dissenting in part:
I concur in all of the majority opinion except that dealing with male # 1, as to which I respectfully dissent. The statute in question, 18 U.S.C. § 2251(a), denounces “[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.”1 “Sexually explicit conduct” includes “simulated” as well as “actual” “lascivious exhibition of the genitals” — which is what is claimed here — and other specified conduct. 18 U.S.C. § 2256(2).2
It is not claimed that male # 1 ever in fact engaged in either any actual or any simulated sexually explicit conduct. Male # 1 never actually exhibited — or simulated an exhibition of — his (or another’s) genitals. A picture of his face was taken and later — without his knowledge or consent— superimposed on a picture exhibiting the genitals of one not shown to be a minor.
It seems to me that the language of section 2251(a) unambiguously requires that the minor in fact “engage in ... sexually explicit conduct,” whether such sexually explicit conduct be “actual or simulated”; that is, the minor must actually do something — “engage in” — which consti*299tutes actual or simulated sexually explicit conduct. Certainly, that is the most natural reading of section 2251(a). Even if the language were ambiguous in this respect, the rule of lenity would require such a construction. See, e.g., Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 2089, 85 L.Ed.2d 434 (1985) (“our longstanding recognition of the principle that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,’” citing five cases).
The majority’s reliance on the “employs, uses” language of section 2251(a) is misplaced; that language does not obviate the statute’s requirement that the “minor ... engage in ... sexually explicit conduct.” That “engage in” requirement is in addition to the requirement that the defendant have “the purpose of producing any visual depiction” of actual or simulated sexually explicit conduct. The majority’s reasoning in this respect would have the statute apply if the defendant knowingly used or employed a minor to purchase the film on which actual or simulated sexually explicit conduct engaged in by others was to be and was depicted. Reprehensible conduct certainly, but not denounced by section 2251(a).
Accordingly, I dissent as to male # 1.
. Also denounced by section 2251(a) is any person “who has a minor assist any other person to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct,” and any person "who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” Neither of these branches of section 2251(a) is claimed to be involved here.
. Section 2256(2) provides that:
"(2) 'sexually explicit conduct' means actual or simulated—
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any person;”