United States v. Riley Lively
852 F.3d 549
| 6th Cir. | 2017Background
- In April 2009 Riley Lively sexually abused a nine-year-old boy while Robert Norwood‑Charlier photographed the abuse with a Kodak digital camera containing a SanDisk memory card; copies were later found on Norwood‑Charlier’s Seagate hard drive.
- FBI recovered the Kodak camera, the SanDisk card (bearing a "Made in China" inscription), and a computer with a Seagate hard drive (stipulated to be manufactured in Thailand).
- Lively was indicted under 18 U.S.C. § 2251(a) alleging he sexually exploited the minor “for the purpose of producing” visual depictions and that such depictions “were produced using materials that had been … transported in interstate or foreign commerce” (the indictment referenced the Seagate hard drive).
- At trial the government introduced both the SanDisk card (images recovered from it) and the Seagate hard drive (thumbnail cache copies), but argued primarily that the Thai hard drive satisfied § 2251(a)’s interstate‑commerce hook; the district court denied a Rule 29 acquittal motion and Lively was convicted.
- On appeal Lively challenged (1) sufficiency of the evidence as to § 2251(a)’s interstate‑commerce requirement, (2) jury instructions on interstate commerce, and (3) pre‑indictment delay. The Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Lively) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether copying images onto a hard drive constitutes “producing” under § 2251(a) | “Produce” is limited to initial creation (e.g., taking the photo); copying to a drive is not producing | “Produce” is broad and includes subsequent copying onto digital media | Court: "Produce" includes copying images onto a hard drive (agreeing with majority of circuits) |
| Whether the government proved § 2251(a)’s interstate‑commerce element | The government relied only on Seagate hard drive; no evidence Lively intended or knew images would be copied to that hard drive, so nexus not proved | It is sufficient that someone (Norwood‑Charlier) produced the images on property manufactured abroad; defendant need not know | Court: The Seagate hard drive alone did not prove Lively intended to produce those specific copies, but the SanDisk card ("Made in China")—admitted at trial and from which the images were produced—provided a sufficient interstate/foreign nexus when viewed in the light most favorable to the prosecution |
| Whether jury instructions misstated the burden on interstate commerce element | Jury should have been instructed the government had to prove the camera or SanDisk card specifically had an interstate/foreign commerce nexus | Court instructions accurately tracked § 2251(a); producing can occur at multiple stages and jury could consider the SanDisk card | Court: No abuse of discretion; instructions adequate and permitted reliance on the SanDisk card’s origin |
| Whether four‑year pre‑indictment delay violated due process | Delay prejudiced Lively’s ability to present an insanity defense; negligence by government caused delay | Delay resulted from investigation across jurisdictions; no intentional delay to gain tactical advantage; prejudice speculative | Court: Claim fails—prejudice speculative and no intentional government delay; motion to dismiss properly denied |
Key Cases Cited
- Wright v. United States, 774 F.3d 1085 (6th Cir. 2014) (standard of review for statutory interpretation and sufficiency issues)
- Burdulis v. United States, 753 F.3d 255 (1st Cir. 2014) (holding that copying images onto digital storage can constitute “producing”)
- Foley v. United States, 740 F.3d 1079 (7th Cir. 2014) ("visual depiction" definition contemplates digital storage post‑creation)
- Pattee v. United States, 820 F.3d 496 (2d Cir. 2016) ("producing" includes copying to storage devices)
- Dickson v. United States, 632 F.3d 186 (5th Cir. 2011) (copying creates a new digital copy and can be production)
- Guagliardo v. United States, 278 F.3d 868 (9th Cir. 2002) (similar holding on digital copying)
- Cavazos v. Smith, 565 U.S. 1 (2011) (Jackson sufficiency‑of‑evidence standard in appeal review)
- Jackson v. Virginia, 443 U.S. 307 (1979) (governing standard for reviewing sufficiency of the evidence)
- Dean v. United States, 556 U.S. 568 (2009) (interpreting passive voice jurisdictional language relevance)