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United States v. Johnson

United States District Court, D. Idaho

October 8, 2019





         Pending before the Court is the Government's Motion to Admit Prior Bad Acts Under Rule 404(b) and Prior Molestation Under Rule 414 (Dkt. 45)[1] and Defendant's Motion in Limine (Dkt. 46) seeking to exclude the same evidence.

         Having reviewed the record and briefs, the Court finds the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court find that the decisional process would not be significantly aided by oral argument, the Court will decide the Motions without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii).

         For the reasons outlined below, the Court will GRANT in PART and DENY in PART each Motion.


         The general factual background is set forth in the Memorandum and Decision issued on October 4, 2019. Dkt. 62. It will not be reiterated here. Instead, this section will focus on facts pertinent to the pending motions.

         The six images recovered from Johnson's phone, that form the basis of the charges against him, depict the vagina and upper thigh area of a minor female, who investigators initially estimated was approximately six- to ten-years old. In these images, the minor female is not wearing any clothing below the waist. She appears to be sitting on a countertop, with her legs spread apart, exposing her vagina. The focal point of all six images in the minor's genitalia. Due to the angle and nature of the images, the minor victim could not initially be identified. After months of investigation, however, federal agents eventually identified the victim-an eight-year-old girl, A.B.

         A.B. is the daughter of one of the Johnson's ex-girlfriends, A.J. In October 2017, however, A.J. and Johnson were still in a relationship; accordingly, the Defendant had access to A.B., her home, and her bathroom the day the photographs were taken. Once she was identified, federal agents were able to confirm that the young girl in the six images was A.B. through a distinctive birthmark on A.B.'s inner thigh. Additionally, wallpaper visible in the six images matches wallpaper in A.B. and A.J.'s bathroom and home. Finally, a tie-dyed shirt seen in the six images was recovered from A.B., who also identified it in the images. Finally, A.B. identified herself in the six images and told law enforcement that the Defendant had followed her into the bathroom in her home and taken the photographs.

         On July 11, 2018, a Federal Grand Jury indicted Johnson for production of child pornography, possession of child pornography, and production of child pornography while a registered sex offender.

         On July 9, 2019, Johnson Moved to suppress the evidence obtained in support of his pending charges. Dkt. 44. The Court recently denied Johnson's Motion. Dkt. 62.

         In anticipation of the upcoming trial, both parties filed the instant motions in limine.[2]


         A. Motion in Limine Standard

         “Motions in limine are well-established devices that streamline trials and settle evidentiary disputes in advance, so that trials are not interrupted mid-course for the consideration of lengthy and complex evidentiary issues.” Miller v. Lemhi Cty., No. 4:15-cv-00156-DCN, 2018 WL 1144970, at *1 (D. Idaho Mar. 2, 2018) (citing United States v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002)). “The term ‘in limine' means ‘at the outset.' A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009) (quoting Black's Law Dictionary 803 (8th ed. 2004)).

         Because “[a]n in limine order precluding the admission of evidence or testimony is an evidentiary ruling, ” United States v. Komisaruk, 885 F.2d 490, 493 (9th Cir. 1989) (citation omitted) “a district court has discretion in ruling on a motion in limine.” United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991). Further, in limine rulings are preliminary and, therefore, “are not binding on the trial judge [who] may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).

         B. Federal Rule of Evidence 404(b)

         Rule 404(b) of the Federal Rules of Evidence governs the admissibility of evidence concerning “other crimes, wrongs, or acts” committed by a defendant. That Rule provides: (1) 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; (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)(1)-(2). The Ninth Circuit has specified that “Rule 404(b) is a rule of inclusion.” United States v. Alfonso, 759 F.2d 728, 739 (9th Cir. 1985). “Thus, evidence of past wrongful acts is admissible if it is relevant to an issue other than the defendant's character or criminal propensity.” Id.

         To prove that the evidence is offered for one of the purposes permitted under Rule 404(b), the Government must show that the evidence: (1) is offered to prove a material element of the current offense; (2) if admitted to prove intent, is similar to the offense charged; (3) is based on sufficient evidence; and (4) is not too remote in time. United States v. Ramirez-Robles, 386 F.3d 1234, 1242 (9th Cir. 2004). “The [G]overnment must also show that the evidence satisfies Federal Rule of Evidence 403 such that its probative value is not outweighed by its prejudicial effect.” Id. See also United States v. Benitez, No. 1:17-CR-00348-BLW, 2018 WL 6591917, at *2 (D. Idaho Dec. 14, 2018).

         C. Federal Rule of Evidence 403

         If evidence of prior acts is found to be probative of motive, intent, plan, or lack of accident under Rule 404(b), the Court must consider whether the evidence is nevertheless barred under Federal Rule of Evidence 403. This Rule provides that the Court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

         Unfair prejudice refers to an undue tendency to influence a decision on an improper basis, such as an emotional response, or with evidence designed to elicit a response from the jurors that is not justified by the evidence. See U.S. v. Ellis, 147 F.3d 1131, 1135 (9th Cir. 1998). Even if there is only a modest likelihood of unfair prejudice or a small risk of misleading the jury, evidence that presents only slight probative value must be excluded. See U.S. v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). Additionally, cumulative evidence may also be excluded because it does no more than replicate other admitted evidence. See, U.S. v. Ives, 609 F.2d 930, 933 (9th Cir. 1979).

         D. Federal Rule ...

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