Commercial Litigation and Arbitration

Internet Evidence — Chats May Be Admissible for Non-Hearsay Purposes of Showing State of Mind, Intent, Knowledge, Absence Mistake and Associating Owner with Material on His or Her Computer

United States v. DeFoggi, 2014 U.S. Dist. LEXIS 93198 (D. Neb. June 9, 2014):

C. Motion in Limine

DeFoggi's Motion in Limine seeks to prevent the government from referencing the "fantasy chat private messages sent to and from" particular usernames from Website A, arguing the messages are irrelevant or overly prejudicial to him. See Filing No. 95. DeFoggi filed a brief (Filing No. 96) in support of the motion. DeFoggi argues the fantasy chats are not sufficiently relevant to the charges filed against him and should be excluded pursuant to Fed. R. Evid. 401. See Filing No. 96 - Brief p. 2. Specifically, he argues the fantasy chats are merely fantasy conversations pleasing to DeFoggi rather than evidence indicative of participation in a child exploitation enterprise. Id. at 2-3. Additionally, DeFoggi contends any probative value in the chats is substantially outweighed by the danger of unfair prejudice under Fed. R. Evid. 403. Id. at 3. DeFoggi acknowledges the chats are highly graphic and describe the violent sexual torture and killing of children. Id.; see Ex. 2. DeFoggi argues the chats contained fantasy and as such they are overly prejudicial because they describe murder, maiming, and decapitation, which are outside  [*16] the crime of exploitation of children. See TR. 56. DeFoggi asserts the content of these chats creates a likelihood jurors may base a decision of guilt on improper bias or an emotional reaction to the messages. Id. Moreover, DeFoggi argues suppression of the chats does not deprive the government of vital evidence in the case in light of evidence the individual using the particular usernames clicked on images portraying child pornography. Id. at 4.

Opposing DeFoggi's motion in limine, the government filed a brief (Filing No. 126) contending the content of the chats are integral to showing DeFoggi knowingly entered into a conspiracy and intended for it to succeed. See Filing No. 126 - Brief p. 8. Additionally, the government argues the chats are evidence linking DeFoggi to Website A through the usernames and his intent to view and distribute child pornography. Id. at 8-11.

"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. Nevertheless, a "court may exclude relevant evidence if its probative value is substantially outweighed by a danger  [*17] 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. Evidence of chats between a defendant and another may be admissible to show the defendant's state of mind, his intention to possess child pornography, and his knowledge of the illegal nature of the images. See United States v. Brumfield, 686 F.3d 960, 963 (8th Cir. 2012). Chats may be "admissible for an additional reason: as circumstantial evidence (i.e., a non-hearsay purpose) associating [the defendant] with the child pornography found on his computer." United States v. Manning, 738 F.3d 937, 943 (8th Cir. 2014); see United States v. Christie, 624 F.3d 558, 570 (3d Cir. 2010) (noting notebooks and posts to website suggesting the defendant was a predator not unduly prejudicial where they indicated the defendant visited a child pornography website with the purpose of exchanging child pornography); United States v. Hite, 916 F. Supp. 2d 110, 117, 122 (D.D.C. 2013) (finding chats of a graphic nature not unfairly prejudicial when they were "relevant evidence of intent, knowledge, and absence of mistake  [*18] in that it is probative of his sexual attraction to young children, and reflects [they had] previous conversations about similar topics"). In fact, images of child pornography, themselves, may not be unfairly prejudicial to a defendant, despite his willingness to stipulate to the content of the clips, to demonstrate a representative sample of images found to have been downloaded by a particular user to a computer. United States v. Worthey, 716 F.3d 1107, 1114-15 (8th Cir. 2013).

The court will not recommend limiting the government's evidence to exclude the chats. Here, the content of the chats, while graphic and aberrant, has some tendency to make certain facts more or less probable than it would be without the evidence. Such facts are of consequence in this action. In particular, the chats, both the existence of them and the content, tend to show the identity, intent, and knowledge of the participants. The prejudicial nature of the chats' content does not outweigh the probative value. Essentially the nature of the chats enhances their probative value particularly with respect to the identity and intent of the participant. Upon consideration,

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