United States District Court, D. Maine
ORDER ON MOTION IN LIMINE TO ADMIT EVIDENCE OF
POSSESSION OF FILES CONTAINING CHILD EROTICA &
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
trial scheduled for August 8, 2017 in this child pornography
case, the Government seeks to admit evidence of the
Defendant's possession of files containing images of
child erotica and bestiality both at the time of the alleged
offense and more than two years earlier. The Court grants in
part, defers in part, and denies in part the Government's
motion in limine. The Court agrees with the Government that
images of child erotica allegedly found on the
Defendant's laptop computer on November 10, 2015, the
time of the alleged possession crime in this case, as well as
the corresponding testimony regarding possession of child
erotica on that date, are admissible. Regarding the earlier
alleged possession of child erotica, preferring to weigh the
danger of undue delay, time wasting, and cumulative evidence
on a more complete record, the Court defers final ruling on
the admissibility of three photographs of child erotica found
during the laptop search on May 23, 2013, as well as the
testimony regarding possession of other images at that time.
Finally, the Court denies admission of the testimony
regarding possession of files containing images of bestiality
on both May 23, 2013 and November 10, 2015.
December 14, 2016, a federal grand jury indicted Robert
Goguen for possession of child pornography in violation of 18
U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and
2256(8)(A). Indictment at 1 (ECF No. 1). The
charge is scheduled for trial on August 8, 2017. Speedy
Trial Order (ECF No. 52); Trial List (ECF No.
January 17, 2017, the Government filed a motion in limine
asking that the Court rule in advance of trial as to the
admissibility of certain evidence of the possession of files
containing child erotica and bestiality. Gov't's
Mot. in Lim. to Admit Evid. of the Def.'s Possession of
Child Erotica and Bestiality (ECF No. 18)
(Gov't's Mot.). On February 20, 2017, Mr.
Goguen objected to the motion. Def.'s Obj. to Mot. in
Lim. (ECF No. 32) (Def.'s Opp'n). The
Government replied on February 24, 2017. Gov't's
Reply to Def.'s Obj. to Mot. in Lim. (ECF No. 35)
December 14, 2016 indictment charges Mr. Goguen with
possession of child pornography on about November 10, 2015.
Indictment at 1. The Government represents that on
November 10, 2015, United States Probation Officers Oswald
and Moloney went to Mr. Goguen's apartment to conduct an
unannounced visit. Gov't's Mot. at 1-2. Mr.
Goguen was on supervised release for his federal conviction
in the District of Maine for failing to register as a sex
offender. Id. at 2. The probation officers entered
Mr. Goguen's apartment, interacted with him, and
ultimately seized a Hewlett Packard laptop computer.
Id. The probation officers took the laptop with them
to the United States Probation Office. Id.
November 13, 2015, Probation Officer Oswald began reviewing
the contents of the laptop. Id. Upon identifying
images of child pornography, Probation Officer Oswald
consulted additional law enforcement. Id. Special
Agent Greg Kelly of Homeland Security Investigations (HSI)
obtained a search warrant for the laptop and HSI conducted
computer forensics on the laptop. Id. Special Agent
Kelly identified evidence of approximately 9 images of child
pornography, 5 videos of child pornography, 169 images of
child erotica, 9 videos of child erotica, 24 videos of adult
pornography/adult erotica, and 9 videos of bestiality.
Id. The child pornography recovered from the laptop
forms the basis of the charges in the current matter.
Government also states that on May 23, 2013 Probation Officer
Oswald found Mr. Goguen in possession of a laptop computer
while he was on supervised release. Id.; see
also Id. Attach. 1 Mem. from Mitchell Oswald, Sr.
USPO re: Robert Goguen. The laptop contained images of
child erotica, adult pornography, and bestiality.
Gov't's Mot. at 2-3. Mr. Goguen told
Probation Officer Oswald that the images “popped
up” on the laptop. Id. at 3. The conditions of
Mr. Goguen's supervised release were then modified to
prohibit Mr. Goguen from possessing any pornography.
Id. In December of 2016, Special Agent Kelly
reviewed the material recovered from the laptop that Mr.
Goguen possessed in May of 2013 and identified approximately
2, 400 total files, including images and videos. Id.
Approximately 240 of the files contained child erotica and
approximately 22 of the files contained bestiality.
Government seeks to admit into evidence three images of child
erotica that Mr. Goguen possessed on about May 23, 2013,
marked as Exhibits 2-A, 2-B, and 2-C, as well as testimony
regarding the total number of images and videos that Mr.
Goguen possessed on that date. Id. at 5-6. The
Government also seeks to admit into evidence three images of
child erotica that were recovered from the laptop found in
Mr. Goguen's apartment on November 10, 2015, marked as
Exhibits 3-A, 3-B, and 3-C, as well as testimony regarding
the total number of images and videos possessed on that date.
Id. at 6. The Government also seeks to admit
testimony regarding Mr. Goguen's possession of files
containing bestiality. Id. at 1; Gov't's
Reply at 10.
THE PARTIES' POSITIONS
The Government's Motion
the Government contends that the evidence of possession of
child erotica on both May 23, 2013 and November 10, 2015 is
admissible under Federal Rules of Evidence 404(b) and 403.
Gov't's Mot. at 3. The Government
acknowledges that the evidence cannot be introduced as
propensity evidence. Id. However, it argues that the
evidence shows Mr. Goguen's prurient interest in children
and is admissible because it has special relevance, namely,
it establishes motive, intent, lack of mistake, and lack of
accident. Id. at 4. More specifically, the
Government claims that the images of child erotica that Mr.
Goguen possessed on May 23, 2013 establish that Mr. Goguen
intentionally sought and possessed child pornography on about
November 10, 2015 and refute any argument that Mr. Goguen
possessed the child pornography by mistake or accident.
Id. at 5. Similarly, it argues that the child
erotica images found on November 10, 2015 show intent,
knowledge, and lack of mistake or accident. Id. The
Government further argues that the evidence is not barred by
Rule 403 because any prejudice stems from the substantive
probative value of the evidence and does not rise to the
level of “unfair prejudice.” Id. at 6-7.
the Government contends that the evidence of Mr. Goguen's
possession of files containing child erotica and bestiality
is relevant because it demonstrates Mr. Goguen's control,
use, and knowledge of the laptop on November 10, 2015.
Id. at 7. It claims that “[t]he fact that the
defendant possessed unique material such as child erotica and
bestiality in 2013, and that on November 10, 2015, the
[l]aptop contained similar material, strongly indicates that
it was the defendant who had control, use, and knowledge of
the [l]aptop on November 10, 2015.” Id.
Robert Goguen's Opposition
Goguen claims that “[t]he evidence [that he] possessed
child erotica and bestiality 18 months prior to the present
child pornography allegations is only relevant to show [he]
is the type of person to possess this material and child
pornography, ” which, he claims, is “the very
type of propensity evidence the Court has rejected.”
Def.'s Opp'n at 3. Mr. Goguen argues that
the material is not admissible for some special purpose
because he is not claiming he accidentally or mistakenly
possessed the material, or did not have the intent to possess
it. Id. Instead, he claims “it was not him who
possessed the material.” Id. Mr. Goguen
distinguishes his case from the cases relied upon by the
Government because the evidence of child erotica and
bestiality here was found eighteen months prior to the
current allegations. Id. at 4.
Goguen additionally argues that even if the Court concludes
that the evidence has special relevance, its probative value
is substantially outweighed by unfair prejudice because the
nature and volume of the materials from 2013 would lead a