The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
On December 23, 2011, the defendant, Eric Charles Rambough, filed a "Motion to Exclude Evidence RE: Unrelated Internet Communications." See Docket No. 24. The Government filed a response in opposition to the motion on January 3, 2012. See Docket No. 26. For the reasons explained below, Rambough's motion is granted in part.
On May 3, 2011, Rambough was charged with two counts of attempted sexual exploitation of minors in violation of 18 U.S.C. §§2251(a) and (e). The indictment alleges that in or about November 2010, Rambough attempted to use the minors E.J. and T.J. "to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, which such visual depictions were digitally produced using materials that had been mailed, shipped, and transported in interstate and foreign commerce by any means, including by computer." See Docket No. 1. In its brief in opposition to Rambough's motion, the Government alleges that law enforcement found three videos on Rambough's cellular telephone depicting T.J., Rambough's 14-year-old step-daughter, and E.J., Rambough's 13-year-old step-daughter, in the bathroom in the home shared by Rambough, his wife Wendy (E.J. and T.J.'s mother), E.J., and T.J.. Two of the videos show T.J. undressing, entering the shower, exiting the shower, and towel drying herself. The third shows E.J. engaging in the same activity. Rambough can also be seen in each of the videos setting up and taking down the telephone from under the bathroom sink. Rambough "told Det. Grueble that [he] did indeed make the videos of his two minor step-daughters, but did so because he was concerned that they were taking nude pictures of themselves and texting them to friends." See Docket No. 26.
On December 23, 2011, Rambough filed a motion to exclude evidence. Attached to the motion are transcripts of "chats" in which Rambough participated using the Yahoo! Messenger instant messaging service. See Docket No. 24-1. Twenty chats are provided that took place between August 4, 2010, and August 20, 2010. In most of the chats, Rambough describes himself as a 19-year-old lesbian or bisexual female. He describes and/or engages in role-playing scenarios involving sexual conduct with adults and minors. Rambough seeks to exclude evidence of the chats, contending that they are not relevant to the charged conduct and that the danger of unfair prejudice substantially outweighs any probative value they may have. The Government contends that evidence of the chats is relevant because it shows that Rambough has a sexual interest in minors.
Rule 402 of the Federal Rules of Evidence provides, "All relevant evidence is admissible . . . Evidence which is not relevant is not admissible." Fed. R. Evid. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Rule 403 provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. "The trial court has broad discretion in determining the relevancy and admissibility of evidence. Under Rule 403, great deference is given to a district court's balancing of the relative value of a piece of evidence and its prejudicial effect." United States v. Zierke, 618 F.3d 755, 759 (8th Cir. 2010) (quoting United States v. Jimenez, 487 F.3d 1140, 1145 (8th Cir. 2007)).
Rambough contends that the chats are not relevant to the conduct with which he is charged, and the danger of unfair prejudice substantially outweighs their probative value. The Government contends that the chats are relevant because they show Rambough's sexual interest in minors.
The Eighth Circuit model jury instructions for the offense of sexual exploitation of minors, when applied to the circumstances of count one of the indictment, reads as follows:
The crime of attempted sexual exploitation of a minor, as charged in Count One of the Indictment, has four elements, which are:
One, at the time alleged, E.J. was under the age of eighteen years;
Two, the defendant knowingly used E.J. to engage in sexually explicit conduct;
Three, the defendant acted with the purpose of producing a visual depiction of such conduct; and Four, the visual depiction was produced using materials that had been mailed, shipped, or transported across state lines or in foreign commerce by any means, including by computer or ...