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United States v. Eiker

United States District Court, E.D. Virginia, Norfolk Division

December 18, 2017

UNITED STATES OF AMERICA
v.
MICHAEL A. EIKER, Defendant.

          MEMORANDUM AND ORDER

          MARK S. DAVIS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's motion in limine to exclude evidence of a personal recovery journal and images containing child pornography, ECF No. 21, and his motion to exclude images recovered from unallocated space, ECF No. 26. For the reasons noted below, Defendant's motion in limine is GRANTED IN PART, and TAKEN UNDER ADVISEMENT IN PART, and Defendant's motion to exclude images recovered from unallocated space is DENIED.

         I. Exclusion of Personal Recovery Journal

         Pursuant to a search warrant executed at Defendant's residence, the Government seized a personal recovery journal that Mr. Eiker maintained from 2006-07 during his involvement with Sex Addicts Anonymous ("SAA"). See Gov.'s Mot. in Limine Br. at 3. The Government has indicated that it intends to offer excerpts from this journal, but it has not yet identified which specific portions it will offer at trial. Defendant moves first to exclude all evidence taken from such journal. See Def.'s Mot. in Limine. at 2. According to Defendant, the journal was produced as a part of SAA's Twelve-Step Program, and it was intended to facilitate self-discovery through the writing down of "one's thoughts, feelings, experiences, fantasies and the like." Id. at 3. Such journals often serve "to chronicle an individual's sexual history from childhood to the present." Id. In pertinent part, the journal includes details apparently establishing that Defendant began accessing child pornography while he was between the ages of 22 to 25 (between approximately 1999 to 2002). See Journal at 186. This activity appears to have continued at least through the time that Defendant sought help from SAA in 2 006. See id. at 166, 168. Further, the journal also includes several entries detailing that Defendant had acted out on his attraction to children. One passage notes that he had exposed himself to his neighbor's girls while babysitting them, and that he had later masturbated while watching them get changed. See id. at 186. Another passage states that he had exposed himself to another "young girl" and had coerced her "to perform oral on [him] many times." Id.

         Federal Rule of Evidence 414(a) provides that "[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant." "Child molestation" is defined aswa crime under federal law" involving "any conduct prohibited by 18 U.S.C. chapter 110." Fed.R.Evid. 414. Chapter 110 includes federal offenses involving the sexual exploitation of children, includingw[c]ertain activities relating to material constituting or containing child pornography." 18 U.S.C. § 2252A.

         Evidence that is otherwise admissible under Rule 414 is nevertheless subject to the Rule 4 03 balancing test. A district court applying this test should consider, Ml) the similarity between the previous offense and the charged crime, (2) the temporal proximity between the two crimes, (3) the frequency of the prior acts, (4) the presence or absence of any intervening acts, and (5) the reliability of the evidence of the past offense." United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007).

         Defendant does not contest that the journal contains relevant evidence, but instead argues that it fails the Rule 403 balancing test because it is not a reliable record of any past offense. See Def's Mot. in Limine Br. at 3, ECF No. 21. Specifically, he claims that the nature of the journal, which allegedly contains numerous passages detailing Mr. Eiker's "fantasies, " makes any purported evidence of prior child molestation inherently unreliable. See Def's Mot. in Limine Br. at 3, 12, ECF No. 21. In addition, Defendant claims that admitting the journal will create "due process problems and significant unfair prejudice to Mr. Eiker" because the inflammatory nature of the prior child molestation will encourage a jury to convict on "the basis of the journal entries alone." See id. at 10.

         The Government responds by noting that numerous courts have permitted the introduction of similar written admissions concerning child molestation under Rule 414. See Gov.'s Mot. in Limine Br. at 10, ECF No. 23. The Government also asserts that the journal meets all requirements of the Rule 4 03 balancing test articulated in Kelly. See id. Applying the Kelly factors, they note first that the time proximity between the conduct charged and the prior molestation is between 21 years at most and 11 years at the least, depending on the admission considered. See id. at 11. The Government claims this is close enough to allay concerns about the reliability of the writing, and in any case, they claim the temporal proximity factor is meant to be interpreted broadly. See id. They also claim that concerns about the reliability of the evidence are minimal because the Defendant was the author of the journal. See Id. With respect to the concern that some of the admissions in the journal are "imagined, " the Government asserts that this concern is largely irrelevant because, even if they were only fantasies, multiple admissions about having "fantasies'7 of viewing child pornography would be probative of defendant's knowledge and mens rea. See id. The Government also points to the absence of any significant intervening acts between the last admission and the instant charges, as well as the apparently high frequency of the prior acts, as providing further support that this evidence passes the Rule 403 balancing test.

         In analyzing this evidence, the Court must first determine whether it is admissible under Rule 414. To be admissible, (1) the defendant must be accused of a crime involving child molestation, and (2) the evidence being admitted must be evidence of the defendant's commission of another offense involving child molestation. See generally Kelly, 510 F.3d at 436-37. In addition, because Rule 414 evidence is a type of prior act evidence, a district court considering whether to admit such evidence must heed the Supreme Court's instruction in Huddleston to first determine that a reasonable jury could find by a preponderance of the evidence that the defendant committed the prior act. See Huddleston v. United States, 485 U.S. 681, 690 (1988).

