Opinion
2:22-cr-53-SPC-NPM
01-24-2024
UNITED STATES OF AMERICA v. RICHARD EDWARD BRILLHART
OPINION AND ORDER
SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
Before the Court is Defendant Richard Brillhart's Third Motion in Limine. (Doc. 140). The Government responded in opposition. (Doc. 147). For the reasons set forth below, the Court denies Brillhart's Motion.
In April and May 2021, NCMEC received several CyberTips concerning various email addresses associated with Brillhart. In August 2021, NCMEC received an additional CyberTip from Kik linked to Brillhart's email account luvemyng01@yahoo.com, which was associated with the username “flped4you.”
The Government's Response in Opposition says this email address is luvemyng01@yahoo.cpm (Doc. 147 at 4), but the Court presumes this is a typographical error.
Law enforcement used subscriber data to connect one of the email addresses reb3280@yahoo.com to Brillhart and ultimately obtain a search warrant for Brillhart's apartment. In September 2021, law enforcement executed the warrant. During the search, law enforcement found a phone in Brillhart's bedroom containing videos and images depicting the sexual abuse of minors.
In December 2021, law enforcement obtained a search warrant for the Kik account “flped4you.” Kik provided the contents of the account, which included a selfie and two videos of Brillhart, the subscriber name “Reb Reb,”and a group chat that occurred in August 2021.
This subscriber/user name has been associated with some of Brillhart's other accounts as well. (Doc. 147 at 3-4).
In this Kik group chat, “flped4youjaz” introduced himself in accordance with the group rules. In fact, “flped4youjaz” introduced himself as “41 m pedo” seven times during the chat. (Doc. 144 at 7, 11, 13). Additionally, he said “[p]edofile [sic] here” and “I'm a pedofile [sic] . . . I'm being honest.” (Doc. 144 at 7, 3).
The group rules stated newcomers should “Introduce yourself with your age & [sic] general location upon entry.” (Doc. 144 at 3).
In May 2022, Brillhart was indicted for both possession and distribution of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2) and 18 U.S.C. §§ 2252(a)(2) and (b)(1). The distribution count concerns conduct “on or about May 10, 2021” and the possession count concerns conduct “[f]rom on or about April 14, 2021, through on or about September 8, 2021.” (Doc. 1 at 1).
Brillhart now moves under Fed.R.Evid. 403 to exclude “any Kik images that depict the statement ‘HI IM A PEDOPHILE,' or other references to ‘Pedophile' or ‘Pedo' . . . and any testimony or description of such material.” (Doc. 140 at 1).
Brillhart also cites to the due process clauses of the Fifth and Fourteenth Amendments in his opening paragraph, but then limits his argument to Fed.R.Evid. 403. Accordingly, the Court limits its analysis to Rule 403.
A court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed.R.Evid. 403. “The term ‘unfair prejudice' . . . speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged . . . [it] means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Old Chief v. United States, 519 U.S. 172, 180 (1997) (internal citations omitted).
Rule 403 does not create a “requirement that the government choose the least prejudicial method of proving its case.” United States v. Dixon, 698 F.2d 445, 446 (11th Cir. 1983). Instead, exclusion under Rule 403 is an “extraordinary remedy which the district court should invoke sparingly.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2002). The Court sees no reason to invoke it here.
Rule 403 requires weighing probative value against unfair prejudice, and here the scales tip firmly in favor of probative value. The Government must prove that Brillhart knowingly distributed and knowingly possessed child pornography. The Kik chat shows Brillhart introducing himself as a “pedofile” during the timeframe charged in the indictment. Given the timing, nature, and circumstances surrounding Brillhart's statements on Kik, his statements are highly probative, and any prejudice he might suffer pales in comparison.
Accordingly, it is now
ORDERED:
Defendant Richard Brillhart's Third Motion in Limine (Doc. 140) is DENIED.
DONE AND ORDERED
Copies: Counsel of Record