USA v. GOGUEN

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA )
)
v. ) 1:16-cr-00167-JAW
)
ROBERT GOGUEN )
ORDER ON MOTION IN LIMINE TO ADMIT EVIDENCE OF POSSESSION
OF FILES CONTAINING CHILD EROTICA & BESTIALITY
With trial scheduled for August 8, 2017 in this child pornography case, the
Government seeks to admit evidence of the Defendant’s possession of files containing
images of child erotica and bestiality both at the time of the alleged offense and more
than two years earlier. The Court grants in part, defers in part, and denies in part
the Government’s motion in limine. The Court agrees with the Government that
images of child erotica allegedly found on the Defendant’s laptop computer on
November 10, 2015, the time of the alleged possession crime in this case, as well as
the corresponding testimony regarding possession of child erotica on that date, are
admissible. Regarding the earlier alleged possession of child erotica, preferring to
weigh the danger of undue delay, time wasting, and cumulative evidence on a more
complete record, the Court defers final ruling on the admissibility of three
photographs of child erotica found during the laptop search on May 23, 2013, as well
as the testimony regarding possession of other images at that time. Finally, the Court
denies admission of the testimony regarding possession of files containing images of
bestiality on both May 23, 2013 and November 10, 2015.
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I. BACKGROUND
A. Procedural Background
On December 14, 2016, a federal grand jury indicted Robert Goguen for
possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B),
2252A(b)(2), and 2256(8)(A).1 Indictment at 1 (ECF No. 1). The charge is scheduled
for trial on August 8, 2017. Speedy Trial Order (ECF No. 52); Trial List (ECF No.
53).
On January 17, 2017, the Government filed a motion in limine asking that the
Court rule in advance of trial as to the admissibility of certain evidence of the
possession of files containing child erotica and bestiality. Gov’t’s Mot. in Lim. to
Admit Evid. of the Def.’s Possession of Child Erotica and Bestiality (ECF No. 18)
(Gov’t’s Mot.). On February 20, 2017, Mr. Goguen objected to the motion. Def.’s Obj.
to Mot. in Lim. (ECF No. 32) (Def.’s Opp’n). The Government replied on February 24,
2017. Gov’t’s Reply to Def.’s Obj. to Mot. in Lim. (ECF No. 35) (Gov’t’s Reply).2
B. Factual Background
The December 14, 2016 indictment charges Mr. Goguen with possession of
child pornography on about November 10, 2015. Indictment at 1. The Government
represents that on November 10, 2015, United States Probation Officers Oswald and
1 The indictment also contains a forfeiture allegation, demanding forfeiture of a laptop computer
and a hard drive. Indictment at 1–2.
2 The resolution of this motion was delayed by the need to resolve a separately-filed motion to
suppress all evidence obtained from the search of Mr. Goguen’s laptop computer. If all the laptop
evidence had been suppressed, it would have affected this motion in limine. The Court affirmed the
recommended decision of the Magistrate Judge on June 19, 2017, thereby making the case vulnerable
for trial and making the motion in limine in order for decision. Order Affirming the Recommended
Decision of the Magistrate Judge (ECF No. 48).
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Moloney went to Mr. Goguen’s apartment to conduct an unannounced visit. Gov’t’s
Mot. at 1–2. Mr. Goguen was on supervised release for his federal conviction in the
District of Maine for failing to register as a sex offender. Id. at 2. The probation
officers entered Mr. Goguen’s apartment, interacted with him, and ultimately seized
a Hewlett Packard laptop computer. Id. The probation officers took the laptop with
them to the United States Probation Office. Id.
On November 13, 2015, Probation Officer Oswald began reviewing the contents
of the laptop. Id. Upon identifying images of child pornography, Probation Officer
Oswald consulted additional law enforcement. Id. Special Agent Greg Kelly of
Homeland Security Investigations (HSI) obtained a search warrant for the laptop and
HSI conducted computer forensics on the laptop. Id. Special Agent Kelly identified
evidence of approximately 9 images of child pornography, 5 videos of child
pornography, 169 images of child erotica, 9 videos of child erotica, 24 videos of adult
pornography/adult erotica, and 9 videos of bestiality. Id. The child pornography
recovered from the laptop forms the basis of the charges in the current matter. Id.
