Verb tense distinctions in exploitation statute

In a recent Ninth Circuit case, United States v. Williams, 659 F.3d 1223 (2011) a defendant made a rather pointless, yet clever, argument. Williams was seeking to show that an individual must personally produce child pornography in order to be convicted of advertising for distribution.

Under the federal sexual exploitation of children statute, 18 U.S.C.A. § 2251, "[a]ny person who ... knowingly makes, prints, or publishes ... any notice or advertisement seeking or offering (A) to receive, exchange, buy [etc.] ... any visual depiction, if the production ... involves the use of a minor engaging in sexually explicit conduct ... shall be punished.... § 2251(d)(1).

Williams's argument was on the verb tense. Since the statute uses the word "involves" rather than "involved", Congress intended for the statute to require the defendant to have actually produced it, rather than to have received it and redistribute the images. Of course, the court produced sufficient explanation for striking down such an argument, but it was clever.