The U.S. Sixth Circuit Court of Appeals addressed an issue related to an order excluding evidence of possession of child pornography from an attempted-production of child pornography trial.
U.S. v. Sims—released February 28, 2013
The defendant was slated to go to trial on federal possession of child pornography charges (18 U.S.C.§ 2252(a)(4)(B) and (b)(2)) and attempt to produce child pornography charges (18 U.S.C. § 2251(a) and (e)). However, prior to trial, the defendant entered a guilty plea for possession. The district court then ordered the possession evidence barred from the attempted-production trial. The defendant’s statements were ruled inadmissible as more prejudicial than probative. The pornographic images were excluded as not relevant to the attempted-production charges. After the government filed notice of appeal, the district court offered a written opinion stating the images were relevant but discounted the evidence’s probative value; and therefore, concluded all should be excluded. In response, the government brought an interlocutory appeal.
The Court of Appeals reviewed the decision for abuse of discretion. The district court’s reasoning for exclusion of the evidence without distinguishing between the types was based upon the elements of the offense that must be proven for conviction to result. First, that the defendant intended to create child pornography by filming an unclothed girl through her bedroom window; and next, the defendant took a substantial step toward the creation of the child pornography. The court reasoned that only the second part would be disputed at trial, and the defense would be that the videos do not feature a “lascivious depiction of the victim’s pubic area” as required by statute. Furthermore, the court thought the case outcome would hinge on whether the defendant did an overt act that was a substantial step toward production of images of a child engaged in sexually explicit conduct. Finally, the court felt the excluded images bore relevance only to the defendant’s intent which ultimately would not be important at trial.
Yet, the Court of Appeals disagreed with both the district court’s reasoning and conclusion regarding the evidence. The Court stated that the government does not need to prove the images were actually lascivious. Additionally, the Court determined that the district court thought the substantial step toward production element required a greater showing than it does, leading to the conclusion that this would be a vital issue at trial.
Moreover, the pivotal issue in this case is intent which must be proven beyond a reasonable doubt. The government needs to prove that the defendant intended to acquire a lascivious image when he stood outside that bedroom window with a video camera. The Court found the district court erred in undervaluing the probative value of the intent evidence.
The Court largely agreed with the district court that the excluded evidence would be highly prejudicial to the defendant. As one might expect, some of the images were highly offensive; portraying shockingly unacceptable behavior between adults and children. Such evidence contains inflammatory details that would have little probative value of the defendant’s intent. However, the Court felt that evidence that lacked inflammatory detail and simply showed the defendant consumed child pornography might not be unfairly prejudicial. This evidence might instead show mainly that the defendant hoped to obtain a lascivious image when he was filming through the window. The Court stated that the probative value of the evidence was not the same for all of the evidence in question; and the same is true regarding the unfairly prejudicial effect of the evidence as well.
The Court vacated the district court’s decision to exclude all of the evidence related to possession of pornography. The case was then remanded so the lower court could make a more individualized determination as to whether to admit or exclude the evidence.
Federal child pornography charges are some of the most difficult case to defend. If you are facing a federal prosecution, the experienced attorneys at The Kronzek Firm PLC, are available to help you.