The Government also states that on May 23, 2013 Probation Officer Oswald
found Mr. Goguen in possession of a laptop computer while he was on supervised
release. Id.; see also id. Attach. 1 Mem. from Mitchell Oswald, Sr. USPO re: Robert
Goguen. The laptop contained images of child erotica, adult pornography, and
bestiality. Gov’t’s Mot. at 2–3. Mr. Goguen told Probation Officer Oswald that the
images “popped up” on the laptop. Id. at 3. The conditions of Mr. Goguen’s supervised
release were then modified to prohibit Mr. Goguen from possessing any pornography.
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Id. In December of 2016, Special Agent Kelly reviewed the material recovered from
the laptop that Mr. Goguen possessed in May of 2013 and identified approximately
2,400 total files, including images and videos. Id. Approximately 240 of the files
contained child erotica and approximately 22 of the files contained bestiality. Id.
The Government seeks to admit into evidence three images of child erotica that
Mr. Goguen possessed on about May 23, 2013, marked as Exhibits 2-A, 2-B, and 2-C,
as well as testimony regarding the total number of images and videos that Mr.
Goguen possessed on that date. Id. at 5–6. The Government also seeks to admit into
evidence three images of child erotica that were recovered from the laptop found in
Mr. Goguen’s apartment on November 10, 2015, marked as Exhibits 3-A, 3-B, and 3-
C, as well as testimony regarding the total number of images and videos possessed
on that date. Id. at 6. The Government also seeks to admit testimony regarding Mr.
Goguen’s possession of files containing bestiality. Id. at 1; Gov’t’s Reply at 10.
II. THE PARTIES’ POSITIONS
A. The Government’s Motion
First, the Government contends that the evidence of possession of child erotica
on both May 23, 2013 and November 10, 2015 is admissible under Federal Rules of
Evidence 404(b) and 403. Gov’t’s Mot. at 3. The Government acknowledges that the
evidence cannot be introduced as propensity evidence. Id. However, it argues that
the evidence shows Mr. Goguen’s prurient interest in children and is admissible
because it has special relevance, namely, it establishes motive, intent, lack of
mistake, and lack of accident. Id. at 4. More specifically, the Government claims
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that the images of child erotica that Mr. Goguen possessed on May 23, 2013 establish
that Mr. Goguen intentionally sought and possessed child pornography on about
November 10, 2015 and refute any argument that Mr. Goguen possessed the child
pornography by mistake or accident. Id. at 5. Similarly, it argues that the child
erotica images found on November 10, 2015 show intent, knowledge, and lack of
mistake or accident. Id. The Government further argues that the evidence is not
barred by Rule 403 because any prejudice stems from the substantive probative value
of the evidence and does not rise to the level of “unfair prejudice.” Id. at 6–7.
Second, the Government contends that the evidence of Mr. Goguen’s possession
of files containing child erotica and bestiality is relevant because it demonstrates Mr.
Goguen’s control, use, and knowledge of the laptop on November 10, 2015. Id. at 7.
It claims that “[t]he fact that the defendant possessed unique material such as child
erotica and bestiality in 2013, and that on November 10, 2015, the [l]aptop contained
similar material, strongly indicates that it was the defendant who had control, use,
and knowledge of the [l]aptop on November 10, 2015.” Id.
B. Robert Goguen’s Opposition
Mr. Goguen claims that “[t]he evidence [that he] possessed child erotica and
bestiality 18 months prior to the present child pornography allegations is only
relevant to show [he] is the type of person to possess this material and child
pornography,” which, he claims, is “the very type of propensity evidence the Court
has rejected.” Def.’s Opp’n at 3. Mr. Goguen argues that the material is not
admissible for some special purpose because he is not claiming he accidentally or
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mistakenly possessed the material, or did not have the intent to possess it. Id.
Instead, he claims “it was not him who possessed the material.” Id. Mr. Goguen
distinguishes his case from the cases relied upon by the Government because the
evidence of child erotica and bestiality here was found eighteen months prior to the
current allegations. Id. at 4.
Mr. Goguen additionally argues that even if the Court concludes that the
evidence has special relevance, its probative value is substantially outweighed by
unfair prejudice because the nature and volume of the materials from 2013 would
lead a jury to react negatively and consider him “a bad guy.” Id. at 5.
