Opinion
CASE NO. 4:19-CR-19 (CDL)
02-14-2020
UNITED STATES OF AMERICA, v. DONALD McFALL, Defendant.
ORDER
In this possession of child pornography case, the Government intends pursuant to Federal Rule of Evidence 414 to introduce at trial evidence of Defendant's prior sexual abuse of children. See Fed. R. Evid. 414(a) ("In 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."). Defendant objects to this evidence.
Rule 414(d)(2)(B) defines "child molestation" broadly to include "any conduct prohibited by 18 U.S.C. chapter 110." Here, Defendant is charged with possession of child pornography, in violation of Chapter 110 of Title 18, Section 2252A(a)(5)(B). Therefore, the charge against Defendant is covered by Rule 414. See United States v. Majeroni, 784 F.3d 72, 76 n.4 (1st Cir. 2015) (finding "[p]ossession of child pornography constitutes evidence of 'child molestation,' as defined under Rule 414" by looking to Fed. R. Evid. 414(d)(2)(B)); accord United States v. Sullivan, 751 F. App'x 799, 805 (6th Cir. 2018) (finding attempted production of child pornography was "child molestation" under Rule 414(d)(2)(B)). And based upon the Government's representations, it appears that the Government otherwise can satisfy the elements for admission under Rule 414. But this does not end the inquiry. The Court also must consider whether this relevant evidence should nevertheless be excluded pursuant to Federal Rule of Evidence 403 because of its prejudice to the Defendant. The Court finds that the probative value of the evidence is not substantially outweighed by a danger of unfair prejudice. Accordingly, Defendant's pretrial objection (ECF No. 37) to it is overruled.
Although the Court has evaluated the admissibility of the specific evidence here under 403 and understands that these rulings must be made on a case-by-case basis, the Court does note that authority exists supporting the Court's conclusion. See United States v. Bishop, 683 F. App'x 899, 901, 911 (11th Cir. 2017) (per curiam) (finding Rule 403 did not preclude introducing evidence of a 10-year-old conviction for attempted lewd and lascivious molestation of a minor in a child pornography case).
IT IS SO ORDERED, this 14th day of February, 2020.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA