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IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
______________________________________
UNITED STATES OF AMERICA
v.

No. No. 3:14-CR-489-k


ECF

JAMES MAINES, JR.

NOTICE OF INTENT TO OFFER EVIDENCE


OF OTHER ACTS BY DEFENDANT MAINES AS INEXTRICABLY INTERTWINED,
PROPER UNDER RULE 414 AND/OR RULE 404(B) OF THE FEDERAL RULES OF
EVIDENCE, AND BRIEF IN SUPPORT OF ADMISSION
The United States Attorney for the Northern District of Texas files this notice of intent to
introduce evidence of uncharged images of child pornography, child erotica, and text stories
about child sexual abuse, found on defendants computer media and in the email accounts of
both the defendant and his associate, as inextricably intertwined and thus proper under Federal
Rules of Evidence 414 and 404(b).
I.
INTRODUCTION
A. Statement of Facts
1. The AOL Email Account
On November 21, 2012, AOL, an Internet Service Provider, submitted a CyberTipline
Report to the National Center for Missing and Exploited Children (NCMEC) memorializing an
attempt by a user of the email account junkiecat@aol.com, subsequently identified as the
defendant, to send child pornography images to dub.Maines@mail.house.gov, an email account
belonging to the U.S. House of Representatives.
A search warrant was executed on AOL, resulting in the discovery that the November 21,
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2012 email was a forward of an email which the defendant had received from the user of the
email account MesqtManNPanties@aol.com, later identified as Jerry Miller (Miller), on
February 25, 2010.

Other emails from Miller to the defendant, including another one dated

February 25, 2010 containing images of child pornography, were also discovered in the junkiecat
email account.

Further investigation also revealed that Miller attempted to send four additional

emails containing child pornography to the defendant that same evening, which were ultimately
intercepted by AOL and did not result in a successful transmission.
2. Consensual Interview of Defendant Maines
On September 27, 2013, FBI Dallas conducted a knock and talk interview at the
defendants residence located at 1106 Tosch Lane, Mesquite, Texas 75149.

FBI personnel

conducting the knock and talk included FBI Special Agents Marya Wilkerson, Christopher
Thompson, and Aaron Covey.

The agents introduced themselves and asked defendant Maines

if he would speak with them.

The agents informed Maines that he was not under arrest and was

free to leave.

The agents also advised Maines he did not have to speak with them. The

defendant agreed to speak to the agents.


Regarding his email accounts, the defendant indicated he uses the email addresses
dubMaines@gmail.com, dubMaines@yahoo.com, sopifan@yahoo.com,
dub.Maines@mail.house.gov, and dubMaines@hotmail.com, and that he had accessed all of
these email addresses from both his office and home computers, as well as his cellular phones.
The defendant also advised the agents that he had previously used AOL accounts
dubMaines@aol.com and junkiecat@aol.com but that AOL shut down these accounts last year.
The defendant was unaware of why AOL closed down his accounts.
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When asked about whether he had received child pornography via email, the defendant
stated that a few years ago, he received child pornography in his junkiecat@aol.com account
from a person he knows as Jerry, who lives in Mesquite, Texas.

Initially, the defendant stated

that he met Jerry once and described Jerry as a friend, but he then later stated that he met Jerry
twice and that it was a personal relationship. The defendant advised the agents that he had not
had contact with Jerry in well over a year. The defendant stated Jerry sent him child
pornography after a discussion via the Internet about child pornography.

Specifically, Jerry

said he had child pornography, and the defendant related that he told Jerry, cool, send it on.
The defendant admitted that he knew that it was illegal to receive and possess child pornography
and that the images were of prepubescent females involved in sexual acts.
The defendant stated that the child pornography fascinated him and that he regarded it
as bizarre. The defendant initially denied being sexually attracted to children, but later, when
asked again whether he was sexually attracted to children, the defendant replied, Im not going
to tell you that. The defendant added that he could not recall whether he kept or deleted the
email containing the child pornography, but that he was inconsistent about deleting and keeping
emails in his account.

When shown the 2010 AOL emails received from MesqtManNPanties,

the defendant confirmed that these emails contained the images of child pornography that he
received.

When asked why the defendant did not report Jerry to law enforcement, the

defendant responded he did not want to explain his relationship with Jerry.

The defendant also

stated Jerry lived in an apartment on Gross Road in Mesquite and that Jerry told the defendant
that he had sex with an underage girl at his apartment complex.
When questioned about the November 2012 child pornography email, which was sent

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from his junkiecat account to his dub.maines@mail.house.gov account, the defendant initially
stated he didnt recall this email, but then confirmed the attempted transmission after a copy was
shown to him.
When asked why he would send child pornography via email, the defendant initially
stated that he must have sent the email to his government account because he was going to tell
someone at the office that there is child pornography on the Internet and that it is a problem.
However, when asked further about whether the defendant told anyone at the office about the
child pornography, the defendant stated that he did not.

The defendant was then asked whether

he was working on a research project involving child pornography at his office, to which he
replied that he was not, but that he had worked on projects involving child pornography in the
1980s.
During the interview, the defendant stated he was told his government email account was
not being monitored by the government.

The agents again asked the defendant why he would

distribute child pornography to himself via email, and the defendant replied that he did not have
a good answer and did not know why he did it.
At the conclusion of the initial interview at his residence, the defendant provided written
consent to search his computers and cellular telephones, including the HP Compaq desktop
computer and the Maxtor hard drive. When asked whether child pornography was present on
his HP Compaq desktop computer, the defendant initially replied that he did not think so, but
later stated that it was possible that it contained child pornography since it was the computer he
used all the time.

When asked of the existence of other computers in the home containing child

pornography, the defendant responded in the negative.

The agents then asked for permission to

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look around the residence, and the defendant replied that he was told not to do that when asked
for consent.

The defendant then stated that there were some older computers in the residence

and that he would allow agents to search those computers.

The defendant also stated he had

been talking to Jerry for a while and that there might be stuff on the older computers.

When

asked again whether there would be child pornography on the older computers, the defendant
replied, honestly, Im not sure what is on it. The defendant stated that he used the computers
at a time when one had to actually download the picture before one could view the picture, and
the defendant stated he was worried that something might be on the older computers.
During the interview, the FBI told the defendant that there had been a file on his
computer that agents found doing a preview titled really yng sex. The defendant was asked
whether this meant he was looking at child pornography files and the defendant replied that he
would almost bet it means eighteen years old.

