The opinion of the court was delivered by: January 13, 2013
Defendant Paul David Hite is charged by Superseding Indictment with two counts of attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b). The Government alleges that the Defendant engaged in a series of online chats and telephone conversations with an undercover police detective posing as an adult and arranged to engage in illicit sexual activity with a fictitious three year-old boy and twelve year-old girl. Presently before the Court is the Government's  Motion in Limine to Introduce Evidence Pursuant to Federal Rule of Evidence 404(b). The Government seeks to admit a variety of evidence recovered from a laptop seized from the Defendant's residence comprised primarily of (1) evidence of the Defendant allegedly accessing child pornography; and (2) evidence of the Defendant's online chats and email exchanges with other adults discussing illicit sexual activity with minors. Upon consideration of the pleadings,*fn1 the relevant legal authorities, and the record as a whole-including an in camera review of the proposed photographic evidence-the Court finds that certain redacted evidence proffered by the Government meets the standard for admissibility under Federal Rule of Evidence 404(b). The Court will require the Government to redact certain portions of various proposed exhibits to exclude irrelevant and/or unduly prejudicial evidence that substantially outweighs its probative value. The probative value of the redacted evidence which the Court finds admissible is not substantially outweighed by the danger of undue prejudice under Federal Rule of Evidence 403. Accordingly, the Government's Motion in Limine to Introduce Evidence Pursuant to Federal Rule of Evidence 404(b) is GRANTED IN PART as set forth below.
The Court shall provide the Defendant an opportunity to review and object to the proposed images and redacted chats with other individuals that the Government seeks to have admitted, but that the Defendant has not had an opportunity to review in their current form prior to filing his opposition to the Government's motion.
The Court set forth the factual history leading to the Defendant's arrest at length in prior opinions, and those discussions are incorporated by reference herein. 6/30/12 Mem. Opin. at 1-13; 10/9/12 Mem. Opin. at 2-4. The Court will reference certain aspects of the Defendant's discussions with the undercover detective known to the Defendant as "JP," as necessary, and assumes the parties are familiar with the conversations.*fn2
Federal Rule of Evidence 404(b) provides that "[e]vidence of a crime, wrong, or other acts is not admissible to prove a person's character in or to show that on a particular occasion the person acted in accordance with the character," but "may be admissible for another purpose," including proving "motive, opportunity, intent, . . . [or] absence of mistake." Fed. R. Evid. 404(b)(1), (2). The rule is one of "inclusion rather than exclusion. Although the first sentence of Rule 404(b) is framed restrictively, the rule itself is quite permissive, prohibiting the admission of other crimes evidence in but one circumstance-for the purpose of proving that a person's actions conformed to his character." United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000) (internal quotations omitted).
In addressing trial court determinations on the admissibility of bad acts evidence under the Federal Rules of Evidence, this circuit has employed a two-step mode of analysis. Under the first step, which addresses Rule 404(b), "[the court] must determine whether the evidence is relevant to a material issue other than character. If so, [the court] proceeds to the second inquiry," under Federal Rule of Evidence 403, "whether the probative value is substantially outweighed by the prejudice."
United States v. Burch, 156 F.3d 1315, 1323 (D.C. Cir. 1998) (quoting United States v. Mitchell, 49 F.3d 769, 775 (D.C. Cir. 1995)).
The Government seeks to introduce five categories of evidence pursuant to Rule 404(b):
(1) Twenty-four images of child pornography in thumbnail view and larger views of five of the twenty-four images. The images are a sample of 421 image and video files found in a "thumbcache" database file on the Defendant's laptop, Gov't Mot. at 12, Gov't Notice, ECF No. ;
(2) A printout of forensic analysis of the Internet Explorer web browsing history and recently accessed files indicating that on certain dates at certain times, the laptop user accessed image and media files with names "consistent with child pornography," see Gov't Reply Ex. B (browser history); Gov't Reply Ex. C (recently accessed files);
(3) Yahoo Instant Messenger chats between the Defendant and four separate individuals (Yahoo User1, Yahoo User2, Yahoo User3, and Yahoo User4) on various dates since June 2011, see Gov't Reply Ex. D;
(4) Emails obtained from the Defendant's Yahoo email address indicating the Defendant established a Skype account, see Gov't Reply Ex. E; and
(5) Three emails exchanged by the Defendant and another individual (Yahoo User5), including three images attached to the emails showing an adult male and a two- to three-year old boy.
