United States v. Clark Downs

USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 1 of 19
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10809
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARK DOWNS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cr-00039-TKW-MJF-1
____________________
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 2 of 19
2 Opinion of the Court 21-10809
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge:
We withdraw the opinion issued on January 6, 2023 and issue
this opinion in its place.
Clark Downs was convicted of producing and possessing
child pornography in violation, respectively, of 18 U.S.C. §§ 2251(a)
and 2252A(a)(5)(b). On appeal, he challenges his convictions on
three grounds. First, he argues that the government failed to
present sufficient evidence to satisfy § 2251(a)’s interstate-
commerce element. Second, he contends that the district court
reversibly erred when it discharged an impaneled-but-not-yet-
sworn jury in his absence. Third, he asserts that the evidence was
legally insufficient to establish production under § 2251(a) because
of what he calls a “factual impossibility.” After careful
consideration, we affirm Downs’s convictions.
I
Downs was indicted in the Northern District of Florida for
producing and possessing child pornography. Of particular
relevance to this appeal is the production statute, which, in
pertinent part, provides as follows:
Any person who 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 or
for the purpose of transmitting a live visual depiction
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 3 of 19
3 Opinion of the Court 21-10809
of such conduct, shall be punished . . . if that visual
depiction was produced or transmitted using
materials that have been mailed, shipped, or
transported in or affecting interstate or foreign
commerce by any means, including
by computer . . . .
18 U.S.C. § 2251(a).
Downs’s trial was slated to begin in September 2020 in
Pensacola, Florida. Early during the week of September 14, the
district judge impaneled a jury. The judge and both parties agreed,
however, not to swear the jury because a tropical storm that had
been brewing in the Gulf of Mexico was soon set to make landfall.
As it turned out, by the time the storm reached Pensacola, it had
become a Category 2 hurricane, and it flooded downtown,
disrupted internet service, and downed telephone lines and bridges
in the area surrounding the courthouse.
Shortly after the storm passed, the judge scheduled a
teleconference to discuss next steps. Downs was not present at the
conference, in part because the internet and telephone lines at his
prison facility were down. During the conference, the judge
informed the parties that he intended to continue the trial for three
weeks. He planned to contact the as-yet unsworn jurors to ask
whether they could accommodate the new trial calendar. If any of
the jurors was unavailable for the new trial date, the judge
explained, he would dismiss the entire jury and impanel a new one.
Downs’s lawyer suggested that the judge consider discharging and
replacing only the jurors for whom the new trial date wouldn’t
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 4 of 19
4 Opinion of the Court 21-10809
work, but the judge declined that suggestion. Instead, per his plan,
the judge discharged the entire jury after learning that one of the
members couldn’t make the new date. Downs unsuccessfully
moved the judge to reconsider his decision.
The case ultimately went to trial a month and a half later
before a new jury, which was impaneled and sworn in the presence
of all parties, including Downs. At the trial, Downs’s victim, L.H.,
testified that Downs was a family friend of her mother, L.L. Cox,
and L.L.’s husband, Jimmy Cox. Each summer, she said, the Coxes
would drive L.L.’s three children to Downs’s home in the Florida
Panhandle. During one of those trips, when L.H. was 15 years old,
Downs asked her to undress and took photos of her using a “flip
phone” on at least three occasions. L.H. explained that Downs told
her that he later transferred the photos to his home computer.
Several law-enforcement officers testified that they found
explicit photos of L.H. on Downs’s home computer during their
investigation. One of the investigators confirmed that the
computer’s internal hard drives were manufactured in China and
that the external drives were made in Thailand. Subsequent
forensic analysis revealed that the photos found on the hard drives
were taken with a Samsung SCH-S738C model cell phone. On
cross-examination, the same investigator admitted that he didn’t
know whether that particular model was a flip phone, and no
testimony was elicited regarding where the Samsung was
manufactured.
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 5 of 19
5 Opinion of the Court 21-10809
Following the prosecution’s case-in-chief, Downs moved for
judgment of acquittal, arguing that the government had failed to
present sufficient evidence to satisfy § 2251(a)’s interstate-
commerce element. The district judge denied Downs’s motion.
Downs was convicted on both the production and possession
counts. The court sentenced him to 300 months’ imprisonment on
the former and a concurrent term of 120 months’ imprisonment on
the latter, followed by two concurrent 10-year terms of supervised
release.
