot be truly voluntary unless the

defendant possesses an understanding of the law in relation to the

facts." Id. (internal quotation marks omitted). Furthermore, "the

fact of voluntariness cannot be inferred by a reviewing court from

a silent or otherwise inadequate record. Instead, due process

requires that there be an 'affirmative showing' in the record to

support that determination." United States v. Ward, 518 F.3d 75,

81 (1st Cir. 2008) (quoting Boykin v. Alabama, 395 U.S. 238, 242

(1969)) (emphasis in original).

-28-
 As explained above, there is simply no affirmative

showing in the record that Encarnación knew he was pleading guilty

as both a principal and aider and abettor. Yet, the dissent claims

that Encarnación necessarily pleaded guilty as both a principal and

aider and abettor because "neither Encarnación nor the district

judge indicated that he was pleading guilty as an aider and abettor

only." The dissent's assertion would flip the due process inquiry

on its head. Instead of requiring an affirmative showing, the

dissent would infer from a silent record that Encarnación

voluntarily pleaded guilty under both theories of liability.

The dissent claims that its proposed outcome would

resolve this appeal "on the narrowest grounds possible" but never

explains why its resolution is narrow at all. It is true that "we

endeavor to avoid deciding constitutional issues and attempt to

decide cases on the narrowest grounds possible." Bellville v. Town

of Northboro, 375 F.3d 25, 30 (1st Cir. 2004). However, instead of

resolving the case on narrow grounds, the dissent would prefer to

establish an unprecedented ruling that a defendant knowingly and

voluntarily pleads guilty as both an aider and abettor and a

principal whenever the indictment contains the "aiding and abetting

each other" language and the change of plea hearing record is

silent as to which theory the government intended to pursue. This

ruling, without any briefing from the parties, would in fact create

constitutional due process concerns. We believe the better — and

-29-
narrower — way of deciding this case is to answer the questions

presented on appeal and addressed in the supplemental briefing that

we requested.

b. The Applicability of Rosemond

If the dissent were to reach the Rosemond issue, it would

still affirm Encarnación's conviction. The dissent contends that,

because Encarnación admitted to engaging in sexual acts with KMV,

Rosemond does not require that the government prove that he had

advance knowledge that KMV was a minor to be convicted of aiding

and abetting the production of child pornography. The dissent

argues that "under Rosemond's principles . . . the aider and

abettor only needs to know that he is assisting or facilitating the

filming of sexually explicit activity," not that one of the

participants was a minor, and, in this case, Encarnación obviously

knew he was facilitating the filming of sexually explicit activity

by appearing on camera with KMV.

The dissent's argument is unavailing. Pursuant to

Rosemond, an aider and abettor must have "full awareness of [the]

scope" of the crime of producing child pornography. 134 S. Ct. at

1249. If the dissent were correct, the aider and abettor would

have knowledge of no crime at all, because, as mentioned above,

producing non-obscene adult pornography is not a crime, and, under

the First Amendment, could not be a crime. See Free Speech Coal.,

535 U.S. at 234; Hilton, 386 F.3d at 14.

-30-
 The dissent also argues that Rosemond is inapposite

because Encarnación had a "realistic opportunity to quit the crime"

before he "engaged in sexually explicit conduct with [KMV] before

a camera on more than one occasion." Again, the dissent fails to

recognize that engaging in sexually explicit conduct before a

camera is not a crime. Encarnación argues that he believed he had

sexual relations with an adult, and, therefore, had no "realistic

opportunity to quit the crime" of producing child pornography

because he only became aware that KMV was a minor after appearing

on camera with her.

Finally, the dissent contends that Encarnación is not

entitled to a "mistake of age" defense because he was a "present,

participating aider and abettor" and not a "non-present, non-

participant" one. This argument is also unavailing. Federal

aiding and abetting law makes no distinction between "present" and

"non-present" aiders and abettors.12 See 18 U.S.C. § 2; United

12
The dissent's argument echoes the Massachusetts Appeals
Court's decision in Commonwealth v. Harris, 904 N.E.2d 478 (Mass.
App. Ct. 2009). Harris concluded that knowledge of the victim's
age is not necessary to convict a "present" joint venturer —
Massachusetts' term for an accomplice — of statutory rape. Harris
is inapposite here because its holding is based on the unique
nature of joint venture liability under Massachusetts law. In
Massachusetts, the government can proceed against a joint venturer
under two distinct theories: a "presence" theory and a
"nonpresence" theory. Id. at 484-85. The court held that only
under a "presence" theory is knowledge of the victim's age not
required because a "present" joint venturer "has the same
opportunity as the principal to make judgments about age from the
child's appearance and other circumstances attending the encounter
between the child and the principal." Id. at 485. In doing so,

-31-
States v. George, 761 F.3d 42, 52 (1st Cir. 2014) (noting that a

"culpable aider and abetter need not perform the substantive

offense, be present when it is performed, or be aware of the

details of its execution" (internal quotation marks omitted)).

Under Rosemond, the government has the burden to prove an aider and

abettor to a § 2251(a) offense had advance knowledge that the

victim was a minor regardless of whether that aider and abettor was

a "participant" or "non-participant."13

the court recognized that joint venturer liability is different
from aiding and abetting liability found in the federal statute, 18
U.S.C. § 2, in part because it does not distinguish between
"present" and "nonpresent" accomplices. See id. at 484-85 & n.4.
13
At times, Encarnación has mischaracterized his appeal as
requesting a "mistake of age" affirmative defense, which
Encarnación would have the burden to prove. See Dixon, 548 U.S. at
8. Because proof of knowledge that the victim was a minor is,
pursuant to Rosemond, necessary to satisfy the mens rea element for
aiding and abetting the production of child pornography, it must be
proven by the government beyond a reasonable doubt — as with all
elements of a crime. See In re Winship, 397 U.S. 358, 364 (1970);
cf. Rosemond, 134 S. Ct. at 1254 (Alito, J., concurring in part and
dissenting in part)(asserting that the majority has "convert[ed]
what has up to now been an affirmative defense into a part of the
required mens rea," "plac[ing] a strange and difficult burden on
the prosecution").
For this reason, the dissent is mistaken to rely on cases
recognizing that a defendant is entitled to a jury instruction on
an affirmative defense only when the evidence supports that
defense. See, e.g., Mathews v. United States, 485 U.S. 58, 63
(1988); United States v. Lopez-Lopez, 282 F.3d 1, 18 (1st Cir.
2002). Because the burden of proof is on the government to
establish that an aider and abettor knew the victim was a minor,
Encarnación has no need to raise an affirmative defense on this
issue.

-32-
 IV.

Encarnación's guilty plea was conditioned on his request

to argue at trial that he did not know that KMV was a minor, a

request that the district court rejected. Adhering to Rosemond's

analysis of aiding and abetting mens rea, we now hold that the

government must prove beyond a reasonable doubt that Encarnación

knew that the victim was a minor to support its charge that he

participated in the production of child pornography. In so

holding, we in no way condone the repugnant conduct that

Encarnación is accused of committing and recognize that "[c]hild

pornography harms and debases the most defenseless of our

citizens." United States v. Williams, 553 U.S. 285, 307 (2008).

However, we are bound to follow the dictates of the Supreme Court

and well-established principles of aiding and abetting liability.

We vacate Encarnación's conviction and remand for proceedings

consistent with this decision.

So ordered.

– Dissenting Opinion Follows –

-33-
 THOMPSON, Circuit Judge, dissenting. Encarnación-Ruiz

("Encarnación") admits that he is shown on camera engaging in

sexually explicit acts with a minor on at least two separate

occasions, one of which involved him being filmed having sex with

her. And should he prevail on his appeal, Encarnación, at least

initially, sought only to go to trial armed with a mistake of age

affirmative defense. Specifically, he wanted to be able to tell

the jury that he thought the girl was eighteen when he had sex with

her before the camera.

