United States v. David Foley

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1386

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID P. FOLEY,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 11-CR-264 — J. P. Stadtmueller, Judge.

ARGUED SEPTEMBER 9, 2013 — DECIDED JANUARY 22, 2014

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

2 No. 13-1386

government’s evidence failed to satisfy the commerce element

of those charges. He also argues that the district court improp-

erly 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 introduced two 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 land-

lord 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

No. 13-1386 3

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 corrobo-

rated 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

4 No. 13-1386

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”

No. 13-1386 5

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

6 No. 13-1386

sufficiency of his indictment for child pornography possession

where indictment alleged defendant’s internationally-manufac-

tured 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 com-

merce 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 produc-

tion 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

No. 13-1386 7

storage—and then was required to prove whether the particu-

lar 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 defen-

dant’s cameras and the DVDs he had recorded, but not the

means of transfer between the camera and the DVDs. It was

this link that the defendant seemed to believe was crucial to

“production.”

In rejecting the defendant’s argument, the court explained,

“Congress intended a broad ban on the production of child

pornography and aimed to prohibit the varied means by which

an individual might actively create it.” Id. at 23. The court

found that Congress did not mean to enact a hyper-technical

definition of the term “producing” and that the term should be

interpreted broadly. Id. at 22. It was unnecessary for the

government either to prove precisely when “production”

occurred or to produce at trial the equipment the defendant

had used at that moment. The court found that a reasonable

fact-finder could have found that the internationally-manufac-

tured media equipment produced at trial were used to

“produce” the images.

Likewise, in United States v. Schene, 543 F.3d 627, 639 (10th

Cir. 2008), the Tenth Circuit found that the commerce element

was established for a child pornography possession charge

where the defendant “produced” the pornographic images by

copying or downloading them onto a hard drive that had been

8 No. 13-1386

manufactured in foreign commerce.1 The Eighth and Ninth

Circuits also have upheld child pornography convictions

under a more expansive interpretation of “production.” See,

e.g., United States v. Fadl, 498 F.3d 862, 866–67 (8th Cir. 2007)

(rejecting defendant’s argument that production conviction

required proof that he took directorial role or intended

commercial distribution of images; Congress intended a non-

technical definition of “producing” and sought to include

activities not generally considered to fall within the typical

meaning of the term); United States v. Lacy, 119 F.3d 742, 750

(9th Cir. 1997) (proof that defendant’s computer hard drive,

monitor, and storage disks had traveled in commerce was

sufficient to prove commerce element of possession charge;

rejecting defendant’s argument that images were “produced”

before they were copied or downloaded onto his computer).

Foley cites an Eighth Circuit case, United States v. Mugan,

441 F.3d 622, 625–26 (8th Cir. 2006), to support his argument

that a storage device can be part of the “production” process

only when the device is part of the camera that captured the

1

An earlier ruling of the Tenth Circuit, United States v. Wilson, 182 F.3d 737,

743 (10th Cir. 1999), called into question “whether a computer graphics file

is produced or created prior to being recorded on a particular storage

media, or whether, instead, it only comes into being at or after the point it

is recorded on the storage media.” Because the court was not satisfied that

the government had proved that the computer diskette on which the

defendant’s images were recorded could satisfy the commerce requirement

for production, it reversed the defendant’s conviction. In Schene, however,

the Tenth Circuit explicitly found that this question had been answered and

that the visual depictions were “produced” when they were copied or

downloaded onto the defendant’s hard drive. 543 F.3d at 638–39.

No. 13-1386 9

image, such as a camera’s memory card or memory stick. The

Mugan court clearly did not go that far, however. Mugan

brought both facial and as-applied challenges to Congress’s

power to criminalize child pornography, contending there was

an insufficient nexus between the local production of child

pornography and interstate commerce. The Eighth Circuit

rejected Mugan’s constitutional challenge and affirmed his

conviction for child pornography production based on the

government’s showing that he used a camera with a memory

card that had moved in interstate commerce. Id. at 630. The

court’s finding that Mugan’s camera with its memory card was

sufficient evidence to satisfy the commerce element was not, as

Foley contends, a finding that the camera was necessary. The

court did not hold or imply, for example, that hard drives or

other image storage devices, standing alone, would not be

sufficient evidence from which a jury could tie the production

of the images to interstate or foreign commerce. Mugan,

therefore, is in line with the precedents discussed above and

does not help Foley.

Nor do we share Foley’s concern that allowing a jury to

apply the word “produced” broadly will result in a conflation

of child pornography production crimes and possession

crimes. To prove child pornography production, the govern-

ment must prove that the defendant employed, used, per-

suaded, induced, enticed, or coerced a minor to engage in

sexually explicit conduct for the purpose of producing any

visual depiction of such conduct. 18 U.S.C. § 2251(a). (Of

course, the government must also prove the commerce element

of the crime, here that the “visual depiction was

produced … using materials … transported in or affecting

10 No. 13-1386

interstate or foreign commerce.”) The crimes of child pornogra-

phy possession also include commerce elements that use the

word “produced.” 18 U.S.C. § 2252(a)(4)(B) (“produced using

materials which have been mailed or so shipped or trans-

ported”); 18 U.S.C. § 2252A(a)(5)(B) (“produced using materi-

als that have been mailed, or shipped or transported in or

affecting interstate or foreign commerce”).