On appeal, Downs challenges his convictions on three
grounds, which we will consider in turn.
II
Downs first contends that the government presented
insufficient evidence to satisfy the production statute’s interstate-
commerce element. The reason, he says, is because the
government introduced no evidence that the Samsung phone with
which he took the photos of L.H. ever traveled in interstate
commerce. But, of course, the government did produce evidence
that the hard drives to which Downs transferred the photos were
manufactured overseas. The question thus turns on whether the
act of transferring the photos from cell phone to hard drive can itself
constitute the “produc[tion]” prohibited by § 2251(a). 1
1 There is some doubt about whether Downs properly preserved his
sufficiency-of-the-evidence challenge—and if he didn’t, how that failure affects
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 6 of 19
6 Opinion of the Court 21-10809
We begin, as always, with the statute’s plain language.
Again, § 2251(a) states, in relevant part, that “[a]ny person who
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 or for the
purpose of transmitting a live visual depiction of such conduct, shall
be punished . . . if that visual depiction was produced or transmitted
using materials that have been mailed, shipped, or transported in or
affecting interstate or foreign commerce by any means, including
the standard of review. He contended that the evidence was insufficient to
meet the statute’s interstate-commerce element, but on a different basis than
he argues on appeal. At least one of our cases states that “[w]here the specific
grounds upon which a defendant made his sufficiency-of-the-evidence
challenge at trial differs from those he asserts on appeal, we review under his
new theory only for manifest miscarriage of justice.” United States v.
Ezquenazi, 752 F.3d 912, 935 (11th Cir. 2014) (emphasis added). But other
decisions suggest that the deferential manifest-miscarriage-of-justice standard
applies only where a defendant failed to raise a sufficiency challenge in district
court at all. See, e.g., United States v. Fries, 725 F.3d 1286, 1291 (11th Cir. 2013)
(“[W]here a defendant does not move for acquittal or otherwise preserve an
argument regarding the sufficiency of the evidence in the court below, . . . we
will reverse the conviction only where doing so is necessary to prevent a
manifest miscarriage of justice.”); United States v. Thompson, 610 F.3d 1335,
1338 (11th Cir. 2010) (per curiam) (applying the manifest-miscarriage-of-justice
standard where the defendant never moved for a judgment of acquittal on
certain counts at issue on appeal); United States v. Tagg, 572 F.3d 1320, 1323
(11th Cir. 2009) (reviewing for manifest miscarriage of justice where “[a]t no
time did the defense move for a judgment of acquittal”). We needn’t resolve
the issue here, because we conclude, for reasons explained in text, that even on
the more indulgent de novo standard, Downs’s sufficiency challenge fails.
United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001).
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 7 of 19
7 Opinion of the Court 21-10809
by computer . . . .” 18 U.S.C. § 2251(a) (emphasis added). Section
2256(3), in turn, defines the key term “producing” to mean
“producing, directing, manufacturing, issuing, publishing, or
advertising.” Id. § 2256(3).
Based on the statutory text alone, we might be inclined to
conclude that a defendant’s act of transferring photos from his
phone to a hard drive does not amount to “producing” them. That
is so for two reasons. First, none of § 2256(3)’s definitions of the
word “producing”—“directing, manufacturing, issuing, publishing,
or advertising”—clearly covers the act of transferring photos from
one device to another. Second, § 2251(a) itself targets two different
actions—“producing” and “transmitting.” Between the two, the
latter would seem to be the more natural linguistic basis for
capturing the act of transferring photos. Here, though, the
government hasn’t relied on § 2251(a)’s prohibition on
“transmi[ssion],” perhaps having assumed that it refers only to “live
visual depiction[s]” of the sort not at issue in this case.
For his part, though, Downs seems to concede—or at least
not to dispute—that, as used in § 2251(a), the term “producing” is
properly read to cover the act of transferring photos from phone to
hard drive. See Br. of Appellant at 20. He does so presumably on
the ground that our precedent requires as much. Having carefully
considered the issue, we agree.
Although we haven’t specifically considered the definition of
the term “producing” in the production statute, we have examined
its meaning in the possession statute, 18 U.S.C. § 2252A(a).