The majority believes this case requires us to decide

whether the fairly-newly-minted United States v. Rosemond applies

to Encarnación's "claim that the government has to prove beyond a

reasonable doubt that an aider and abettor to a production of child

pornography charge knew that the victim was a minor." But we do

not need to reach Rosemond to dispose of Encarnación's appeal. The

uncontested facts of this case, combined with our binding

precedents, demonstrate that he pleaded guilty not only as an aider

and abettor, but also as a principal.

Sometimes, it may do no harm to go beyond the narrowest

grounds strictly necessary to decide a particular case. Here,

however, the majority declares that Rosemond puts the burden on the

government to prove that an aider and abettor of the production of

child pornography, unlike the principal offender and regardless of

the nature of the aider and abettor's involvement in the

-34-
production, knew that the victim was a minor. The majority's

reasoning results in what, in my view, is a truly odd outcome: by

requiring the government to prove Encarnación knew his victim was

a minor, it is now more difficult for the government to convict the

so-called "actor" who, knowing he was being filmed, actually had

sex with the minor, than the man who stood by and held the camera.

I am not convinced Rosemond requires this result on these facts.

I respectfully dissent.

I. BACKGROUND

The relevant facts are undisputed. The unobjected-to

portions of the presentence report14 establish the following

details.

Sometime during April or May of 2010, then-31-year-old

schoolteacher Encarnación had sex with a 14-year-old girl, "KMV,"

at the apartment of Rey Vilanova-Delgado ("Vilanova") in the Villa

14
It is appropriate to set forth relevant facts laid out in
the presentence report as this appeal follows a guilty plea, at
sentencing Encarnación's counsel admitted that he was "not
challenging" the statements of fact in the presentence report and
"has accepted responsibility" for his actions, Sentencing Tr. at 3-
4, and because "it is settled beyond hope of contradiction that
unobjected-to '[f]acts contained in a presentence report ordinarily
are considered reliable evidence for sentencing purposes,'" United
States v. Fernandez-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010)
(bracketed text in original) (quoting United States v. Morillo, 8
F.3d 864, 872-73 (1st Cir. 1993)); see also United States v.
Velazquez, 777 F.3d 91, 93 (1st Cir. 2015) ("Since the appellant's
sentence followed a guilty plea, we glean the facts from the plea
agreement, the change-of-plea colloquy, the unchallenged portion of
the presentence investigation report . . . , and the transcript of
the disposition hearing.").

-35-
Espana Housing Project. Vilanova stood by with a videocamera,

recording. On another occasion Encarnación, Vilanova, and at least

one other man engaged in sex acts with KMV while a fourth man

filmed them. Encarnación knew that KMV lived in an apartment on

the first floor of Vilanova's building, and that KMV lived with her

mother, brothers, and sister.

When these activities caught law enforcement's eye, the

police recovered multiple videos depicting KMV engaging in various

sex acts. One video showed "KMV engaging in sexual intercourse

with Roberto Encarnación and in the presence of Rey Vilanova-

Delgado." Two other videos depicted Encarnación "fondling the

minor's breast, hugging her and kissing her intensely," all while

KMV was "wearing her school uniform."

Encarnación and Vilanova (along with several other men

not relevant to this appeal) found themselves facing a charge of

"aiding and abetting each other" in the production of child

pornography.

The specific count involving Encarnación (Count III)

alleged that he and Vilanova,

[f]rom in or about April 2010 through to in or
about May 2010 . . . while aiding and abetting
each other, did employ, use, persuade, induce,
entice, or coerce a female minor, identified
by the initials "K.M.V[.]"[,] to engage in
sexually explicit conduct, namely the
lascivious exhibition of the genital areas and
performing sexual acts, for the purpose of
producing a visual depiction of such conduct,

-36-
 that is, video images . . . [a]ll in violation
of Title 18 [U.S.C. §§] 2251(a) and 2.

Indictment, Count III (emphases added).

18 U.S.C. § 2251(a) provides, in pertinent part, that

"[a]ny person who employs, uses, persuades, induces, entices, or

coerces any minor to engage in . . . any sexually explicit conduct

for the purpose of producing any visual depiction of such conduct

. . . shall be punished." The other statute mentioned in the

indictment, the aiding and abetting statute, states simply that

"[w]hoever commits an offense against the United States or aids,

abets, counsels, commands, induces or procures its commission, is

punishable as a principal." 18 U.S.C. § 2(a).

After a period of negotiation, Encarnación entered into

a written plea agreement whereby he agreed to plead guilty to the

charges set forth in Count III. See Plea Agreement at 1. The

agreement proceeded to set forth the language of Count III

verbatim, including its statement that all of the acts charged were

in violation of both 18 U.S.C. § 2251(a) and 18 U.S.C. § 2. Id. at

1-2 ("All in violation of Title 18, United States Code, Section

2251(a) and 2.").

Through the agreement, Encarnación acknowledged the

accuracy of the facts set forth in the appended Government's

Version of Facts. Id. at 9. This stated, in part, that

Encarnación,

-37-
 while aiding and abetting others charged in
the Superseding Indictment, did employ, use,
persuade, induce, entice or coerce [KMV] . . .
to engage in sexually explicit conduct, namely
the lascivious exhibition of the genital areas
and performing sexual acts, for the purpose of
producing a visual depiction of such conduct
. . . .

Id. at 13 (emphases added). Encarnación also conceded that he

appeared in a video "aiding and abetting another co-defendant . . .

engaging in sexually explicit conduct with the minor 'KMV.'" Id.

At his change of plea hearing, Encarnación explicitly admitted that

he "participated" in sexual activities with KMV, that those

activities were recorded, and that "child pornography in a

technical sense was produced." Change of Plea Tr. at 25.

Encarnación further agreed that he and his codefendant "induced" or

"enticed" the victim to engage in the sexual activity. Id.

Although Encarnación agreed to waive most of his appeal

rights as part of his plea agreement, he specifically reserved the

right to seek review of "whether the defendant's mistake of age of

the victim can be raised as a defense to a charge of production of

child pornography under [18 U.S.C. §] 2251(a)." Id. at 10

(emphasis added).15 This appeal, raising that issue, followed his

sentencing.

15
Notably, Encarnación's Plea Agreement did not explicitly
reserve the right to argue on appeal that one charged with
violating 18 U.S.C. § 2251(a) as an aider and abettor is entitled
to raise a reasonable mistake of age defense.

-38-
 II. DISCUSSION

It hardly needs saying that "[c]hild pornography harms

and debases the most defenseless of our citizens." United States

v. Williams, 553 U.S. 285, 307 (2008). Accordingly, preventing

"sexual exploitation and abuse of children constitutes a government

objective of surpassing importance." New York v. Ferber, 458 U.S.

747, 757 (1982). Production of child pornography is especially

pernicious because it creates "'a permanent record' of the depicted

child's abuse." Paroline v. United States, 134 S. Ct. 1710, 1717

(2014) (quoting Ferber, 458 U.S. at 759). "In enacting U.S.C.

§ 2251, 'Congress intended a broad ban on the production of child

pornography and aimed to prohibit the varied means by which an

individual might actively create it.'" Ortiz-Graulau v. United

States, 756 F.3d 12, 19 (1st Cir. 2014) (quoting United States v.

Poulin, 631 F.3d 17, 23 (1st Cir. 2011)); see also United States v.

Fletcher, 634 F.3d 395, 403 (7th Cir. 2011) ("Even more than the

passive viewer of child pornography, the creator of such material

not only contributes to but is directly responsible for the

exploitation of the child victim.").

