January 13, 2013
UNITED STATES OF AMERICA,
PAUL DAVID HITE, Defendant.
COLLEEN KOLLAR-KOTELLY, United States District Judge
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,  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 "IP, " as necessary, and assumes the parties are familiar with the conversations.
II. LEGAL STANDARD
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 Userl, 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 V2 by 11 inch piece of paper containing twenty-four thumbnail images, and five 8 V2 by 11 pieces of paper, each containing an enlarged 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. 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 explicit images are not being shown to the jury. Thus the Court shall admit a list of the five URLs indicative of child pornography pursuant to Rule 404(b).
2. Recently Accessed Files
The Government also seeks to introduce a report listing the most recently accessed files on the Defendant's laptop. Gov't Reply Ex. C. The list includes in relevant part the names of fifty-six ".Ink" files and the date each file was last modified. Eleven of the file names are indicative of child pornography, including "10yroldsckcock, " "daddy sucks boya, " and "kid狩Ꚋ[l]." Id. at 1. Eight of the explicitly named files have modification dates of July 25, 2010, one file was last modified on January 17, 2011, and two files have modification dates of March 5, 2011. Id. at 1-2. Several other file names imply pornographic content, but it is unclear whether the files include child pornography, for example "13facerape, " and "Beto_Gets_Fucked." Id.
The eleven 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 Court shall admit only the three names indicative of child pornography with modification dates after January 1, 2011: 10yroldsckcock, " (last modified January 17, 2011) "daddy sucks boya, " (last modified March 5, 2011) and "zadoom pedo rizmastar kdv rbv (rizmastar hots) preteen boys hard sex 7yo 8yo 9yo 10yo boy (03.2005new) 028, " (last modified March 5, 2011). The potential for unfair prejudice is limited: the Court is admitting only three images and the actual images will not be admitted or shown to the jury. On this basis, the Court finds the risk of undue prejudice does not substantially outweigh the probative value of the file names.
C. Transcripts of Other Online Chats
The Government also seeks to admit transcripts of separate online chats between the Defendant and four different individuals. The Defendant objects to the admission of transcripts solely on the basis of relevance: the Defendant argues that since none of the chats were with minors, they are not probative of his intent to entice or coerce the minors in this case. The Court has twice rejected this argument. 6/30/12 Mem. Opin.; 10/9/12 Mem. Opin. Moreover, evidence the Defendant engaged in explicit discussions of sexual contact with minors, regardless of whether or not he followed through with plans to meet in person, is probative of his intent to entice or coerce the minors to engage in illicit sexual activity. E.g., United States v. Levinson, No. 11-13268, 2013 WL 49718, at *3 (11th Cir. Jan. 4, 2013); United States v. Cooke, 675 F.3d 1153, 1157 (8th Cir. 2012) (upholding admission of sexually explicit emails exchanged with a sixteen year-old girl fourteen months before the conduct at issue); United States v. McDarrah, 351 F.App'x 558, 563 (2d Cir. 2009) (affirming introduction of defendant's email responses to craigslist ads indicating his interest in sex with girls under the age of eighteen as evidence corroborating his intent to engage in actual sexual conduct with minor at issue in the case); see also United States v. Knowles, 655 F.3d 647 657-58 (7th Cir. 2011) (holding chat transcripts in which the defendant expressed an interest in having sex with minors and asked to meet with the minors were relevant Rule 404(b) evidence even absent proof the defendant actually attempted to meet with the minors). The Court reviewed each conversation line-by-line in order to evaluate the probative value and potential prejudice of the discussions individually, and as a whole. The Court shall admit portions of conversations with all four individuals as set forth below.
1. Yahoo User1: "Riley"
Yahoo Userl used a screen name abbreviated to "Riley, " and chatted with the Defendant on June 24, 2011. Ex. D at 6-7. During the chat, riley describes seeing his 11 year-old nephew naked in the bathroom and recording him undressing, to which the Defendant replies "MMMMM, " "fuckin HOT, " and "sexy as hell?" Id. at 6. Riley then describes wanting to have sexual contact with the boy, and "need[ing] to get a roofie to knock him out to fuck him." Id. The Defendant suggests "Benadryl, anti-histamine, [or] cold-medicine, " but Riley indicated he did not have any.