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 8 of 19
8 Opinion of the Court 21-10809
Specifically, in United States v. Maxwell, we held that the act of
copying photos from a phone to an external drive constitutes
“produc[tion]” within the meaning of § 2252A(a). See 386 F.3d
1042, 1051–52 (11th Cir. 2004), vacated on other grounds, 546 U.S.
801 (2005).
We find that Maxwell controls here for two reasons. First,
the statutory definition of the word “producing” applies to both the
possession and production provisions. See 18 U.S.C. § 2256(3)
(defining “producing” “[f]or the purposes of this chapter,” including
§§ 2251 and 2252A). And second, the production and possession
statutes use the term in fundamentally the same way. Compare id.
§ 2251(a) (“[I]f that visual depiction was produced or transmitted
using materials that have been mailed, shipped, or transported in or
affecting interstate or foreign commerce by any means . . . .”), with
id. § 2252A(a)(5)(B) (“[C]hild pornography . . . that was produced
using materials that have been mailed, or shipped or transported in
or affecting interstate or foreign commerce by any means….”).
Accordingly, our interpretation of the word “producing” in
Maxwell to cover the act of transferring a photograph from a phone
to an external drive—albeit there with respect to a possession
charge—controls our interpretation of the same term here.
For what it’s worth, other circuits have come to the same
conclusion. In United States v. Angle, for instance, the Seventh
Circuit held, as we did in Maxwell, that the term “producing” in the
possession statute covers the act of transferring photos from a
phone to an external drive. See 234 F.3d 326, 341 (7th Cir. 2000). In
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 9 of 19
9 Opinion of the Court 21-10809
a follow-on case, that court held—as we do today—that the
production statute’s use of the same § 2256(3)-based definition of
the term “producing” meant that it should be understood to reach
the act of transferring, as well. See United States v. Foley, 740 F.3d
1079, 1083–86 (7th Cir. 2014). Relying heavily on the Seventh
Circuit’s reasoning in Foley, the Second Circuit likewise held in
United States v. Pattee that the term “producing” in the production
statute should be read to include the act of copying photos to a hard
drive. See 820 F.3d 496, 509–11 (2d Cir. 2016). And finally, even in
the absence of Maxwell- or Foley-like precedent interpreting the
possession statute’s use of the word “producing,” the First Circuit
held that the production statute’s use of that term covered the act
of transferring photos from a phone to an external storage device.
See United States v. Poulin, 631 F.3d 17, 22 (1st Cir. 2011). Indeed,
even the decision on which Downs principally relies, United States
v. Lively, recognizes “that ‘producing’ child pornography, as used
in § 2251(a), encompasses copying images onto a hard drive.” 852
F.3d 549, 560 (6th Cir. 2017). 2
2 Downs’s reliance on Lively is misplaced. Lively is distinguishable from this
case in an important respect. As best we can tell from its opinion, the Sixth
Circuit held there that copying photos from a phone to a hard drive did not
constitute “production” within the meaning of § 2251(a) where the defendant
had abused the child, but another person had both taken the photos and then
copied them to a hard drive. Lively, 852 F.3d at 561. That, the Sixth Circuit
seemed to say, was because (1) the “purpose” mens rea element that appears
in the statute’s first clause must carry through to the interstate-commerce
clause, and (2) it doesn’t when the defendant neither took nor transferred the
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 10 of 19
10 Opinion of the Court 21-10809
Downs nonetheless insists that the production statute’s mens
rea element requires that there be an interstate-commerce
connection at the moment of initial creation. Recall that the statute
requires that the offender “employ[], use[], persuade[], induce[],
entice[], or coerce[] any minor to engage in . . . any sexually explicit
conduct for the purpose of producing any visual depiction of such
conduct” if that depiction was “produced or transmitted using
materials that have been mailed, shipped, or transported in or
affecting interstate or foreign commerce.” 18 U.S.C. § 2251(a)
(emphasis added). From that language, Downs reasons that the
interstate-commerce element “must be satisfied by an examination
of the means or materials used at the point in time of the original
production.” Br. of Appellant at 15.
Downs’s argument, though, can’t survive his concession—or
at the very least, his failure to contest—that the transfer of photos
from a phone to a hard drive constitutes “produc[tion].” From that
starting point, our decision in United States v. Grzybowicz, 747 F.3d
1296 (11th Cir. 2014), resolves the interstate-commerce issue.
