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United States v. Askren

United States District Court, D. Nevada

January 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CHAD ASKREN, Defendant.

          ORDER

          Gloria M. Navarro, Chief Judge.

         Pending before the Court is the Motion in Limine, (ECF No. 65), filed by the Government to preclude reference to Defendant Chad Askren's (“Defendant”) prior acquittal of charges concerning possession of child pornography in a 2004 Florida state court proceeding (the “Florida Case”), to which Defendant filed a Response, (ECF No. 71). For the reasons discussed below, the Court GRANTS the Government's Motion.

         I. BACKGROUND

         Defendant is currently charged with three counts in the Criminal Indictment, (ECF No. 1), filed on September 24, 2014: Count One, 18 U.S.C. § 2252A(a)(2) - Receipt of Child Pornography; Count Two, 18 U.S.C. § 2252A(a)(5)(B) - Possession of Child Pornography; and Count Three, 18 U.S.C. § 2251(d) - Advertising Child Pornography. These charges arise from evidence allegedly discovered during the search of a residence located at 514 Crimson View Place, Las Vegas, Nevada 89144, on December 13, 2012. (Order 1:15-24, ECF No. 55). The search was conducted pursuant to a warrant issued by Magistrate Judge George W. Foley on December 12, 2012. (Id.). During the search, a computer allegedly belonging to Defendant was seized. (Id.). A forensic examination of the computer resulted in the discovery of 76 videos and 5, 284 images depicting child pornography. (Id.).

         At trial, the Government intends to introduce information about the Florida Case as evidence of Defendant's prior child molestation activities pursuant to Federal Rules of Evidence 414 and 404(b). (Id. 2:1-15).[1] In 2004, pursuant to a search warrant, detectives in Florida seized Defendant's computer. (Id.). Forensic analysis of this computer revealed 62 computer images and 46 movie files depicting child pornography. (Id.). Defendant went to trial and claimed another person in the home downloaded the child pornography onto Defendant's computer. (Id.). The jury acquitted him of the charges brought against him under Florida Statute 827.071(5). (Id.).

         The Government's Motion in Limine asks the Court to exclude “any evidence, argument, or reference” that Defendant was acquitted of the charges brought against him in the Florida Case. (Mot. in Limine 2:16-18, ECF No. 65). On January 17, 2017, the Court granted the Motion during calendar call with a written order to follow. (ECF No. 86).

         II. LEGAL STANDARD

         In general, “[t]he court must decide any preliminary question about whether . . . evidence is admissible.” Fed.R.Evid. 104(a). In order to satisfy the burden of proof for Federal Rule of Evidence 104(a), a party must show that the requirements for admissibility are met by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (“We have traditionally required that these matters [regarding admissibility determinations that hinge on preliminary factual questions] be established by a preponderance of proof.”).

         “Although the [Federal Rules of Evidence] do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed.R.Evid. 103(c)). In limine rulings “are not binding on the trial judge, and the judge may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); see also Luce, 469 U.S. at 41 (noting that in limine rulings are always “subject to change, ” especially if the evidence unfolds in an unanticipated manner).

         III. DISCUSSION

         In its Motion in Limine, the Government asks the Court to exclude “any evidence, argument, or reference” that Defendant was acquitted of the charges brought against him in the Florida Case. (Mot. in Limine 2:16-18, ECF No. 65). The Government argues that evidence of a prior acquittal is inadmissible hearsay, irrelevant, and prejudicial and therefore inadmissible. (See id.). Although the Supreme Court has not addressed the issue of whether an acquittal is admissible in federal prosecutions, [2] federal circuit courts overwhelmingly agree with the Government.

         First, federal courts uphold exclusion of acquittals as hearsay because, “[u]nlike judgments of conviction, which may be admitted under Rule 803(22) of the Federal Rules of Evidence for some purposes, and used for impeachment under Rule 609, judgments of acquittal are not covered by an exception to the rule against admission of hearsay.” United States v. Irvin, 787 F.2d 1506, 1516-17 (11th Cir. 1986); see also United States v. Bisanti, 414 F.3d 168, 172-73 (1st Cir. 2005); United States v. Gricco, 277 F.3d 339, 353 (3d Cir. 2002) (same), overruled on other grounds, United States v. Cesare, 581 F.3d 206, 208 n. 3 (3d Cir. 2009); United States v. De La Rosa, 171 F.3d 215, 219-220 (5th Cir. 1999) (explaining that evidence of an acquittal is properly excluded as hearsay) (citing United States v. Sutton, 732 F.2d 1483, 1492 (10th Cir. 1984)); United States v. Thomas, 114 F.3d 228, 250 (D.C. Cir. 1997) (holding evidence of judgments of acquittal properly excluded as hearsay and as “generally . . . not relevant because they simply show that the government failed to prove guilt beyond a reasonable doubt”), cert. denied, 522 U.S. 1033 (1997); United States v. Viserto, 596 F.2d 531, 537 (2d Cir. 1979).

         Federal circuit courts also find evidence of an acquittal inadmissible as irrelevant. See, e.g., United States v. Kerley, 643 F.2d 299, 300-01 (5th Cir. 1981) (“[E]vidence of a prior acquittal is not relevant because it does not prove innocence but rather merely indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime.”). For example, the First Circuit in Bisanti held that evidence of acquittals in prior proceedings is generally inadmissible because an acquittal does not prove actual innocence of the charged crime. Bisanti, 414 F.3d at 172-73. Instead, an acquittal merely signifies that the prosecution failed to establish the essential elements of the crime beyond a reasonable doubt. Id. The court also concluded that a defendant's prior acquittal of one crime is not probative of a defendant's innocence in a later crime, and thus the acquittal evidence tends to confuse rather than assist the jury. Id. Similarly, in Viserto, the Second Circuit reasoned:

A judgment of acquittal is relevant to the legal question of whether the prosecution is barred by the constitutional doctrine of double jeopardy or of collateral estoppel. But once it is determined that these pleas in bar have been rejected, a judgment of acquittal is not usually admissible to ...

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