Congressional intent, along with the important policy

considerations embodied in 18 U.S.C. § 2251, must be borne firmly

in mind when addressing Encarnación's arguments. After all,

Encarnación admitted that he actively participated in the filming

of sexual acts with a minor.

-39-
1. The Nature of the Charges

In my opinion, the majority's analysis first goes astray

when it accepts the premise that Encarnación pleaded guilty as an

aider and abettor only. This, however, is incorrect.

First, I note that the Supreme Court says "[a] single

offense should normally be charged in one count rather than

several, even if different means of committing the offense are

alleged." Sanabria v. United States, 437 U.S. 54, 66 n.20 (1978)

(citing Fed. R. Crim. P. 7(c)(1)). And as the majority recognizes,

we have said that principal and aider and abettor liability are

simply two alternative theories of liability with respect to the

substantive crime. See United States v. Shea, 150 F.3d 44, 50 (1st

Cir. 1998), abrogated on other grounds by United States v. Mojica-

Baez, 229 F.3d 292 (1st Cir. 2000). In fact, when it comes to

aiding and abetting, the government does not even necessarily have

to set that theory forth in the charging document. See United

States v. Sanchez, 917 F.2d 607, 611 (1st Cir. 1990) ("Aiding and

abetting is an alternative charge in every . . . count, whether

explicit or implicit. A defendant can be convicted of aiding and

abetting the commission of a substantive offense upon a proper

demonstration of proof so long as no unfair surprise results.")

(internal citations and quotation marks omitted, omission in

original); see also United States v. Vázquez-Castro, 640 F.3d 19,

25 (1st Cir. 2011) (reiterating our holding in Sanchez that

-40-
"'[a]iding and abetting is an alternative charge in every count,

whether explicit or implicit.'" (alteration in original) (quoting

Sanchez, 917 F.2d at 611)).

Thus, although Encarnación was charged in a single count

with the substantive offense of production of child pornography,

that one count charged him with criminal liability for its

production as a principal, an aider and abettor, or both. It is

against this backdrop that I consider the language set forth in

Count III.

Encarnación and Vilanova were charged with "aiding and

abetting each other" to "employ, use, persuade, induce, entice or

coerce a female minor . . . to engage in sexually explicit conduct

. . . for the purpose of producing a visual depiction of such

conduct, . . . [a]ll in violation of [18 U.S.C. §§] 2251(a) and 2."

The critical language here is the phrase "aiding and abetting each

other," combined with the allegation that Encarnación himself "did

employ, use, persuade, induce, entice, or coerce a female minor

. . . to engage in sexually explicit conduct . . . for the purpose

of creating a visual depiction of such conduct." The majority,

though, casually dismisses and declines to give effect to our

previous cases deciding that this language charges a defendant as

both a principal and an aider and abettor.16 See United States v.

16
Indeed, the majority claims that we "have not definitively
determined" what "aiding and abetting each other" means in an
indictment. Majority Op. at 22. The problem with this position,

-41-
Hilario-Hilario, 529 F.3d 65, 69 (1st Cir. 2008) ("Hilario");

United States v. Matos-Quinones, 456 F.3d 14, 19-20 (1st Cir.

2006); Ramirez-Burgos v. United States, 313 F.3d 23, 31 (1st Cir.

2002).

Hilario is directly on point and controls the outcome

here.17 The defendants in Hilario, a case involving alien

smuggling, were charged by way of an indictment "alleging that

'aiding and abetting each other' the defendants 'did knowingly,

willfully and intentionally bring and attempt to bring to the

United States . . . approximately [87] aliens.'" 529 F.3d at 69

(emphasis added). In discussing the nature of the charges set

forth in that indictment, we explained that, "[f]airly read, this

formulation, although jumbled, charged each defendant with both the

central offense of smuggling an alien into the United States or

however, is that (and as we shall see) the issue has in fact been
resolved for us by prior panels. All we need to do is apply the
precedent to the facts at hand. And I do nothing more than this.
17
The majority relies on three of our cases to support its
view that sometimes we have treated similar language in the
indictment "as indicting the defendant only as an aider and
abettor." Majority Op. at 22. None of these cases, however, gives
any indication that any of the issues on appeal turned on whether
or not a particular defendant had been charged and/or convicted as
a principal or an aider and abettor. Having reviewed the cases, it
would be more accurate to say that in each one we assumed, without
deciding, that the defendant was charged and convicted on an aiding
and abetting theory only.
Moreover, those cases did not set forth the full text of the
charge, so we cannot even compare the language. And nothing in
them is in direct conflict with Hilario or calls its holding into
question.

-42-
attempting to do so . . . and the separately enumerated offense of

aiding and abetting such an offense."18 Id.

The distinction between liability as a principal and

liability as an aider and abettor made a difference in Hilario--

"[o]ne who aids and abets is normally liable as a principal, 18

U.S.C. § 2 (2000), but the [alien] smuggling statute prescribes in

certain cases a lower sentence for mere aiders and abettors." Id.

That statute specifically provided that a defendant "convicted of

smuggling an alien is subject to a ten-year maximum, but--quite

unusually--one convicted solely of aiding or abetting can be

imprisoned for no more than five years." Id. at 75 (internal

citations omitted).19 We commented on the unusual nature of this

punishment scheme because it stood in contrast to "[t]he ordinary

rule," which, "in the absence of such a distinction in the

substantive statute, is that an aider and abettor is treated as a

18
Each clause--"aiding and abetting each other" and "did . . .
bring"--describes contemporaneous actions. Hilario's holding
recognizes and gives effect to the plain meaning and grammatical
construction of the indictment's language.
19
The majority distinguishes Hilario on the grounds that the
case dealt with the alien smuggling statute, 8 U.S.C. § 1324, not
the aiding and abetting statute, 18 U.S.C. § 2. The alien
smuggling statute defines in different sections "the central
offense of smuggling an alien into the United States or attempting
to do so, 8 U.S.C. § 1324(a)(1)(A)(i) (2000), and the separately
enumerated offense of aiding and abetting such an offense, id.
§ 1324(a)(1)(A)(v)(II)." Hilario, 529 F.3d at 69. Because we are
only talking about the effect of certain charging language--"aiding
and abetting each other"--present both here and in Hilario, I see
the majority as enshrining an analytical distinction without a
difference.

-43-
principal, 18 U.S.C. § 2, and is punishable accordingly." Id. at

75 n.2. We then quoted a case out of the Third Circuit for the

proposition that an "aider and abettor is a principal and can be

punished as such." Id. (quoting United States v. Bryan, 483 F.2d

88, 95 (3d Cir. 1973)).

Because both theories of liability were in play, the

"district court gave instructions to the jury covering both

smuggling and aiding and abetting that offense, and asked whether

each defendant was guilty or not guilty '[a]s to count one of the

indictment.'" Id. at 75 (alteration in original). The court,

however, "did not ask the jury to determine whether each defendant

was guilty of smuggling or merely aiding and abetting." Id.

Although the jury made a special finding with respect to four of

the defendants that subjected them to a prison sentence lasting

"any term of years or for life," it did not make that finding with

respect to a fifth defendant. Id. Accordingly, that defendant was

subject to a ten-year maximum sentence if a principal, but only

five years if an aider and abettor. Id.

When considering that defendant's challenge to his

sentence, we determined that the district court erroneously gave

him a ten-year sentence because it could not be said "from the jury

verdict that [this defendant] was convicted of smuggling (rather

than aiding and abetting)." Id. at 76. As a result of the

-44-
ambiguity, we ordered the defendant to be re-sentenced, with a

maximum term of five years in jail. Id. at 76-77.

