United States v. David Foley
740 F.3d 1079
| 7th Cir. | 2014Background
- Foley was convicted in the E.D. Wis. of three counts of producing child pornography, one count of distributing, one count of transporting a minor across state lines for sex, and one count of possessing child pornography.
- Evidence included two foreign-manufactured hard drives (Thailand, China) seized from Foley’s residence and images/videos on a laptop/DVD; Minor Male A testified and appeared in at least one video.
- Government relied on 18 U.S.C. § 2251(a)’s commerce element by arguing the hard drives were "materials" used to produce the images because they were used to store/copy the files and had traveled in foreign commerce.
- Foley moved for acquittal under Fed. R. Crim. P. 29, arguing the government failed to prove the commerce element because the camera (unknown) that captured the images, not the hard drives, was the relevant production device.
- District court denied the Rule 29 motion; Foley also challenged the admission of testimony from another victim (Minor Male B) under Fed. R. Evid. 413 as unfairly prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of commerce element for §2251 production counts | Government: storage devices (hard drives) used to copy/store images satisfy the statute’s "materials" requirement | Foley: "producing" occurs when the image is captured; government needed to show the camera traveled in commerce | Court: Affirmed — jury could find copying/storage on foreign-made hard drives is part of "producing" and satisfies commerce element |
| Scope of "producing" under §2256(3) | Government: "producing" is broad (includes copying, issuing, publishing) so storage media can be materials used in production | Foley: "producing" should be limited to moment of capture; later storage is not part of production | Court: Adopted broad construction; copying/downloading to media is within "producing" |
| Risk of conflating production and possession offenses via broad "producing" | Government: Statutory elements for production (use/entice minor) remain distinct from mere possession; broad commerce interpretation doesn’t convert charges | Foley: Broad definition could improperly elevate possession to production | Court: Rejected concern — mens rea/actus reus for production (entice/use minor) prevents conflation |
| Admission of prior sexual-act testimony under Fed. R. Evid. 413/414 | Government: Minor Male B’s prior molestation is admissible as other sexual assault/child-molestation evidence relevant to propensity, intent, motive | Foley: Rule 413 doesn’t apply because he wasn’t charged with a "sexual assault"; admission caused unfair prejudice | Court: Affirmed admission under Rule 413 (and alternatively Rule 414); Rule 403 balancing not abused; any error would be harmless |
Key Cases Cited
- United States v. Angle, 234 F.3d 326 (7th Cir.) (storage media used to copy/download images can satisfy commerce element)
- United States v. Poulin, 631 F.3d 17 (1st Cir.) ("producing" construed broadly; need not identify single device/moment of production)
- United States v. Schene, 543 F.3d 627 (10th Cir.) (copying/downloading to hard drive constitutes "producing" for commerce element)
- United States v. Fadl, 498 F.3d 862 (8th Cir.) (rejects narrow/technical definition of "producing")
- United States v. Lacy, 119 F.3d 742 (9th Cir.) (hard drive and storage devices traveling in commerce sufficient for possession-related commerce showing)
- United States v. Mugan, 441 F.3d 622 (8th Cir.) (affirmed production conviction where camera with memory card moved in interstate commerce; did not hold that only integrated camera media qualify)