Gov't Mot. at 11-17. During discovery, the Government provided the Defendant all of the evidence at issue and provided defense counsel the opportunity to review the photographic evidence. The Government initially offered only a description of the precise evidence it sought to have admitted, but did not provide the proposed non-photographic evidence until its Reply brief. The Defendant filed a Surreply addressing the thumbcache evidence, but did not include any objections to the other proposed exhibits.
The Government contends that this evidence is "highly relevant to prove the defendant's intent, knowledge, plan, and absence of mistake in committing the charged offense." Id. at 18. The Defendant argues that the evidence proffered by the Government is irrelevant to the issue of the Defendant's intent to entice or coerce the minors at issue in the Superseding Indictment, but does not address the admissibility of the evidence as probative of his knowledge or absence of mistake. The Court finds the proposed Rule 404(b) evidence is probative of the Defendant's intent in this case. The Court further agrees with the Government's analysis-which the Defendant does not dispute-that the evidence is generally relevant to the Defendant's knowledge and absence of mistake. However, the evidence at issue in the Government's motion is not probative of a "plan" under Rule 404(b). The Government does not identify a common scheme or plan, or describe how the proposed Rule 404(b) evidence is probative of that plan. See United States v. Burkley, 591 F.2d 903, 920 (D.C. Cir. 1978) (noting plan evidence is admissible under Rule 404(b) "to show the existence of a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other") (citation omitted). Accordingly, for the reasons explained below, the Court finds the proposed evidence is probative of the Defendant's intent, knowledge, and absence of mistake.
As reflected in the motions practice thus far in the case, the defense will likely contend at trial that the Defendant lacked the intent to coerce the fictitious minors, and that his conversations with the detective were merely "fantasies." The Defendant generally argues that the proposed 404(b) evidence is inadmissible because it does not "constitute other instances of using an instrumentality of interstate commerce to persuade, induce, coerce or entice a minor, the conduct charged in the superseding indictment." Opp'n at 6. Contrary to the Defendant's assertion, a prior bad act does not have to involve the exact same intent of the charged offense in order to be relevant. United States v. Long, 328 F.3d 655, 661 (D.C. Cir. 2003). "Evidence of a similar act must meet a threshold level of similarity in order to be admissible to prove intent," but that evidence is not required to have the "exact congruence" the Defendant articulates. Id. "[T]he admissible bad acts evidence need not show incidents identical to the events charged, so long as they are closely related to the offense, and are probative of intent rather than mere propensity." Id. (citation omitted).
In Long, the D.C. Circuit rejected the precise argument the Defendant makes here: that "[e]xtrinsic act evidence is admissible under the intent theory . . . only if the intent underlying the extrinsic act is the same illegal intent required for the charged act." 328 F.3d at 661. Long was charged with interstate transportation of a minor with intent to engage in criminal sexual activity and possession of photographs of minors engaged in sexually explicit conduct. Id. at 658. Pursuant to Rule 404(b), the Court admitted testimony of two individuals ("FM" and "AG") who had sexual contact with Long while they were between the ages of sixteen and nineteen as relevant to, among other things, Long's intent. Id. at 659. On appeal, Long argued that the testimony should have been excluded because it was not relevant to the question of his intent to engage in unlawful sexual activity with minors. Id. at 661. The D.C. Circuit rejected this argument, finding that although Long's sexual contact with FM and AG was lawful, the fact that he admittedly had sexual contact with teenagers was probative of his intent to engage in unlawful sexual activity with minors at issue in the case. Id. at 662.
The Defendant attempts to distinguish Long on the grounds that the intent requirement under the applicable statute in Long-the intent to engage in criminal sexual activity with a minor-is distinct from the intent relevant in this case-the Defendant's intent to entice or coerce a minor to engage in criminal sexual activity. Compare 18 U.S.C. § 2423(a) with 18 U.S.C. § 2422(b). Certainly, the mens rea the Government must prove in order to convict a defendant under the relevant statutory provisions in Long and in this case are distinct. However, the underlying principle in Long, reflected in jurisprudence from numerous other Circuits discussed infra, is that evidence of a defendant's sexual attraction to children (or teenagers) is probative of the specific intent element of criminal statutes involving sexual activity with minors. See e.g., United States v. Chambers, 642 F.3d 588, 595 (7th Cir. 2011) ("Prior instances of sexual misconduct with a child victim may establish a defendant's sexual interest in children and thereby serve as evidence of the defendant's motive to commit a charged offense involving the sexual exploitation of children.") (citations omitted). Thus, as a general principle, the Rule 404(b) evidence proffered by the Government is probative of the Defendant's sexual attraction to children, and as a result, is probative of his intent to entice or coerce the fictitious minors in this case.
