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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RILEY PATRICK LIVELY,
Defendant-Appellant.
   No. 15-1671
Appeal from the United States District Court for
the Western District of Michigan at Grand Rapids.
No. 1:13-cr-00162—Robert J. Jonker, District Judge.
Argued: June 16, 2016
Decided and Filed: March 27, 2017
Before: MOORE, SUTTON, and DONALD, Circuit Judges.


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OPINION
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KAREN NELSON MOORE, Circuit Judge. Title 18 U.S.C. § 2251(a) is a statute with two parts. It criminalizes (1) sexually exploiting a minor “for the purpose of producing any visual depiction of” that sexual exploitation (2) if, among other things, “that visual depiction was produced or transmitted using materials that have” a nexus to interstate or foreign commerce.

In this case, there is no question that the government has satisfied the first part of § 2251(a). In April 2009, Riley Lively sexually abused a nine-year-old boy. Lively’s friend, Robert Norwood-Charlier, took four photographs of that encounter with a Kodak digital camera that held a SanDisk digital memory card (the “SanDisk Images”). Plainly, Lively sexually abused the boy “for the purpose of producing” those four “visual depictions” of this sexual abuse.

A closer question is whether the government has also satisfied § 2251(a)’s second part: its interstate-commerce requirement. At some time after he photographed Lively abusing the boy, Norwood-Charlier copied the four images of that incident from his camera’s SanDisk memory card onto his computer’s Seagate hard drive. The parties stipulated that that hard drive was manufactured in Thailand. At Lively’s trial, the government relied exclusively on the Seagate hard drive’s origin to satisfy § 2251(a)’s interstate-commerce element. The government did not, however, introduce any evidence suggesting that Lively knew Norwood-Charlier owned the Seagate hard drive—let alone that Lively intended Norwood-Charlier to copy images of Lively and the boy onto it. Put simply, the government did not prove that Lively sexually abused the boy for the purpose of producing the visual depictions that ended up on Norwood-Charlier’s hard drive (the “Hard-Drive Images”).

Under the government’s reading of § 2251(a), it was enough to prove that Lively sexually abused the boy for the purpose of producing some visual depiction of child pornography, as long as someone, somewhere, at some time actually produced a visual depiction of Lively abusing the boy using materials that had been transmitted in interstate or foreign commerce. Thus, when Lively moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing that the government had failed to satisfy § 2251(a)’s interstate-commerce requirement, the government pointed to Norwood-Charlier’s Thai-made hard drive—and only the hard drive.

That was a tactical error. The government’s reading of § 2251(a) is inconsistent with the statute’s text. It ignores the statute’s structure. And it finds no support in caselaw interpreting § 2251(a).

Nevertheless, we conclude that the government introduced additional evidence that— viewed in the light most favorable to the government—satisfied § 2251(a)’s interstate-commerce requirement. For that reason, we must reject Lively’s Rule 29 argument on appeal. Lively raises two additional challenges to his conviction, but both are unavailing.

For the reasons set forth below, we AFFIRM Lively’s conviction.



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SUSAN JEAN KING,
Plaintiff-Appellant,
v.
TODD HARWOOD, VIC HUBBUCH, CHAD WHITE, and JEFF MEDLEY, in their individual capacities; COMMONWEALTH OF KENTUCKY, dba Kentucky State Police; UNNAMED LAW ENFORCEMENT OFFICERS; UNNAMED SUPERVISORS OF INDIVIDUAL DEFENDANTS,
Defendants-Appellees.
   No. 16-5949
Appeal from the United States District Court for
the Western District of Kentucky at Louisville.
No. 3:15-cv-00762—Gregory N. Stivers, District Judge.
Argued: January 26, 2017
Decided and Filed: March 27, 2017
Before: BOGGS, SILER, and DONALD, Circuit Judges.


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OPINION
_________________________

BOGGS, Circuit Judge. Susan King brought suit under 42 U.S.C. § 1983 against Kentucky State Police (KSP) Detective Todd Harwood, three of Harwood’s supervisors, and unnamed law-enforcement officers and their supervisors, all in their individual capacities, along with the Kentucky State Police. The district court granted Defendants’ “Motion to Dismiss/Motion for Summary Judgment,” holding that King’s claims were time-barred and, in the alternative, that no genuine issue of material fact existed as to Defendants’ qualified immunity. The court also denied King’s request under Fed. R. Civ. P. 56(d) for additional discovery to oppose summary judgment. King appeals both rulings. For the reasons that follow, we reverse as to King’s malicious-prosecution claim against Harwood, holding that (1) under the rule in Heck v. Humphrey, 512 U.S. 477 (1994), King’s malicious-prosecution claims are not time-barred, and (2) Harwood is not entitled to summary judgment on the issue of his qualified immunity.