         Applying the above standard to the instant case, the Court notes that the journal evidence is of the type that is admissible under Rule 414, but reserves judgment on admissibility pending the upcoming hearing. Defendant has been charged with the receipt of child pornography, in violation of 18 U.S.C. § 2252A(a) (2) (A) and (b)(1), and possession of child pornography, in violation of 18 U.S.C. § 2252A(a) (5) (B) and (b) (2) . These are crimes constituting "child molestation" for purposes of Rule 414 because they are found in 18 U.S.C. Chapter 110. See Fed.R.Evid. 414. The evidence in the journal also clearly documents other acts of child molestation. As to whether there is sufficient evidence from the journal for a jury to conclude by a preponderance of evidence that each prior act has been committed, the Court will reserve judgment until it has heard further argument at the upcoming hearing. The Court notes that this case presents a more difficult set of facts than the cases cited by the Government regarding written admissions of child molestation, as the details in this case regarding the sexual abuse of children are less specific than any of the cited cases. As noted below, the Defendant's argument that some of these passages may be "fantasy" also complicates matters somewhat. The Court will be better positioned to judge the matter after it hears further argument from the parties regarding which journal entries the Government will offer on the grounds that they constitute admissions of specific prior acts of child molestation, and what Defendant's precise argument is regarding whether the asserted passages are fantasy.

         Though the Court will reserve judgment regarding the exclusion of the journal, the Court will make several findings regarding the Rule 403 balancing test in order to streamline argument at the upcoming hearing. Applying first the temporal proximity factor, the Court agrees with the Government that the intervening period between alleged prior acts and the instant charges - somewhere between eleven and twenty-one years - does not render the prior acts inadmissible. This period is within the range that both our Court of Appeals and a sister circuit have upheld in such cases. See United States v. Emmert, 825 F.3d 906, 909 (8th Cir. 2016) (finding a twenty year intervening period to be acceptable); Kelly, 510 F.3d at 437 (finding a twenty-two year intervening period did not render the prior acts inadmissible).

         As to whether the alleged prior acts are similar to the instant charges, the Court first notes that the evidence regarding the prior receipt and possession of child pornography is identical to the charged conduct. For the other evidence concerning prior child molestation, several other courts have found that evidence of child molestation involving actual sexual contact is similar to receipt and possession of child pornography for purposes of the Rule 4 03 balancing test, as both types of offenses are probative of a sexual interest in children. See Emmert, 825 F.3d. 909 (affirming the introduction of convictions for sexual abuse where the charged offense was possession of child pornography); United States v. Mason, 532 Fed.Appx. 432, 437 (4th Cir. 2013) (unpublished) (affirming the introduction of convictions for taking indecent liberties with children where the charged offense was possession of child pornography); United States v. Lafond, No. 15-CR-20788, 2017 WL 345637, at *3 (E.D. Mich. Jan. 24, 2017) (permitting the introduction of evidence that the defendant had previously molested a ten-year-old child where the charged offense was possession of child pornography). Here, Defendant's prior acts demonstrate an interest in prepubescent girls, and the images described as forming the basis for Counts 1-3 show victims engaged in sexual conduct similar to that of the prior acts. See Gov.'s Mot. in Limine Br. at 3-4 (describing two images that show prepubescent girls performing oral sex on adults, and a third image that shows a nude, prepubescent female exposing her genitals). In addition, while the prior acts here are clearly disturbing, they do not have a strong danger of causing unfair prejudice because they concern similar types of sexual exploitation to those for which Defendant has been charged.

         The next two factors-the frequency of prior sexual molestation and the absence of any intervening event-also weigh in favor of finding that this evidence passes the Rule 403 balancing test. As to frequency, the journal appears to demonstrate that Defendant's usage of child pornography was not sporadic, but had been frequent for years by the time he began keeping the journal. The journal's descriptions of multiple other incidents of sexual molestation similarly give the impression that they were not isolated events. Moving next to the factor of whether there was an intervening event, the Court is not aware of any evidence of a subsequent rehabilitation of the Defendant that would make consideration of this journal unfair in light of his changed behavior.

         The final factor-the reliability of the evidence of the prior act-presents an issue best addressed after hearing further argument at the upcoming hearing. The Court first notes that the fact that Defendant was the author of the journal weighs in favor of finding its contents to be reliable. See United States v. O'Connor, 650 F.3d 839, 852-54 (2d Cir. 2011) (finding that passages from an autobiography that were admitted under Rule 414 were reliable because the passages were written by the defendant). However, Defendant's argument that the journal's contents are unreliable because some of the entries might represent "fantasies" or have been "imagined" would, if such argument proves credible, seriously undermine the reliability of the ...


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