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United States v. Pincombe

United States District Court, D. Nevada

May 18, 2017

United States of America, Plaintiff
v.
Ian Alexander Pincombe, Defendant

          ORDER OVERRULING OBJECTIONS AND AFFIRMING ORDER [ECF NO. 152]

          Jennifer A. Dorsey United States District Judge.

         Ian Pincombe stands charged with coercion and enticement in violation of 18 U.S.C. § 2422(b); possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)B); and receipt or distribution of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1).[1] Pincombe moved for an expert witness under FRE 704, arguing that the witness will testify regarding the likelihood of him engaging in sexual activity with a minor.[2] Pincombe previously moved for an “internet sex chat linguistics” expert[3] and Magistrate Judge Foley denied that motion.[4] Judge Foley similarly denied Pincombe's instant motion because it “appears to be restating arguments that were already presented in [his earlier] motion that the court has already denied” and because the “proffered testimony is irrelevant” and is excludable under FRE 704(b) because it is offered to show that Pincombe lacked the intent to persuade, induce, or entice a minor into sexual activity.[5]Pincombe objects to Judge Foley's order.[6]

         Having reviewed Judge Foley's order, I overrule Pincombe's objections, and affirm Judge Foley's order.

         Discussion

         A. Standards of review

         Non-dispositive pretrial matters may be decided by a magistrate judge, subject to reconsideration by a district judge.[7] “The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”[8] I may affirm, reverse, or modify, in whole or in part, the ruling made by the magistrate judge; I also may remand the matter to the magistrate judge with instructions.[9] Motions for expert witnesses are non-dispositive pretrial motions within the scope of FRCP 72(2) and 28 U.S.C. § 636(b)(1)(A), and, thus, are subject to the clearly erroneous or contrary to law standard of review.

         B. Judge Foley's order is supported by the law.

         Irrelevant evidence is not admissible.[10] Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”[11] Relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury.[12] An expert witness in a criminal case may not offer an opinion about whether the defendant did or did not have a mental state that constitutes an element of a crime charged.[13] If expert testimony is “offered to show [a defendant's] propensity to commit the underlying sexual act, it is irrelevant . . . [and] if offered on the ultimate issue of intent to persuade or entice under § 2422, it is prohibited by Rule 704.”[14]

         Pincombe's proposed expert testimony-that Pincombe lacked the intent to persuade, induce, or entice a minor into sexual activity-is excludable under FRE 704(b). To the extent that the testimony of the expert witness would be offered to show a lack of propensity to commit the underlying sexual act, it is irrelevant and is not admissible under Rule 402. Accordingly, Judge Foley's order denying Pincombe's motion for an expert witness is supported by the law and is, therefore, affirmed.

         Conclusion

         Accordingly, IT IS HEREBY ORDERED that Pincombe's objections to Magistrate Judge Foley's order [ECF No. 152] are OVERRULED; Judge Foley's order [ECF No. 149] is AFFIRMED.

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Notes:

[1] ECF No. 94.


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