The defendant stated that when he sees that

file title, he thinks of pornography with eighteen year olds and that really young to him is
eighteen years old.
Later that day, after the agents left his residence, the defendant called SA Wilkerson and
apologized for receiving child pornography and not being properly repulsed. The defendant
related again he was honestly not sure what was on the white Compaq computer located in the
bedroom, and he was worried there might be something on there. The defendant volunteered
that he had never, under any circumstances, had sex with someone not of age and that he
should have obviously shown someone the email of child pornography at the office, but that he
never did.
3. Forensic Examination of Defendants Computer Media
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a. The HP Compaq Desktop Computer


A forensic analysis of the Hitachi hard drive in Mainess HP Compaq desktop computer
resulted in the discovery of approximately seventeen images of child pornography.

The child

pornography was discovered in the folder C:\temp1 and two subfolders of that folder.

Of the

seventeen images of child pornography discovered, ten of those images matched images that had
been sent by MesqtManNPanties@aol.com in 2010.

The other seven child pornography images

match images sent by mesquiteman4fun@aol.com to junkiecat@aol.com on December 26, 2008.


In addition to the seventeen images of child pornography, there were approximately twenty-three
thumbnail child pornography images and twenty-five child pornography images in unallocated
space (carved images) on the hard drive that appear to be duplicates of the seventeen child
pornography images.
Forensic analysis of the hard drive also resulted in the discovery of two emails containing
zip files from MesqtManNPanties@aol.com to junkiecat@aol.com on February 25, 2010.

One

of the emails had zip file 486.zip attached, and the other had zip file 2-1.zip attached.
Forensic analysis also showed that on February 25, 2010, the following subfolders were created
by a user of the computer and viewed:

C:\temp1\486 and C:\temp1\2-1.

Six of the seventeen

images were saved in the C:\temp1\2-1 folder and four were saved in C:\temp1\486 folder.
remaining seven images were saved in the parent folder, C:\temp1\.

The

Names of several of the

saved child pornography images had similar names to the images in the zip files sent by
mesqtmannpanties, and the creation dates of these child pornography image files in the folders
matched the email dates.

The forensic examination also revealed that the images contained in

the C:\temp1 parent folder likely originated from the emails sent by mesquiteman4fun@aol.com

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on December 26, 2008.

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The seven images in the parent folder appear to be identical to the

images sent by mesquiteman4fun@aol.com.

Moreover, these images have a creation date of

December 26, 2008.


Forensic analysis of the hard drive also revealed the existence of fourteen emails between
junkiecat@aol.com and mesqtmannpanties@aol.com dated in February 2010, the dates of which
correspond to the dates of the emails between junkiecat and mesqtmannpanties from the
junkiecat@aol.com search warrant return.

Review of these extracted emails showed the

existence of image attachments in some of the original emails, including that of a Ferris wheel.
Forensic analysis also revealed fragments of two deleted emails (without date
information) containing attachments of child pornography images.

These emails and

attachments matched the emails sent by mesquiteman4fun@aol.com to junkiecat@aol.com on


December 26, 2008 that were contained in the AOL search warrant return obtained by Detective
Dugger during the Miller investigation.

More specifically, on December 26, 2008,

Mesquiteman4fun@aol.com sent junkiecat@aol.com an email containing an adult obscene


image and a child pornography image of a 12-14 year-old girl sitting down wearing a t-shirt with
no bottom and with her genitalia exposed.

On that same date, Mesquiteman4fun@aol.com sent

junkiecat@aol.com an email with the following two child pornography images attached: (1) a
6-10 year-old girl holding a penis and appearing to have just performed oral sex with an adult
male; and (2) a naked, minor girl sitting on top of a naked adult male and engaging in sex.
The forensic examination revealed evidence that child pornography images had been
opened and displayed to a user of the computer.

Specifically, the examiner found the existence

of LNK files demonstrating that child pornography files had been accessed:

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C:/Documents and Settings/DubMAINES/Recent/2-1.jpg.lnk


C:/Documents and Settings/DubMAINES/Recent/2-3.jpg.lnk
C:/Documents and Settings/DubMAINES/Recent/3-11.jpg.lnk
C:/Documents and Settings/DubMAINES/Recent/486.jpg.lnk
These LNK files each had a creation date of September 20, 2012, meaning that the files were
opened and displayed on that date.
b. The Maxtor hard drive
The forensic analysis of an older hard drive in the defendants possession resulted in the
discovery of approximately twenty images of child pornography involving the lascivious
exhibition of the genitalia of the child, as well as images of child erotica 1, including images of
the same minors depicted in the child pornography images.

The images were stored in a folder

entitled C:/Temp1, which was created by a user of the computer.


images are from approximately July 2004 to November 2005.

The creation dates for these

The forensic examiner also

found evidence that a user of the computer visited websites related to pre-teens, such as a
website for the book Chicken Soup for the Preteen Soul. Another website showcased young
girls in provocative sexual poses, although these images did not constitute child pornography.
Finally, approximately thirteen obscene written stories were also discovered on this hard
drive in the C:/Temp1 folder.

These stories involved the sexual abuse of both boys and girls

and often involved incest, where all members of the family engaged in sex acts together,
including with the minor children.
B. Procedural History
On December 10, 2014, a grand jury returned a two count indictment charging the
defendant with possession and receipt of child pornography.

On October 21, 2015, a

1 Child erotica refers to materials or items that are sexually arousing to persons having a sexual interest in minors but
that do not necessarily depict minors in sexually explicit poses or positions.

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superseding indictment was filed charging defendant with Attempted Transportation of Child
Pornography, in violation of 18 U.S.C. 2252A(a)(1) and (b)(1) (Count One), Receipt of Child
Pornography, in violation 18 U.S.C. 2252A(a)(2) and (b)(1) (Counts Two and Three), and
Possession of Child Pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2) (Counts
Four and Five).

The charged offenses are alleged to have occurred from on or about December

26, 2008, through on or about September 27, 2013.


The defendant has entered a not guilty plea to these charges and has elected to stand
trial and contest his guilt.

The government must prove that the defendant had knowledge and

intent regarding these child pornography charges and that the defendants conduct was not a
result of a mistake or accident.
II.
NOTICE
A forensic examination of the defendants Maxtor hard drive and HP Compaq computer
(hereinafter the computer media) resulted in the discovery of images of child pornography, child
erotica 2, text stories detailing the sexual molestation of children, and internet history relating to
the sexual interest of children.

Investigation conducted by the case agent resulted in the

discovery of child pornography in the defendants email account and in the email account of an
associate of the defendant, who had sent some of the child pornography.

A number of the child

pornography images discovered on the computer media serve as the basis for the criminal
charges in this case. The other images of uncharged child pornography, child erotica, and text
stories should be admitted into the governments case in chief as inextricably intertwined without

2 Child erotica refers to materials or items that are sexually arousing to persons having a sexual interest in minors but
that do not necessarily depict minors in sexually explicit poses or positions.

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conducting additional analysis. Moreover, internet history evidence showing that the user of
the computer visited certain websites geared towards a sexual interest in children is also
inextricably intertwined.