C. The Government’s Reply
In reply, the Government argues that the evidence of child erotica is
admissible despite Mr. Goguen’s claim that he is not alleging a lack of accident,
mistake, or intent. Gov’t’s Reply at 2. It states that Mr. Goguen has not stipulated
to anything in the case and argues that even if he did, the Government is entitled to
prove its case by its own choice of evidence. Id. at 2–3. The Government relies on a
case from this Court, United States v. Palmer, No. 1:15-cr-00154-JAW, 2016 WL
4625174 (D. Me. Sept. 6, 2016), in which the Court rejected an argument similar to
the one Mr. Goguen makes here. Id. at 3–4. It argues that because Mr. Goguen
makes clear that he is disputing that he “knowingly” possessed the child
pornography, evidence that he previously possessed child erotica strongly supports
the inference that he knowingly possessed the child pornography at issue. Id. at 4–
5. Additionally, the Government claims that Mr. Goguen’s position that the evidence
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is not relevant because it was not discovered at the time of the search is erroneous
and points to cases in which courts admitted evidence of prior possession. Id. at 5–6.
It insists that the evidence has special relevance and is not being used solely for
propensity evidence. Id. at 6–7.
With respect to Mr. Goguen’s Rule 403 argument, the Government maintains
that the probative value is not substantially outweighed by unfair prejudice. Id. at
7–8. It contends that the images of child erotica are not as unsettling as the images
of actual child pornography that will be admitted at trial, other courts have
determined that this kind of evidence is not unduly prejudicial, a limiting instruction
can be provided, and the evidence is highly probative because Mr. Goguen disputes
knowing possession. Id.
Finally, the Government claims that the evidence of possession of files
containing bestiality has significant probative value because the fact that Mr. Goguen
previously possessed bestiality, and the fact that the laptop discovered on November
10, 2015 also contains bestiality, tends to show that Mr. Goguen possessed the laptop
and was aware of its contents. Id. at 9. It argues that the evidence is even more
significant in light of the fact that Mr. Goguen states that he did not possess the
material. Id. The Government relies on United States v. Wallace, 607 F. App’x 25
(2d Cir. 2015), in which the Second Circuit affirmed the district court’s decision to
admit evidence that the defendant had an interest in bestiality to prove identity as
to the person who downloaded images of child pornography on the computer. Id. at
9–10. The Government argues that any risk of unfair prejudice from the admission
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of this evidence is minimized because it is not seeking to admit any actual images of
bestiality but only testimony of the prior possession and of when the images were last
written onto the laptop found on November 10, 2015. Id. at 10, 10 n.1.
III. DISCUSSION
The parties concede that the Government’s proposed evidence of Mr. Goguen’s
possession of files containing child erotica and bestiality is properly deemed “other
bad acts” evidence. Gov’t’s Mot. at 3, 7; Def.’s Opp’n at 1–4; Gov’t’s Reply at 1–11.
Federal Rule of Evidence 404(b) governs the admission of evidence of other bad acts
and provides in part:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the
character.
(2) Permitted Uses . . . . This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
FED. R. EVID. 404(b)(1), (2). The First Circuit utilizes a two-part test for evaluating
the admissibility of evidence challenged under Rule 404(b). United States v. Ford,
839 F.3d 94, 109 (1st Cir. 2016). To be admissible, the Rule 404(b) evidence must
have “special relevance,” that is, it must be “relevant for any purpose apart from
showing propensity to commit a crime.” Id.; United States v. Habibi, 783 F.3d 1, 2
(1st Cir. 2015) (quoting United States v. Doe, 741 F.3d 217, 229 (1st Cir. 2013)
(quoting United States v. Rodríguez–Berríos, 573 F.3d 55, 64 (1st Cir. 2009))). Even
if the proposed evidence has special relevance, it must still survive a Rule 403
balancing analysis. Ford, 839 F.3d at 109.
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A. Evidence of Possession of Child Erotica
The Government seeks to admit evidence of Mr. Goguen’s possession of child
erotica on November 10, 2015, the date charged in the indictment, as well as evidence
of his prior possession of child erotica on May 23, 2013. Specifically, it seeks to
introduce three images from November 10, 2015, three images from May 23, 2013,
and testimony regarding the extent of possession on both dates.
1. November 10, 2015 Child Erotica Evidence
In his response, Mr. Goguen failed to address the admissibility of the images
of child erotica found on his laptop computer on November 10, 2015. Def.’s Opp’n at
1–6. As Mr. Goguen does not appear to contest the admission of the child erotica from
November 10, 2015, he waived any argument on this issue. See United States v.
Arroyo–Blas, 783 F.3d 361, 366–67 (1st Cir. 2015).