Thus, our analysis and ultimate resolution of the issue

in Hilario further shows that the indictment charged the defendant

as both a principal and as an aider and abettor. Had it charged

only one or the other, we would have had no need to attempt to

determine the theory of conviction from the jury's verdict. It

would have been enough to simply declare that he was charged as

either a principal or an aider and abettor and subject to the

applicable statutory maximum. That we were unable to do this

demonstrates that the charging language was critical to the

outcome. Hilario, having decided the very question before us, is

dispositive and mandates the conclusion that Count III here charged

Encarnación with both producing child pornography and with aiding

and abetting the production of child pornography.

And, although Hilario is perhaps the case addressing this

particular charging language most directly, it did not announce a

new rule or depart from the prevailing law of our Circuit. In

Matos-Quinones, we addressed an indictment charging that "aiding

and abetting each other with the intent to cause death and serious

bodily injury, [the defendants] did take a motor vehicle . . . from

[the victim], by force and violence." Matos-Quinones, 456 F.3d at

19-20 (internal quotation marks omitted). This language, we said,

"indicted both defendants as principals and as aiders and

-45-
abettors." Id. at 20 (citing United States v. Bennett, 75 F.3d 40,

47-48 (1st Cir. 1996)).

Ramirez-Burgos, another carjacking case, is consistent

with this approach as well. The indictment charged the defendants

with "aiding and abetting each other" in the carjacking, "[a]ll in

violation of 18 [U.S.C. §§] 2119(2) and 2." Ramirez-Burgos, 313

F.3d at 26. Section 2119(2) is the carjacking statute, while § 2

is, of course, the aiding and abetting statute. "The jury returned

a verdict of guilty" on the carjacking count. Id. at 27. Based on

the indictment's language, we pointed out that the appealing

defendant had not only been "charged and convicted as a principal,

but he was also charged and convicted as an aider and abettor under

18 U.S.C. § 2(a)." Id. at 31.

Here, as in the cases just mentioned, the indictment

utilizes its "aiding and abetting" and its "did employ, use,

persuade, [etc.]" clauses to describe concurrent acts; aiding and

abetting another, and employing, using, persuading, and so on.

Indeed, the indictment even places the word, "while" before aiding

and abetting, further demonstrating that the actions took place at

the same time. And the indictment does not simply say that

Encarnación aided and abetted the production of child pornography.

Rather, it charges that Encarnación and Vilanova aided and abetted

"each other." This last phrase, "each other," would not be needed

if the government intended to charge Encarnación as an aider and

-46-
abettor only. See, e.g., United States v. Diaz-Castro, 752 F.3d

101, 106, 107 (1st Cir. 2014) (noting that a count charging the

defendant with "aiding and abetting possession of a firearm in

relation to a drug trafficking crime" charged the defendant with

"'aiding and abetting' the firearms crime, not direct possession of

the firearm"). The addition of "each other" is, however,

specifically required to charge him as a principal.20

Applying our well-settled precedent here, there is no

doubt that the indictment charged Encarnación with production of

child pornography as both a principal and an aider and abettor.

2. Encarnación's Plea

The remaining question is whether Encarnación actually

pleaded guilty (and was therefore convicted) as a principal, an

aider and abettor, or both. My research has not uncovered any

cases in which we specifically addressed the effect of a guilty

plea when a count contains multiple theories of criminal liability

on a single substantive charge. We have, however, had cause in the

past to examine what happens when a defendant pleads guilty to

multiple substantive offenses set forth in different counts.

20
This is because the inclusion of the "each other" language
charges Vilanova with aiding and abetting Encarnación in
Encarnación's production of child pornography. Because the
majority says that it doesn't need to decide what the language in
the indictment means, we never get to hear its view on the effect
of this language. The majority never reaches this question since,
in its view, the parties do not question that Encarnación was
charged as an aider and abettor only. Respectfully, the record
does not support this assertion.

-47-
 The rule in our circuit is that when a defendant charged

with multiple counts enters an unqualified guilty plea, that

defendant admits guilt as to all counts. United States v. Grant,

114 F.3d 323, 329 (1st Cir. 1997) (quoting United States v. Broce,

488 U.S. 563, 570 (1989) ("When a criminal defendant pleads guilty,

he admits not only that he committed the factual predicate

underlying his conviction, but also that he committed the crime

charged against him. Just as a defendant who pleads guilty to a

single count admits guilt to the specified offense, so too does a

defendant who pleads guilty to two counts with facial allegations

of distinct offenses concede that he has committed two separate

offenses." (internal quotation marks and citation omitted)).

Indeed, "[b]y entering a plea of guilty, the accused is not simply

stating that he did the discrete acts described in the indictment;

he is admitting guilt of a substantive crime." Broce, 488 U.S. at

570.

Admittedly, Grant and Broce dealt with indictments

setting forth multiple counts, while the indictment here sets forth

a single count. Nevertheless, since principal liability and aider

and abettor liability are nothing more than alternative ways to get

to a finding of guilt on the substantive crime, see Shea, 150 F.3d

at 50, by pleading guilty Encarnación admitted his guilt to the

substantive charge set forth in the indictment--production of child

pornography--which included theories of both principal and aiding

-48-
and abetting liability, see Hilario, 529 F.3d at 69. In the

absence of some specific delineation as to which alternative theory

was being advanced by the government or pled to by the defense,

Encarnación's unqualified plea admitted his guilt under either or

both. Cf. Bradshaw v. Stumpf, 545 U.S. 175, 184, 187 (2005)

(applying Ohio aggravated murder statute and Ohio aiding and

abetting law to conclude that the appellant, who had pleaded guilty

to aggravated murder, was guilty on an aiding and abetting theory

even if new evidence tended to show that his confederate actually

pulled the trigger because "the precise identity of the triggerman

was immaterial to Stumpf's conviction for aggravated murder").

My view, in addition to being consistent with the

indictment's language and the logic espoused in Grant, Broce, and

Stumpf, is in accordance with the record surrounding Encarnación's

plea. Looking first at the Plea Agreement itself, and contrary to

the majority's view, nothing there establishes that Encarnación

pled to the aiding and abetting theory only.

As previously noted, the Plea Agreement states that

Encarnación agreed to plead guilty to Count III. Plea Agreement at

1. The Agreement sets forth the complete text of that count, which

charges Encarnación as both a principal and an aider and abettor,

verbatim. Id. at 1-2. The Government's Version of Facts, which

Encarnación agreed is accurate, also followed the language of the

indictment, stating that Encarnación, "while aiding and abetting

-49-
others charged in the Superseding Indictment, did employ, use,

persuade, induce, entice or coerce a female minor . . . to engage

in sexually explicit conduct . . . for the purpose of producing a

visual depiction of such conduct . . . [a]ll in violation of" 18

U.S.C. §§ 2251(a) and 2. Id. at 13 (emphases added). The use of

language mirroring that of the indictment, combined with the

explicit reference to both the production of child pornography

statute and the aiding and abetting statute, demonstrates that

Encarnación admitted he acted as both a principal and an aider and

abettor when he pleaded guilty.

Furthermore, the record of Encarnación's change of plea

hearing, which we may look at to determine the nature of the

charges he pled to, see Hilario, 529 F.3d at 75-76 (examining the

record to determine exactly that), shows that Encarnación admitted

guilt to both theories. The district judge--after assuring himself

of Encarnación's competency and going over the rights Encarnación

would be giving up by pleading guilty--explained the charges as

follows:

The Court: In Count III, which is your
situation, Mr. Encarnación, the one you are
pleading guilty to, you are charged with
production of child pornography here. The
charge is from April to May, 2010, in Puerto
Rico, you along with another individual,
aiding and abetting each other, also employed,
used, persuaded, enticed a female minor, I'm
not using the word coerce because that is not
the issue here in this case. There is no
coercion in this case. To engage in sexually
explicit conduct. Namely, the lascivious

-50-
 exhibition of their genital areas and
performing sexual acts for the purpose of
producing visual depictions of such conduct
using video camcorders, Sony video camcorders
manufactured in China, and some hard drives
also manufactured in Thailand, equipment also
transported in interstate or foreign commerce.
That is the charge in your case, Mr.
Encarnación. Do you understand that?

