The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
3:09-cr-30107-SEM -BGC # 37 Page 1 of 19 Tuesday, 12 July, 2011 04:18:21 PM Clerk, U.S. District Court, ILCD
The Court now considers the Government's Notice of Intent to Introduce Evidence of Other Acts of Child Molestation. See d/e 26 (the Notice). For the reasons stated below, molestation evidence offered under the Notice will be DENIED.
FACTS The facts, as alleged in the Notice are as follows. On September 9, 2009, the Sangamon County Child Advocacy initiated an investigation after a 16-year old female child, RP, was referred to them by her physician for alleged sexual and physical abuse by Defendant Jeffrey Price ("Price"). During the interview, RP stated that when she was around 10 to 12-years old, Price took photographs of her both nude and wearing her mother's lingerie, specifically thong panties. Most of the photographs were taken in her parent's bedroom in Sangamon County, Illinois. RP also stated that Price had physically abused her with a belt and his hands.
Additionally, RP disclosed that she began menstruating at age 12 during the same time period that Price photographed her. Price showed her how to use a tampon by inserting his fingers inside of her vagina. RP said he had a tampon in his hand and she is not sure why he inserted his fingers inside of her. RP also said that when she had a yeast infection Price inserted the medicine inside her vagina. RP said she asked Price, whom she lived with, about going to the doctor to learn how to do a breast self-examination. Price responded by instructing RP to pretend that he was the doctor so he could do the exam. She said that on one occasion, Price showed her how to do an exam, and she demonstrated this by making a circular motion around her breasts with her hand.
RP reported that Price told her often that she was pretty and sexy and she had a nice body. RP said that Price wanted to show her how to masturbate and wanted to buy her sex toys to help her accomplish the masturbation. RP disclosed that Price asked her if she would scream and make a big deal about it if he came into her room in the middle of the night and tried to have sex with her or would she just pretend to be asleep. RP said she told Price that she would scream and make a big deal about it because it was not right. RP stated Price offered to have sex with her and told her he could teach her some things if she wanted to know. RP said Price offered to perform oral sex on her and told her, if she wanted to try it, she could perform oral sex on him. RP said that Price has never touched her with anything other than his hands and has never forced himself on her. RP said the incidents with Price stopped at the point he found out she had lost her virginity. RP said she asked him why he was mad and he told her he was kind of jealous because he wished she had lost her virginity with him.
On September 11, 2009, Department of Children and Family Services ("DCFS") Investigator Misty Hatcher and Detective Paula Morrow with the Springfield Police Department interviewed Price. During the interview, Price acknowledged his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he agreed to waive those rights.
Price stated that there was a prior DCFS investigation regarding inappropriate photographs of RP in 2004. Price said several people made comments to him that RP could be a model. He said RP was a very pretty young girl. Price explained that he had taken RP to Carlinville and met with a modeling agency from St. Louis. He said the agency wanted him to purchase a portfolio which was very expensive. Price decided to try and create a portfolio of RP himself. Price and RP's mother dressed RP in "cute outfits" and poses trying to build a portfolio. Detective Morrow asked Price if he had taken any nude pictures of RP. He sighed and stated, "Not to my recollections, not that I remember." When asked if he had taken any pictures of RP in lingerie, he said, "I may have, with her dressing up with her mom or her playing dress up," but he could not recall any specific details, other than that RP was 10 years old at the time. Price denied posing nude with RP.
Detective Morrow asked Price if he had destroyed all of the photographs of RP. Price said the photographs were digital and he had a computer that crashed so he had no way of recovering them. Price consented to the search of his Dell Inspiron laptop computer, Serial No 36WY0D1, on that same day. On October 13, 2009, Detective Morrow spoke with RP's biological mother, Price's ex-wife. RP's biological mother told Detective Morrow that she recalled Price taking a photograph of her and RP while both females were nude and sitting on stools in their bedroom. RP would have been about 9-years old at that time. RP's biological mother also told Detective Morrow that Price told her he wanted to take the picture for an "art" project he was working with on the internet.
During the search of Price's residence, law enforcement officers located several commercial movies of child erotica, involving minors with sexually suggestive themes and depictions. Senior Special Agent ("SSA") Michael Mitchell with Immigration and Customs Enforcement conducted a forensic examination of Price's Dell Inspiron laptop computer. SSA Mitchell recovered 21 movies and 937 images of minors engaged in sexually explicit conduct on Price's laptop computer of suspected child pornography. The majority of the images located by SSA Mitchell were found in the "Recycle Bin," having been last accessed by the computer user the morning of September 11, 2009-the day of Price's interview with Detective Morrow.
In addition, SSA Mitchell located several images of RP. One of the images depicts RP on a bed completely nude facing the camera. In the picture, RP is posed in a sexually coy position but her hands cover some of her breast area. She has no apparent breast development and based on her body size, she appears to be approximately 9 to 11-years old. Another image depicts RP completely nude next to an adult female who is also completely nude. This image is a full frontal depiction of RP and shows no breast development or pubic hair. There were several images of RP posed and dressed partially in lingerie. One such image depicts RP on a bed on her stomach. She is wearing only white thong-like panties and white thigh high stockings. Her buttocks are exposed, she has no visible breast development, and she is looking at the camera in a sexually suggestive manner. SSA Mitchell determined that these images were located on the Dell Inspiron laptop hard drive produced in the "thumbcache_256.db" file. This file was last accessed on September 11, 2009, the morning of Price's interview with Detective Morrow.
A user with Windows Vista Operating System who previews or views images causes those images to be stored on the user's computer in a centralized location on the system. This provides the system with access to images independent of their location. The location that the system creates are named "thumbcache_xxx.db". They are numbered according to the size of the images-i.e. , 256kb, 512kb, 1024kb, 2048kb, etc. The images are recoverable through computer forensics. The hard drive in the Price's Dell Inspiron laptop was manufactured in China. SSA Mitchell also located peer to peer file sharing software on Price's computer as well as anti-computer forensic software designed to eliminate traces of evidence. This program was set to automatically empty the recycle bin of its contents on a regular basis, however, this feature had not been run on the morning of Detective Morrow's interview with Price.
The images of RP were submitted to the National Center for Missing and Exploited ("NCMEC") children as an identified series of child pornography. NCMEC has since located at least 40 additional investigations worldwide where RP's images have been recovered. These investigations revealed that the individuals who received RP's ...