There, we interpreted the statutory language of the production
statute to mean that “[t]he interstate commerce element . . . is
satisfied by proof that the child pornography . . . was produced using
materials that had been transported in interstate or foreign
commerce.” Id. at 1306 (emphasis added). If, as all here seem to
agree under Maxwell, the transfer of the photos to the hard drive
photos. Id. at 562–63. Here, of course, one person—Downs—abused the child,
took the photos, and downloaded them to a hard drive.
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 11 of 19
11 Opinion of the Court 21-10809
constitutes the required “produc[tion],” and if, as the evidence
shows, the hard drives were manufactured overseas, then the
necessary nexus exists between the actionable “produc[tion]” and
interstate commerce.
To the extent that Downs means to argue that there was
insufficient evidence to demonstrate that, at the time he originally
captured the pornographic photos on his phone, he intended to
transfer them to his computer, we disagree for two reasons. First,
based on our decision in Maxwell—and our sister circuits’ similar
decisions in Foley, Pattee, and Poulin—we reject the premises (1)
that “produc[tion]” is limited to the moment of an image’s initial
creation and (2) that a defendant’s intent must therefore be assessed
at that time. Second, and in any event, when viewed in the light
most favorable to the government, the evidence defeats Downs’s
contention. The proof at trial showed (1) that investigators found
pornography of L.H., as well as illicit photos of other children, on
Downs’s computer; (2) that Downs sexually abused L.H. and took
nude photos of her in his car, on the beach, and in motel rooms
when she was only 15 years old; (3) that Downs would drive for
more than an hour in some cases to abuse L.H., presumably so that
no one else—most notably her family—would be around when he
did; and (4) that Downs transferred the photos he took of L.H. from
his phone to his home computer, and had in fact told L.H. as much.
From that evidence, a jury could have reasonably concluded that
Downs had the requisite intent to “produce” child pornography
when he originally captured the photos of L.H.
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 12 of 19
12 Opinion of the Court 21-10809
III
Downs separately contends that the district court reversibly
erred when it discharged the impaneled-but-as-yet-unsworn jury in
his absence. Downs makes two arguments in this regard: first, that
the district court judge shouldn’t have dismissed the entire panel;
and second, regardless whether that decision was proper, that
Downs should have been present when the decision was made.
We’ll take Downs’s arguments in turn.
A
A defendant only has the right to have his case decided by a
particular jury once jeopardy attaches. United States v. Therve, 764
F.3d 1293, 1298 (11th Cir. 2014). Jeopardy doesn’t attach until a jury
is both impaneled and sworn. Id.Here, Downs’s initial jury was impaneled, but not sworn. In
fact, the record shows that both parties agreed not to swear the jury
given the impending storm—and, further, that once the storm had
made landfall, Downs’s lawyer admitted that he was “glad the jury
wasn’t sworn” because it gave the court the necessary flexibility to
make new trial arrangements. Because the jury wasn’t sworn,
jeopardy never attached. And absent jeopardy, Downs had no right
to have his case decided by the particular jury that the judge had
initially impaneled. Accordingly, the district court did not err when
it discharged the entire panel.
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 13 of 19
13 Opinion of the Court 21-10809
B
Downs also argues that he was impermissibly excluded from
the conference at which the judge decided to discharge the jury.
We have explained that a defendant’s right to be present during
criminal proceedings stems from “the Confrontation Clause of the
Sixth Amendment, the Due Process Clause of the Fifth
Amendment, and Federal Rule of Criminal Procedure 43.” United
States v. Novaton, 271 F.3d 968, 997 (11th Cir. 2001). Downs
contends that each of those provides a basis for reversal here.
Downs’s lawyer didn’t object to his client’s absence from the
teleconference in which the judge decided to discharge the jury.
When a party fails to object to his absence from a proceeding, we
review only for plain error. See United States v. Martinez, 604 F.2d
361, 365 (5th Cir. 1979). We can reverse on plain-error review only
if: (1) there was an error; (2) that error was plain; (3) the error
affected the defendant’s substantial rights; and (4) the error
seriously affected the fairness, integrity, or public reputation of the
judicial proceedings. United States v. Cingari, 952 F.3d 1301, 1305
(11th Cir. 2020) (quotation marks omitted).
Downs’s constitutional arguments are unavailing because he
has failed to show any error—plain or otherwise—under either the
Fifth or Sixth Amendment. With respect to the latter, the
Confrontation Clause provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI (emphasis added).