Defendant Encarnación: I understand.

Change of Plea Tr. at 10-11 (emphases added). The district judge

also told Encarnación the following:

The Court: The Government has to prove what
happened. What happened was that you enticed
or convinced these minors21 to pose and to
engage in sexually explicit conduct by, you
know, showing their genital area, engaging in
sexual conduct basically, to be videoed and
kept in these recordings, them being minors.
Do you understand that?

Defendant Encarnación: Yes.

Id. at 12-13 (emphasis added). The judge further explained, and

Encarnación indicated he understood, that

the law doesn't require that you look at the
Birth Certificate of these women, young women
to determine the age or that they looked to be
21 or something of the sort. That's not
really important. As long as they were
minors, you are involved in a situation that
is criminally prohibited.

Id. at 13. Encarnación responded in the affirmative when the judge

asked him whether he understood that he would be "pleading to Count

21
Although not relevant to Encarnación's appeal, the
codefendant appearing with him at the change of plea hearing was
charged in Count I and was alleged to have victimized more than one
minor in his production of child pornography.

-51-
III, which is also production of child pornography." Id. at 14.

And when the district judge asked Encarnación whether he wanted the

judge to "go into the details, the crude details of the sexual acts

that were performed," Encarnación declined. Id. at 14-15.

After going through the potential penalties attendant to

a guilty plea, the district judge asked Encarnación whether he had

"[a]ny doubt . . . as to the kind of crime you're pleading guilty

to," and Encarnación responded, "No, there's no doubt." Id. at 19.

The district judge also put on the record that, "there's also an

issue that you are reserving appealing, whether in the First

Circuit the mistake of age defense is a defense" to the charged

crime.22 Id. at 22.

Before accepting the guilty plea, the judge summed it all

up:

The Court: But the bottom line is you indeed
participated in acts of a sexual nature with
minors, and they were recorded with equipment
of the kind we mentioned here. In other
words, child pornography in a technical sense
was produced. . . . That's what you did. Is
that so, both of you?

[Codefendant]: Yes.

22
Encarnación did not take this opportunity to alert the
district court to his position (expressed for the first time in
this appeal) that he had been charged as an aider and abettor only,
such that the reserved question was really whether one charged as
an aider and abettor of the production of child pornography is
entitled to a mistake of age defense. And, as noted earlier, the
Plea Agreement only reserved the question of whether the defense is
available to one charged generally under 18 U.S.C. § 2251(a), not
one charged only as an aider and abettor. Plea Agreement at 10.

-52-
 Encarnación: Yes.

Id. at 25 (emphasis added). Encarnación confirmed that he either

"induced" or "enticed" KMV to participate in the recorded sexual

activity, and that KMV "so happened to be less than 16." Id. at

25-26. The judge then accepted Encarnación's guilty plea. Id. at

26.

The transcript leaves no doubt that the district judge

told Encarnación, more than once, that he was pleading guilty to

participating in the production of child pornography by engaging in

sexual activity with a minor. Notably, neither Encarnación nor the

district judge indicated that he was pleading guilty as an aider

and abettor only. In fact, there was no discussion whatsoever as

to which legal theory the government was proceeding on. The only

time the phrase "aiding and abetting" was mentioned in the context

of the charges against Encarnación was when the district judge

paraphrased the indictment's Count III. And even then, the judge

stated that Encarnación and Vilanova were alleged to have, "aiding

and abetting each other, . . . employed, used, persuaded, [or]

enticed a female minor" to engage in sexually explicit conduct for

the purpose of recording that conduct.

This formulation tracked the language of the indictment

charging him as both a principal and an aider and abettor in the

production of child pornography and was sufficient to put

Encarnación on notice that, in accordance with our precedent, he

-53-
was pleading guilty both as a principal (by participating in the

sexual conduct), and an aider and abettor (by performing the acts

knowing that Vilanova was filming). See Hilario, 529 F.3d at 69.

The majority is concerned that the parties have not

specifically argued that Encarnación was charged and convicted as

a principal in addition to an aider and abettor. Although the

government's briefing could have been more explicit, the majority's

concern is not well-founded.

In its main brief, the government quoted 18 U.S.C. § 2 in

full and, citing United States v. Southard, 700 F.2d 1 (1st Cir.

1983), pointed out that the statute "imposes liability on a

principal or those who aid and abet the commission of a crime."

Gov't Br. at 23. This is practically a verbatim quote from

Southard. 700 F.2d at 19 ("[18 U.S.C.] [s]ection 2 does not define

a crime; it imposes liability on a principal or those who aid and

abet the commission of a crime."). The government then argued that

Encarnación "actively assisted and participated in the substantive

offense" of producing child pornography, that the recording could

not have been accomplished "[w]ithout his active participation,"

and that, because he "engag[ed] in sexually explicit conduct with

a minor he became associated with the principal's criminal endeavor

and took part in it, intending to assure its success." Gov't Br.

-54-
at 23. From all this, the government concluded that Encarnación

"must be punished as a principal." Id.23

Further, although Encarnación focuses here only on the

aiding and abetting portions of 18 U.S.C. § 2, the government's

brief spelled out the statute--which is not limited to aiders and

abettors--in full. It explicitly provides that "[w]hoever commits

an offense against the United States . . . is punishable as a

principal." 18 U.S.C. § 2(a). The concept that Encarnación is

punishable as a principal because he actively participated in the

crime--in other words, because he joined in and ended up committing

the crime, too--was squarely presented in the government's brief.

Even more importantly, applying the uncontested facts of

this case to our binding precedent leaves no doubt that Encarnación

in fact admitted guilt as both a principal and an aider and

abettor. "We are, of course, free to affirm a district court's

decision on any ground supported by the record even if the issue

was not pleaded, tried, or otherwise referred to in the proceedings

below." Doe v. Anrig, 728 F.2d 30, 32 (1st Cir. 1984). We should

23
The government clarified its arguments in its supplemental
brief, noting that its opening brief had "provided . . . a response
to the issue which was actually preserved by [Encarnación]," Gov't
Supp. Br. at 5, which is "whether the defendant's mistake of age of
the victim can be raised as a defense to a charge of production of
child pornography under" 18 U.S.C. § 2251(a), Plea Agreement at 10.
The government went on to distinguish between the issue Encarnación
reserved for appeal, and his actual "concrete argument on appeal"
about aiders and abettors. Gov't Supp. Br. at 6. Moreover, the
government has never conceded that Encarnación was charged or
pleaded as an aider and abettor only.

-55-
do so here because, as I will explain, Encarnación's arguments that

a mistake of age defense is required fail, at least with respect to

an individual charged with violating 18 U.S.C. § 2251(a) as a

principal.

3. Availability of a Mistake of Age Defense to a Principal Charged
with Violating 18 U.S.C. § 2251(a)

Having concluded that Encarnación was convicted as a

principal, I now turn to the actual issue he reserved for appeal:

"whether the defendant's mistake of age of the victim can be raised

as a defense to a charge of production of child pornography under

[18 U.S.C. §] 2251(a)." Plea Agreement at 10. Encarnación, of

course, presents his appellate arguments from the perspective of an

accused aider and abettor, not a principal. In light of my

conclusion that the government did make the argument that

Encarnación is guilty as a principal since he participated in the

crime, I could take Encarnación's concession in his brief that a

principal is not entitled to a mistake of age defense and end my

analysis there.