To the degree that this court finds such evidence not inextricably

intertwined, the government is hereby providing notice of its intent to introduce the following
pieces of evidence under Rules 414 and/or 404(b) of the Federal Rules of Evidence: (1)
uncharged child pornography discovered on the Maxtor hard drive and HP Compaq computer, in
the defendants email account, and in emails sent or attempted to be sent by Jerry Miller 3 to the
defendant; (2) child erotica discovered on the Maxtor hard drive; (3) text stories about child
sexual abuse on the Maxtor hard drive; and (4) internet usage relating to a sexual interest in
minors.

The government has provided the defense with discovery materials relating to this

conduct.

3
Investigation revealed that the various email accounts, all of which belonged to an individual named Jerry
Miller, either successfully transmitted to atempted to transmit emails containing child pornography to the
defendant.

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III.
DISCUSSION
A. The Delineated Evidence is Admissible as Inextricably Intertwined
Evidence of other crimes, wrongs, or acts is admissible where the other crime, wrong, or
act is inextricably tied in with the offense charged.

United States v. Hawley, 516 F.3d 264, 267

(5th Cir. 2008) (holding that [e]vidence that is inextricably intertwined with the evidence used
to prove the crime charged is not extrinsic evidence under Rule 404(b)); United States v.
Baptiste, 264 F.3d 578, 590 (5th Cir. 2001) (holding that [e]vidence of uncharged crimes is not
extrinsic [within the proscription of Rule 404(b)] if it is inextricably intertwined with the
evidence of charged offenses, or if it is necessary to complete the story of the crime), withdrawn
in part, 309 F.3d 274 (5th Cir. 2002); United States v. Morgan, 117 F.3d 849, 861 (5th Cir.
1997) (same) (citing cases); United States v. Carrillo, 561 F.2d 1125, 1127 (5th Cir. 1977)
(affirming the district courts decision to admit evidence of defendants criminal conduct where
that evidence was inextricably tied to the basic elements of the crime charged); United States
v. Blewitt, 538 F.2d 1099, 1100 (5th Cir. 1976) (noting that evidence of the commission of other
crimes closely related in both time and nature to the crime may be admitted to establish . . . the
res gestae[,] the common scheme or history of the crime, of which the other crimes constitute a
part).

This is sometimes referred to as the res gestae exception.

Blewitt, 538 F.2d at 1101.

The Fifth Circuit has recognized this principle and has noted that Rule 404(b) only
applies to limit the admissibility of evidence of extrinsic acts and that [i]ntrinsic evidence . . .
is generally admissible so that the jury may evaluate all the circumstances under which the
defendant acted. United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007) (emphasis added)
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(citing United States v. Manning, 79 F.3d 212, 218 (1st Cir. 1996) and United States v. Royal,
972 F.3d 643, 647 (5th Cir. 1992)).

Because [e]vidence of an uncharged offense arising out of

the same transactions as the offenses charged in the indictment is not extrinsic evidence within
the meaning of Rule 404(b), such intrinsic evidence is admissible without a Rule 404(b)
analysis.

United States v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991); accord Sumlin, 489

F.3d at 689.

Evidence is intrinsic when it is inextricably intertwined with or a necessary

preliminary to the crime charged, or when it is part of a single criminal episode with the
charged act.

United States v. Martinez-Herrera, No. 12-50702, 539 Fed. Appx. 598, 601 (5th

Cir. Sept. 11, 2013) (unpublished) (citing Sumlin, 489 F.3d at 689); see supra Hawley, 516 F.3d
at 267; Baptiste, 264 F.3d at 590, withdrawn in part, 309 F.3d 274 (5th Cir. 2002); Morgan, 117
F.3d at 861.
The Superseding Indictment charges the defendant with one count of attempted
transportation of specific images of child pornography, two counts of receipt, and two counts of
possession.

In addition to the actual images that are specifically charged in the Superseding

Indictment, the government should be permitted to also include, as inextricably intertwined with
the pending charges, (1) uncharged child pornography discovered on the Maxtor hard drive and
HP Compaq computer, in the defendants email account, and in emails sent or attempted to be
sent by Jerry Miller to the defendant; (2) child erotica discovered on the Maxtor hard drive; (3)
text stories about child molestation on the Maxtor hard drive; and (4) internet usage relating to a
sexual interest in minors. Count One alleges that the defendant attempted to transmit certain
child pornography images using his email account, and Counts Two and Three allege that the
defendant received certain child pornography images via his email account.
12

While only certain

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child pornography images are specified in the Superseding Indictment, all images contained in
these email messages should be permitted as inextricably intertwined.

Moreover, any child

pornography images contained in emails which Jerry Miller attempted to send to the defendant
should also be admitted as inextricably intertwined without an additional Rule 404(b) analysis, as
the Governments evidence in its case in chief will show that the defendant received the charged
images from an individual with whom he had a personal relationship, rather than a stranger.
Counts Four and Five allege that the defendant possessed certain child pornography images on
an HP Compaq computer and Maxtor hard drive, respectively.

Any other child pornography

found on these devices should also be admitted under this theory.


Additionally, numerous images of child erotica and sexually explicit stories involving the
sexual abuse of children, as well as evidence of internet usage relating to a sexual interest in
children, were also discovered on the computer media.

The defendants collection of stories

involving the sexual abuse of children, his images of child erotica, and his internet usage relating
to a sexual interest in children confirm that the defendant has a prurient interest in sexual activity
with children.

Moreover, the defendants collections of stories involving the sexual abuse of

children and child erotica were maintained along with the images of child pornography and are
therefore inextricably intertwined with the charged crimes.

Evidence tending to show the

chain of events explaining the context, motive and set-up of the crime, is properly admitted if . . .
[it] forms an integral and natural part of an account of the crime, or is necessary to complete the
story of the crime for the jury.

United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998)

(citing United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)).

Proof of the

defendants prurient sexual interest in children, as evidenced by his collection of stories


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involving the sexual abuse of young children, his collection of child erotica images, and his
internet history, form an integral part of the story of this case and should be admitted as
inextricably intertwined.
B. The Delineated Evidence is Properly Admitted Under FRE 414 as
Evidence of Child Molestation
Federal Rule of Evidence 414 provides in pertinent part:
In a criminal case in which a defendant is accused of child molestation, the court
may admit evidence that the defendant's committed any other of child
molestation. The evidence may be considered on any matter to which it is
relevant.
Fed.R.Evid. 414(a). Child molestation is defined as including any conduct prohibited by 18
U.S.C. chapter 110 or any attempt . . . to engage in [such] conduct. Fed.R.Evid.
414(d)(2)(B) & (F).

Here, the defendant is accused of possession, receipt, and attempted

transportation of child pornography in violation of Section 2252A of Title 18 of the United


States Code, which is contained in Chapter 110.

