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Florida Appeals Court Upholds Conviction in Child Pornography Case

In a recent case, the United States Court of Appeals for the Eleventh Circuit issued an opinion in an appeal involving a child pornography conviction. The defendant-appellant was charged and convicted of producing and possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(b). On appeal, the defendant challenged his conviction on three grounds. First, he contended that the government failed to present sufficient evidence to satisfy the interstate commerce element of 2251(a). Second, he argued that the district court erred in discharging an impaneled-but-not-yet sworn jury in his absence. And third, he claimed that the evidence was legally insufficient to establish production under 2251(a).

The defendant was originally indicted in the Northern District of Florida for the production and possession of child pornography. His trial was originally scheduled to begin in September 2020 in Pensacola, Florida. The judge and both parties agreed to impanel a jury but to hold off on swearing the jury in because of an imminent tropical storm that was set to make landfall. The storm grew in strength, and when it reached Pensacola, it was a Category 2 hurricane. As a result of the storm, there was significant flooding, and internet and phone service were disrupted. Following the passing of the storm, the judge scheduled a teleconference to discuss the next steps, which the defendant was unable to join due to the internet and telephone services not working in the jail. During the teleconference, the judge stated that he planned to continue the trial for three weeks and would ask the current jurors if they would be able to accommodate the new trial schedule. If any of them were unable to do so, he would dismiss the entire jury and impanel a new jury. The defendant’s attorney suggested only changing out the jurors that could not accommodate the new schedule, but the judge declined, ultimately impaneling a new jury despite the defendant moving for the judge to reconsider.

At trial, the alleged victim testified that the defendant was a family friend of her mother and that each summer, her family would visit the defendant and stay at his home in the Florida Panhandle. She further testified that during one of those trips when she was 15, the defendant asked her to undress and took photos of her using a flip phone on at least three occasions. She also testified that the defendant told her he had transferred the photos to his home computer. Several law enforcement officers testified that they had found explicit photos of the alleged victim on the defendant’s home computer. The defendant was convicted on both counts.

On appeal, the defendant makes three claims, (1) that the government presented insufficient evidence to satisfy the production statute’s interstate commerce element, (2) that he was impermissibly excluded from the conference at which the judge decided to discharge the original jury, and (3) he contends that the government’s evidence was legally insufficient due to a “factual impossibility.” The Eleventh Circuit found that because the hard drives to which the defendant transferred the photos were made overseas, the interstate commerce element was met, leaving only the question of whether that constituted production. Regarding production, the court found that based on the evidence presented, a jury could have reasonably concluded that the defendant had the requisite intent to “produce” child pornography when he originally captured the photos in question. The appellate opinion further addressed the defendant’s claims, stating that as the original jury was not sworn in, jeopardy was not attached. Further, the opinion notes that the judge intended to discharge the jury regardless, that proving a different jury would have resulted in a different decision requires more evidence, and finally, that impaneling the new jury cured any potential harm. Finally, the court found that the jury was entitled to resolve the evidentiary ambiguity claimed by the defendant’s third argument, fully affirming the lower court decision and his convictions.

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