United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION IN LIMINE
L. LUDINGTON United States District Judge
December 19, 2012 law enforcement officers executed a search
warrant at 3791 Riata Drive after law enforcement agents
determined that the holder of an IP address for a computer
located at that address was regularly downloading and sharing
files depicting child pornography using a peer-to-peer
software known as FrostWire. Residing at 3791 Riata Drive
were Defendant's parents, Defendant, Defendant's
girlfriend, and his girlfriend's two-year old daughter.
the search Lafond stated that he used FrostWire to obtain
pornography, but that he did not specifically look for child
pornography. According to the Government, Lafond also
admitted that he had downloaded movies that included child
pornography, but that he would stop watching and delete the
videos when he noticed underage children engaged in sexual
acts. The Government contends that search terms used by the
computer operator were intended to, and did locate child
pornography. For example, a forensic analysis of the computer
uncovered Google searches for “young girls, ”
“young girls fuck, ” “young girls on girls,
” and “young pussy.” Videos shared via
FrostWire from the computer allegedly included files entitled
“pedo- Vicky 6 - pedofilia 13 anos(2).mpg, ”
“elenahotel.com child cbaby True Pedo - Lada at 07yo-
Cute little girl sucks dads dick - her ass 9yr laura suck
((hussyfan)) (Pthc) 6Yo RCa (Marissa).mpg, ” and
(Pthg)9Yo Izabel - Anal (with sound).mpg.” The
Government also determined that somebody had used a computer
cleanup program called Advanced SystemCare v5 to delete
search term history.
December 9, 2015, an indictment was issued charging Defendant
Tracy Leigh LaFond with the following three counts: (1)
Distribution of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2) and (b)(1); (2) Receiving child
pornography in violation of 18 U.S.C. § 2252A(a)(2) and
(b)(1); and (3) Possession of child pornography involving a
prepubescent minor or a minor who had not attained 12 years
of age in violation of 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2). ECF No. 1.
Lafond is scheduled to proceed to a jury trial on February
14, 2016. On November 10, 2016 the Government filed a notice
of its intent to offer evidence that in approximately October
of 2011 Defendant Lafond molested a ten year old child, H.D.,
by inserting his hand in H.D.'s underwear and rubbing
H.D.'s genitalia. See ECF No. 32. Defendant
argues that the evidence is admissible under Federal Rule of
Evidence 414. On December 30, 2016 Defendant Lafond filed a
motion to exclude the proposed evidence, arguing that it does
not fall within the meaning of Rule 414, and is unfairly
prejudicial under Rule 403. See ECF No. 50.
Defendant's motion will be denied.
order to prevail at trial, the Government will be required to
show that Defendant Lafond knowingly received, possessed, and
distributed child pornography, and that he knew that the
images and videos depicted minors in a sexually explicit way.
See United States v. X-Citement Video, Inc., 513
U.S. 64, 78 (1994); United States v. Brown, 25 F.3d
307, 309 (6th Cir. 1994). Under the Federal Rules of
Evidence, “[e]vidence 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.” See Fed. R.
Evid. 404(b)(1). In other words, evidence tending to show
that a defendant has a propensity to act a certain way is
inadmissible for demonstrating that the defendant acted in
such a way on the occasion in question. Through Federal Rules
of Evidence 413 and 414 Congress has created two major
exceptions to this general prohibition for criminal matters.
to this case is Rule 414, providing that, “[i]n 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.” Id.
“Child molestation” is defined to include any
conduct prohibited by 18 U.S.C. chapters 109A and 110.
See Fed. R. Evid. 414(d)(2). Evidence that falls
within the ambit of Rule 413 is only admissible if it is
found to be relevant under Rule 402. See Fed. R.
Evid. 414 (a) (“[t]he evidence may be considered on any
matter to which it is relevant.”).
first argues that Rule 414 is inapplicable. He acknowledges
that the Sixth Circuit has found propensity evidence
admissible in cases that involve charges of production of
child pornography. See, e.g. United States v.
Sanchez, 440 F. App'x 436 (6th Cir. 2011).
Defendant argues (without citation) that Rule 414 is
inapplicable to his case because he is not charged with
production, but only with distribution, receipt, and
possession of child pornography. The argument is without
merit. It is undisputed that the crimes with which Defendant
Lafond is charged fall within 18 U.S.C. Chapter 110.
See Rule 414(d)(2). Moreover, in an unpublished
case, the Sixth Circuit has found Rule 413 applicable to
cases involving distribution, receipt, and possession of
child pornography. See United States v. Hough, 385
F. App'x 535, 536 (6th Cir. 2010) (finding evidence of a
defendant's prior sexual assaults of girls under the age
of fourteen admissible under Rule 414 where the defendant was
charged with attempting to receive and knowingly possessing
child pornography, but inadmissible under Rule 403 as
contention that prosecution was never pursued regarding the
incident with H.D. is somewhat misleading, considering that
the Midland Prosecutor's office did not prosecute the
criminal sexual conduct while the federal prosecutors pursued
the pornography charges, and also attempted to work out a
global plea agreement with Defendant resolving both the child
pornography charges and the criminal sexual assault charge.
Moreover, nothing in Rule 414 requires that a defendant be
charged with a crime in order for propensity evidence to be
admissible and relevant under the rule, and Defendant has not
cited any case establishing such a requirement.
that is otherwise admissible under Rule 414 is nevertheless
subject to the Rule 403 balancing test. United States v.
Seymour, 468 F.3d 378, 385-86 (6th Cir. 2006) (citing
United States v. LeMay, 260 F.3d 1018, 1027 (9th
Cir. 2001)). “A court considering the admissibility of
Rule 414 evidence must first determine whether the evidence
has probative value, recognizing ‘the strong
legislative judgment that evidence of prior sexual offenses
should ordinarily be admissible.' ” United
States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001)
(quoting United States v. LeCompte, 131 F.3d 767,
769 (8th Cir. 1997)). As explained by the Sixth Circuit,
prior molestations create the logical ...