Nevertheless, because I must ultimately address the

majority's holding that the government has the burden of proving

that an aider and abettor is aware of the victim's minority in an

18 U.S.C. § 2251(a) prosecution, it is logical to explore first

whether--and why or why not--a mistake of age defense is available

to one charged as a principal. Furthermore, the cases Encarnación

cites in his briefs (other than Rosemond) deal with individuals

-56-
charged as principals, and he seeks to apply their reasoning to

aiding and abetting cases. Accordingly, I embark on this analysis

first before turning my attention to the majority's view.24

i. Congressional Intent

Looking first to 18 U.S.C. § 2251(a)'s plain language, it

is clear that Congress did not intend for any such defense. Had

Congress intended a mistake of age defense, it would have used

language requiring knowledge of the victim's age on the part of the

defendant, as it did in a subsequent section criminalizing the

distribution and/or receipt of child pornography. Compare 18

U.S.C. § 2251(a) with 18 U.S.C. § 2252(a) (requiring a showing that

a defendant "knowingly" distributed child pornography). Congress

also could have explicitly included mistake of age as an

affirmative defense, as it did for a charge of sexual abuse of a

minor or ward under 18 U.S.C. § 2243(c), but chose not to do so.

See also 18 U.S.C. § 2252(c) (setting forth an affirmative defense

for possession of child pornography). These are strong textual

indications that mistake of age is not a defense to an 18 U.S.C.

§ 2251(a) prosecution.

The clincher though is that "in 1977 when Congress

amended [18 U.S.C. §§ 2251(a) and 2252] 'the new bill retained the

adverb 'knowingly' in § 2252 while simultaneously deleting the word

24
Doing so also happens to address the actual issue presented
before the district court and reserved for appeal.

-57-
'knowingly' from § 2251(a).'" United States v. Fletcher, 634 F.3d

395, 400 (7th Cir. 2011) (quoting United States v. X-Citement

Video, Inc., 513 U.S. 64, 76 (1994)); see also United States v.

Gendron, 18 F.3d 955, 960 (1st Cir. 1994) (recognizing

parenthetically that Congress "dropp[ed] the word 'knowingly' from

the production section of the statute [i.e., 18 U.S.C. § 2251(a)],

but not from the distribution section [i.e., 18 U.S.C. § 2252]").

"This deletion was intended to reflect Congress's 'intent that it

is not a necessary element of a prosecution [under § 2251(a)] that

the defendant knew the actual age of the child.'" Fletcher, 634

F.3d at 400 (alteration in original and internal quotation marks

omitted) (quoting X-Citement Video, 513 U.S. at 76). Furthermore,

the Supreme Court has noted (albeit in a different context) that

"many sex crimes involving minors do not ordinarily require that a

perpetrator know that his victim is a minor." Flores-Figueroa v.

United States, 556 U.S. 646, 653 (2009).

Thanks to the clear statutory language and legislative

history, there is simply no question that a defendant's mistake of

age of the victim is not a defense to a production of child

pornography charge. By not requiring knowledge of the victim's

age, Congress intended production of child pornography to be a

strict liability crime in that regard, akin to statutory rape. See

United States v. Velazquez, 777 F.3d 91, 95 (1st Cir. 2015)

(recognizing that the category of "strict liability sex crimes

-58-
against minors" includes statutory rape); X-Citement Video, 513

U.S. at 64, 74-76 and 76 n.5 (discussing Congress's intent to

exclude a scienter requirement and noting that "producers [of child

pornography] may be convicted under § 2251(a) without proof they

had knowledge of age").

ii. Constitutional Arguments

Having concluded that Congress did not intend to provide

a mistake of age defense, the next question is whether such a

defense might be constitutionally required. Although the parties

have not briefed any constitutional issue from the perspective of

a defendant charged as a principal, they have addressed an aider

and abettor's liability. Encarnación rests his constitutional

arguments entirely on the First Amendment and the Commerce Clause,

eschewing any sort of due process claim. Accordingly, I confine my

inquiry to those issues only.

a) First Amendment

Encarnación argues that the First Amendment requires a

mistake of age defense because, in its absence, 18 U.S.C. § 2251(a)

would "chill" constitutionally protected speech. The concern

expressed in his brief is that an employee of a legitimate producer

of commercial pornography who is only ancillarily involved with the

filming (e.g., a lighting or set designer) could be facing a 15-

year jail term if the producer failed to verify that all of the

performers were adults. The Ninth Circuit, in a case relied on by

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Encarnación, addressed such a situation in United States v. U.S.

Dist. Ct. for Cent. Dist. of Cal., Los Angeles, Cal., 858 F.2d 534

(9th Cir. 1988) (reading a reasonable mistake of age defense into

an 18 U.S.C. § 2251(a) prosecution against producers of commercial

pornography where a minor engaged in a sophisticated, long-lived,

and successful charade to pass herself off as an adult to the

commercial pornography industry).

First, I note that neither Encarnación's hypothetical nor

U.S. Dist. Ct. have anything to do with the facts of this case. In

no way was Encarnación involved in the production of legitimate,

commercial pornography. Thus, he has not presented anything that

would allow me to conclude that holding a producer strictly liable

for the age of the victim is unconstitutional as applied to him.

Moreover, Encarnación fails to come forward with anything

more than speculation in support of his First Amendment argument

that failing to provide a mistake of age defense will "chill"

constitutionally protected speech. See Fletcher, 634 F.3d at 402

("[T]he relevant question for us is whether § 2251 as written risks

chilling such a substantial amount of protected conduct that the

absence of a mistake-of-age defense outweighs the government's

indisputably compelling interest in protecting children from the

documented ills of child pornography."). Given the complete lack

of evidence that enforcing the statute as written (i.e., without a

mistake of age defense) will chill (or has already chilled) any

protected speech, I would be "hard-pressed to conclude that the

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plainly legitimate sweep of the statute is outweighed by the

possibility that the production of some protected pornography may

be chilled." Id. at 404. I also note that every other circuit to

have considered U.S. Dist. Ct. has rejected its holding and

declined to find that the First Amendment requires a reasonable

mistake of age defense to a charge of producing child pornography.

See id. at 404-05 (cataloguing cases).

Our circuit has yet to weigh in on this question.

Encarnación's briefing, however, is not helpful because he has done

nothing more than parrot back the Ninth Circuit's reasoning in U.S.

Dist. Ct., with no discussion whatsoever as to why any of the six

other circuits that have rejected his First Amendment argument got

it wrong. I would, therefore, simply find that Encarnación has

failed to show that the statute is unconstitutionally overbroad

without a mistake of age defense being made available to those

charged with violating 18 U.S.C. § 2251(a) as principals, at least

based upon Encarnación's particular First Amendment challenge.

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 b) Commerce Clause

Encarnación also says that a mistake of age defense is

required by the Commerce Clause. His argument on this is simple:

"[t]he production [of child pornography] statute was enacted to

counteract the evils of interstate trade in child pornography. But

what if the subjects in the video look like adults?" Appellant's

Br. at 21. This argument is insubstantial and merits no great

comment.

Encarnación cites no case invalidating § 2251(a) on

Commerce Clause grounds. Indeed, he acknowledges that we have

already upheld the statute against just such a challenge. United

States v. Morales-de Jesus, 372 F.3d 6, 16 (1st Cir. 2004)

("Congress, in an attempt to halt interstate trafficking, can

prohibit local production [of child pornography] that feeds the

national market and stimulates the demand, as this production

substantially affects interstate commerce.") (internal quotation

marks omitted).

Undaunted, Encarnación presses on, saying that we left

the door open to an as-applied Commerce Clause challenge. See id.

at 18. But this does not win the day for him either, as we

rejected the as-applied challenge on the facts of Morales-de Jesus.

Id. at 21. The defendant in that case "sexually exploited a

thirteen-year-old girl, coercing her into performing sex acts with

him on multiple occasions, for the purpose of videotaping their

encounters." Id. We found that it was not even a close case, as

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the conduct appeared to be "well within the bounds of what Congress

intended--and had the authority--to proscribe under its Commerce

Clause power." Id.