Having reviewed each line of the chat between Riley and the Defendant, the Court finds the risk of unfair prejudice does not substantially outweigh the probative value of the conversation. The Defendant's chat with Riley is relevant evidence of his intent, knowledge, and absence of mistake in that it is probative of his sexual attraction to young children, and reflects the fact that Defendant and Riley had previous conversations about similar topics. The chat is also probative of the Defendant's intent with JP because in both cases the Defendant suggests using Benadryl to sedate the child before engaging in sexual activity. The conversation took place approximately six months before the events in this case, which is sufficiently close in time to make the conversation probative of the Defendant's intent when conversing with JP. The graphic nature of the chat may cause some prejudice, but the chat is brief and the risk of unfair prejudice does not substantially outweigh the immense probative value. Accordingly, the Defendant's chat with Riley is admissible under Rules 404(b) and 403.
2. Yahoo User2: "Justin"
Yahoo User2 used a screen name abbreviated to "Justin, " and chatted with the Defendant extensively during the evening of January 6 and early morning of January 7, 2012. Ex. D. at 7-23. The transcript implies that the Defendant asked Justin to prove that he was not a police officer, so the parties saw each other over a web cam. Id. at 10 ("did not realize was going to be on cam"). The discussion further implies that Justin is significantly younger than the Defendant, though Justin's age is never explicitly stated in the chat log produced to the Court. For example, at one point in the conversation Justin asks the Defendant "did you see my ass?" and "you like younger ass?" The Defendant replies "oh yeah—on BOTH accounts." Id. at 14. In reference to their web cam session, Justin later says "im just a HI boi and you saw it and no cops." Id. at 15. The parties also briefly discuss a thirteen year-old girl that purportedly lives next to Justin.
Certain aspects of the conversation with Justin are particularly probative of the Defendant's intent, knowledge, and absence of mistake. The Defendant expresses an interest in sexual activity with a thirteen year-old girl, similar to the twelve year-old girl at issue in Count Two of the Superseding Indictment. The Defendant asking Justin to participate in a web cam session reflects a similar pattern to what the Defendant proposed to JP: having JP engage in a web cam session before the Defendant traveled to the District of Columbia. To be fair, portions of the chat are potentially prejudicial: Justin's age is not entirely clear, and most of the chat is comprised of Justin proposing he and Defendant engage in sexual conduct, or asking the Defendant if he wants to watch Justin perform certain sexual acts. The Court redacted the most prejudicial and least probative portions of the chat, as set forth in the Appendix to this Memorandum. The probative value of the redacted chat with Justin is not substantially outweighed by the risk of undue prejudice, and is therefore admissible.
3. Yahoo User3: "Aussie"
Yahoo User3 used a screen name abbreviated to "Aussie, " and chatted with the Defendant at various points on January 29, January 30, February 1, and February 9, 2012. Ex. D at 24-29, 36-41, & 74-75. The parties primarily discussed Aussie's sexual activity with three children: his seventeen month-old nephew, his four year-old niece, and his seven year-old nephew. E.g., Id . at 24. The Defendant and Aussie also discussed Aussie having sexual contact with one of the children while another individual watched via webcam, and briefly discussed getting together the next time Aussie was in the United States.
The discussions with Aussie as a whole are relevant to Defendant's intent given the subject matter discussed by the parties. Specific portions of the conversations are particularly probative of the Defendant's intent, knowledge, and absence of mistake in this case. First, the Defendant admits to Aussie, just as he did to JP, that in the past he had sexual contact with an eleven year-old boy. Ex. D at 24, 26, & 37. Such admissions are highly relevant to the Defendant's intent to actually coerce or entice the minors at issue in this case. The Second Circuit in United States v. Douglas, 415 F.App'x 271 (2d Cir. 2011), upheld the admission of testimony from the defendant's ex-girlfriend that she once saw a transcript of a chat in which the defendant claimed to have molested his niece and other minor children. Id. at 273. Similarly, the Seventh Circuit in United States v. Zahursky, 580 F.3d 515 (7th Cir. 2009), affirmed the district court's decision to admit transcripts of chats the defendant engaged in with various female minors as Rule 404(b) evidence. In the chats, the Zahursky "expressed his sexual interest in fourteen-year-old-girls, " and he "admitted] to having had sex with a fourteen-year-old, " which was relevant to intent to entice the minor female at issue in the case. Id. at 524. The Defendant's repeated admission to Aussie is likewise probative evidence of his intent in this case.