Thus, the defendant is accused of child

molestation as defined by Rule 414, and any evidence of the defendants possession, receipt,
and/or transportation of child pornography can therefore be admitted.
The Fifth Circuit has recognized the admissibility of uncharged evidence of child
molestation under Rule 414 in cases involving knowing receipt and possession of child
pornography.

In United States v. Moore, the defendant was charged with receipt and

possession of child pornography. No. 10-30039, 425 F. Appx 347, 2011 WL 1834433, at *1
(5th Cir. May 13, 2011) (unpublished opinion). There, the Fifth Circuit affirmed the admission
of evidence that the defendant had touched the clothed buttocks of his stepdaughter, finding that
such evidence met the definition of an offense of child molestation as defined in Rule
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414(d)(2).

Id. at *3.

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The court recognized that [i]n cases involving the molestation of

children, Rule 414 permits the admission of evidence of other acts constituting child molestation
when this evidence has bearing on any matter to which it is relevant.
414(a)).

Id. (citing Fed.R.Evid.

Moreover, to be admissible under Rule 414, the evidence of other acts need not be

similar in every respect, but instead only needs to be probative as to some element of the
charged offense. Id. (citing United States v. Dillon, 532 F.3d 379, 389 (5th Cir. 2008)).
Other Circuits have also held that evidence of this nature is properly admissible under
Rule 414 and Rule 403 in child exploitation cases.

In United States v. Hawpetoss, 478 F.3d 820,

824 (7th Cir. 2007), the Seventh Circuit recognized the congressional intent to protect the public
from child molesters by enacting these rules, upholding the district courts ruling to admit prior
acts of child molestation:
Congress enacted these new rules to protect[ ] the public from rapists and child
molesters. . . . In child molestation cases, for example, a history of similar acts
tends to be exceptionally probative because it shows an unusual disposition of the
defendant . . . that simply does not exist in ordinary people.
Id. at n.7 (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinsteins Federal Evidence 414
App.01(2)(d), at 1820 (Joseph M. McLaughlin ed., 2d ed. 2005) (quoting 140 Cong. Rec. S12990
(daily ed. Sept. 20, 1994) (statement of Sen. Dole)).
Rule 404(b) allows evidence to be admitted on the basis of certain non-character theories
of relevance, 4 Additionally, Rule 414 allows evidence of uncharged offenses to be admitted for
the purpose of establishing propensity.

The legislative sponsors explained:

The new rules will supersede in sex offense cases the restrictive aspects of
4 Rule 404(b) provides that evidence [of a crime, wrong, or other act] may be admissible for the purpose of
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
Fed.R.Evid. 404(b)(2).

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Federal Rule of Evidence 404(b). In contrast to Rule 404(b)'s general


prohibition of evidence of character or propensity, the new rules for sex offense
cases authorize admission and consideration of evidence of an uncharged offense
for its bearing on any matter to which it is relevant. This includes the
defendant's propensity to commit sexual assault or child molestation offenses, and
assessment of the probability or improbability that the defendant has been
falsely or mistakenly accused of such an offense.
140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari) (emphasis added);
140 Cong. Rec. S12990 (daily ed. Sept. 20, 1994) (statement of Sen. Dole); see also David J.
Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.
KENT L. REV. 15, 1821 (1994); see also United States v. Cunningham, 103 F.3d 553, 556 (7th
Cir. 1996) (Rule 414 makes evidence of prior acts of child molestation admissible without regard
to Rule 404(b)); United States v. Castillo, 140 F.3d 874, 879 (10th Cir. 1998) (Rule 414 allows
the prosecution to use evidence of a defendants prior acts for the purpose of demonstrating to
the jury that the defendant had a disposition of character, or propensity, to commit child
molestation, replacing the restrictive Rule 404(b), which prevents parties from proving their
cases through character or propensity evidence).
This court can therefore admit evidence of uncharged images of child pornography under
the definition provided by Rule 414(d)(2)(B), so long as it first conducts a balancing test under
Rule 403.

See United States v. Moore, 425 F. Appx 347, 2011 WL 1834433, at *3 (5th Cir.

May 13, 2011); see also United States v. Guidry, 456 F.3d 493, 503 (5th Cir. 2006) (noting that
[a] district court must apply the Rule 403 balancing test when considering the admission of
evidence under Rule 413, which was enacted alongside Rule 414 and receives similar
treatment).

Here, the defendant is charged with possession, receipt, and attempted

transportation of child pornography.

The government has the burden of proving that the


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defendant knew that these images were of child pornography, which includes any visual
depiction . . . of sexually explicit conduct involving a minor.

18 U.S.C. 2256(8).

number of these images depict the lascivious exhibition of the minors genitals and thus qualify
as child pornography. See id. at 2256(2).

The jury, in its determination of lascivious

exhibition, may consider whether the depiction is intended to elicit a sexual response in the
viewer, including individuals who are sexually attracted to children.

See United States v.

Grimes, 244 F.3d 375, 380 (5th Cir. 2001) (noting that whether the visual depiction is intended
or designed to elicit a sexual response in the viewer is one of six factors that may be considered
in determining whether a visual depiction of a minor constitutes a lascivious exhibition of the
genitals but that no single factor is dispositive); see also United States v. Noel, 581 F.3d 490,
499 (7th Cir. 2009) (adopting the Dost factors); United States v. Kemmerling, 285 F.3d 644, 646
(8th Cir. 2002) (holding that the statute is violated . . . when the image is intended to elicit a
sexual response in the viewer); United States v. Amirault, 173 F.3d 28, 31 (1st Cir. 1999)
(adopting the Dost factors); United States v. Horn, 187 F.3d 781 (8th Cir. 1999) (same); United
States v. Knox, 32 F.3d 733, 74546 (3rd Cir. 1994) (same); United States v. Dost, 636 F. Supp.
828, 832 (S.D. Cal. 1986) (enumerating the six-factor test adopted by many courts of appeals),
affd sub nom United States v. Weigand, 812 F.2d 1239 (9th Cir. 1987);.

In the instant case, the

other acts evidence squarely addresses whether the defendant knew that the charged images were
of child pornography, and is thus clearly relevant and would assist the trier of fact in reaching
such a determination.
C. The Delineated Evidence is Properly Admitted Under FRE 404(b) to Prove
Intent, Knowledge, Identity, Absence of Mistake, and Lack of Accident
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Page 18 of 34 PageID 82

Fed. R. Evid. 404(b) provides:


(1) Evidence of a crime, wrong, or other act is not admissible to prove a
persons character in order to show that on a particular occasion the person acted
in accordance with the character.
(2) This evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.
Fed.R.Evid. 404(b).

It is unnecessary that the extrinsic evidence fit neatly under one of

the exceptions listed in Rule 404(b), as this list is not exhaustive. United States v. Ebron, 683
F.3d 105, 131 (5th Cir. 2012).

