Argued Sept. 9, 2013.
[Copyrighted Material Omitted]
Penelope L. Coblentz, Gail J. Hoffman, Carol L. Kraft, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Jeffrey W. Jensen, Sr., Milwaukee, WI, for Defendant-Appellant.
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 government's evidence failed to satisfy the commerce element of those charges. He also argues that the district court improperly 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 landlord 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 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 corroborated 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 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 ...