The fact that Encarnación had sex with a fourteen-year-

old instead of a thirteen-year-old does nothing to distinguish this

case from Morales-de Jesus. His as-applied challenge, therefore,

fails.

4. Summing Up

By concluding that Encarnación pleaded guilty as a

principal and that a mistake of age defense is not available to an

individual charged with producing child pornography as a principal,

it becomes unnecessary to address the parties' arguments on whether

the defense is available to an aider and abettor. Even if

Encarnación could demonstrate that the district judge erred because

an aider and abettor like himself is entitled to such a defense,

any error was undoubtedly harmless: his conviction as a principal

would still stand and the district judge ultimately imposed the

minimum jail term allowed by statute. Thus, prevailing on his

arguments could not possibly result in him receiving a shorter

sentence.

I would, therefore, affirm Encarnación's conviction and

sentence on the basis of his having pleaded guilty as a principal,

not just an aider and abettor.25

25
The majority is apparently uncomfortable with affirming on
this basis because it feels that the government has not briefed the

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5. Rosemond Does Not Require Adoption of the Majority's Rule

The majority, based on its reading of Rosemond, concludes

that the government must prove beyond a reasonable doubt that an

aider and abettor to a § 2251(a) offense knew the victim was a

minor. Even if I were to reach the aiding and abetting arguments,

I cannot agree that Rosemond requires us to adopt this bright-line

rule on the facts before us.26

issue. I find the majority's discomfort puzzling.
After all, the majority's conclusion that the government is
required to prove knowledge of age as an element of the crime comes
in spite of the fact that Encarnación expressly disclaimed, and
therefore waived, this theory in his opening brief. Appellant's
Br. at 20 ("[Encarnación] is asking for . . . a mistake of age
defense, not that knowledge of age be an element that the
government must prove . . . ."). And when we instructed him to
specifically brief the question of whether Rosemond requires the
government to prove an aider and abettor's knowledge of age as an
element of the crime, he gave us nothing more than conclusory
statements to the effect of, "yes, it does," without explaining how
or why he believes this is so. Nowhere in his four-sentence
treatment of Rosemond does he, similar to what the majority does,
address the obviously different mens rea requirements between the
drug offense in Rosemond and the strict liability sex crime here.
As this is far from the type of developed argument we normally
require, Encarnación's cursory treatment of Rosemond further opens
him to a finding of appellate waiver. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
But, since it appears that we will be overlooking inadequate
(or at least questionable) briefing of a significant issue no
matter how we resolve this case, I think we should do so in a way
that allows us to decide this appeal on the narrowest grounds
possible, and consistent with our well-established precedent, by
concluding that Encarnación pleaded guilty as a principal. See
Belville v. Town of Northboro, 375 F.3d 25, 30 (1st Cir. 2004).
Moreover, and as I will explain, Encarnación's argument based on
Rosemond, even if not waived, is unavailing.
26
A quick note on the standard of review. Encarnación did not
preserve the issue that he now argues on appeal, thereby opening

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 As the government points out in its brief, Rosemond

involved something very different from the strict liability crime

of producing child pornography, and so may not apply at all here.

Rosemond addressed the "double-barreled" crime of using (or

carrying) a gun during the commission of a violent or drug

trafficking offense in violation of 18 U.S.C. § 924(c). 134 S. Ct.

at 1245. The Court determined that a defendant is liable for

aiding and abetting a § 924(c) offense where he "has decided to

join in the criminal venture, and share in its benefits, with full

awareness of its scope--that the plan calls not just for a drug

sale, but for an armed one." Id. at 1249.

What's more, the majority, in my opinion, overlooks what

could be a critical distinction between Rosemond and the case here:

Rosemond did not involve strict liability sex crimes, or even

himself up to the strictures of plain error review. But, for
whatever reason, the government did not argue that we should apply
plain error review, and in light of this the majority applies de
novo review instead. In the process of explaining why, it cites
United States v. Tapia-Escalera, 356 F.3d 181, 183 (1st Cir. 2004).
In that case, we declined to apply plain error review because the
standard of review made no difference to the outcome (and because
the plain error review would have itself been complicated given the
issues at play). Id. Ditto with respect to United States v.
Duquette, 778 F.3d 314 (1st Cir. 2015), where we said that some
claims on appeal would get plain error review, while others we
would review de novo. Id. at 317 n.3. Nevertheless, we noted that
the same outcome would obtain regardless of which standard of
review we employed because the appellant failed to show that an
error occurred in the first place. Id. Accordingly, and as a
matter of convenience, we "just consider[ed] our entire review to
be de novo and move[d] on." Id. Here, nothing turns on whether I
apply de novo or plain error review. Like we did in Tapia-Escalera
and Duquette, I review the issue de novo.

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strict criminal liability on the part of the principal at all.

Indeed, the takeaway from Rosemond is that an aider and abettor

must have the same amount of knowledge as does the principal about

the scope of the contemplated crime, and thereby "becomes

responsible, in the typical way of aiders and abettors, for the

conduct of others," that is, the principal offender(s). Id. The

principal in a § 924(c) prosecution must have both intended to (1)

engage in a drug transaction and (2) do so while armed. Logically

then, and as the Supreme Court concluded, an accomplice must know

that an armed drug sale was going to happen in order to be guilty

of aiding and abetting a § 924(c) offense.

The offense in Rosemond stands in stark contrast to the

production of child pornography, where a principal is guilty so

long as he has filmed a minor engaging in sexually explicit

conduct, even if the principal intended to film an adult. Thus,

under Rosemond's principles, when it comes to the strict liability

sex crime of producing child pornography, the aider and abettor

only needs to know that he is assisting or facilitating the filming

of sexually explicit activity to have a "full awareness of [the]

scope" of the crime. Id. at 1249. Nothing in Rosemond requires

(or even points the way towards) a finding that an aider and

abettor who is present and participates in the crime must have

additional knowledge, unknown to the principal, about the facts and

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circumstances of that particular crime. In my view, Rosemond

simply does not require us to adopt the majority's rule.27

27
In addition, citing 2 LaFave § 13.2(f), the majority says
that even if a principal does not need to have knowledge of the
victim's minority to be guilty of violating § 2251(a), "the
government's argument that an aider and abettor must also be held
liable without fault has been rejected by longstanding law."
Majority Op. at 16. In his treatise, LaFave states that, when it
comes to strict liability crimes, "[i]t has been argued that in
such a case the accomplice may be held on a liability-without-fault
basis if the crime committed by the principal is of the strict
liability variety, but this argument has been rejected." 2 LaFave
§ 13.2(f). LaFave cites two cases in support of this proposition,
neither of which is binding upon us.
One, State v. Bowman, 656 S.E.2d 635 (N.C. Ct. App. 2008), is
from North Carolina's intermediate court of appeal. And, as I
explain later, Bowman is readily distinguishable.
The second case is more than a half-century old and comes to
us from an English court. Johnson v. Youden, [1950] 1 K.B. 544.
Johnson, never before cited by any state or federal court, does not
even appear to deal with a charge of aiding and abetting a strict
liability crime. The principal defendant in Johnson, a
homebuilder, violated a regulation capping the price at which a
house could be sold by collecting a separate charge, paid to him in
advance. Id. at 544. He then hid that fact from the attorneys he
hired to effectuate the real estate sale. Id.
One of the three attorneys accused of aiding and abetting
discovered the excess charge (of which the other two remained
wholly ignorant), and was told by the homebuilder that the money
had been put into a separate account "to be spent on payment for
work, as and when [the homebuilder] would be able lawfully to
execute it in the future, on the house on the purchaser's behalf."
Id. at 544-45, 547. That particular attorney assisted in the sale
despite his knowledge of the excess charge because he concluded the
charge was legal. Id. at 548. The English court concluded that
this attorney was guilty of aiding and abetting the homebuilder's
regulatory violation since his mistaken analysis was no defense.
But the other two attorneys, who did not know the charge had been
collected in the first place, could not be held liable. Id. at
546-47. Several thoughts come to mind.
First, because the homebuilder was obviously aware of the fact
that he had collected this separate charge, Johnson simply did not
involve a strict liability crime like the one we must deal with, so
I do not find its reasoning particularly persuasive. Second, and
to the extent that Johnson could be said to have any bearing on
this case, its logic is consistent with mine. By having sex with