We are hard pressed to understand how a prosecution for

child pornography possession could be elevated to a prosecu-

tion for production based on the commerce element alone.

Even if the government can prove that a person in possession

of child pornography copied, downloaded, or stored images

sufficient to satisfy the commerce element under an expansive

interpretation of “produced,” the possessor’s act of copying,

downloading or storing would not amount to proof that the

possessor “employed, used, persuaded, induced, enticed, or

coerced any minor to engage in … sexually explicit conduct,”

as required for a production charge. We see little risk of

prosecutorial overreach by this theory.

Congress intended a broad definition of “producing” when

it defined it as “producing, directing, manufacturing, issuing,

publishing, or advertising” a visual depiction. 18 U.S.C.

§ 2256(3). To “issue” or “publish” a visual depiction, for

example, a defendant would need to copy or store the visual

depiction. The defendant’s chosen storage devices—here,

Foley’s hard drives—could be considered by a jury as material

used in “production” sufficient to satisfy the commerce

element, assuming sufficient proof that the storage device at

issue traveled in interstate or foreign commerce. A narrower

construction, particularly one that would limit “production” to

No. 13-1386 11

only the moment an image is captured by a camera, is prob-

lematic for the simple reason that it is not compatible with

Congress’s definition of production. How does someone

“direct” or “advertise” using a camera? A narrower construc-

tion would also enable a producer of child pornography to

immunize himself from prosecution for production by copying

the digital files to a new storage medium and then simply

dropping his camera in the nearest lake. That cannot be what

Congress intended. And our conclusion is bolstered by Con-

gress’s definition of “visual depiction,” which clearly contem-

plates the digital storage of the images post-creation. 18 U.S.C.

§ 2256(5) (“visual depiction” includes “data stored on computer

disk or by electronic means which is capable of conversion into

a visual image”) (emphasis added). A jury could find that the

means of copying or storage—the diskettes in Angle and the

hard drives here—are part of the production process, and are

material that could satisfy the government’s burden to prove

the commerce element. Accordingly, we affirm the district

court’s denial of Foley’s motion for acquittal on the production

charges.

II. Testimony of “Minor Male B”

Foley also argues that the district court erred by allowing

the government to introduce the testimony of “Minor Male B,”

who told the jury that several years earlier, when he was

between eleven and thirteen years old, he had been sexually

molested by Foley in a gym locker room. The district court

admitted Minor Male B’s testimony under Federal Rule of

Evidence 413. A district court’s interpretation of the rules of

evidence is reviewed de novo, and its decision to admit or

exclude evidence is reviewed for an abuse of discretion. United

12 No. 13-1386

States v. Loughry, 660 F.3d 965, 969 (7th Cir. 2011). We find no

legal error or abuse of discretion in the district court’s admis-

sion of Minor Male B’s testimony.

Evidence that tends to show that a criminal defendant has

a propensity to commit crimes ordinarily is excluded from

trial, but Rule 413 makes an exception where past sexual

offenses are introduced in sexual assault cases. See United

States v. Rogers, 587 F.3d 816, 818 (7th Cir. 2009). “In a criminal

case in which a defendant is accused of sexual assault,” Rule

413 permits the admission of evidence that the defendant

committed “any other sexual assault.” Fed. R. Evid. 413(a).

Rule 413(d) defines “sexual assault” in relevant part to include:

(1) any conduct prohibited by 18 U.S.C. chapter

109A;

(2) contact, without consent, between any part of the

defendant’s body—or an object—and another per-

son’s genitals or anus.

Foley apparently concedes that his molestation of Minor Male

B qualified as a “sexual assault” under this definition. He

argues on appeal, though, that Rule 413 did not apply because

he was not charged with “sexual assault.”

Foley was charged with child pornography production,

distribution, and possession under 18 U.S.C. chapter 110, as

well as transporting a minor across state lines to engage in a

sex act under 18 U.S.C. § 2423(a), which is part of 18 U.S.C.

chapter 117. In seeking admission of Minor Male B’s testimony

regarding Foley’s prior molestations, the government ex-

plained that Foley’s child pornography crimes that were

No. 13-1386 13

charged under 18 U.S.C. chapter 110 involved his molestation

of Minor Male A on several occasions. For purposes of its Rule

413 analysis, the district court found that although Foley was

charged under 18 U.S.C. chapter 110, his crimes involved

conduct that was also prohibited under 18 U.S.C. chapter 109A,

so his crimes would satisfy the first definition of “sexual

assault” under Rule 413(d)(1)2. We find no error in the district

court’s analysis. Rule 413 applied and permitted admission of

Minor Male B’s testimony regarding an earlier “sexual assault”

to show Foley’s propensity to commit such acts.