Even so, the Court is at a disadvantage because it does not know the type of
child pornography the Government claims that Mr. Goguen possessed on November
10, 2015 and how it compares with the images of child erotica that the Government
seeks to introduce into evidence. In general, child pornography is defined as the
visual depiction of sexually explicit conduct involving a minor, namely any person
under the age of eighteen. See 18 U.S.C. § 2256. Here, the erotic images that the
Government submitted with its motion exclusively depict younger girls probably in
their early teens in sexually provocative poses, though no nudity is shown, but the
Government has not submitted images of the child pornography that it alleges Mr.
Goguen actually possessed on November 10, 2015. For purposes of ruling on this
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motion, the Court assumes that the actual images of child pornography the
Government claims Mr. Goguen possessed on November 10, 2015 are consistent with
the age and gender of the children in the erotic images. In other words, if the
Government is claiming that on November 10, 2015, Mr. Goguen exclusively
possessed pornographic images of extremely young boys, the probative value of the
admission of provocative images of young teenaged girls would be lessened and the
Court would be required to reanalyze the admissibility of the contemporaneously-
possessed erotic, non-pornographic images.
Assuming that the erotic and pornographic images are similar, the Court
agrees with the Government that this evidence has special relevance. As this Court
recently concluded in United States v. Palmer, No. 1:15-cr-00154-JAW, 2016 WL
4625174 (D. Me. Sept. 6, 2016), evidence of a defendant’s contemporaneous possession
of child erotica tends to confirm that a defendant had a sexual interest in children, a
motive to access child pornography, and the intent to do so, and that he did not access
the child pornography by mistake or accident. Id. at *4 (collecting cases from other
courts holding the same).
The Court also concludes that the November 10, 2015 evidence of child erotica
that the Government seeks to introduce is not unfairly prejudicial. The probative
value of this evidence is potentially high, as noted. Furthermore, the images that the
Government seeks to admit do not fit the legal definition of child pornography, see 18
U.S.C. § 2256(2)(A), (8), and therefore “the common concern that a jury will conclude
that because a defendant committed a prior criminal act, he must have committed
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the one charged, does not apply to these items.” See Palmer, 2016 WL 4625174, at
*4. Additionally, the images are relatively benign compared to other images
encountered by the Court in child pornography cases, and compared to the other
images likely to be introduced in this case, lessening their prejudicial impact. See
United States v. Gendron, 18 F.3d 955, 969 (1st Cir. 1994). Upon request, the Court
may give a limiting instruction to make certain the jury does not use the evidence
inappropriately. See United States v. Moon, 802 F.3d 135, 144–45 (1st Cir. 2015).
The Court concludes that Exhibits 3-A, 3-B, and 3-C, as well as the
corresponding testimony about possession of child erotica on November 10, 2015, are
admissible.
2. May 23, 2013 Child Erotica Evidence
Mr. Goguen does object to the admission of the evidence of child erotica from
May 23, 2013 arguing first that it has no special relevance because he does not contest
intent, mistake, or accident and the evidence was found 18 months before the date
charged in the indictment, and second that its probative value is outweighed by
unfair prejudice. Def.’s Opp’n at 3–5.
a. Rule 404(b) Special Relevance
The Court disagrees with Mr. Goguen that the May 23, 2013 child erotica
evidence has no special relevance. To prove criminal possession of child pornography,
the Government bears the burden to establish beyond a reasonable doubt that the
defendant’s possession was knowing. 18 U.S.C. § 2252A(a)(5)(B) (“knowingly
possesses, or knowingly accesses with intent to view”); JUDGE TORRESEN’S PATTERN
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CRIM. JURY INSTRS. FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT § 4.18.2252
(updated Feb. 24, 2017) (TORRESEN). “‘[K]nowingly’ means that the act was done
voluntarily and intentionally and not because of mistake or accident.” TORRESEN §
4.18.2252; United States v. Tracy, 36 F.3d 187, 195 (1st Cir. 1994).
Even though Mr. Goguen claims that he has never asserted and will not assert
a “mistake or accident” defense, the Government still bears the burden to prove
beyond a reasonable doubt each element of the offense, including knowing possession
and the absence of mistake or accident, and the prosecution is “entitled to prove its
case by evidence of its own choice.” Ford, 839 F.3d at 109 (citing Old Chief v. United
States, 519 U.S. 172, 186 (1997)); United States v. Dudley, 804 F.3d 506, 516–17 (1st
Cir. 2015). Here, Mr. Goguen’s possession of child erotica in May of 2013 constitutes
evidence from which a jury could conclude he had a sexual interest in children and
therefore that his possession of child pornography was intentional, not a mistake.
