The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
E-FILED 3:09-cr-30107-SEM-BGC # 48 Page 1 of 15 Thursday, 01 September, 2011 06:30:35 PM Clerk, U.S. District Court, ILCD
The Court now considers the Government's Motion and Memorandum to Reconsider the Admission of Other Acts of Child Molestation. See d/e 42 ("Motion for Reconsideration"). For the reasons stated below, the Motion for Reconsideration will be GRANTED IN PART AND DENIED IN PART.
On April 15, 2011, the United States Government filed a Notice of Intent to Use Prior Molestation Evidence. See d/e 26 ("Notice"). The Notice alleged that Price molested his sister JP when Price and JP were children. The molestation occurred over a several year period. It began when JP was 5-years old and Price was 10-years old. See Notice at 7. The molestation continued until JP turned 14-years old. Id. at 8. Accordingly, Price would have been 19-years old when he stopped molesting JP.
This Court denied admissibility under Rule 414 reasoning that, because Price was not charged with a molestation offense, Rule 414 was inapplicable. See Opinion dated July 12, 2011 (d/e 37) at 15 ("Opinion"). This Court also observed that the Government had not filed a notice of intent to use evidence related to Price's molestation of his daughter RP. However, this Court did not address the admissibility of such evidence since the parties did not argue the matter. See Opinion at 12, n.1.
On August 8, 2011, the Government filed its Motion for Reconsideration of the Court's: (1) decision to exclude evidence of JP's molestation under Rule 414; and (2) suggestion that the Government may need to file a notice of intent if it wished to use evidence related to RP's molestation.
The Government's Motion for Reconsideration explains that pornography offenses are crimes of molestation and, as such, molestation evidence is admissible under Rule 414 when a pornography offense has been charged. The Motion for Reconsideration correctly states that Rule 414(d)(2) defines "an offense of child molestation" as "any conduct proscribed by chapter 110 of Title 18, United States Code". See Motion for Reconsideration at 5 (quoting Rule 414(d)(2)). Since Price is charged with child pornography crimes under 18 U.S.C. §§ 2251 and 2252A, and those offenses are proscribed by Chapter 110 of Title 18 of the United States Code, those offenses are by definition an "offense of child molestation". As such, Price's molestation of JP may be admissible under Rule 414(a) since evidence of child molestation is admissible under Rule 414(a) to the extent it is relevant.
While Rule 414(a) certainly allows molestation evidence to be admitted in cases where child pornography charges have been filed, the Government has not shown that molestation evidence is properly admitted here. Evidence of molestation is properly admitted under Rule 414 only if the evidence is not subject to exclusion by Rule 403. See United States v. Hawpetoss, 478 F.3d 820, 824-25 (7th Cir. 2007). Rule 403 bars the admission of relevant evidence if the evidence's probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or delay, waste of time, or needless presentation of cumulative evidence." Id.
The Seventh Circuit allows great flexibility in deciding whether to admit Rule 414 molestation evidence. See Hawpetoss, 478 F.3d at 825. The Seventh Circuit has not adopted a specific test for deciding whether 403 considerations require 414 evidence to be excluded. However, in Hawpetoss, the Seventh Cicuit approvingly cited the multi-factor test used in United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001). See Hawpetoss, 478 F.3d at 825.*fn1
Pursuant to that test, district courts may consider: "(1) the similarity of the prior acts to the acts charged, (2) the closeness in time of the prior acts to the acts charged, (3) the frequency of the prior acts, (4) the presence or lack of intervening circumstances, and (5) the necessity of the evidence beyond the testimonies already offered at trial." LeMay at 1028 (internal quotation marks omitted); see also Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 156 (3rd Cir. 2002) (applying a test similar to the one used in the LeMay decision).*fn2 Since it is permissible to consider the LeMay factors, and those factors provide a useful framework for determining the admissibility of molestation evidence, this Court will apply them.
This Court finds a strong similarity between Price's prior acts and the charged offenses. Price allegedly had sex with his younger sister JP, made pornographic photographs of her, and explained to her that the intercourse was necessary for him to be able to credibly write a steamy novel. As for the charged offense involving RP, Price allegedly penetrated RP's vagina with his finger, made pornographic photos of her, and told her the pictures were to be used in a portfolio Price was creating to advance RP's modeling career. Since Price allegedly abused JP and RP, created pornographic photos of them, and justified his misconduct in terms of artistic merit, there is significant similarity between Price's prior acts involving JP and the charged offenses pertaining to RP. The similarities indicate that Price has a long-established modus operandi for preying on young female relatives, memorializing the victims in photos, and proffering art as a justification for the victims' abuse.
Unlike the defendant in LeMay, however, Price was not convicted of the offenses which formed the prior acts. See LeMay, 260 F.3d at 1029. Though the LeMay court stated that a conviction was not a prerequisite for admissibility of prior acts evidence, the court also stated that "the extent to which an act has been proved is a factor that the district courts may consider in conducting the Rule 403 inquiry." See LeMay, 260 F.3d at 1029. The proof here consists of JP's purported confrontation of Price years after the alleged abuse, statements JP made to others many years after Price allegedly abused her, Price's admission to Renee Hale about his molestation of JP, Price's lack of denial when Price's ex-wife and father raised the issue of Price's alleged abuse of JP, and Price's statement to his ex-wife that all of his siblings ...