United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE, CHIEF U.S. DISTRICT COURT JUDGE
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) and Defendant's Motion in Limine (Dkt.
46) seeking to exclude the same evidence.
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.
reasons outlined below, the Court will GRANT in PART and DENY
in PART each Motion.
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.
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.
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.
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.
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.
anticipation of the upcoming trial, both parties filed the
instant motions in limine.
Motion in Limine Standard
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)).
“[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
Federal Rule of Evidence 404(b)
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
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).
Federal Rule of Evidence 403
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.
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).
Federal Rule ...