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United States v. Lieu

United States District Court, District of Columbia

February 8, 2018

UNITED STATES OF AMERICA
v.
DAVID LIEU, Defendant.

          MEMORANDUM OPINION GRANTING UNITED STATES' MOTION TO ADMIT OTHER CRIMES EVIDENCE [50]; DENYING DEFENDANT'S MOTION TO SUPPRESS [52]

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Defendant David Lieu is charged by Superseding Indictment with one count of distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). See Superseding Indictment, ECF No. 48. The Government alleges that Mr. Lieu engaged in a series of electronic communications with an undercover detective who was posing as a father of a fictitious nine-year-old girl and that Mr. Lieu made arrangements to meet the fictitious father and child for the purpose of engaging in illicit sexual activity with the daughter. This matter is presently before the Court on two related evidentiary motions. First, Mr. Lieu moves to suppress a variety of evidence based on his claim that the Government violated his constitutional protections under the Fourth and Fifth Amendment. See Def.'s Mot. Suppress (“Def.'s Mot.”), ECF No. 52. Second, the Government moves to admit evidence that Mr. Lieu (1) possessed child pornography at his home, (2) had previously sexually abused his stepdaughter, and (3) was communicating with someone, contemporaneous with his conversations with the undercover detective, about his sexual interest in children. See United States' Mot. Admit (“Gov't Mot.”), ECF No. 50. For the reasons stated below, the Court will deny Mr. Lieu's motion to suppress and grant the Government's motion to admit the evidence of the prior bad acts, subject to a limiting instruction.

         II. BACKGROUND

         A. Allegations of the Instant Offenses

         The Government intends to prove the following allegations at trial. In the winter of 2016, Detective Timothy Palchak was acting in an undercover capacity as part of the Metropolitan Police Department-Federal Bureau of Investigation (“MPD-FBI”) Child Exploitation Task Force. In that role, he posted an online advertisement on Craigslist intended to attract individuals with a sexual interest in children. The advertisement read: “Any other young perv dads into no limit taboo stuff, shoot me an email or leave me your kik, don't want to say to[o] much on here.” An individual with the profile name “Dave Loof” answered the ad via email, stating “[h]ey, I'm totally a taboo/pervy dad. Yeah, I'm into that. What's on your mind[?]” Detective Palchak, in his undercover capacity, responded, “looking to meet other [young] dads that are into [young]/incest, etc.” and asked for the individual's username on an instant message platform known as “KIK, ” which “Dave Loof” supplied.

         Thereafter, Detective Palchak initiated a conversation on KIK, telling the now-target of the investigation that his name was “John.” The target, whose KIK username was “Dave Ell, ” told Detective Palchak that he was a 42-year-old man from “Nova”[1] interested in “incst/yng.” Detective Palchak asked the target whether he had “any lil ones.” Detective Palchak indicated that he himself had a nine-year-old daughter. “Dave Ell” responded “[w]ow! . . . hot” and noted that he had two stepchildren, ages eleven and fourteen.[2] “Dave Ell” then asked the detective for details of any sexual acts that the detective had engaged in with his supposed nine-year-old. Detective Palchak stated that he and his fictional daughter had engaged in reciprocal acts of oral sex on one another. The target responded “Omfg ..... HOT, ” asked whether she “like[d] it, ” and said that the detective was a “lucky dawg.” “Dave Ell” also asked if the detective had any pictures.

         Detective Palchak then turned to the subject of “Dave Ell's” activities. Detective Palchak asked whether “Dave Ell” ever got “any play or peeks” of his stepdaughters. The target responded that he “used to . . about 4 ye[ar]s ago. Less now but get peeks.” He also indicated that he did not have any pictures of his stepdaughters because “mom is watching like a hawk.” Detective Palchak asked whether he had “[p]ics of any of what we like, ” to which the target responded “Plenty. Just not of mine.”

         “Dave Ell” then raised the possibility of meeting in person. He first asked whether the detective had ever done a meeting before. Detective Palchak stated that he had come close once before, but it never came to fruition. He explained that he “was disappointed because [he] was looking forward to it and she [referring to his fictional daughter] actually was too.” “Dave Ell” responded “Damn. . . . I'd be more than happy to help out with that.” Detective Palchak indicated that he “may be interested, ” but he would have to know that “Dave Ell” was “safe” by getting some sort of proof. Detective Palchak asked, of the pictures that “Dave Ell” had, what the age was of the youngest child. “Dave Ell” indicated that the youngest was probably six years old.

         The two then agreed to trade pictures. Although he initially indicated that he did not have any pictures of his stepdaughters, “Dave Ell” indicated that he “[a]ctually found one” from when one of his stepdaughters was seven years old. He then sent Detective Palchak an image of a naked girl who appeared to be approximately seven years old and was date stamped May 2009, which is consistent with the actual age of Defendant's daughter at that time. Detective Palchak then sent two images of his purported nine-year-old daughter, though the images in actuality were not of a real child. “Dave Ell” responded with comments like, “[n]iiice, ”“[d]amn hot, ” and “[g]od she looks delicious!” He also asked sexually explicit questions about the child like, “[d]oes she like getting licked” and “[e]ver rub it on her own face?”