Second, referring to the eleven year-old boy the Defendant admitted to having sexual contact with, the Defendant indicated that he "got [the boy] stoned, " which serves as further corroboration of the Defendant's plan to use drugs of some kind when having sexual contact with children discussed with JP. Ex. D at 39. Third, the Defendant told Aussie that he would "love to find a guy with access who needs a bud to help him out, " id. at 27, which is consistent with what the Government claims the Defendant intended in this case: to engage in sexual conduct with JP and a minor simultaneously. Fourth, the parties not only discussed conversing over Skype, but that same day the Defendant opened an account with Skype. Id. at 28, 29; Gov't Reply Ex. E. This portion of the parties' conversation is significant because Aussie indicated in earlier discussions that he would have illicit sexual contact with children while other adults watched via Skype. The fact that the Defendant took the step of creating a Skype account to allow him to interact with Aussie is highly relevant to the jury's determination as to whether the Defendant's discussions with JP were mere "fantasies, " or whether the Defendant intended to coerce or entice the minors in question.
The subject matter of the Defendant's conversations with Aussie creates some risk of prejudice. However, in a case that by definition concerns sexual activity with minors, the discussions with Aussie are not unduly prejudicial. Moreover, the Court reviewed each line of the chat, and redacted the most prejudicial but least probative portions of the chat as set forth in the Appendix. In light of the extensive probative value of the Defendant's conversations with Aussie, the probative value of the redacted chat is not substantially outweighed by the risk of undue prejudice. The Court shall admit the redacted chat with Aussie, as well as the emails confirming the Defendant's creation of a Skype account.
4. Yahoo User4: "adt"
Yahoo User4 used a screen name abbreviated to "adt, " and conversed with the Defendant on January 16, February 7, and February 14, 2012. Ex. D at 23-24, 69-71, & 86-91. Most of the conversations concerned how busy both individuals were, id. at 69-71, and their mutual interest in motorcycles, id. at 86-89. On February 14, after a discussion of their motorcycles, the Defendant states "love a hot motorcycle pervy guy—hehe." Id. at 89. adt suggests that he and the Defendant "go riding sometime, " and "see if [they] can attract any passengers." Id. The Defendant replied "SURE, " and asked adt "who would be your fantasy passenger?" Id. In response, adt said "lol, " and "not sure he'd reach teh pegs." Id. The Defendant indicated he "love[d] that, too." Id. After adt asked if the Defendant was located in Maryland, the Defendant replied that he was in fact in Richmond, Virginia. Id. at 90. The parties briefly discussed meeting in person, joking about the lack of large towns between their respective locations. Id.
Two of the Defendant's conversations with adt implicitly mention the parties' interests in sexual contact with minors, though neither is explicit. The February 14, 2012 conversation is perhaps the most probative of those with adt because it involved the Defendant raising that topic towards the end of an otherwise innocuous discussion of motorcycles. Additionally, the fact that the Defendant disclosed his actual geographic location and expressed interest in meeting up with adt for an implied illicit purpose is probative of the Defendant's intent in this case. The Defendant's chats with adt pose a minimal risk of prejudice because they only implicitly refer to sexual contact with children. The Court shall admit a limited portion of the Defendant's February 14, 2012 chat with adt, as set forth in the Appendix. The minimal risk of undue prejudice does not substantially outweigh the probative value of the portions the Court is admitting.
D. Emails with Yahoo User5
Finally, the Government proposes to introduce at trial a series of emails between the Defendant and "James Cox, " referred to by the Government as Yahoo User5. On October 28, 2011, Cox sent the Defendant an email with the subject line "us, " and three attachments: two photos of a male who appears to be in his early twenties posing with a two to three year-old boy, and one photo of the boy alone. None of the photos would be considered explicit or sexual in nature. On October 2, 2011, the Defendant replied with the greeting "hey handsomes, " and stated that he "really have enjoyed our chats and want to do more, just to let you know I am thinking about you." Gov't Reply Ex. F. Two days later, the Defendant contacted Cox again saying "missed you in chat last evening, " and "[s]till thinking about you and common interests." Id.