The Defendant also argues that "expert testimony rebuts the bald conclusory intuitive assertion the Government makes in its Motion that the possession of child pornography or other manifestations of interest in sex with minors evidences an intent to persuade, induce, coerce or entice a minor to engage in sex." Def.'s Opp'n at 11. In order to be relevant, the Government's proposed Rule 404(b) evidence does not have to prove the Defendant's intent, it need only make it more probable that the Defendant possessed the requisite intent. Fed. R. Evid. 401(a). Whether or not the Defendant is sexually attracted to children, though not necessarily dispositive, is relevant to the broader question of whether, based on all of the evidence presented to the jury, the Defendant intended to entice or coerce the fictitious minors to engage in illicit sexual activity. In fact, at least five Circuits have found the relevance of evidence of a defendant's sexual attraction to children in section 2422(b) prosecutions to be so obvious as to not warrant discussion. United States v. Lewis, 318 F. App'x 1, 2 (D.C. Cir. 2009); accord United States v. Cooke, 675 F.3d 1153, 1157 (8th Cir. 2012); United States v. Wolford, 386 F. App'x 479, 484 (5th Cir. 2010); United States v. Godwin, 399 F. App'x 484, 489-90 (11th Cir. 2010). The Defendant may ultimately convince the jury that despite evidence indicating a sexual attraction to children, he did not intend to entice the minors in question. That is a factual question for the jury to consider, not a question of admissibility of the Government's proposed evidence. With the threshold relevance of this general type of evidence established, the Court will turn to the specific evidence the Government seeks to admit.
A.Thumbcache images A forensic analysis of the Defendant's laptop discovered a "thumbcache" database file on the laptop containing thumbnail images from still photographs, images or video files containing child pornography. The database contained 421 thumbnail images, 408 of which were created, last modified, and last accessed on October 21, 2009. The remaining thirteen images were created, last modified, and last accessed between February 8 and February 10, 2012. The Government indicated its expert will testify that the thumbnail images were created when an external hard drive containing the explicit images was connected to the computer and the images were opened. Gov't Reply at 2-3; Gov't Mot., Ex. A (Computer Forensic Exam. Report) at 1. The Government does not contend that the images were ever saved to the laptop, or that the images were accessible on the laptop at the time it was seized from the Defendant's home. Id. The Defendant asserts that his expert will testify that the thumbcache file was automatically created by the operating system when the external drive containing the explicit images was connected to the computer. Def.'s Surreply at 4 & n.1.
As a threshold matter, as explained in detail above, the Defendant's access to child pornography is relevant to the Defendant's intent in this case insofar as it is probative of his sexual attraction to children. United States v. Lewis, 318 F. App'x 1, 2 (D.C. Cir. 2009); see also United States v. Levinson, No. 11-13268, 2013 WL 49718 (11th Cir. Jan. 4, 2013). The parties do not dispute that thumbnail images depict child pornography. Nor do the parties dispute that the thumbcache database was created when an external drive containing child pornography was connected to the laptop. The only dispute between the parties is whether the Defendant opened the explicit images while the external drive was connected to the laptop.
The Defendant argues that the Court should conduct a hearing in order to resolve the dispute between the parties' respective experts as to how the thumbcache database was created. The Defendant did not file a Daubert motion or otherwise challenge the admissibility of the Government's expert testimony concerning the forensic analysis of the Defendant's laptop. See Gov't Notice of Expert Testimony, ECF No. . The Government must introduce evidence sufficient from which a reasonable jury could find by a preponderance of the evidence that the defendant committed the other bad act. United States v. Burwell, 642 F.3d 1062, 1066 (D.C. Cir. 2011); Long, 328 F.3d 655. The Court is not required to "reach a preliminary determination [prior to trial] as to whether the government had presented sufficient evidence to support a finding that defendants committed the uncharged acts." Id. Moreover, from the present record, the Government has proffered sufficient evidence to allow a reasonable jury to conclude the Defendant accessed the explicit images. If the jury credits the Government expert's testimony, there will be sufficient evidence to support a finding by the jury that the Defendant accessed the images. Even if the jury were to credit the Defendant's expert, or credit each expert in part, there would still be sufficient evidence for the jury to conclude by a preponderance of the evidence that the Defendant had access to certain child pornography.
