In United States v. Downs, No. 21-10809 (Jan. 6, 2023) (Jordan, Rosenbaum, Newsom), the Court affirmed the defendant’s convictions for producing and possessing child pornography.

First, the Court held that the evidence was sufficient to satisfy the interstate-commerce element because transferring photos from a cell phone to hard drives constituted “production,” and the hard drives were manufactured abroad.

Second, the district court did not err by discharging an impaneled-but-not-sworn jury in light of an impending storm.  Because the jury was never sworn, jeopardy never attached, and the defendant therefore had no right to have his case decided by the jury that was initially impaneled.  Nor did the district court plainly err by discharging the panel outside the defendant’s presence; the pre-trial hearing about the discharge of an unsworn jury did not implicate the Confrontation Clause or the due process right to be present in order to defend against the charges.  While Rule 43 plainly did require that the defendant be present, this error did not affect his substantial rights.

Third, the victim testified that the defendant took photos of her using a flip phone, while the forensic expert testified that the photos were taken with a particular Samsung model.  The defendant argued that, because that Samsung model was not a flip phone, the victim’s testimony was “factually impossible” and the evidence was therefore legally insufficient.  The Court rejected that argument, noting that credibility questions were for the jury to resolve, and there was no evidence about whether the Samsung model was a flip phone or not.