Additionally, as the Government points out, Mr. Goguen specifically disputes
that he was the one who possessed the child pornography.3 Therefore, even if Mr.
Goguen were to offer to stipulate that the Government need not prove absence of
mistake or accident, the Government would still retain the burden of proof that Mr.
Goguen knowingly possessed child pornography. Dudley, 804 F.3d at 516–17. The
fact that Mr. Goguen possessed images of child erotica on his laptop in the past makes
3 Mr. Goguen does not explain what he means by “it was not him who possessed the material.”
See Def.’s Opp’n at 3. However, based on the facts outlined in the Defendant’s motion to suppress
earlier ruled upon by the Court, Mr. Goguen may be suggesting that the laptop belonged to a friend
and he was unaware of its contents. See Def.’s Mot. to Suppress Evid. Regarding New Criminal
Charges and Supervise Release Revocation Hearing at 3–4 (ECF No. 174).
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it more likely that he had ownership or control of the laptop found in his apartment
on November 10, 2015 which contained the same type of images of child erotica. See
United States v. Aguilar–Aranceta, 58 F.3d 796, 799 (1st Cir. 1995) (“[W]e have held
that it is within the judge’s discretion to permit the government to introduce evidence
of prior similar offenses to demonstrate the unlikeliness that the defendant was
merely an innocent and unknowing bystander”); United States v. King, 254 F.3d 1098,
1100 (D.C. Cir. 2001) (“[W]here a defendant is charged with unlawful possession of
something, evidence that he possessed the same or similar things at other times is
often quite relevant to his knowledge and intent with regard to the crime charged”);
see also United States v. Cassell, 292 F.3d 788, 796 (D.C. Cir. 2002) (holding that the
fact that defendant previously possessed weapons “tends to make it less probable that
the weapons recovered from his bedroom were there without his knowledge, without
intent, or by accident or mistake”).
There is a risk that the jury could use this evidence for an impermissible
character purpose, i.e., because Mr. Goguen possessed child erotica in the past, he is
the type of person who would possess child pornography now. However, the Court,
having reviewed the images from May 23, 2013 and November 10, 2015, concludes
that they are very similar not only because they are child erotica, but also because
they share the same characteristics in terms of the children’s ages, poses, and level
of nudity, making it more likely that it was Mr. Goguen, not someone else, who
possessed the laptop on November 10, 2015, as well as the images of child
pornography contained therein. See Aguilar–Aranceta, 58 F.3d at 799 (“We have held
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that similarity between the prior act and the current charges is often the
predominant factor or touchstone in the test for special relevance as to defendant’s
knowledge”).
An eighteen-month gap between his earlier possession and his current charge
gives the Court some pause, particularly because a jury might be drawn to conclude
that Mr. Goguen’s possession of child erotica both in 2013 and 2015 suggests that he
is the kind of person who would commit a child pornography offense. Even so, the
similarity of the images both in 2013 and 2015 is probative evidence of intentional
possession. Furthermore, courts, including the First Circuit, have approved the
admission of evidence much older than this evidence for similar purposes. See, e.g.,
United States v. Spinosa, 982 F.2d 620, 627–29 (1st Cir. 1992) (admitting history of
cocaine transactions during four years prior to arrest to prove knowing participant in
sale of cocaine); United States v. Whorley, 550 F.3d 326, 338 (4th Cir. 2008) (admitting
prior conviction from 1999 for charges brought in 2004 to demonstrate knowledge and
lack of accident or mistake).
b. Rule 403 Unfair Prejudice
Although the admissibility issue is not unalloyed, the Court’s Rule 403 analysis
supports the admissibility of the May 23, 2013 child erotica evidence. Like the
November 10, 2015 images of child erotica, the images from May 23, 2013 are not
illegal and are relatively benign compared to the child pornography typically
admitted in these cases (and that probably will be admitted at Mr. Goguen’s trial),
reducing the prejudicial impact. By contrast, the evidence of prior possession has
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significant probative value, demonstrating intent, motive, and lack of mistake or
accident, as well as ownership or control of the laptop found on November 10, 2015,
an issue which Mr. Goguen appears to be contesting. Although there is some risk
that a jury could use this evidence for a propensity purpose, the Court will give, upon
request, a limiting instruction to the jury to make certain that it does not use the
evidence inappropriately.
Even so, the Court is uncertain how time-consuming and involved the
Government’s proposed testimony is likely to be in order to meet foundational
requirements for the admissibility of Exhibits 2-A, 2-B, and 2-C, and for the
admissibility of additional contemplated testimony about the unintroduced images.