Instead, as the Fifth Circuit has explained, to avoid the

strictures of Rule 404(b), all the government need do is suggest a logical hypothesis of the
relevance of the evidence for a purpose other than to demonstrate his propensity to act in a
particular manner.

United States v. Krout, 66 F.3d 1420, 1431 (5th Cir. 1995).

The rule has been described liberally, as a rule of inclusion rather than as a rule of
exclusion.

See United States v. Shaw, 701 F.2d 367, 386 (5th Cir. 1983) (Rule 404 is a rule of

inclusion.); see also United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978) (noting that the
Second Circuit adhere[s] to the inclusionary view of the rule regarding other crimes and
similar acts evidence); United States v. Long, 574 F.2d 761, 766 (3d Cir. 1978) (The draftsmen
of Rule 404(b) intended it to be construed as one of inclusion, and not exclusion.).
In United States v. Beechum, the Fifth Circuit announced a two-step test for the
admissibility of other crimes evidence under Rule 404(b), commonly known as the Beechum
Test. 582 F.2d 898, 911 (5th Cir. 1978) (en banc).

First, the evidence must be relevant to

an issue unrelated to the defendants character or propensity to act in a like manner; second, the
danger of unfair prejudice to the defendant must not substantially outweigh the probative value
18

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of the evidence.

Page 19 of 34 PageID 83

Id; see also United States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th Cir.

1998) (applying the Beechum Test); United States v. Gordon, 780 F.2d 1165, 1173 (5th Cir.
1986) (same).

Further, exclusion of the extrinsic evidence under the second prong of the

Beechum Test is the exception, not the rule. United States v. Caldwell, 586 F.3d 338, 345 (5th
Cir. 2009).
Once it is determined that the extrinsic offense requires the same intent as the charged
offense and that the jury could find that the defendant committed the extrinsic offense, the
evidence satisfies the first step under [R]ule 404(b). Beechum, 582 F.2d at 913.

The court

need not make a preliminary finding, under Federal Rule of Evidence 104(a), that the
Government has proved the [similar] act by a preponderance of the evidence; instead, it need
only decide whether the jury could reasonably conclude that the act occurred and that the
defendant was the actor.

Huddleston v. United States, 485 U.S. 681, 689 (1988).

In addition,

there is no requirement that the Government prove that the defendant was convicted of the prior
or subsequent crime.

United States v. Hunter, 672 F.2d 815, 817 (10th Cir. 1982) (holding that

evidence of previous criminal activity . . . is not objectionable solely because it is unsupported


by a conviction), overruled on other grounds by United States v. Serrano, 406 F.3d 1208 (10th
Cir. 2005).

In fact, evidence involving prior arrests and charges that were later dismissed is

admissible under Rule 404(b). See, e.g., United States v. Black, 595 F.2d 1116, 1117 (5th Cir.
1979) (prior arrest); United States v. Juarez, 561 F.2d 65, 70 (7th Cir. 1977) (dismissed charges).
Although motive is never an element of the offense itself, evidence of motive is often
relevant to show the defendant's state of mind and purpose for committing the crime charged.
If motive can be proved by prior or subsequent crimes, wrongs, or acts, Rule 404(b) permits their
19

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admission into evidence.

Page 20 of 34 PageID 84

Fed.R.Evid. 404(b)(2) (permitting use of evidence of a crime, wrong,

or other act to prove motive); see also United States v. Cook, 592 F.2d 877, 880 (5th Cir. 1979)
(noting that the trial court may properly permit the introduction of evidence as to other activities
by the defendant which are relevant to motive).

The other crimes, wrongs, or acts offered to

prove motive may be totally dissimilar to the acts giving rise to the offense charged.

See United

States v. Free, 574 F.2d 1221, 1223 (5th Cir. 1978) (affirming the trial courts admission of
evidence that defendant coerced fellow prisoners into engaging in homosexual relations with
him, where defendant was on trial for murder and such evidence was probative to his motive and
intent).

The government need not prove that the physical elements of the extrinsic offense are

included in, or similar to, the physical elements of the charged offense.

Beechum, 582 F.2d

898, 91013 (5th Cir. 1978) (holding that [i]t is not necessary that the physical elements of the
charged and extrinsic offenses concur for . . . relevancy [to be] established).
Intent and knowledge, or the lack thereof, are often contested issues in criminal cases,
and as a result, the probative value of evidence of a defendants intent and knowledge often
outweighs any prejudice that evidence may impose.

The Fifth Circuit consider[s] several

factors in determining whether the prejudicial effect of the extrinsic evidence substantially
outweighs its probative value: (1) the governments need for extrinsic evidence, (2) the similarity
between the extrinsic and charged offenses, (3) the amount of time separating the two offenses,
and (4) the courts limiting instructions. United States v. Kinchen, 729 F.3d 466, 473 (5th Cir.
2013).

Where intent and knowledge are contested, extrinsic evidence relevant to intent and

knowledge may become essential to the governments case.

See, e.g., id.

For example, a

defendant may agree that he committed the physical acts which form the basis for the charge, but
20

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Page 21 of 34 PageID 85

assert that he lacked the intent or criminal knowledge necessary to be found guilty.

In such a

case, evidence of other crimes, wrongs, or acts may well be admissible under Rule 404(b) to
prove that the defendant did, in fact, have the requisite intent and knowledge.

See, e.g., United

States v. Smith, __ F.3d __, No. 14-60688, 2015 WL 6444697, at *78 (5th Cir. Oct. 23, 2015)
(citing Rule 404(b) and noting that an uncharged offense is relevant to intent . . . if it requires
the same intent as the charged offense (internal quotation marks omitted)); United States v.
Taglione, 546 F.2d 194, 199 (5th Cir. 1977) (citing Rule 404(b) and noting that evidence of
other offenses is admissible to show criminal intent).

Where intent or knowledge is contested

and the probative value of the other crime, wrong, or act is not substantially outweighed by the
danger of unfair prejudice, the evidence is admissible. See, e.g., United States v. Smith, 2015
WL 6444697, at *9 (allowing evidence of an uncharged bribe to show intent where intent was a
significant and disputed issue at trial, the uncharged and charged offenses were highly similar,
the offenses occurred at the same time, and the court gave proper limiting instructions); United
States v. Wallace, 759 F.3d 486, 494 (5th Cir. 2014) (allowing evidence of prior convictions for
narcotics possession to prove intent where defendants placed their knowledge and intent at issue
and the prior convictions were probative); United States v. Moreno-Nunez, 595 F.2d 1186, 1188
(9th Cir. 1979) (allowing evidence of defendants offer to procure marijuana to prove his
motive, opportunity, intent, preparation, [and] plan in a case charging him possession of heroin
with intent to distribute); United States v. DeFillipo, 590 F.2d 1228, 1240 (2d Cir. 1979)
(allowing evidence of defendants possession of stolen goods as highly probative of their
knowledge and intent when they possessed other stolen goods three months later and
[k]knowledge and intent were very clearly in issue).
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Page 22 of 34 PageID 86

Because evidence of other crimes, wrongs, or acts is admissible to show motive, intent,
identity, knowledge, plan, or design issues which may be material to proving the government's
case-in-chiefthe government is not required to wait for the defendant to put those matters in
issue.

