United States v. Foley

• Decision Date: 22 January 2014
• Docket Number: No. 13–1386.,13–1386.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David P. FOLEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

740 F.3d 1079

UNITED STATES of America, Plaintiff–Appellee,

v.David P. FOLEY, Defendant–Appellant.

No. 13–1386.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 9, 2013.

Decided Jan. 22, 2014.

Penelope L. Coblentz, Gail J. Hoffman, Carol L. Kraft, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Jeffrey W. Jensen, Sr., Milwaukee, WI, for Defendant–Appellant.

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

David Phillip Foley was convicted by a jury in the Eastern District of Wisconsin on three counts of producing child pornography, one count of distributing child pornography, one count of taking a child across state lines for the purpose of a sex act, and one count of possessing child pornography. Foley appeals his convictions. He argues first that the district court erred in denying his post-trial motion for acquittal on the production charges because the government's evidence failed to satisfy the commerce element of those charges. He also argues that the district court improperly admitted evidence of a prior sexual assault under Federal Rule of Evidence 413, causing unfair prejudice and denying him a fair trial as to all charges. We affirm the district court's judgment.

I. Commerce Element

After his trial and guilty verdict, Foley filed a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29 challenging the sufficiency of the evidence on the production counts. To convict Foley, the government was required to prove that Foley used “material that had been mailed, shipped, or transported in or affecting interstate or foreign commerce” to produce images of child pornography. 18 U.S.C. § 2251(a). At trial, the government introducedtwo computer hard drives containing pornographic images and videos. One hard drive had been manufactured in Thailand and the other in China. Both were seized from computers in Foley's apartment during the execution of a search warrant.

The FBI and police had obtained the search warrant after Foley mailed a DVD containing child pornography to a television reporter in an apparent attempt to frame his landlord on possession charges. Foley also met with a private investigator, made allegations against his landlord, and handed over a laptop computer that his landlord supposedly had left behind at Foley's barber shop. A file on the laptop contained several videos and hundreds of still images of child pornography. The government presented testimony that Foley had in fact purchased the computer shortly before turning it over to the investigator. An FBI forensic investigator found that the images on the DVD that Foley sent to the reporter and the images on the hard drive of the laptop Foley turned over to the investigator were similar to the images found on Foley's computers after the execution of the search. Foley appears in at least one of the videos. He can be seen touching a minor's genitals and adjusting the angle of the camera. (To differentiate this victim from another minor who testified against Foley, we will refer to the unfortunate subject of Foley's videography as “Minor Male A.”) Minor Male A testified at trial and corroborated the photographed and videotaped incidents.

The production of child pornography is a federal crime under 18 U.S.C. § 2251(a). A person commits this crime if, in relevant part, 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.” The statute also contains a commerce element. That element requires the government to show either that the images traveled in, or that the defendant knew the images would travel in, interstate or foreign commerce, or that any material used to produce the images traveled in interstate or foreign commerce. Id. Here, the government attempted to prove its case under the third route by proving that the visual depictions of Minor Male A engaging in sexual conduct were “produced ... using materials that [had] been mailed, shipped, or transported in or affecting interstate or foreign commerce.” Id. The government argues that the “materials” Foley used were the Thai- and Chinese-manufactured hard drives.

There is no doubt that the hard drives were manufactured in other countries and thus that they had traveled in foreign commerce. Foley argues, however, that the hard drives were insufficient to meet the prosecution's burden of proof on the commerce element of the production charges because he had not “produced” the images using the hard drives. His theory is that he produced the images using only a camera and that later transfers of the images to the hard drives were not part of the production process. Foley insists that the government was required to prove that the camera he used to create the pornographic images of Minor Male A had traveled in foreign or interstate commerce. Because the government had not offered evidence concerning the unknown camera, he moved for acquittal. The district court denied his motion, and Foley appeals.

We review de novo the district court's denial of Foley's motion for acquittal. United States v. White, 737 F.3d 1121, 1129 (7th Cir.2013). In considering challenges to the sufficiency of the evidence,we “view the evidence in the light most favorable to the prosecution,” and then “ask whether any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt.” United States v. Boender, 649 F.3d 650, 654 (7th Cir.2011). We conclude that the government presented sufficient evidence from which the jury could find that Foley's hard drives were materials used in producing the child pornography and that the commerce element was therefore satisfied.

For purposes of child pornography crimes, “producing” is defined in 18 U.S.C. § 2256(3) as “producing, directing, manufacturing, issuing, publishing, or advertising.” Although the statutory definition serves as a guidepost, it does not fully resolve the question before us. Foley argues that “producing” should be interpreted narrowly, limited to the exact moment in time when the visual depiction of the child is first captured on film or digital medium. Under Foley's interpretation, the government could satisfy the commerce element only by proving that the means of that capture—the camera—had traveled in interstate or foreign commerce.

We view the issue as whether a jury could find that storage of a visual image for later retrieval is part of the process of “producting” under the statutory definition. The answer is yes. Our decision in United States v. Angle, 234 F.3d 326, 340–41 (7th Cir.2000), is not controlling but is instructive. Defendant Angle challenged his conviction for possession of child pornography based on the sufficiency of the government's evidence on the commerce element. The government had introduced as evidence the computer diskettes and zip disks onto which Angle had copied pornographic images. The diskettes had been manufactured out of state and then transported in interstate commerce. Angle argued for a narrow interpretation of the word “producing” under which the diskettes, as storage devices onto which he had copied the pornographic images, were insufficient proof that the images had been “produced” using the diskettes. We disagreed. We found that Angle's interpretation would “essentially render[ ] meaningless the statutory definition of ‘producing’ ” and that copying images can be part of the production process. Id. at 341. Images may be “produced” when pieces of computer equipment, “including computer diskettes, are used to copy the depictions onto the diskettes that have traveled in interstate commerce.” Angle, 234 F.3d at 341; see also United States v. Anderson, 280 F.3d 1121, 1125 (7th Cir.2002) (rejecting defendant's challenge to the sufficiency of his indictment for child pornography possession where indictment alleged defendant's internationally-manufactured hard drives “contained” images instead of “produced” images; “computerized images are produced when computer equipment is used to copy or download the images”).

Though Angle was a case of child pornography possession and not production, the commerce elements of the possession and production statutes are nearly identical. Compare 18 U.S.C. § 2251(a) (commerce element for production) (“produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce”), with commerce elements in 18 U.S.C. § 2252(a)(4)(B) (possession) (“produced using materials which have been mailed or so shipped or transported”) and 18 U.S.C. § 2252A(a)(5)(B) (possession) (“produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce”). For purposes of the commerce element and the meaning of “production,” we do not see any meaningful distinction between the diskettes that Angle used to copy and store his images and the hard drives that Foley used to copy and store his. Though Foley was free to argue otherwise, a jury certainly could have found that Foley's hard drives were materials used in the production process sufficient to satisfy the commerce element.

Other circuits that have grappled with the meaning of “production” in the federal child pornography statutes have reached similar conclusions. In a child pornography production case in the First Circuit, the defendant argued that the government was required to identify the precise moment at which “production” occurred—at image capture, recording, or storage—and then was required to prove whether the particular device involved at the moment of production had moved in interstate or foreign commerce. United States v. Poulin, 631 F.3d 17, 22–23 (1st Cir.2011). Searches had uncovered the defendant's cameras and the DVDs he had recorded, but not the means of transfer between the camera...