Insufficient evidence of "purpose"

US v. Palomino-Coronado:  In this appeal, the defendant challenged his conviction for one count of enticing a minor to engage in sexual conduct for the purpose of producing a visual depiction of that conduct.  In this case, there was only one photograph involved.  Further, at trial, expert testimony revealed that during the course of the investigation, the child forensic interviews were coercive and did not follow established protocols.  The defendant moved for an acquittal at the close of the government’s case, based on insufficient evidence, which the district court denied.  The jury found the defendant guilty.  On appeal, the Fourth Circuit determined that the district court erred in denying the defendant’s Rule 29 motion, reversing and vacating the conviction.

As a matter of first impression, the Fourth Circuit considered a sufficiency of the evidence challenge to the statute at issue here, and focused its analysis on what evidence may show that a defendant acted with purpose.  The Fourth Circuit stated that many times, courts are left with only circumstantial evidence to demonstrate a defendant’s purpose.  The Fourth Circuit also found instructive the cases wherein the number of sexually explicit recordings or depictions as indicators of purpose, as well as evidence presented of “purposeful conduct,” considering the types of photography or video tools used.

On appeal, the defendant here argued that the government failed to prove that he acted for the purpose of producing a visual depiction [emphasis in original], as the government had offered only one cell phone image of sexually explicit conduct with the victim, a photo that the defendant had deleted from his phone.  Without more, the Fourth Circuit concluded, the facts of the case did not support the conclusion that the defendant here acted in order to take a picture, as required by the statute of his conviction.