## Facts

- Federal and state law enforcement officers executed a search warrant at David Foley’s home in Wisconsin.
- Officers found two computer hard drives containing images and videos of child pornography that Foley had created.
- The government’s evidence showed Foley sexually abused minors and recorded some of that abuse, creating visual depictions later stored on the hard drives.
- The two hard drives had been manufactured outside the United States and necessarily traveled in foreign (and/or interstate) commerce before Foley possessed and used them.
- The United States charged Foley with production of child pornography under 18 U.S.C. § 2251(a) and related provisions, which require proof that the depiction was produced using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce.
- At trial, Foley disputed the interstate/foreign-commerce element, arguing that only the camera or recording device used to capture the images could qualify as “materials used to produce” the depictions, not later-used storage media like hard drives.
- The government introduced testimony from a prior victim (identified at trial as “Minor Male B”) describing Foley’s earlier sexual abuse, offered as evidence of other child molestation under Federal Rule of Evidence 414 and, in part, as other-acts evidence under Rule 404(b).
- The district court admitted the prior-abuse evidence after considering Federal Rule of Evidence 403.
- A jury convicted Foley, and he appealed his convictions to the Seventh Circuit.

## Issues

1. Whether sufficient evidence supported the interstate/foreign-commerce element of 18 U.S.C. § 2251(a) when the government proved the child-pornography files were saved on hard drives manufactured outside the United States.
2. Whether the district court abused its discretion by admitting Minor Male B’s testimony and related evidence of prior sexual abuse under Federal Rules of Evidence 414 and 403 (and relatedly Rule 404(b)).

## Decision

- The Seventh Circuit affirmed Foley’s convictions.
- The court held that a rational jury could find the § 2251(a) commerce element satisfied because “production” of a digital depiction can include transferring and saving the images or videos onto a storage device, and Foley used hard drives manufactured outside the United States in that process.
- The court held the district court did not abuse its discretion in admitting Minor Male B’s prior-molestation testimony under Rule 414 and in concluding under Rule 403 that the probative value was not substantially outweighed by the danger of unfair prejudice.

## Legal Principles

- Under 18 U.S.C. § 2251(a), the government may satisfy the commerce element by proving the depiction was “produced using materials” that traveled in interstate or foreign commerce.
- For digital depictions, “production” is not limited to initial capture; it can include steps such as transferring, saving, or storing the files onto a device that preserves the depiction.
- Evidence that the storage device (such as a hard drive) was manufactured outside the United States can support the finding that the device traveled in foreign commerce and was a qualifying “material” used in producing the depiction.
- Federal Rule of Evidence 414 permits admission, in a child-molestation prosecution, of evidence that the defendant committed other child molestation, including to show propensity, but the evidence remains subject to Rule 403.
- A district court’s Rule 403 balancing and decision to admit Rule 414 evidence is reviewed for abuse of discretion; reversal is warranted only when the trial court’s decision falls outside the range of reasonable outcomes.
- On a sufficiency challenge, the appellate court views the evidence in the light most favorable to the government and asks whether any rational trier of fact could find the elements beyond a reasonable doubt.

## Conclusion

In *United States v. Foley*, the Seventh Circuit held that saving and storing child-pornography files on foreign-manufactured hard drives can be part of “production” under § 2251(a), allowing those hard drives to satisfy the statute’s interstate/foreign-commerce element, and it affirmed the admission of prior child-molestation testimony under Rule 414 after the district court’s Rule 403 analysis.


United States v. Foley, 740 F.3d 1079 (2014)