United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. STIVERS, UNITED STATES DISTRICT CHIEF JUDGE
matter is before the Court on Defendant's Motion In
Limine (DN 27). This matter is now ripe for
adjudication. For the reasons that follow, the motion is
Statement of Facts
2011, Defendant James Wolfe (“Wolfe”) was
convicted in the United States District Court for the
Northern District of West Virginia, 1:10-CR-00002-IMK-1, for
possession of child pornography. (Def.'s Mot. In
Limine 1-2, DN 27; Pl.'s Resp. Def.'s Mot.
In Limine 2, DN 29). He was sentenced to 87 months
imprisonment followed by 10 years of supervised release.
(Def.'s Mot. In Limine 2). He was released from
prison in November 2017, and he thereafter moved to Kentucky
while under supervision. (Def.'s Mot. In Limine
2). As a condition of his supervised release, Wolfe was
allowed to own a computer that was installed with monitoring
software through Remotecom, a company that monitored
Wolfe's computer activity on behalf of the U.S. Probation
Office. (Def.'s Mot. In Limine 2; Pl.'s
Resp. Def.'s Mot. In Limine 3). In 2018, this
monitoring software allegedly detected prohibited activities
that gave rise to the present case. (Def.'s Mot. In
Limine 2). Wolfe's computer was then seized by his
probation officer, the search of which revealed what the
United States has classified as “search terms
indicative of child sexual exploitation as well as shadow
copies of images depicting the sexual exploitation of
children.” (Pl.'s Resp. Def.'s Mot. In
Limine 4). As a result, Judge Joseph H. McKinley, Jr.
revoked Wolfe's supervised release in the Western
District of Kentucky, 3:18-CR-00069-JHM. (Pl.'s Resp.
Def.'s Mot. In Limine 4).
April 17, 2019, Wolfe was indicted for accessing with the
intent to view child pornography and possession of child
pornography in violation of 18 U.S.C. §§
2252A(a)(5)(B) and 2252A(b)(2). (Indictment 1-2, DN 1). On
July 2, 2019, a Superseding Indictment charged Wolfe with
attempted receipt of child pornography and accessing with the
intent to view child pornography in violation of,
respectively, 18 U.S.C. §§ 2252A(a)(2)(B),
2252A(b)(1) and 18 U.S.C. §§ 2252A(a)(5)(B) and
2252A(b)(2). (Superseding Indictment 1-2, DN 13). On December
13, 2019, Wolfe moved in limine to exclude evidence
relating to his previous crimes, specifically “his
federal conviction out of the state of West Virginia, the
revocation of his supervised relief by the District Court for
the Western District of Kentucky and the fact that his
personal computer was being monitored by the United States
Probation Office as a condition of the supervised
release.” (Def.'s Mot. In Limine 1). The
United States responded in opposition. (Pl.'s Resp.
Def.'s Mot. In Limine). The matter is currently
set for a jury trial beginning on January 14, 2020. (Orders,
DN 24, 28).
argues that evidence and testimony relating to (1) his
previous conviction for possession of child pornography, (2)
the revocation of his supervised release, and (3) the
monitoring of his computer activity by the probation office
should all be excluded under Fed.R.Evid. 403 and
404(b). (Def.'s Mot. In Limine 2-3).
The United States argues that Wolfe's prior conviction
should be admitted under Fed.R.Evid. 414 and information
regarding the terms of his supervised release should be
admitted as res gestae evidence. (Pl.'s Resp.
Def.'s Mot. In Limine, 4, 12).
Wolfe's Prior Conviction: Federal Rules of Evidence 404
lodestar guiding the rules of evidence is that all
“[r]elevant evidence is admissible.” Fed.R.Evid.
402. Relevance is then broadly defined to include any
evidence if “(a) it has any tendency to make a fact
more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the
action.” Fed.R.Evid. 401. There are, of course, many
exceptions to this broad determination regarding what
evidence is admissible. One such exception is Fed.R.Evid.
404(b)(1)'s prohibition on using prior bad acts for
propensity reasoning purposes; it provides: “Evidence
of a crime, wrong, or other act is not admissible to prove a
person's character in order to show that on a particular
occasion the person acted in accordance with the
character.” Past bad act evidence may be used for
another appropriate purpose, however, such as to prove
“motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.” Fed.R.Evid. 404(b)(2).
Evid. 414 provides one exception to Rule 404(b)'s ban on
propensity evidence. United States v. Seymour, 468
F.3d 378, 384-85 (6th Cir. 2006). Rule 414(a) states:
“In a criminal case in which a defendant is accused of
child molestation, the court may admit evidence that the
defendant committed any other child molestation. The evidence
may be considered on any matter to which it is
relevant.” “Child molestation” is then
broadly defined to include crimes prohibited under certain
state and federal laws, relevant here “any conduct
prohibited by 18 U.S.C. chapter 110.” Fed.R.Evid.
414(d)(2)(B). “Rule 414(a) reflects congressional
recognition that prior acts of sexual misconduct involving
children, including possession of child pornography, are
probative to show an offender's propensity for committing
a similar charged offense.” United States v.
Trepanier, 576 Fed.Appx. 531, 534 (6th Cir. 2014)
(citing Seymour, 468 F.3d at 385).
government argues that Wolfe's prior conviction for
possession of child pornography is admissible under the clear
language of Rule 414. (Pl.'s Resp. Def.'s Mot. In
Limine 4). Wolfe has not contested that this previous
act occurred, so it passes muster under the standard as forth
in Huddleston v. United States, 485 U.S. 681, 690
(1988). Then, to apply Rule 414 to the present criminal case,
both the previous act and the current charge must be for
“child molestation” as defined in Rule 414(d).
First, Rule 414 clearly applies to Wolfe's current case
because he is facing criminal charges for attempted receipt
of child pornography and accessing with the intent to view
child pornography in violation of, respectively, 18 U.S.C.
§§ 2252A(a)(2)(B), 2252A(b)(1) and 18 U.S.C.
§§ 2252A(a)(5)(B) and 2252A(b)(2). (Superseding
Indictment 1-2). These charges fall within the meaning of
“child molestation” under Rule 414(d)(2) because
18 U.S.C. §2252A is a crime contained within 18 U.S.C.
chapter 110. Second, Wolfe's previous conviction for
possession of child pornography under 18 U.S.C. §
2252A(a)(5)(B) similarly involved “child
molestation” because it is also a crime within 18
U.S.C. chapter 10.
so, some courts have held that Rule 414 merely creates
“a presumption-but not ‘a blank
check'-favoring the admission of propensity evidence at
both civil and criminal trials involving charges of sexual
misconduct. United States v. Sioux,362 F.3d 1241,
1244 (9th Cir. 2004). As such, the United States must still
show that the prior bad acts are relevant to the case at
hand. United States v. Labona, No. 5:14-CR-114-KKC,
2015 WL 5461662, at *2 (E.D. Ky. Sept. 16, 2015), aff'd,
689 Fed.Appx. 835 (6th Cir. 2017). The United States argues
that Wolfe's past conviction is relevant to show his
“motive, knowledge, intent, preparation, plan, and
absence of mistake or lack of accident regarding the
attempted receipt of, and accessing with the intent to view
child pornography.” (Pl.'s Resp. Def.'s Mot.
In Limine, 6). In other words, the United States
contends Wolfe's past conviction for possession of child
pornography will demonstrate his sexual interest in children
and that he therefore knowingly committed the now accused
acts. (Pl.'s Resp. Def.'s Mot. In Limine,
6). Wolfe's state of mind is certainly of consequence in
the present action, and his former conviction for possession
of child pornography ...