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United States v. Goguen

United States District Court, D. Maine

July 5, 2017

UNITED STATES OF AMERICA
v.
ROBERT GOGUEN

          ORDER ON MOTION IN LIMINE TO ADMIT EVIDENCE OF POSSESSION OF FILES CONTAINING CHILD EROTICA & BESTIALITY

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         With 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.

         I. BACKGROUND

         A. Procedural Background

         On 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).[1] 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. 53).

         On 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) (Gov't's Reply).[2]

         B. Factual Background

         The 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.

         On 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. Id.

         The 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. Id.

         The 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.

         II. THE PARTIES' POSITIONS

         A. The Government's Motion

         First, 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.

         Second, 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.

         B. Robert Goguen's Opposition

         Mr. 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.

         Mr. 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 ...


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