The Court does not wish to have a “trial within a trial” about the admissibility of the
2013 uncharged and legal images and proposed testimony about non-introduced
images. See FED. R. EVID. 403 (“The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . undue delay, wasting
time, or needlessly presenting cumulative evidence”). If Mr. Goguen challenges, for
example, the accuracy of the testimony about the nature and number of the
unintroduced images, the Court would be chary about a Government witness on the
stand for hours describing in detail and counting out each unintroduced image.
Depending on what is contemplated, it may be preferable to hold a hearing outside
the presence of the jury before or during trial to determine whether the proposed
evidence meets Rule 403 requirements.
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Although the Court concludes that Exhibits 2-A, 2-B, and 2-C, as well as the
testimony regarding the extent of possession of child erotica on May 23, 2013, are
likely admissible, the Court defers ruling until trial on these images.
B. Bestiality Evidence
The Government also seeks to introduce testimony regarding the possession of
files containing bestiality in order to show that Mr. Goguen had ownership and
control over the laptop containing the child pornography found in his apartment on
November 10, 2015. Although Mr. Goguen does not appear to contest the admission
of the bestiality evidence from November 10, 2015, see Def.’s Opp’n at 1–6, he does
object to admission of the bestiality evidence from May 23, 2013, arguing that it has
no special relevance and its limited probative value is outweighed by its prejudicial
effect. Id. at 1. Out of an excess of caution, the Court analyzes the admissibility of
the bestiality evidence on both dates and concludes that the prejudicial impact of the
evidence outweighs its probative value.
1. Rule 404(b) Special Relevance
Like the evidence of Mr. Goguen’s possession of child erotica, evidence that Mr.
Goguen possessed laptops containing images of bestiality on May 23, 2013 and on
November 10, 2015 makes it more likely that the laptop recovered in November 2015
actually does belong to Mr. Goguen, and that he was aware of its contents. See
Aguilar–Aranceta, 58 F.3d at 799. The evidence may even be slightly more probative
than the child erotica evidence on this issue because an interest in bestiality may be
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more unique, making it even more likely that it was Mr. Goguen, not someone else,
who possessed the images on November 10, 2015.
2. Rule 403 Unfair Prejudice
However, unlike the evidence of child erotica, the Court concludes that the
evidence of possession of bestiality is unfairly prejudicial under Rule 403. The Court
acknowledges that the Government only seeks to introduce testimony regarding the
extent of Mr. Goguen’s possession, not any actual images or videos of bestiality, which
significantly reduces the prejudicial effect of this evidence. United States v. Wallace,
607 F. App’x 25, 29 (2d Cir. 2015). Nevertheless, the very fact that Mr. Goguen is
interested in bestiality runs a real risk of disgusting members of the jury and causing
them to view Mr. Goguen as a sexual pervert, thereby justifying his conviction on the
child pornography charge regardless of the strength of the evidence of actual
possession of child pornography. Furthermore, the jurors could conclude that because
he possessed images of bestiality, Mr. Goguen must be the type of sexual deviant who
would also possess child pornography, an impermissible line of reasoning. Finally, if
admitted, the cumulative nature of the evidence—possession not only of child
pornography, but also images of bestiality—may prejudice the jury against Mr.
Goguen and make it harder for the members of the jury to accord him a fair trial.
Moreover, assuming that evidence of prior and contemporaneous possession of
child erotica on May 23, 2013 and November 10, 2015 is admissible, it would be
admitted for the same purpose that the Government seeks to admit the bestiality
evidence, namely to show ownership and control of the laptop. As a result, the
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additional evidence of bestiality, which in the Court’s view is significantly more
prejudicial than the fairly benign images of child erotica, is needlessly cumulative.
The Court prohibits the admission of the testimony regarding Mr. Goguen’s
possession of files containing images of bestiality on May 23, 2013 and November 10,
2015.
IV. CONCLUSION
The Court GRANTS in part, DEFERS in part, and DENIES in part the
Government’s Motion in Limine to Admit Evidence of the Defendant’s Possession of
Child Erotica and Bestiality (ECF No. 18). The Court GRANTS that part of the
motion seeking to admit the evidence of possession of child erotica on November 10,
2015. The Court DEFERS that part of the motion seeking to admit the evidence of
possession of child erotica on May 23, 2013. The Court DENIES that part of the
motion seeking to admit evidence of possession of bestiality on May 23, 2013 and
November 10, 2015.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 5th day of July, 2017
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