United States v. Juarez, 561 F.2d 65, 73 (7th Cir. 1977) (noting that intent in virtually

all offenses is material, and is therefore a part of the case to be proved in chief; and . . . unless the
precise defence be disclosed in advance, the prosecution may in fairness assume that [i]ntent
may come into issue and affirming the district courts decision to permit the government to
introduce evidence of intent in its case-in-chief (quoting 2 Wigmore, Evidence 307, at 207 (3d
ed. 1940)); United States v. Adcock, 558 F.2d 397, 402 (8th Cir. 1977) (observing that because
intent was an essential element of . . . the crimes charged and the government was duty-bound
in its case-in-chief to establish all of the essential elements of the crimes charged . . [t]he
government need not await the defendants denial of intent before offering evidence of similar
acts relevant to that issue).
In addition, a plea of not guilty, as the defendant has entered, places his knowledge and
intent at issue.

See United States v. Walker, 410 F.3d 754, 759 (5th Cir. 2005) (holding that the

defendant put his intent at issue by pleading not guilty).

Normally, if the defendants state of

mind is not at issue, then extrinsic evidence is not admissible. See United States v. Grimes, 244
F.3d 375, 384 (5th Cir. 2001) (noting that if intent is not at issue, then extrinsic evidence is not
admissible); United States v. Roberts, 619 F.2d 379, 383 (5th Cir. 1980) (holding that evidence
of extrinsic offenses that are probative of a defendants state of mind are not admissible if the
defendant affirmatively take[s] the issue of intent out of the case).

However, the defendant

must affirmatively remove this issue, not just promise to not actively pursue or challenge it.
22

Id.

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Page 23 of 34 PageID 87

Because the defendant has not affirmatively removed his state of mindi.e., his knowledge and
intentas a trial issue, evidence of other similar acts that shed light on his state of mind is
proper and should be admitted under Rule 404(b).

Moreover, admission of these other acts also

go to motive, lack of mistake


1. Defendants Uncharged Child Pornography Found on the
Computer Media and in Emails
There is evidence that the defendant possessed other, uncharged child pornography
images on his computer media.

There is also evidence that the defendant received other child

pornography images in the emails containing the images charged in the attempted transportation
and receipt counts.

All this evidence is probative because this it proves the defendants

knowledge and intent and shows that he did not commit the charged criminal conduct by mistake
or accident. See, e.g., United States v. Layne, 43 F.3d 127, 134 (5th Cir. 1995) (agreeing that
uncharged images depicting child pornography and simulated child pornography were
relevant to showing that [the defendant] had a knowing interest in the child pornography);
United States v. Rubio, 834 F.2d 442, 451 (5th Cir. 1987) (holding that evidence of prior seizures
of child pornography was relevant to the proving the defendants intent to receive such
materials); see also United States v. Angle, 234 F.3d 326, 343-44 (7th Cir. 2000) (holding that
evidence of uncharged child pornography was admissible to establish that the defendant acted
knowingly and without mistake in possessing . . . child pornography).
Additionally, the law requires that to be convicted under 18 U.S.C. 2252(a) for
knowing receipt and possession of child pornography, a defendant must know that the images
depict actual minors engaged in sexually explicit conduct. United States v. McNealy, 625 F.3d
23

Case 3:14-cr-00489-K Document 28 Filed 10/29/15

858, 870 (5th Cir. 2010) (emphasis added).

Page 24 of 34 PageID 88

The relevant scienter requirement goes both to the

receipt and possession of the material, and to the nature of the image. Id.

While the

defendant has admitted knowingly possessing the child pornography, to the degree that he argues
that he was just passively and innocently receiving these images and that he is a victim of Jerry,
his possession of uncharged child pornography for almost ten years would assist the jury in
reaching a determination of knowledge and intent.
Moreover, the extrinsic evidence is probative of the defendants intent to distribute and
transport child pornography. See, e.g., United States v. Kinchen, 729 F.3d at 472 (allowing
extrinsic evidence of defendants prior cocaine possessions as relevant to his motive in
distributing cocaine).

In sum, assuming the jury finds the defendant to have possessed the

uncharged images, evidence of this extrinsic conduct is relevant to an issue other than bad
character or propensity because it lessens the likelihood that the defendant acted with an innocent
state of mind.

See Beechum, 582 F.2d at 913.

The government, therefore, submits that evidence of the existence of uncharged child
pornography on the defendants computer media and in his emails is relevant toward establishing
that his actions were not accidental or inadvertent and that his offenses were committed with the
requisite states of mindknowledge and intentrequired for conviction.

Hence, this evidence

is clearly relevant to an issue other than the defendants character or propensity, and it is not
unduly prejudicial.

Under the factors articulated by Kinchen, supra, evidence of knowledge is a

high burden to bear, the uncharged child pornography is very similar in nature to the charged
offenses, the uncharged child pornography are close in time to the charged images, and the court
can issue a limiting instruction as to the purpose and use of the extrinsic evidence.
24

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Page 25 of 34 PageID 89

Accordingly, the admission of this evidence is appropriate under Rule 404(b).


2. Defendants Child Erotica and Internet Activity
The forensic examination of the computer media resulted in the discovery of a number of
child erotica images, as well as evidence of internet activity indicating a sexual interest in children,
such as visitation of Lolita websites, among others. That some of the images may not be
considered child pornography under the law, nor considered pornographic when viewed in
isolation, is immaterial. These images, as well as the internet history activity showing visitation
of certain websites evincing a sexual interest of young children, have been admitted to show
knowledge, intent, motive, absence of mistake, and lack of accident.
The Fifth Circuit has previously admitted child erotica evidence and other extrinsic
evidence of a sexual interest in children in cases involving child pornography charges. In United
States v. Layne, the district court admitted two magazines containing uncharged images under
Rule 404(b): a magazine depicting an adult woman dressed up as a child, which the court called
simulated child pornography, and a magazine containing depictions of minor children engaged
in sexual conduct. 43 F.3d 127, 13334 (5th Cir. 1995). The Fifth Circuit found no error in the
district courts admission of this evidence, agreeing with the district courts conclusions that the
evidence was more probative than prejudicial and that the evidence was relevant to proving the
defendants knowledge of child pornography, as required under 18 U.S.C. 2252. Similarly, in
United States v. Goff, the Fifth Circuit affirmed the district courts admission, under Rule 404(b),
of evidence that the defendant had possessed a copy of a magazine called Barely Legal and that
he had previously stated that a 12-year-old girl who was sleeping on the family sofa turned him
on. No. 05-50230, 155 F. Appx 773, 776 (5th Cir. Nov. 23, 2005) (unpublished opinion).
25

