United States v. Keith McGee, 821 F.3d 644

McGee engaged in an hours‑long email exchange with an online persona "Josh" who identified himself as a 14‑year‑old; "Josh" was actually an FBI agent.
During the exchange McGee repeatedly requested photos of Josh’s genitals, asked about boxers/briefs and size, and asked if Josh had a webcam or Skype; Josh sent a non‑explicit shirtless photo and expressed reluctance to send explicit images.
McGee insisted he “wanted another” picture and told Josh he would have to “do something for [McGee]” before meeting; McGee later was identified, arrested, and indicted on child‑pornography counts.
McGee was convicted of attempted production of child pornography under 18 U.S.C. § 2251(e) (Count One) and sentenced to the 15‑year mandatory minimum; he appealed only Count One.
On appeal McGee argued (1) insufficient evidence he intended to have Josh create and send a newly‑created explicit image (and thus failed § 2251’s interstate/transmission element), and (2) plain error from an FBI agent’s testimony that McGee “sexually exploit[ed] a child.”

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency: whether evidence supported attempted production under § 2251 (intent to have minor create and send new explicit image; interstate nexus)	McGee: requested an explicit picture but did not seek a newly created image; evidence insufficient to show attempt to produce or that images would be transmitted in interstate commerce	Government: McGee’s repeated, persistent requests after a non‑explicit photo and his inducement to "do something" to meet supported an inference he sought a newly created image that would be transmitted by email (interstate)	Affirmed: under Jackson standard evidence was sufficient to infer McGee sought a newly‑created explicit image and interstate transmission by email was established
Admissibility: lay‑witness opinion when agent testified McGee “sexually exploit[ed] a child”	McGee: agent’s phrase was a legal conclusion tied to the § 2251 caption and prejudicial; plain error review applies to unpreserved objections	Government: even if problematic, the testimony was cumulative to other evidence and did not affect the outcome	No plain error: court found any improper language did not seriously affect fairness or outcome; conviction stands

Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
United States v. Runyan, 290 F.3d 223 (5th Cir. 2002) (§ 2251 interstate‑transportation element requires knowledge or reason to know images would be transported in interstate commerce)
United States v. Olvera, 687 F.3d 645 (5th Cir. 2012) (attempt requires culpability for underlying offense and substantial step)
United States v. Broxmeyer, 616 F.3d 120 (2d Cir. 2010) (government must show sequence linking solicitation to production of image)
United States v. Palomino‑Coronado, 805 F.3d 127 (4th Cir. 2015) (reversal where evidence failed to show defendant initiated sexual activity specifically to produce a photograph)
United States v. Flores‑Martinez, 677 F.3d 699 (5th Cir. 2012) (plain‑error review for unpreserved evidentiary objections)
United States v. Escalante‑Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc) (requirements for correcting plain error)
United States v. Williams, 343 F.3d 423 (5th Cir. 2003) (limits on lay testimony that embraces ultimate legal issues)
United States v. Vargas‑Ocampo, 747 F.3d 299 (5th Cir. 2014) (Jackson inquiry deferential to jury verdict)