Foley argues that the district court erred in failing to apply

the “categorical approach” to analyze whether any of his

charged crimes fit the terms of Rule 413. Under the categorical

approach used under the Armed Career Criminal Act, the

court examines the statutory elements of the charged offenses

instead of a defendant’s actual conduct. See generally United

States v. Miller, 721 F.3d 435, 437 (7th Cir. 2013) (explaining

categorical approach under Armed Career Criminal Act). Foley

argues that because the government could prove all of his

charged crimes without proving that he committed an actual

sexual assault, he was not charged with a sexual assault under

the categorical approach, so the definition set forth in Rule 413

was not satisfied. However, Foley points to no authority

requiring courts to apply the categorical approach to Rule 413,

nor does he offer any persuasive authority or policy reason

2

Chapter 109A prohibits, among other offenses, aggravated sexual abuse

and sexual abuse of a minor or ward, 18 U.S.C. §§ 2241, 2243. Both

provisions prohibit sexual acts by adults with minors between 12 and 16

years old.

14 No. 13-1386

why the rule should be interpreted that way. The focus of the

Federal Rules of Evidence is on facts, and the policy rationale

for Rule 413 is that a person who has engaged in the covered

conduct is likely to engage in it again. Rule 413 uses statutory

definitions to designate the covered conduct, but the focus is

on the conduct itself rather than how the charges have been

drafted.

Moreover, even if we were to accept Foley’s argument that

the categorical approach applies and would have prevented

admission of Minor Male B’s testimony under Rule 413, any

error would have been harmless. Minor Male B’s testimony

also could have come in under Rule 414(a), which provides:

In a criminal case in which a defendant is accused of

an offense of child molestation, the court may admit

evidence that the defendant committed any other

child molestation. The evidence may be considered

on any matter to which it is relevant.

For purposes of the rule, an offense of “child molestation”

includes the production of child pornography, 18 U.S.C.

§ 2251(a), as well as the possession, receipt, and distribution of

child pornography, 18 U.S.C. § 2252A. Fed. R. Evid.

414(d)(2)(B) (defining “child molestation” to include conduct

prohibited under 18 U.S.C. chapter 110). The Rule’s definition

of “child molestation” also includes crimes under federal or

state law involving “contact between any part of the defen-

dant’s body … and a child’s genitals or anus.” Fed. R. Evid.

414(d)(2)(C). Thus, Foley was charged with offenses of child

molestation—child pornography production, distribution, and

possession under 18 U.S.C. chapter 110—and the evidence that

No. 13-1386 15

the government sought to admit was evidence of an offense of

child molestation—contact between Foley’s body and Minor

Male B’s genitals when he was between eleven and thirteen

years old.3 Under Rule 414, Minor Male B’s testimony about his

past molestation was admissible to prove Foley’s propensity to

produce and possess child pornography under federal law.

Under either Rule 413 or 414, after determining that the

evidence is admissible, the district court is required to consider

whether it should exclude the evidence under Rule 403. Rogers,

587 F.3d at 821–23. Rule 403 gives a court discretion to exclude

evidence that is problematic because of the danger of “unfair

prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative

evidence.” Here, the district court found that the relevance of

Minor Male B’s testimony greatly outweighed the likelihood

that the testimony would cause the jury to become unfairly

prejudiced against Foley. On appeal, Foley disagrees with the

district court’s assessment of the weight to give to the rele-

vance and to the undue prejudice of Minor Male B’s testimony.

3

Foley argues that his child pornography production charges under

18 U.S.C. § 2251(a) do not count as “child molestation offenses” under Rule

414 because his victim of those crimes, Minor Male A, was above the age of

14. Foley misreads the rule. Although Rule 414(d)(1) defines a “child” as a

person below the age of 14, it defines “child molestation” to include “any

conduct prohibited by 18 U.S.C. chapter 110” without regard to whether the

chapter 110 offense was committed with a person below the age of 14, a

“child” as defined by the Rule. Fed. R. Evid. 414(d)(2)(B). Thus, for purposes

of whether Foley’s child pornography production offenses were also “child

molestation” offenses under Rule 414, it does not matter whether Minor

Male A was under the age of 14.

16 No. 13-1386

Our role on appeal, however, is not to apply the Rule 403

balancing test de novo but to review the district court’s decision

for an abuse of discretion.

We find no abuse of discretion here. As the district court

found, Minor Male B’s testimony was relevant to Foley’s

propensity to commit sexual crimes against children, as well as

to his intent and motive. Tr. 419–20, citing United States v.

Hawpetoss, 478 F.3d 820, 824 n.7 (7th Cir. 2007) (evidence of

history of sexual abuse of children can be probative as to

defendant’s disposition towards abuse), and Rogers, 587 F.3d

at 821 (evidence of prior attempt to solicit minor for sex was

relevant to show defendant’s motive to seek sexual gratifica-

tion through sexual contact with children). And, in light of the

court’s comment that “the overwhelming evidence that is and

will continue to be before this jury that a sexual assault

occurred with respect to” Minor Male A, we do not doubt the

district court’s determination that there was little risk that the

jurors would be unduly prejudiced against Foley as a result of

Minor Male B’s testimony. The district court conducted this

balance appropriately and stayed well within the bounds of its

discretion.

The district court’s judgment is AFFIRMED.