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United States v. Senke

United States District Court, M.D. Pennsylvania

August 3, 2018

UNITED STATES OF AMERICA
v.
CHARLES J. SENKE, Defendant

          MEMORANDUM

          JAMES M. MUNLEY JUDGE.

         Before the court for disposition is Defendant Charles J. Senke's motion in limine to preclude proffered 404(b) evidence (Doc. 114). The issue has been briefed and is ripe for disposition.

         Background

         On December 20, 2016, the grand jury indicted the defendant on charges of travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) and online enticement in violation of 18 U.S.C. § 2422(b). (Doc. 1).

         The Pennsylvania Attorney General's Office performed an online undercover sting operation attempting to find adults seeking unlawful contact with minors. No. minors were involved in the investigation. Instead, an agent masqueraded as a minor on an LGBT website, Gay.com. After chatting for a time on the website and through text messages, the defendant and the investigator allegedly decided to meet. Authorities arrested defendant when he arrived for the meeting.

         Originally, charges were brought in Pennsylvania state court. Almost two years later, however, the federal government brought the instant charges against the defendant in this court. The state court charges were dismissed.

         The court appointed an assistant federal public defender to represent the defendant. In February 2017, the court granted defendant's counsel leave to withdraw and allowed the defendant to proceed pro se.[1] On April 10, 2017, the government filed a motion in limine to preclude the defendant from using an entrapment defense.

         On September 19, 2017, we denied the government's motion in limine. Approximately two weeks later, the government filed a superseding indictment. (Doc. 93). The superseding indictment adds an additional charge, Attempted Transfer of Obscene Material to a Minor in violation of 18 U.S.C. § 1470. (Doc. 93, Count 3). As with the other counts, this count does not relate to an actual minor but rather involves an undercover law enforcement officer. (Id.)

         In its trial brief, the government indicates that it seeks to present evidence at trial of certain videos found on the defendant's mobile telephone.[2] The defendant has filed a motion in limine to preclude this evidence, bringing the matter to its present posture.

         Discussion

         The government describes the evidence at issue as follows:

A search of the defendant's iPhone subsequent to his arrest revealed obscene videos created by the defendant involving sexual conduct with a young male. One such video depicts a young male on his knees, wearing a dog collar, with the defendant holding him by a leash. During the video, the defendant commands the male to eat and drink from dog dishes, and then commands him to perform oral sex on the defendant, which is also captured on the video.

(Doc. 112, Gov't Trial Br. at 18-19). The government intends to present this evidence if the defendant presents an entrapment defense. The defendant has filed a motion in limine to preclude the videos.

         The government's brief seems to provide two bases for the admission of the evidence. First, the government asserts that the evidence is directly relevant to the instant charges, and second, it is admissible evidence of other crimes, wrongs or acts ...


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