Pursuant to the Court's January 10, 2013 Minute Order, on January 11, 2013, the Government brought to Chambers the precise exhibits from the thumbcache database it seeks to admit: one 8 1/2 by 11 inch piece of paper containing twenty-four thumbnail images, and five 8 1/2 by 11 pieces of paper, each containing an enlarged*fn3 version of one of the thumbnail images. All of the photos were in color. The Government indicated that the twenty-four images represented a sample of the 421 thumnail images in the thumbcache database, selected based on the similarity of the image to the type of sexual conduct the Defendant discussed with "JP." The five enlarged images were selected given their similarity to what the Defendant and JP had discussed doing with the three year-old boy and the twelve year-old girl. The Government did not indicate whether the images presented to the Court were created in October 2009 or February 2012.
The Court finds these images are probative evidence of the Defendant's intent and absence of mistake in this case, and are admissible as other crimes evidence under Rule 404(b). Although the images created and accessed in February 2012 are more highly probative to the Defendant's intent in conversing with JP during that same time frame, the images created and accessed in October 2009 are still probative of the Defendant's intent. Accordingly, the Government shall create a revised exhibit of not more than 24 thumbnail images and not more than 5 enlarged images.*fn4 The revised exhibit should include images accessed in 2012 to the extent they are representative of the type of sexual conduct the Defendant discussed with JP. Once the Defendant has had an opportunity to review the revised exhibits and lodge objections with the Court, the Court shall conduct a second in camera review to determine the admissibility of the images individually and as a whole under Rule 403.
B.Internet Browser History and Recently Accessed Files The Defendant objects to the second and third types of evidence-browser history and list of recently accessed files on his laptop-on the grounds the Government offers no evidence as to the content of the files. The Defendant does not dispute that certain file names that appear in the proposed exhibits are indicative of child pornography. Nor does the Defendant claim that some other user accessed the files on the laptop. The Government proffered sufficient evidence from which the jury could conclude that the Defendant accessed child pornography. Long, 328 F.3d at 660 (noting evidence of a defendant's other bad acts must be "sufficient to support a jury finding that the defendant committed the other crime or act"). The fact that the Government has not produced the actual images or files accessed on the laptop may go to the weight of the evidence, but does not bar its admission. See United States v. Godwin, 399 F. App'x 484, 489 (11th Cir. 2010) (upholding admission of the statement by the Defendant to the police following his arrest that he had engaged in "online sex talk" with other minor girls as relevant to "Godwin's intent to induce [the minor] to engage in illegal sexual activity").
1. Internet Browser History The proposed evidence of the Defendant's browser history, Exhibit B to the Government's Reply, is a report generated from forensic software used to analyze the web browser history on the Defendant's laptop. The report includes the type of file, last visited date, user, number of hits, and the uniform resource locator ("URL") for the relevant file. Seventy three URLs are listed in the report, including five jpeg files with URLs indicative of child pornography, including in relevant part "Boys-Teen%20Boy%20Fucking%20Preteen" (reported twice), "boyman69," "boynbaby," and "boydadrape." One additional URL is indicative of pornography generally ("fuckbrothers2"). Twenty-two of the non-explicit URLs were last accessed on January 1, 2011 between 10:31 PM and 10:32 PM. Twenty-eight of the URLs, including four of the child pornography-related URLs, were last visited on January 2, 2011 between 2:04 AM and 2:44 AM. The remaining twenty-three URLs, including the "boydadrape" URL, were last visited on January 20, 2011 between 9:34 PM and 9:35 PM.
The five file names indicative of child pornography are appropriate Rule 404(b) evidence that is probative of the Defendant's intent, knowledge, and absence of mistake in communicating with JP regarding the two fictitious minors, in particular the three year-old boy. The report indicates each jpeg was last accessed in January 2011, which is sufficiently close in time to the events at issue-which took place in February 2012-to make the evidence probative of the Defendant's intent with respect to the charges in this case. See United States v. Cooke, 675 F.3d 1153, 1157 (8th Cir. 2012) (holding sexually explicit emails exchanged fourteen months before the charged offense were "not too remote in time" to be probative of the defendant's intent to entice or coerce a minor to engage in illicit sexual activity).
Upon review of each of the explicit URLs and the exhibit as a whole, the Court finds the probative value of the five URLs indicative of child pornography is not substantially outweighed by the risk of undue prejudice. The URLs reflect sexual activity involving minor children, which is highly probative of the Defendant's intent. There is some risk of prejudice given the explicit nature of the URLs, but the potential prejudice is extremely limited, for two reasons. First, the risk of unfair prejudice is minimized by the "already-graphic nature of the case." Wolford, 386 F. App'x at 484. Second, the ...