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United States v. Brown

United States District Court, D. Nevada

April 19, 2018



          Gloria M. Navarro, Chief Judge United States District Court.

         Pending before the Court is the Motion in Limine (ECF No. 171) filed by Defendant Richard Carl Brown (“Defendant”) to exclude evidence. The Government filed a Response (ECF No. 173), and Defendant filed a Reply (ECF No. 176).

         I. BACKGROUND

         On March 20, 2012, a federal grand jury sitting in the District of Nevada returned an Indictment charging Defendant with four counts: (1) Count One, Advertising Child Pornography, in violation of 18 U.S.C. § 2251(d)(1)(A); (2) Count Two, Transporting Child Pornography, in violation of 18 U.S.C. § 2252A(a)(1), (b); (3) Count Three, Receipt of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2), (b); and (4) Count Four, Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). (Indictment, ECF No. 1). Defendant proceeded to a five-day jury trial. (See ECF No. 87). At the jury trial, a Henderson Police Department detective testified that a search of Defendant's residence uncovered, inter alia, a 1.5-terabyte external hard drive containing both “normal” and “hidden” folders. (Mot. in Lim. 2:17-3:1, ECF No. 171). The normal folders included such things as Defendant's family photos and the death certificate of Defendant's father. (Id. 9:3-5). The hidden folders were only viewable to users who change the default settings of the hard drive, and they contained child pornography, along with videos depicting Defendant masturbating and copulating with adult women. (Id. 2:23-3:2). The detective also testified that the files were “[h]ighly organized, with each photo, video, and document titled according to a consistent naming convention and placed in specific subfolders.” (Id. 3:3-5) (internal quotation marks omitted). The jury returned a guilty verdict on all four counts. (Jury Verdict at 2, ECF No. 91). However, the Ninth Circuit vacated the convictions on appeal and remanded the case for a new trial upon finding that Defendant had been denied the right to discharge retained counsel and the right to counsel of his choice. See United States v. Brown, 785 F.3d 1337, 1352 (9th Cir. 2015). Defendant is currently set for a new jury trial on June 19, 2018. (ECF No. 188).

         In his instant Motion in Limine, Defendant urges the Court to exclude certain evidence that the Government admitted during the original trial: (1) evidence of Defendant's alleged Obsessive Compulsive Disorder (“OCD”); (2) videos depicting Defendant masturbating; (3) statements made by Defendant indicating his attraction to minors; and (4) testimony regarding incest literature authored by Melinda Race (“Race”) that was saved on Defendant's computer. (Mot. in Lim. 8:15-14:16, ECF No. 171).


         A. Motions in Limine

         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 (“Rule” or “FRE”) 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 (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 Federal Rule of Evidence 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); accord 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).

         B. Rules of Evidence

         “Irrelevant evidence is not admissible.” Fed.R.Evid. 402. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. “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.

         Under Rule 404(b), evidence of a defendant's prior conviction, wrong, or other act is inadmissible to prove the defendant's character or propensity to commit the charged offenses. United States v. Vo, 413 F.3d 1010, 1017 (9th Cir. 2005). However, evidence of a prior act is admissible for non-propensity purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b). Rule 404(b) evidence is admissible if it satisfies a four-part test. United States v. Montgomery, 150 F.3d 983, 1000 (9th Cir. 1998). The proponent of the 404(b) evidence must show that the evidence “(1) proves a material element of the offense for which the defendant is now charged, (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.” Ramirez-Robles, 386 F.3d at 1242. If the four-part test is satisfied, the evidence is admissible unless “its probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed.R.Evid. 403; United States v. Blitz, 151 F.3d 1002, 1008 (9th Cir. 1998) (observing that when evidence “satisfies the four-part test, the district court should admit the evidence unless its prejudicial impact substantially outweighs its probative value”) (internal quotation marks omitted).

         Rule 406 governs the admissibility of habit evidence. “Evidence of a person's habit . . . may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.” Fed.R.Evid. 406. “In deciding whether certain conduct constitutes habit, courts consider three factors: (1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional; (2) the specificity or particularity of the conduct; and (3) the regularity or numerosity of the examples of the conduct.” United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007). “The burden of establishing that certain conduct qualifies as evidence of habit falls on the party wishing to introduce the evidence.” Id. at 799.

         III. ...

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