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 I also note that neither the parties nor the majority

have cited any federal case discussing the degree of knowledge

necessary to hold someone criminally liable as an aider and abettor

of the production of child pornography. My own research has not

turned up any, either. And there are only a couple of state court

decisions dealing with this situation. The different outcomes

reached by the state courts illustrate why I hesitate to use this

poorly briefed case as a vehicle for adopting a blanket rule

applicable to all strict liability sex crimes.28

KMV knowing that he was being filmed, Encarnación became like the
attorney who gained knowledge of the excess charge but concluded
(erroneously) that he could effectuate the transaction without
running afoul of the law. Had Encarnación advanced a different
defense, for example, that he did not know he was being filmed,
then he might be in a position similar to the two attorneys who
were unaware the charge had been collected in the first instance.
But Encarnación has never contended he was unaware the camera was
rolling, so Johnson can provide him no shelter in any event.
Furthermore, even though LaFave says that criminal liability
can not be imposed on a no-fault basis even when it comes to strict
liability crimes, he made sure to point out that "[t]his is to be
distinguished from the situation where the crime is not totally of
a strict liability type, but no awareness is required as to some
attendant circumstance to convict either the principal or the
accomplice." 2 LaFave § 13.2(f). Production of child pornography
fits this mold, as the guilty principal need know only that he is
producing a visual depiction of sexually explicit conduct, with the
victim's age acting as the attendant circumstance. Thus, even
LaFave leaves open the possibility that an aider and abettor to the
production of child pornography in violation of § 2251(a) could
properly be convicted without proof that he knew the victim was a
minor. LaFave's treatise, therefore, even if considered as
persuasive authority, does not call for the majority's sweeping
rule.
28
By discussing these state cases, I do no intimate that I
believe they are binding or that we should defer to the legal
reasoning of these courts. I address them because they reflect the
complexities other courts have grappled with when confronted by the

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 First, in a case relied upon by the majority, a North

Carolina appellate court has found that to be guilty of aiding and

abetting the strict liability crime of statutory rape, the

accomplice must have "acted with knowledge that the [victim was]

under the age of sixteen." State v. Bowman, 656 S.E.2d 635, 651

(N.C. Ct. App. 2008).29 Bowman involved a situation in which the

alleged aider and abettor did not actually participate in sexual

activity with any of the minor victims, and arguably was not

"present" at the time and place of the crime. See id. at 637.

By contrast, the Massachusetts Appeals Court concluded

(after discussing Bowman) that knowledge of age is not necessary to

convict a joint venturer of statutory rape where the facts showed

that the accused, while he did not participate in any sexually

explicit conduct with the victim, was nevertheless "'present'

during commission of the crime and had as much opportunity as the

principal to make judgments about [the victim's] age."

question facing us today.
29
Along the way, Bowman cites an old case out of California,
People v. Wood, 56 Cal. App. 431, 205 P. 698 (1922), for the
proposition that statutory rape is a strict liability crime, but
aiding and abetting a statutory rape is not. See Bowman, 656
S.E.2d at 650. The citation is curious, as Wood simply did not
discuss whether and under what circumstances statutory rape could
constitute a strict liability crime. Further, the Wood court
explicitly noted that the defendant "knowingly both aided and
abetted" another's commission of a statutory rape, as he procured
a room for the principal even though the defendant "knew the
illegal purpose for which the room was to be used." Wood, 56 Cal.
App. at 432, 205 P. at 698 (emphasis added). Strict liability for
an aider and abettor was just not an issue in that case.

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Commonwealth v. Harris, 904 N.E.2d 478, 486-87 (Mass. App. Ct.

2009). The defendant in Harris also took affirmative actions to

assist the crime, as he drove the vehicle in which the victim and

principals rode, picked up the alcohol that the principals used to

get the victim drunk, drove to two different motels to procure a

room, and was in the motel room when the principals took turns

having sex with her, "sometimes watching television and sometimes

watching what the others were doing to her." Id. at 480-81.

Bowman and Harris give me pause in definitively answering

Encarnación's question of whether, and under what circumstances, an

aider and abettor of the production of child pornography is

entitled to a mistake of age defense. Like so much else in the law

relevant to defenses, I believe the answer is rooted in the

specific evidence adduced in each particular case. See, e.g.,

Mathews v. United States, 485 U.S. 58, 63 (1988) ("As a general

proposition a defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient for

a reasonable jury to find in his favor."); United States v. Lopez-

Lopez, 282 F.3d 1, 18 (1st Cir. 2002) ("The defendant is not

entitled to an instruction on a defense when the evidence in the

record does not support that defense."). It seems likely to me

that both policy and due process concerns (which have not been

raised here) may require us to make the defense available to

certain aiders and abettors who were not present and did not

participate in the actual sex acts. Perhaps the theoretical set

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decorator, for whom the majority expresses much concern, operating

at such a distance from the filming so as to be unable to

personally explore the age of the minor, would be one such

defendant. But that is not this case.

To the extent we consider him an aider and abettor,

Encarnación placed himself in a position indistinguishable from

that of the principal when he participated in the production of

child pornography by having sex with the minor victim before the

camera. His opportunity to gauge for himself the victim's age was

just as good as (or even better than) the one afforded to the man

holding the camera. The policy reasons (which flow from due

process concerns) that favor presentment of a mistake of age

defense by a clueless, non-present, non-participant aider and

abettor vanish when it comes to Encarnación. And, in my view,

nothing in Rosemond requires us to fashion a rule allowing

Encarnación to present a mistake of age defense given the admitted

facts in the record.30

30
One of Rosemond's chief concerns is the idea that an
accomplice without "advance knowledge" of the nature of the crime
lacks any opportunity to "alter [the] plan or . . . withdraw from
the enterprise." Rosemond v. United States, 134 S. Ct. 1240, 1249
(2014). And without a "realistic opportunity to quit the crime"
after having gained knowledge of its full scope, a defendant does
not have "the requisite intent to assist" that particular crime.
Id. Although Rosemond does not establish a bright-line rule
telling us exactly when an individual defendant has had that
"realistic opportunity to quit the crime," it is beyond dispute
that Encarnación did: the uncontested evidence in the record shows
that not only did he come face-to-face with his victim, but also
that Encarnación engaged in sexually explicit conduct with her
before a camera on more than one occasion. Rosemond's underlying

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 In sum, because Encarnación was a present, participating

aider and abettor in the strict liability crime of production of

child pornography, I cannot agree with the majority's conclusion

that Rosemond requires the government to prove that Encarnación--or

other similarly situated aiders and abettors--was aware that his

victim was a minor. I would leave for another day, in a case where

the Rosemond issue is squarely raised and has been fully fleshed

out in the parties' briefs,31 the question of whether an individual

charged only as an aider and abettor to the production of child

pornography in violation of 18 U.S.C. § 2251(a) may be entitled to

a mistake of age defense and, if so, whether the government or the

defendant bears the burden of proof on that defense.

III. CONCLUSION

For the foregoing reasons, I would affirm Encarnación's

conviction and dismiss his appeal.

concern is simply not present on these facts.
31
With an analysis that goes beyond a simple, "yes, it does."

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