United States District Court, C.D. California
Present: The Honorable CHRISTINA A. SNYDER
(IN CHAMBERS) - DEFENDANT’S MOTION TO SET ASIDE
THE VERDICT, OR IN THE ALTERNATIVE, FOR A NEW TRIAL (DKT.
172, FILED DECEMBER 21, 2015) DEFENDANT’S MOTION TO
VACATE MULTIPLICITOUS COUNTS (DKT. 179, FILED FEBRUARY 10,
Honorable CHRISTINA A. SNYDER J.
October 23, 2014, the Government filed an indictment in this
case against defendant, Keith Preston Gartenlaub. Dkt. 36.
The indictment charges defendant with one count of Attempted
Receipt and Receipt of Child Pornography in violation of 18
U.S.C. §§ 2252A(a)(2)(A), (b)(1), and one count of
Possession of Child Pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(b), (b)(2). Id. These
charges are based upon a collection of videos depicting child
pornography which was found on defendant’s computer and
trial in this case commenced on December 4, 2015. Dkt. 146.
On December 9, 2015, upon conclusion of the
Government’s case, defendant moved to dismiss the
counts charged in the indictment and this Court reserved
judgment on the matter. On December 10, 2015, the jury
rendered a verdict finding defendant guilty on all counts.
now brings a motion pursuant to Federal Rules of Criminal
Procedure 29 and 33 for a judgment of acquittal or, in the
alternative, a new trial. Dkt. 172. On December 28, 2015, the
Government filed an opposition, Dkt. 173, and on January 5,
2016, defendant filed a reply, Dkt. 175. In addition, on
February 10, 2016, defendant moved to vacate one of the
counts under which he was convicted on the grounds that the
counts in the indictment are multiplicitous. Dkt. 179. On
December 17, 2016, the government filed an opposition, Dkt.
180, and on February 24, 2016 defendant filed a reply. Dkt.
181. Having carefully considered the parties’
arguments, the Court finds and concludes as follows.
August 27, 2014, the government seized four hard drives
(computer and external) from defendant’s residence and
storage units. Dkt. 173, Opp’n to Mot. for Acquittal or
New Trial, at 1-2. Each hard drive contained videos of child
pornography. Id. at 2-3. The hard drive meta data
showed this pornography was not originally downloaded onto
the hard drives; rather, the pornography was downloaded onto
another, unknown device and then copied onto the hard drives.
Dkt. 172, Mot. For Acquittal or New Trial, at 5.
child pornography was contained in folders alongside
defendant’s personal files in a directory system
entitled “OrigData.” Dkt. 173, at 3. Among the
four hard drives, seven copies of Origdata existed with over
100 videos of child pornography in each copy. Id. at
2-3. One folder in Origdata, entitled “Partial, ”
contained incomplete downloads of files. Dkt. 180,
Opp’n to Mot. To Vacate, at 9. Some of these files had
names suggesting child pornography was contained therein
(e.g. the file contained “child porn” in
its filename). Id. The metadata in Origdata showed
that the files were originally downloaded between 2002 and
2003 and were subsequently copied onto the hard drives in
2005. Dkt. 172, at 5. After being transferred onto the hard
drives, the files in Origdata were intermittently
re-formatted or re-organized. Dkt. 180, at 5-8.
Defendant’s computer had also been configured not to
maintain historical data regarding the dates and times videos
were played, but his computer did maintain information on
folder access. Dkt. 173, at 4-5. This metadata showed that
folders containing child pornography were opened in 2012 and
2013 at a time when defendant’s computer was password
protected. Id. Based on this, and other evidence,
defendant was convicted of both receipt or attempted receipt
of child pornography and possession of child pornography.
Motion to Set Aside the Verdict
Federal Rule of Criminal Procedure 29, a defendant may file a
motion for a judgment of acquittal after a jury verdict.
“In ruling on a Rule 29 motion, ‘the relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.’ ” United States v.
Alarcon-Simi, 300 F.3d 1172, 1176 (9th Cir. 2002)
(quoting United States v. Bahena-Cardenas, 70 F.3d
1071, 1072-73 (9th Cir. 1995)). The jury, not the Court, must
determine the credibility of witnesses, resolve conflicting
evidence, and draw inferences from the facts. Id.
Motion for a New Trial
Federal Rule of Criminal Procedure 33, the Court may grant a
new trial “if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). “A motion for
a new trial is directed to the discretion of the district
judge. It should be granted only in exceptional cases in
which the evidence preponderates heavily against the
verdict.” United States v. Pimentel, 654 F.2d
538, 545 (9th Cir. 1981) (internal citations removed). The
defendant has the burden to justify the need for a new trial.
United States v. Shaffer, 789 F.2d 682, 687 (9th
Motion to Set ...