The Defendant objects to introduction of the emails and attached photos under the rubric of Rule 404(b) because they are not sexual in nature. Although not explicit or graphic, the Defendant addressed the first reply email to both Cox and the boy, indicated he "want[ed] to do more, " and followed up two days later referencing their "common interests." The language in the emails is consistent with the language the Defendant used in online chats to refer to sexual contact with children. The suggestive nature of the Defendant's emails is sufficiently probative. See United States v. Thurber, 377 F.App'x 658, 660 (9th Cir. 2010) (holding that the defendant's sexually suggestive online screen name and profile picture were probative of his intent in contacting individuals in online chat rooms).
The use of this suggestive language in the Defendant's emails is probative of the Defendant's intent to coerce JP's three year-old nephew to engage in illicit sexual conduct, given the implied involvement of a minor child. Moreover, the fact that the Defendant took the initiative to email Cox after he was not online on a particular night is particularly strong evidence that the Defendant intended to follow through with the implied discussion of sexual conduct involving the pictured minor child. The fact that the child in the picture appears to be approximately the same age as JP's fictional nephew makes the emails and pictures even more probative of the Defendant's intent. For these reasons, the Court finds the Defendant's emails with James Cox are appropriate Rule 404(b) evidence of the Defendant's intent, knowledge, and absence of mistake in this case. The Court shall permit the Government to introduce the photo of Cox and the unidentified minor in which Cox is holding the boy and is not wearing a shirt. The photograph is probative of the Defendant's intent insofar as it demonstrates the Defendant was addressing his reply email to both the adult and the minor child. The Court will exclude the other two photographs as duplicative. There is minimal risk of undue prejudice because the photo and the emails are not sexually explicit. Accordingly, the Court finds the probative value of the emails and the single photo is not substantially outweighed by the risk of undue prejudice.
The proposed Rule 404(b) evidence proffered by the Government is probative evidence of the Defendant's intent, knowledge, and absence of mistake in this case. The evidence may not be dispositive of the Defendant's intent, and the Defendant may ultimately convince the jury that although there is evidence he is sexually attracted to children, he did not have the requisite intent under section 2422(b). Evidence in the form of images depicting child pornography and recently accessed websites and files with names indicative of child pornography is relevant to show the Defendant's sexual attraction to children, and is thus probative of his intent to persuade or coerce the minors at issue in this case to engage in illicit sexual activity. In chats with other individuals, the Defendant discussed the logistics of engaging in sexual contact with minors and his interest in having sexual contact with minors (including with the participation of another adult), which is probative of his intent in engaging in similar conversations with JP. Overall, the redacted evidence is highly probative of the Defendant's criminal intent, which will likely be the primary focus of the defense. The redacted Rule 404(b) evidence is necessary to enable the jury to properly evaluate the Defendant's intent in a case where the Defendant's conduct is generally undisputed. At this stage, the Government has met its burden to show that the redacted evidence is probative of non-propensity purposes under Rule 404(b), and there is sufficient evidence to support a finding by the jury that the Defendant committed each of the other acts.
The Court will make a determination as to the admissibility of the thumbcache images (individually and in combination) once the Defendant is given an opportunity to review the images and lodge objections. As set forth above, the Court reviewed each line of the other exhibits proposed by the Government, and finds that the probative value of the evidence is not substantially outweighed by the risk of undue prejudice. Furthermore, the Court finds that all of the Rule 404(b) evidence in combination is not unduly prejudicial. The Court is admitting only five lines from the Defendant's browser history and the names of three recently accessed files. The chats have been substantially redacted so as to limit the overall volume of evidence and remove the least probative but most prejudicial aspects of the chats. Moreover, the chats each have separate probative value such that redacted chats will not be cumulative. The overall amount of Rule 404(b) evidence is appropriate given that it is all relevant to the Defendant's intent, which is likely to be the central issue in the case. Ultimately, the evidence in this case is probative in part because it concerns the disturbing topics the Defendant discussed in the conversations leading to the Superseding Indictment. Finally, the Court shall instruct the jury as to the limited purposes for which the evidence is admitted, at the time of admission and in the final instructions, which substantially limits any risk of unfair prejudice. Long, 328 F.3d at 662. Accordingly, the Court finds the probative value of the evidence at issue, in isolation and considered together, is not substantially outweighed by the risk of undue prejudice.
Accordingly, the Government's  Motion in Limine to Introduce Evidence Pursuant to Federal Rule of Evidence 404(b) is GRANTED IN PART and otherwise HELD IN ABEYANCE as set forth above.
An appropriate Order accompanies this Memorandum Opinion.