dissenting:
The Government presented no evidence that the visual depictions at issue in this case — those involving the minor, Lester Hinson — were “actually transported in interstate commerce,” as is required in order to violate the provision of the federal child pornography statute under which Crews was indicted. See 18 U.S.C.A. § 2251(a) (West 2000). Accordingly, no reasonable jury could have concluded that the depictions had in fact been transported in interstate commerce in violation of that statute. Therefore, with respect, I must dissent from the majority’s contrary holding.
Three background facts — all undisputed — are necessary to understand the deficiency in the evidence. First, Crews made all of the depictions of Hinson — the videotape and the digital pictures — in North Carolina. JA 338-40, 344. Second, Crews also made in North Carolina two or three other videotapes showing Julius Schlee masturbating, on which Hinson did not appear. JA 342. Third, after creating all of these videotapes, Crews later moved to Virginia, and, prior to trial, never again had face to face contact with Schlee. JA 347. With this background in mind, I examine all testimony that could conceivably demonstrate actual interstate transport of the videotape or digital pictures of Hinson.
Schlee testified that he repeatedly urged Crews to destroy the videotape of himself and Hinson. A “week or two after it was made” (when Crews was clearly still in North Carolina), Schlee saw Crews “watching it on TV”; he “told [Crews] many times, including that time, that he needed to destroy that tape,” but Crews refused. JA 341-42. This testimony does not demonstrate that Crews moved to Virginia with the Hinson videotape or even that he refused to destroy the Hinson videotape after moving to Virginia.
When an investigation into Crews’s and Schlee’s conduct began, Crews wrote Schlee a letter implying that the tape of Hinson and Schlee had been destroyed: “[T]he detectives ... asked me about a tape. They searched my house for this type [sic] but they never found the tape. As far as anyone is concerned, that evidence against you has been destroyed.” JA 373. This letter is silent as to when Crews destroyed the tape, and thus provides no basis from which to infer that Crews transported it to Virginia.
The only other evidence as to what Crews took to Virginia comes from Schlee’s testimony in the following exchanges:
*252Q: Did the defendant take his computer with him?
A: I’m assuming he took everything. Q: He didn’t leave anything behind?
A: Not as far as I know.
Q: As far as you know, he took his collection of child pornography? [Objection. Sustained.]
Q: Did he take his computer if you know?
A: I don’t know.
JA 344. (Emphasis added). This testimony provides no support for a finding that Crews took his computer with him to Virginia, perhaps physically transporting the digital pictures.
After a subsequent discussion of Crews’s electronic communications with Schlee after the move, Schlee gave the following testimony:
Q: What did he say to you that you took as threats?
A: Well, he had said that Lester’s mom had been calling him while he was down here or in Fayetteville and asking wanting to know my name and my address down here and everything like that. He said that she continued to contact him when he moved to Virginia. His explanation was he was trying to protect me, so he was keeping quiet about it but she kept calling him everyday [sic] or something like that.... It was like if I wasn’t polite to him or nice to him or like that then he would tell Lester’s mom everything that had been going on.
Q: Did the defendant at this time, to the best of your knowledge, still have those videotapes that he made of you?
A: Yes, sir.
Q: Did he ever use those videotapes to threaten exposure of those videotapes against you?
A: Well, it’s the same way as with Lester’s mom thing. He wouldn’t come out and say if you don’t do this, then I’m going to show these to whoever. But whenever he got in a foul mood, and I wasn’t doing like I was supposed to, then he would mention something like I wonder what your mom would think if she saw these videos or something like that. I confronted him one time about it. He said that the only reason I was hanging around his apartment was because if I left he would send those videos to my mother ....
JA 345-47. (Emphasis added).
Schlee’s testimony simply does not support a finding that Crews took the videotape of Hinson and Schlee with him when he moved to Virginia. If, after the move to Virginia, Crews had made a specific threat to show the Hinson-Schlee videotape to Hinson’s mother or Schlee’s mother, a jury might be able to infer that Crews had taken it to Virginia. But there is no such evidence.
Schlee never testified that Crews threatened to show Hinson’s mother the videotape; instead, Crews simply refused her requests for information about Schlee. Crews did, according to Schlee, threaten to show Schlee’s mother some unspecified videotapes, but nothing indicates that these threats were made after the move to Virginia; during the only such conversation that Schlee specifically describes, the men were plainly together in North Carolina, with Schlee “hanging around [Crews’s] apartment.” JA 347.
Moreover, the reported threats to show “those videos” to Schlee’s mother do not even necessarily refer to the one videotape in which Hinson appears, the only one that was a basis for Crews’s child pornography convictions. Although Crews made only one videotape in which Hinson appears, he made several of Schlee, an adult, masturbating alone. Crews’s asserted references to “these videotapes” must include something other than the single Hinson-Schlee *253videotape, and might easily mean only the Schlee solo videotapes.* Nor does the information that Schlee would not want his mother to see the videotapes in question point to the Hinson-Schlee videotape, because Schlee would not have wanted disclosure of any of the videotapes to his mother.
For these reasons, I am forced to conclude that the Government has provided no basis from which a reasonable jury could have found that the visual depictions of Hinson charged in the indictment were actually transported in interstate commerce.
Schlee’s testimony with regard to his "knowledge” as to Crews’s transport of any videotapes to Virginia is weak, given that Schlee conceded that he was only "assuming” Crews "took everything” to Virginia. JA 341.