MEMORANDUM ORDER DENYING DEFENDANT'S MOTION IN LIMINE REGARDING "DISC #1" (DOC. NO. 95)
ARTHUR J. SCHWAB, District Judge.
Before the Court is Defendant's Motion in Limine to exclude some, but not all, of the still images located on a CD which the Government intends to offer at trial ("Disc #1"). Doc. no. 95. The Government filed a Response to that Motion. Doc. no. 100.
Following these submissions, during the course of the Pretrial Conference held on January 9, 2014, the Court stated that in order to rule on this Motion in Limine (doc. no. 95) as well as Defendant's Motion in Limine regarding the Government's 404(b) evidence (doc. no. 92, which is addressed by way of a separate Memorandum Order), the Court would review after said Pretrial Conference the images per the mandate and directive of the United States Court of Appeals for the Third Circuit in United States v. Cunningham , 694 F.3d 372 (3d Cir. 2012). The Government apprised the Court and Defense Counsel that the images on Disc #1 had been combined with other "uncharged images" on Disc #2 and referenced in the Government's Notice of 404(b) Evidence (see doc. no. 85) as well as other exhibits (e.g., search photographs of the Warner residence, a user manual for an Acer laptop computer, etc.). The Court received this combined disc containing all the images at issue, and a draft exhibit list from the Government with Defendant's approval.
After personally reviewing all of the images and videos compiled on the combined disc, which included those images and videos which are relevant to Defendant's Motion in Limine Regarding Disc #1,  after reviewing counsels' written arguments concerning the admissibility of the images, and having also considered Defendant's counsel's representation during the Pretrial Conference that his objections to the "repetitiveness" of the images relevant to Count Three equally applied to all images relevant to all of the other Counts (presumably, Counts One through and including Seven), the Court will deny Defendant's Motion in Limine, for the reasons set forth herein.
As an initial matter, the Government Exhibit Nos. 1.1 through and including 7.44A, contain images (both still shots and video clips) which correspond to each of the seven counts set forth in the superseding indictment against Defendant. If an Exhibit begins with the number "1", it corresponds to Count One of the superseding indictment; if an Exhibit begins with the number "2, " it corresponds to Count Two of the superseding indictment; and so on.
Next, it is important to note that Defendant does not object to some of the images being proffered by the Government within the Exhibit Number range of 1.1 through and including 7.44A. ("There is no argument towards many of the images. For instance, the videoclip supporting Count 6. This has a voice which the government believes is that of Warner." Doc. no. 95, p. 2). However, Defendant does object to those images which are "repetitive" images. By way of example, with respect to Count Three, in connection with images the Government compiled in support of Count Three of the superseding indictment, Defendant notes (again by way of example) that image 560 is "repetitive of the pose at 559" and that 562 is "very similar" to 561. Defendant also reminded the Court during the January 9, 2014, Pretrial Conference that these were examples using only a single Count and a few images being used as evidence by the Government to support its burden of proof as to that Count. Defendant urged the Court to apply his "repetitive" argument to all other Counts and any images that appeared to be "repetitive." In his Motion, Defendant argued that under Fed.R.Evid. 403, these "repetitive" images are "cumulative" and/or "unduly prejudicial" and thus, should be excluded.
The Government, in its response to Defendant's Motion, agrees that these photos were indeed similar but argued that "it is the full sequence of photographs that accurately portrays the real time production of the charged sexually exploitive images and, in turn, is the government's best evidence of the offense charged at Count Three." Doc. no. 100 at p. 2. The Government further contends, Is]imilarly, the full series of images charged in Counts One, Two, and Four, when viewed in sequence, most accurately depict the production of child pornography charged at each of those counts." Id.
The Court begins its analysis by noting that the Government must prove Defendant committed seven separate offenses in this case. Six of the Seven Counts allege that Defendant "produced" material depicting the sexual exploitation of a minor, covering most of the images which are the subject of this Motion, while the Seventh Count alleges that Defendant possessed material depicting the sexual exploitation of a minor. Although these offenses differ from those in the Cunningham case - the three offenses charged in Cunningham were receipt, possession, and distribution of child pornography, this Court viewed all of the images in their entirety on the combined disc in accordance with the Cunningham decision.
Starting with images related to the six "production" offenses charged in the superseding indictment (Counts One through Six), "production of material depicting the sexual exploitation of a minor" (as the parties have agreed in doc. no. 91 at p. 13) requires the Government to prove the following three elements (in addition to the required state of mind):
First: At the ti me of the offense, the victim depicted was under the age of eighteen years;
Second: The defendant employed, used, persuaded or coerced the victim to take part in sexually explicit conduct for the purpose of producing one or more visual depictions of such conduct; and
Third: The visual depiction was produced using materials that had been mailed, or shipped, or transported in interstate ...