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.