USA v. Gartenlaub

          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, 2016)

          Honorable CHRISTINA A. SNYDER J.

         I. INTRODUCTION

         On 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 hard drives.

         A jury 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. Dkt. 159.

         Defendant 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.

         II. BACKGROUND

         On 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.^[1] Each hard drive contained videos of child pornography. Id. at 2-3.^[2] 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.

         The 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.

         III. LEGAL STANDARDS

         A. Motion to Set Aside the Verdict

         Under 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.

         B. Motion for a New Trial

         Under 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 Cir. 1986).

         IV. DISCUSSION

         A. Motion to Set ...