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Page 26 of 34 PageID 90

The court found that the defendants possession of the Barely Legal magazine was relevant to
showing that [the defendant] had a knowing interest in child pornography. Id. (internal
quotation marks omitted); see also Kamal v. United States, Nos. 3:12-4348, 3-10-CR0159, 2014
WL 128860, slip op. at *4 (N.D. Tex. Jan. 14, 2014) (noting that the trial court admitted
pornographic images entitled sexy teen and chat logs between defendant and an unknown
alleged minor to show defendants intent and state of mind in a case involving attempted
enticement).
These decisions are consistent with those of other Circuits, which have also admitted
similar evidence under Rule 404(b) in child pornography cases to show intent, knowledge,
identity, absence of mistake, or lack of accident. See, e.g. United States v. Vosburgh, 602 F.3d
512, 538 (3rd Cir. 2010) (finding no abuse of discretion, in a possession of child pornography case,
where the district court admitted evidence of child erotica images after concluding that the images
were probative of defendants sexual interest in children, went to knowledge and lack of accident,
and outweighed any undue prejudice under Rule 403); United States v. Angle, 234 F.3d 326, 343
(7th Cir. 2000) (finding that evidence of uncharged child pornography was admissible to establish
the defendant acted knowingly and without mistake in possessing child pornography); United
States v. Caldwell, 1999 WL 238655, at *7 (6th Cir. Apr. 13, 1999) (unpublished opinion) (finding
that the district court properly admitted assorted items of child erotica because the items were
literally intermingled with child pornography and were relevant to lack of knowledge defense);
United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988) (finding that the district court did
not abuse its discretion in admitting, among other things, drawings of nude children, as they made
defendants claim of mistake less probable and were not unduly prejudicial); United States v.
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Page 27 of 34 PageID 91

Riccardi, 258 F. Supp. 2d 1212, 1234 (D. Kan. 2003), affd 405 F.3d 852 (10th Cir. 2005)
(concluding that photographs of minors in non-sexually explicit poses were admissible and went to
the defendants knowledge that child pornography was kept in the home); United States v. Presley,
No. CR 07-5058BHS, 2008 WL 189565, at *2 (W.D. Wash. Jan. 16, 2008) (permitting evidence of
child erotica to show defendants attraction to children and, thus, permissible motive under Rule
404(b)); United States v. Wellman, No. 1:08-cr-00043, 2009 WL 192560, at *2 (S.D. W. Va. Jan.
23, 2009) (admitting handwritten notes of internet search terms, news groups, and addresses for
website where child pornography could allegedly be obtained under as probative of defendants
intent, knowledge, and lack of mistake under Rule 404(b)).
Moreover, under a Rule 403 balancing test, because knowledge is a key issue in this
prosecution, this evidence should be admitted as more probative than prejudicial. [T]he
governments need for the extrinsic evidence is a key factor in a Rule 403 analysis. Kinchen,
729 F.3d at 473. Applying the Kinchen standard then, the child erotica and internet activity is
extremely probative of defendants intent and knowledge, and absence of mistake, and is very
necessary for the governments case.

The child erotica images are very similar in nature to the

charged child pornography found on the Maxtor hard drive, and were created during a similar
time period as the child pornography images on the Maxtor hard drive.

The relevant internet

history activity as well were discovered on the Maxtor hard drive around the same time period.
The images found on these websites while not child pornography were similar in nature to the
child erotica and also show defendants sexual interest in children.

Finally, the court can

provide appropriate limiting instructions.


3. Defendants Text Stories About Child Sexual Abuse
27

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Page 28 of 34 PageID 92

More than a dozen text stories discussing sexual abuse of children by their parents and
other adults were discovered on the Maxtor hard drive.

These stories should be admitted to

show knowledge, intent, motive, absence of mistake, and lack of accident regarding the
defendants possession, receipt, and attempted transportation of child pornography.

The Fifth

Circuit addressed this very issue in United States v. Grimes, where it found that text stories
detailing child sexual abuse and molestation were highly relevant and probative as to the
defendants knowledge and therefore met the first prong of the Beechum Test.
384 (5th Cir. 2001).

244 F.3d 375,

However, the court concluded, in conducting its Rule 403 balancing test,

that the stories at issue in that case were exceedingly prejudicial because they involved torture
and extreme violence 5 and were thus of a different sexual nature than the charged images.
at 38485.

Id.

The Fifth Circuits remedy on remand, however was not exclusion, but a redaction

of the violent aspects of these stories.

Id. at 385.

In remanding the matter, the Fifth Circuit

implied that the stories would be admissible under Rule 404(b) so long as they were redacted as
not to be unfairly prejudicial. See id. (declining to decide whether it is ever appropriate to
introduce such evidence and suggesting that the balance between relevance and prejudice
[could] tilt in the other direction under different circumstances).

The stories in the instant case

detail the sexual abuse of children by adults and, in particular, parents, butin contrast to the
torture stories described in Grimesthey portray the abuse as being of a consensual nature.
Therefore, the Rule 403 concern espoused in Grimes does not exist in the instant case.

Notably,

the court in Grimes distinguished the stories as being of a different sexual nature from the

5 The Fifth Circuit noted in Grimes that the admitted narratives were graphic and violent with young girls in chains,
a young girl in handcuffs, and references to blood. Grimes, 244 F.3d at 385.

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Page 29 of 34 PageID 93

[charged] photographs, because the uncharged stories depicted violence and the charged
photographs did not. Id.

