The opinion of the court was delivered by: Stiehl, District Judge
This matter is before the Court on defendant's motion for a new trial (Doc. 152), to which the government has filed a response (Doc. 153). The defendant asserts that there were several errors committed during the trial which denied him a fair trial, e.g. that the court gave improper jury instructions; excluded evidence that prevented the defendant from presenting a complete defense; that the evidence was insufficient to support the defendant's conviction, and that based on these errors, he is entitled to a new trial.
The Seventh Circuit has held that a motion for new trial should be granted "only if the evidence 'preponderate[s] heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'" United States v. Swan, 486 F.3d 260, 266 (7th Cir. 2007) (quoting United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989) (other citations omitted)). "We view the evidence in the light most favorable to the government, recognizing that it is the exclusive function of the jury to determine the credibility of witnesses and draw reasonable inferences." United States v. Theodospoulos, 48 F.3d 1438, 1444 (7th Cir. 1995) quoted in Swan, 486 F.3d at 266.
The defendant was convicted of all charges in the indictment. Count 1 of the Indictment charged the defendant with bankruptcy fraud, alleging that between January 20 and January 31, 2006, the defendant knowingly and fraudulently gave, offered, received and attempted to obtain money and property, remuneration, compensation, reward, advantage and promise thereof for acting and forbearing to act in a case under Chapter 11 of the Bankruptcy Code, all in violation of 18 U.S.C. § 152(6). Count 2 charged the defendant with obstruction of justice alleging that between January 20 and 31, 2006, the defendant did knowingly and corruptly attempt to obstruct, influence, and impede an official proceeding, all in violation of 18 U.S.C. § 1512(c)(2).
Counts 3 and 4 charged the defendant with possession of child pornography. Specifically, Count 3 charged that on or about January 20, 2006, the defendant knowingly possessed material that contained an image of child pornography that was produced using materials that had been mailed and shipped and transported in interstate and foreign commerce that was placed in the mailbox of the defendant's ex-wife, all in violation of 18 U.S.C. § 2252A(a)(5)(B).
Count 4 charged that on or about January 31, 2006, the defendant knowingly possessed material that contained an image of child pornography that was produced using materials that had been mailed and shipped and transported in interstate and foreign commerce, namely a color photograph containing images of a child, that was located on the person of Gary E. Peel, all in violation of 18 U.S.C. § 2252A(a)(5)(B).
a. Possession of Child Pornography Counts
The defendant asserts that the Court improperly refused to give an instruction on the question of lasciviousness, i.e. the defendant's subjective intent in taking the photographs in question. The defendant sought to have the jury instructed that his intention when he took the photograph was irrelevant to the determination of whether the image met the definition of child pornography. The photographs in question involved the depiction of a young girl, who the evidence at trial revealed was sixteen years old, naked on the floor of an office (the defendant's then law office) with her legs spread, and the focus of the photo being her pubic area.
"Child pornography" is defined in 18 U.S.C. § 2256(8) as "any visual depiction, including any photograph. . . of sexually explicit conduct, where (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct. . . ." The Court instructed the jury on the definition of "sexually explicit conduct"*fn1 , on the definition of "lascivious"*fn2 and on the six-factors used to determine whether an image is lascivious as set forth in United States v. Dost, 636 F. Supp 828, 932 (S.D. Cal. 1986) aff'd sub nom. United States v. Wiegland, 812 F.2d 1239 (9th Cir. 1987); see also, United States v. Moore, 215 F.3d 681, 686 (7th Cir. 2000)*fn3.
The defendant asserts that the Court's failure to give an instruction on his subjective intent expanded the scope of the statute beyond its plain language in violation of his Fifth Amendment rights. He also asserts that failure to give the subjective intent instruction allowed the jury to consider the testimony of Donna Rogers relating to how the photos were produced, including the fact that the defendant posed Rogers for the photographs. The defendant asserts that because the jury had heard evidence that the defendant and Rogers had a sexual relationship at the time the photographs were ...