Needless to say, there were no “witnesses” at the conference at
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 14 of 19
14 Opinion of the Court 21-10809
which the judge was considering what to do with Downs’s
impaneled-but-not-yet-sworn jury. And we have held that the Sixth
Amendment “does not confer upon the defendant the right to be
present at every conference at which a matter pertinent to the case
is discussed, or even at every conference with the trial judge at
which a matter relevant to the case is discussed.” United States v.
Vasquez, 732 F.2d 846, 848 (11th Cir. 1984). Here, a pretrial
meeting about the discharge of an unsworn jury does not implicate
the Confrontation Clause.
Downs’s Fifth Amendment argument likewise fails. We
have assumed that even when the defendant is not confronting
witnesses or evidence against him, he has a due-process right “to be
present in his own person whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to defend
against the charge.” Novaton, 271 F.3d at 998 (quoting Kentucky v.
Stincer, 482 U.S. 730, 745 (1987)). The government’s and defense’s
cases-in-chief are paradigmatic stages of a criminal proceeding with
respect to which the Due Process Clause protects a defendant’s
right to be on hand. Id. The reason, of course, is that at those
junctures, a defendant’s right to defend against the charges before
him is at an apex. Here, by contrast, a judge’s decision whether to
discharge an unsworn jury in Downs’s absence doesn’t trigger the
same concerns. The discharge decision is not “critical to [the trial’s]
outcome” because it doesn’t interfere with a defendant’s ability to
defend against the charges before him, nor does the defendant’s
absence “thwart[]” the fairness of his hearing. Id. By all accounts,
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 15 of 19
15 Opinion of the Court 21-10809
Downs was present for all stages of his trial that would implicate his
right to a fair and just hearing. That is all the Due Process Clause
requires.
Downs’s argument under Federal Rule of Criminal
Procedure 43, by contrast, has merit. In relevant part, Rule 43 states
that “[u]nless this rule, Rule 5, or Rule 10 provides otherwise, the
defendant must be present at: (1) the initial appearance, the initial
arraignment, and the plea; (2) every trial stage, including jury
impanelment and the return of the verdict; and (3) sentencing.”
Fed. R. Crim. P. 43(a). Accordingly, to determine whether Rule 43
gave Downs a right to be present for the conference at which the
judge considered whether to discharge the impaneled-but-not-yet-
sworn jury, we must consider two questions. First, is jury discharge
a “trial stage” within the meaning of Rule 43(a)(2)? And if so, do
any of Rule 43’s exceptions apply?
The Rule’s language and structure convince us that the
answer to the first question is yes—jury discharge is a “trial stage.”
Rule 43(a) subdivides district-court proceedings into three phases:
pre-trial, in subsection (1); trial, in subsection (2); and post-trial, in
subsection (3). Subsection (2)’s language indicates an all-
encompassing, “soup-to-nuts” coverage of the trial phase, extending
to “every trial stage,” from “jury impanelment” at the very
beginning of trial to “the return of the verdict” at the tail end. If,
per the Rule’s plain language, jury impanelment is a “trial stage” at
which a defendant has a right to be present, it seems clear enough
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 16 of 19
16 Opinion of the Court 21-10809
that any necessarily subsequent (but pre-verdict) jury discharge is,
too.
Resolution of the issue thus turns on whether any of Rule
43’s “unless”-based exceptions applies. None does. Neither Rule 5
nor Rule 10 has any relevance here—the former applies to the initial
appearance, and the latter to the arraignment. Nor do any of the
exceptions specified in “this Rule”—i.e., Rule 43 itself—exempt the
jury-discharge conference at issue. Rule 43(b) specifies four
“circumstances” in which the defendant’s presence is “[n]ot
[r]equired,” but the only one of those that could even arguably
apply here is where “[t]he proceeding involves only a conference or
hearing on a question of law.” Fed. R. Crim. P. 43(b)(3). But a
review of the transcript from the jury-discharge conference reveals
that the parties and the judge never discussed any “question[s] of
law”; to the contrary, their discussion focused entirely on the
practical difficulties posed by the hurricane.