In this case, by contrast, the extrinsic images are no more violent or

disturbing than the charged images, several of which are graphic and involve young girls
between the ages of four and seven years engaging in fellatio of an adult male and female babies
and/or toddlers being vaginally or anally penetrated by an adult male penis.
Courts in other jurisdictions have admitted similar stories in cases involving child
pornography charges under Rule 404(b). See United States v. Shaffer, 472 F.3d 1219, 122526
(10th Cir. 2007) (finding that a pornographic story was relevant to showing the defendants
mental state and absence of mistake, since the defendants trial strategy was to claim he did not
knowingly possess or distribute child pornography); United States v. Curtin, 489 F.3d 935, 950
(9th Cir. 2007) (holding that because the defendant argued he lacked intent, his stories were
probative both to prove intent and to demonstrate that his defense was not credible); United
States v. Phipps, 523 F. Appx 498, 500, 2013 WL 1767745, at *1 (9th Cir. Apr. 25, 2013)
(unpublished opinion) (holding that admission of three pornographic stories found on the
defendants computer and thumb drive to show knowledge was not unduly prejudicial under
Rule 403 because the stories were presented to the jury in a limited fashion, were not discussed
at length in testimony or argument, and were the subject of a limiting instruction from the district
court); United States v. Flocker, 504 F. Appx 637, 639, 2013 WL 223177, at *1 (9th Cir. Jan.
17, 2013) (holding that the district court did not abuse its discretion in admitting in four explicit
stories as evidence of knowledge because the stories were partially redacted and the court gave
specific limiting instruction at both the time of their introduction and at the close of evidence);
United States v. Miller, No. 09-CR-30136, 2011 WL 166717, *2 (S.D. Ill. Jan. 19, 2011)
29

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Page 30 of 34 PageID 94

(holding that the defendants possession of stories describing sexually explicit acts with minors
was relevant to prove knowledge because he tried to blame his children for the existence of the
stories).
Again, applying the Kinchen analysis, these sexual stories about the abuse of children is
extremely probative to defendants knowledge and intent relating to the child pornography
charges, involves the sexual abuse of children which child pornography charges necessarily
involves, was found on the same Maxtor hard drive as some of the charged child pornography
images and child erotica, and can be subject to a limiting instruction. Should the Court have
any concern regarding the text stories at issue in the instant case, the Government can submit
these stories to the court for review and perform any necessary redactions prior to trial.
Rule 403 sets a high standard for exclusion; evidence is excluded only if the trial judge
believes there is a genuine risk that the emotions of the jury will be excited to irrational behavior,
and that this risk is disproportionate to the probative value of the offered evidence. United
States v. Guerra, 402 F. Appx 973, 976, 2010 WL 4872250, at *2s (5th Cir. Dec. 1, 2010).
The admission of the preceding Rule 404(b) evidence is extremely probative, and not
unfairly prejudicial to the defendant, and the Court can alleviate any potential prejudice with a
limiting instruction given immediately after the evidence is introduced.

See Fifth Circuit

Pattern Jury Instructions (Criminal Cases), No. 1.30 (Similar Acts).; see also Kinchen, 729 F.3d
at 473 (holding that limiting instructions are a relevant factor in a Rule 403 analysis); United
States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000) ([E]vidence of a defendants prior
conviction for a similar crime is more probative than prejudicial and . . .any prejudicial effect
may be minimized by a proper jury instruction.).
30

Jurors are presumed to follow their

Case 3:14-cr-00489-K Document 28 Filed 10/29/15

Page 31 of 34 PageID 95

instructions, and there is no reason to assume that they [will] not do so in this instance.
v. Johnson, 75 F.3d 1017, 1036 n.29 (5th Cir. 1996) (internal citation omitted).

Woods

There is an

almost invariable assumption of law that jurors follow their instructions. Richardson v.
Marsh, 481 U.S. 200, 206 (1987).
In United States v. Tanguay, a possession of child pornography case, the district court
permitted evidence of (1) graphic stories describing sexual encounters between male adults and
male children, (2) child erotica, (3) pornographic photographs of an 18 year old, and (4)
bookmarks to websites with names . . . suggest[ing] sexually explicit material featuring male
children, under Rule 404(b). 982 F. Supp. 2d 119, 120 (D. N.H. 2013). The court noted that in
possession offenses:
the central issue is often whether the defendant was in knowing possession. The
knowledge element is difficult to prove, and defendants commonly claim that they
were merely . . . unwitting participants. Where the evidence is susceptible to the
explanation that the acts alleged to constitute the crime were innocently performed
and the crucial issues of intent and knowledge are keenly disputed, . . . it is within
the judges discretion to permit the government to introduce evidence of . . . similar
offenses to demonstrate the unlikeliness that the defendant was merely an innocent
and unknowing bystander.
Id. at 122 (quoting United States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir. 1995)). Here,
the defendant has entered a not guilty plea and has elected to proceed to trial. The government
anticipates that the defendant will argue that he was just an innocent and unknowing bystander to
Jerrys emails containing child pornography. The other child pornography, child erotica, sexual
stories of the abuse of children, and internet usage of websites denoting a sexual interest in
children are critical to show that the defendant knowingly engaged in the possession, receipt, and
attempted transportation of child pornography. The Tanguay court recognized this and found
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Page 32 of 34 PageID 96

such evidence to be extremely probative, noting that a persons possession of uncharged materials
in conjunction with his knowing possession of charged child pornography makes it seem
unlikely that the same person could be [repeatedly] victimized by the placement of such materials
on his computer without his knowledge. Id. at 122 (quoting Aguilar-Aranceta, 58 F.3d at 799;
22 Charles A. Wright & Kenneth A. Graham, Jr., Federal Practice & Procedure 5245 (1978)).
Finally, the court noted that a number of courts have upheld the admission of evidence that a
defendant facing charges of possessing child pornography also possessed pornographic stories
about children, reasoning that it shows the defendants knowledge that the images he possessed
contained pornography featuring children, and [are] thus admissible under Rule 404(b). Id. at
23 (quoting Phipps, 523 F. Appx at 500) (citations omitted).

[remainder of page left intentionally blank]

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For the above reasons, this court should admit the proposed evidence as inextricably
intertwined, admissible under Federal Rules of Evidence 414 and/or Rule 404(b).
Finally, the government reserves the right to make further disclosures at a later date, in
the event that additional, relevant misconduct on the part of the defendant is discovered.

Respectfully submitted,
JOHN R. PARKER
UNITED STATES ATTORNEY
s/ Camille E. Sparks
CAMILLE E. SPARKS
Assistant United States Attorney
Texas State Bar No. 00790878
1100 Commerce Street, Third Floor
Dallas, Texas 75242
Telephone: 214.659.8794
Facsimile: 214.767.4100
Email: camille.sparks@usdoj.gov
s/ Mi Yung C. Park
MI YUNG CLAIRE PARK
Trial Attorney
California State Bar No. 202379
U.S. Department of Justice - Criminal Division
Child Exploitation & Obscenity Section
1400 New York Ave., N.W. - Suite 600
Washington, D.C. 20005
Office: (202) 616-2780
Fax: (202) 514-1793
Email: miyung.park@usdoj.gov

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Case 3:14-cr-00489-K Document 28 Filed 10/29/15

Page 34 of 34 PageID 98

CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2015, I electronically filed the foregoing document
with the Clerk of Court for the United States District Court, Northern District of Texas, using the
electronic case filing system of the Court. The electronic case filing system sent a ANotice of
Electronic Filing@ to the following attorney(s) of record who have consented in writing to accept
this Notice as service of this document by electronic means: Warren St. John
s/ Camille E. Sparks
CAMILLE E. SPARKS
Assistant United States Attorney

34