Child Pornography — commerce element

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United States Court of Appeals For the Seventh Circuit

Criminal

Child Pornography — commerce element

Where the defendant’s hard drive was manufactured in a foreign country, the evidence is sufficient to support a conviction of producing child pornography.

“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 only the moment an image is captured by a camera, is problematic 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 construction 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 Congress’s definition of ‘visual depiction,’ which clearly contemplates 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.”

Affirmed.

13-1386 U.S. v. Foley

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Hamilton, J.