         Detective Palchak noted that he sent the images so that “Dave Ell” would know that he was “real/cool” and indicated that “a pic or 2 more from u will be all I need the[n] we can talk about meeting up.” “Dave Ell” responded, “let me find some more proof for ya.” After apparently looking for additional photographs, he stated “[d]amn . . . all the ones I have are on another computer, ” which he claimed was “in [his] NY apartment.” Nevertheless, Dave Loof asked to switch their conversation to Yahoo Messenger, where he said he could share “some tamer ones.”

         The two then moved their conversation to Yahoo Messenger, where the target used the username “roll8mi.” At that point, the target sent Detective Palchak several images of child erotica[3] and three images of child pornography. Each of the three images of child pornography involved naked pre-pubescent girls between the ages of six and twelve years old posing in sexually explicit positions. Thereafter, “roll8mi” asked Detective Palchak if he had ever seen “vicky videos.” Detective Palchak understood the target to be referring to the child pornography series involving the well-known child victim “Vicky.” The target indicated that he had a few of her videos, but “lost most of the good ones.” Detective Palchak asked if “roll8mi” had “any of those on [him], ” to which “roll8mi” responded, “no . . . in my other computer.”

         As the conversation progressed, “roll8mi” began to discuss having sexual contact with his stepdaughter. He claimed that he started with his oldest stepdaughter when she was seven years old. He said it “started out when [he] put her to bed one night.” He claimed that “she put her hand on [his] thigh and started creeping up.” He said, “as soon as she did that mydick started creeping to meet her hand” and “she made contact and played some that night.” He emphasized that “the anticipation of what she would do next was enough to make [his] heart jump out of [his] chest.” The target said that he “took it slow from there but she never went much further.”

         Detective Palchak and “roll8mi” then began to arrange a meeting for the next day, when Detective Palchak told the target he would have his supposed daughter. The target indicated that he had to be in Owings Mills, Maryland until around 3:00 p.m. or so, but that he would be free after that. Detective Palchak stated the he had to work until about 3:30 p.m. and said that they “could meet at a bar near [his] apartment[, ] grab a drink and then go back to [his] place and have fun with her.” The target replied, “that would be sweet.” Detective Palchak then asked “roll8mi” what he would be “interested in doing.” The target said he would “do everything except cross your limits.” Detective Palchak said his “only limit is fucking, ” and “everything else is cool.” “Roll8mi” asked if “rubbing” was alright, to which Detective Palchak indicated that it was, as was “all licking sucking and fingering.” “Roll8mi” replied that he was “good with that” and that he “really love[d] licking and tasting anyway.” He noted that he hoped they could “play for a good long time.” The two then traded cell phone numbers and noted that they looked forward to meeting one another.

         The next day, February 4, 2016, the suspect sent a text message to Detective Palchak stating that he could be at the designated bar in Washington, D.C. around 3:30 p.m. When Detective Palchak indicated that he had told his daughter that he “might have company, ” the target responded “[a]wesome ..... so she's expecting to play then:-)”

         He also expressed great enthusiasm for their upcoming meeting, making statements like “damn I'm excited” and that he had “[n]ever been so eager:-)” Later, the suspect sent Detective Palchak a text message stating that he was leaving and expected to arrive at the designated bar around 4:00 p.m. The detective described his clothing and stated that he would wait for him inside at the corner of the bar. The target noted that he would be wearing a “light sport coat with blue grey slacks.” At approximately 4:00 p.m., Defendant Lieu arrived at the bar and immediately approached Detective Palchak. The Detective surmised that Mr. Lieu was the suspect he had been communicating with based on the clothes that Mr. Lieu was wearing at that time. Detective Palchak then asked if he was “Dave, ” to which Mr. Lieu replied yes. Mr. Lieu then asked whether the detective was “John.” Detective Palchak responded affirmatively and asked whether Mr. Lieu was looking forward to later, and Mr. Lieu indicated that he was. At that point, members of the Child Exploitation Task Force placed Mr. Lieu under arrest, searched his person, and recovered, among other things, a cellular telephone and a driver's license with a stated address in Camillus, New York.

         Based on this alleged conduct, Mr. Lieu is now charged with one count of distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). See Superseding Indictment, ECF No. 48.

