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United States v. Wolfe

United States District Court, W.D. Kentucky, Bowling Green Division

January 2, 2020

UNITED STATES OF AMERICA PLAINTIFF
v.
JAMES S. WOLFE DEFENDANT

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, UNITED STATES DISTRICT CHIEF JUDGE

         This 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 DENIED.

         I. BACKGROUND

         A. Statement of Facts

         In 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).

         B. Procedural History

         On 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).

         II. DISCUSSION

         Wolfe 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).[1] (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).

         A. Wolfe's Prior Conviction: Federal Rules of Evidence 404 and 414

         The 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).

         Fed R. 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).

         The 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.

         Even 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 ...


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