United States District Court, W.D. Pennsylvania
Barry Fischer, United States District Judge
before the Court is Defendant's Motion in Limine
Concerning the Contents of E-mail Exchanges, (Docket No.
123), and the Government's response in opposition,
(Docket No. 131). After careful consideration of the
parties' submissions, the standards governing the
admissibility of evidence, and for the following reasons,
Defendant's Motion in Limine Concerning the Contents of
E-mail Exchanges is DENIED, in part, and GRANTED, in part.
holding, the Court notes that this criminal case is scheduled
to commence jury selection and trial on March 6, 2017.
Defendant Ramon Coca is charged at Count One with one count
of the distribution of material depicting the sexual
exploitation of a minor, in violation of 18 U.S.C. §
2252(a)(2), from on or about March 20, 2012, to on or about
March 29, 2012. (Docket No. 3). Defendant is charged at Count
Two with one count of possession of material depicting the
sexual exploitation of a minor, in violation of 18 U.S.C.
§ 2252(a)(4)(B), on or about February 22, 2013.
motion, Defendant argues that the Government's Exhibits 1
through 7 - which are e-mail exchanges between
firstname.lastname@example.org - are unduly prejudicial
because they contain references to perverse sexual, violent,
and obscene interests, such as bestiality, incest, rape, and
babies. (Id. at 2-3). Defendant includes proposed
redactions to the e-mails. (Id. at 3-5).
to the Federal Rules of Evidence, 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. Relevant evidence is inadmissible “if
its probative value is substantially outweighed by a danger
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. Rule 403 mandates a balancing test,
“requiring sensitivity on the part of the trial court
to the subtleties of the particular situation.”
United States v. Vosburgh, 602 F.3d 512, 537 (3d
Cir. 2010). Pertinent here, the advisory notes to Rule 403
state that “unfair prejudice” means an
“undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional
one.” Fed.R.Evid. 403 advisory committee's note.
prove that Defendant committed the crime of distribution of
child pornography, the Government must show that: (1)
Defendant knowingly distributed a visual depiction of a minor
in interstate or foreign commerce or using an instrument of
interstate commerce, by any means, including by computer or
through the United States mail; (2) the production of such
visual depiction involved the use of a minor engaging in
sexually explicit conduct; and (3) the visual depiction is of
such conduct. 18 U.S.C. § 2252(a)(2).
Government argues, “[b]ecause those emails contain
statements which go to the heart of the knowledge element of
the distribution count they are extremely probative.”
(Docket No. 131 at 9). Courts within the Third Circuit have
consistently held that the probative value of similar
evidence outweighs its prejudicial value. See, e.g.,
United States v. Cox, No. 11-CR-99, 2011 U.S. Dist.
LEXIS 118759, at *15 (D.N.J. Oct. 13, 2011) (admitting
explicit e-mail communications because they were
“highly probative of how much Defendant knew about what
the video files contained, and, in turn, his intent to
distribute notwithstanding that knowledge”). Within the
Court's District, it has been held that “in a case
involving sex, pornography, and children, it would be wholly
impracticable to expect or require counsel to object to, or
the Court to exclude, all relevant graphic, prejudicial, or
vulgar evidence.” United States v. Nestor, No.
07-CR-369, 2010 U.S. Dist. LEXIS 124298, at *11 (W.D. Pa.
Nov. 23, 2010). As the Government has pointed out, this
District has also held that the probative value of thirteen
video segments depicting minors engaging in sexually explicit
acts outweighed their prejudicial value. United States v.
Finley, 726 F.3d 483, 493 (3d Cir. 2013). In affirming
the District Court, the Third Circuit held that (1)
“the videos and images were probative of [the
defendant's] knowledge that he was receiving,
distributing, and possessing child pornography;” and
(2) “although some of the videos were extremely
disturbing and absolutely prejudicial, their presentation was
not unfairly prejudicial to the point where unfair
prejudice substantially outweighed probative value.”
Id. at 493-94 (emphasis in original). The Court
agrees with the Government's assessment that
“Defendant Coca's claims relating to the
‘unfair prejudice' of the words in the emails are
less persuasive than the claims made by the defendant in
Finley, where the arguments for exclusion under Rule
403 were being made as to several graphic videos, not merely
words in some emails.” (Docket No. 131 at 9).
final matter, the Court notes that Defendant has failed to
provide any authority within this jurisdiction that supports
his argument. Instead, Defendant relies upon cases outside of
this jurisdiction where videos, not e-mails, were deemed
inadmissible under Rule 403. (See Docket No. 123 at
3). Moreover, Defendant concedes that the Government will
introduce only seven of nineteen e-mails sent between
email@example.com. (Id. at 2). The
Government has also stated that it will present only five
seconds of a single video and three still images out of a
collection consisting of 3, 800 images and numerous videos.
(Docket No. 131 at 8 n.5). Such circumstances further support
the Court's finding that the contents of the
Government's Exhibits 1 through 7 are admissible and not
unduly prejudicial. See, e.g., Finley, 726
F.3d at 494 (noting that the Government showed “only
thirteen video segments and two images of what was a
collection of more than 30, 000 videos and images”)
(footnote omitted); Cox, 2011 U.S. Dist. LEXIS
118759, at *16 (noting that “the Government has made
efforts to significantly reduce the e-mails presented from
those collected pursuant to the Yahoo! Search Warrant, and it
intends only to introduce summary evidence rather than
explicit images or detailed descriptions of the content of
the video files allegedly distributed by Defendant”).
Defendant requests that the Court read a limiting instruction
to the jury to ensure that the e-mails are not considered for
an improper purpose. (Docket No. 123 at 6). The Court finding
such an instruction appropriate,  and the Government having
not objected, Defendant's request will be granted.
See, e.g., United States v. Schene, 543
F.3d 627, 643-44 (10th Cir. 2008) (holding that the district
court did not abuse its discretion in admitting e-mails that
contained images of child pornography and instructing the
jury that “to the extent that this evidence relates to
anything other than the specific files that are charged in
the indictment . . . it's to be considered only as it
bears on the defendant's knowledge or intent, and you
should consider it only for that limited purpose”).
these reasons, IT IS HEREBY ORDERED that Defendant's
Motion in Limine Concerning the Contents of E-mail Exchanges,
(Docket No. ), is DENIED, in part, and GRANTED, in part,
(1) Defendant's Motion in Limine to redact portions of
the Government's Exhibits 1 through 7 is DENIED; and
(2) Defendant's alternative request that the Court read a
limiting instruction to the jury is GRANTED.