         B. Subsequent Investigation

         1. Mr. Lieu's Interview with FBI Agents

         Following Mr. Lieu's arrest, he was interviewed by FBI Agent Alicia McShane and FBI Agent Jenny Cutalo-Patterson. At the beginning of Mr. Lieu's interview, and before asking him any questions whatsoever, Agents McShane and Cutalo-Patterson advised Mr. Lieu, both orally and in writing, that he had a right to remain silent and that he had a right to have an attorney present. Mr. Lieu orally represented to the agents that he understood those rights and that he was “willing to cooperate.” Mr. Lieu initially represented, however, that he wanted to have a lawyer before proceeding with the interview. But moments later, and without prompting from the agents, he indicated that he wanted to “try to have a conversation” so long as he could answer only the questions that he was comfortable with. The agents agreed that he could do so and that, in fact, he was entitled to do so. Given that he had previously requested a lawyer and then asked to have a “conversation, ” the agents asked whether he was, in fact, waiving his right to a lawyer at that moment. Mr. Lieu said he wanted to “run through the questions” and would defer on any questions he felt he could not answer on his own. The agents told Mr. Lieu that they understood this response to mean that he was waiving his right to an attorney for the time being and asked Mr. Lieu if their understanding was correct. He indicated that it was. Agents then proceeded to ask Mr. Lieu several questions, some of which Mr. Lieu was willing to answer and others that he was not. Throughout all of this, the agents emphasized at multiple points that any refusal to answer questions was within his right and would not change anything that would happen to him going forward.

         During the interview, the agents noted that Mr. Lieu had a New York driver's license. Mr. Lieu affirmed that his primary residence was in New York and that he had a wife, two stepchildren, and a biological child. Mr. Lieu also explained that he was in the D.C. metropolitan area on business and had traveled from a meeting in Maryland to the District of Columbia to meet “John.” Mr. Lieu was not willing, however, to answer any further questions about how he met “John” or the reasons for which he was meeting him. Based on Mr. Lieu's unwillingness to answer these types of questions, the agents decided to end the questioning.

         2. Execution of Search Warrants

         On February 8, 2016, based on the facts alleged above, a United States Magistrate Judge from the Northern District of New York issued a warrant authorizing law enforcement officials to execute a search of Mr. Lieu's home in New York. Pursuant to the warrant, law enforcement sought evidence that Mr. Lieu possessed child pornography in violation of 18 U.S.C. §§ 2252 and 2252A and were permitted to seize, among other things, computers and other electronic media devices that might contain such evidence. That same day, the warrant was executed and several computers and other electronics were seized, including an external hard-drive that contained 397 images and 19 videos of child pornography, including approximately 41 media files of the “Vicky Series.”

         In addition to the search of Mr. Lieu's home, federal agents also secured a warrant authorizing the forensic examination of the phone that officials seized from Mr. Lieu's person upon his arrest. That examination revealed the conversation that had taken place with Detective Palchak, but also electronic communications that Mr. Lieu had with another individual, hereinafter referred to as John Doe. These other communications began on February 3, 2016, the same day that Mr. Lieu began corresponding with the undercover detective.

         This conversation, like the one with the undercover agent, was initiated by Mr. Lieu in response to an advertisement posted on Craigslist that sought other individuals who were interested in “taboo.” In his initial email to John Doe, Mr. Lieu emphasized that he was into “young” and “taboo.” During this conversation, Mr. Lieu and John Doe exchanged stories of sexually abusing minors and enthusiastically discussed their mutual sexual desires involving children. For his part, Mr. Lieu admitted that he had had an “experience” with his stepdaughter when she was approximately seven years old and stated that he “wish[ed] it coulda gone further than it did.” And although she was now older, he claimed that he still caught “glimpses” of her and stated that the child “[s]eems to have amnesia about it all.”

         Mr. Lieu also told John Doe that he was supposed to meet with a nine-year-old that evening. Mr. Lieu indicated that he was “[v]ery excited about it” and that he “was almost shivering uncontrollably” the night before. Mr. Lieu told John Doe, that if it went “well, ” he would “see about expanding [the] circle to include” him. Mr. Lieu and John Doe ultimately exchanged personal email addresses and made plans to meet in person after Mr. Lieu's encounter.

         3. Interview with Mr. Lieu's Oldest Stepdaughter

         Based on Mr. Lieu's statements that he had sexually abused his oldest stepdaughter, law enforcement officials in New York decided to interview the child. The child initially told investigators that, one time, when she was in the fifth grade, she was getting out of the shower when she noticed that Mr. Lieu was in the bathroom with her. She claims that he looked at her naked body and told her that she was beautiful.

         The child also recounted other events that occurred starting from the time she was about seven years old. The child told investigators that, at that time, Mr. Lieu began something he called “national naked day.” On these “national naked days, ” Mr. Lieu would apparently have the child run around the house naked and then later they would both lay naked in bed together. Mr. Lieu allegedly warned the child that she was not allowed to tell anyone about these exploits. Investigators asked her if Mr. Lieu had ever touched her during one of these days, but she initially claimed that she could not remember anything else. Several months later, however, she asked to speak with police again. This time, she informed them, consistent with Mr. Lieu's accounts, that Mr. Lieu had engaged in sexual acts with her from the time that she was seven years old until she was approximately ten. ...


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