Because jury discharge is a “trial stage” within the meaning
of Rule 43(a)(2), and because none of Rule 43’s exceptions applies,
we hold that Downs had a right to be present when the impaneled-
but-not-yet-sworn jury was discharged. Accordingly, his absence
from that conference constitutes error—and we think plain error—
under Rule 43. Even so, Downs must show that the error affected
his substantial rights. Cingari, 952 F.3d at 1305. For three reasons,
he can’t do so. First, Downs’s lawyer was present and represented
his interests when the judge decided to discharge the jury. At the
conference, Downs’s counsel suggested an alternative to
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 17 of 19
17 Opinion of the Court 21-10809
discharging the entire jury panel, which the judge summarily
rejected. Moreover, the transcript makes clear that no matter what
argument Downs’s lawyer made, the judge intended to discharge
the entire jury if even a single member wouldn’t be available at the
later date. Even now, having presumably consulted with his client,
Downs’s lawyer doesn’t offer any new arguments against
discharging the jury. So, it seems clear enough that Downs’s
presence wouldn’t have made a difference to the ultimate outcome.
Second, Downs only “speculate[s] as to whether the replaced
juror[s] may have been more favorably disposed to [him] . . . .”
United States v. Puche, 350 F.3d 1137, 1153 (11th Cir. 2003). We
require more for reversal than bald assertions that a different jury
would have reached a different verdict. Accordingly, Downs has
not shown that the error affected his substantial rights. Id.Finally, the action that the judge took after discharging the
initial jury is the very action that would have been required to
remedy a Rule 43 violation—namely, impaneling a new jury. So
even if Downs could show that his presence would have changed
the judge’s decision to dismiss the jury, the judge’s subsequent
impaneling of a proper jury cures any potential harm.
IV
Lastly, Downs contends that the government’s evidence was
legally insufficient due to what he calls a “factual impossibility.” As
already explained, at trial, L.H. testified that Downs took photos of
her in a state of undress using a “flip phone.” Subsequent testimony
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 18 of 19
18 Opinion of the Court 21-10809
from a forensic analyst revealed that the photos were taken with a
Samsung SCH-S738C. On appeal, Downs asserts that a Samsung
SCH-S738C isn’t a flip phone and can’t be confused with one. He
argues, therefore, that L.H.’s testimony was factually impossible,
leaving the evidence legally insufficient for conviction. We review
only for plain error because Downs didn’t raise factual impossibility
as a basis for granting his motion for judgment of acquittal. See
United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir. 1999).
With respect, Downs misunderstands factual impossibility.
“Factual impossibility occurs when the objective of the defendant is
proscribed by the criminal law but a circumstance unknown to the
actor prevents him from bringing about that objective.” United
States v. Delgado, 321 F.3d 1338, 1346 (11th Cir. 2003) (citations
omitted). That isn’t Downs’s contention, and for good reason:
Using a flip- (or non-flip-) phone doesn’t make the production of
child pornography impossible. Instead, Downs insists that a
discrepancy in the evidence—about whether or not he used a flip-
phone to take the photos—fatally undermines the jury’s verdict. At
worst, that’s a factual ambiguity, not a factual impossibility.
Credibility questions are the exclusive province of the jury,
and on sufficiency review we must assume that they were answered
in a manner that supports the verdict, see United States v. Jiminez,
564 F.3d 1280, 1285 (11th Cir. 2009), unless witness testimony is
“unbelievable” as a matter of law, United States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002). Here, L.H. testified that the
photos were taken with a flip phone, and the forensic analyst stated
USCA11 Case: 21-10809 Document: 74-1 Date Filed: 03/13/2023 Page: 19 of 19
19 Opinion of the Court 21-10809
that the photos were taken with a Samsung SCH-S738C. No
testimony was elicited as to whether that Samsung model was or
was not a flip phone. The jury was entitled to resolve that
evidentiary ambiguity. 3
* * *
For the foregoing reasons, we affirm Downs’s convictions.
AFFIRMED.
3And to be clear, the jury heard evidence from which it could have reconciled
any perceived inconsistency. The testimony revealed, for instance, that L.H.
was drunk at the time that Downs took the pictures of her, and four years had
elapsed between the time that Downs took the photos and the time that L.H.
reported the event to law enforcement. Accordingly, the jury could have
concluded that L.H. was simply confused about the type of phone that Downs
had used. Separately, the jury heard testimony that investigators found a flip
phone at Downs’s residence, from which it could have adduced that L.H.
remembered that Downs used a flip phone at times and just misremembered
the precise details about the time when he took pictures of her.