Bailey: Child Pornography Possession Indictment Sufficient

In U.S. v. Bailey, No. 14-10174 (Feb. 24, 2015), the Court rejected a challenge to the clarity of an indictment that charged sexual exploitation of a child, and possession of child pornography. Noting that challenges to the sufficiency of an indictment are reviewed only for “actual prejudice,” when raised, as here, for the first time on appeal, the Court pointed out that Bailey knew precisely which of four video images were charged in the first four counts of the indictment. The Court also rejected a challenge to a count of the indictment that failed to identify the pornographic image at issue. The Court noted that the indictment identified the computer and videotapes on which he had child pornography. Thus, Bailey had “ample notice” of the images. The Court also rejected the argument that a violation of 18 U.S.C. § 2251(a) requires that a minor actually masturbate in the visual depiction, pointing out that this statute merely requires that the defendant “induce” or “entice” the minor; “it does not require the effort to be successful.”