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United States v. Bosby

United States District Court, E.D. California

July 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
COLIN LOVETTE BOSBY, Defendant.

          ORDER RE GOVERNMENT'S MOTIONS IN LIMINE IN SUPPORT OF EVIDENCE UNDER FRE 404(B) AND 414 (ECF NO. 28)

          Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE

         Defendant Colin Lovette Bosby (“Defendant” or “Bosby”) is charged with one count of Receipt or Distribution of Material Involving the Sexual Exploitation of Minors, in violation of 18 U.S.C. § 2252(a)(2), and two counts of Possession of Material Involving the Sexual Exploitation of Minors, in violation of 18 U.S.C. § 2252(a)(4)(B). ECF No. 13. Trial in this matter is currently set for Tuesday, August 1, 2017 at 8:30 AM.

         The Government moves in limine for the introduction of certain evidence against Defendant at trial pursuant to Federal Rules of Evidence (“FRE”) 404(b) and 414. ECF No. 28. Defendant filed an opposition. ECF No. 30. Upon review of the papers and in light of the relevant law, the Court GRANTS the Government's request, as follows.

         I. LEGAL STANDARD

         The term “in limine” means “at the outset.” Black's Law Dictionary (10th ed. 2014). “A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area … In the case of a jury trial, a court's ruling ‘at the outset' gives counsel advance notice of the scope of certain evidence so that admissibility is settled before attempted use of the evidence before the jury.” United States v. Heller, 551 F.3d 1108, 1111-1112 (9th Cir. 2009). Pretrial motions such as motions in limine “are useful tools to resolve issues which would otherwise clutter up the trial.” Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986); accord Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 440 (7th Cir. 1997) (“[A] motion in limine is an important tool available to the trial judge to ensure the expeditious and evenhanded management of the trial proceedings.”).

         At issue here are FRE 404(b) and 414. Under FRE 404(b), character evidence may be admissible for purposes of “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Under FRE 414(a), in criminal cases involving a defendant accused of child molestation, “the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.” FRE 414(d)(2) defines “child molestation” as any crime under federal law or under state law involving “any conduct prohibited by 18 U.S.C. chapter 110.”

         II. DISCUSSION

         The Government seeks to introduce the following evidence pursuant to FRE 404(b) and FRE 414:

1. Evidence that during the execution of the search warrant at Bosby's house on October 16, 2016, there was child pornography present on his computer screen. The child pornography appears to have been accessed through an internet search for “RU Little Pussy” among other search terms. Law enforcement capture this pornography and internet search in a search warrant photograph provided in discovery at Bates 300.
2. Evidence of child pornography located on a computer, external hard drive, and two USB drives seized from his house on October 16, 2016. The evidence to be introduced would not include images, but would be limited to evidence probative of the defendant's intent and identity, including file names and forensic evidence.
3. Evidence of Defendant's prior federal conviction for possession of child pornography in the Eastern District of California in Case No. 1:03-cr-5374-01 on or about May 4, 2004.

ECF No. 28 at 1-2.

         Although the charges in the indictment apply only to Defendant's conduct from approximately February 4, 2015 until August 11, 2016, see ECF No. 13, the Government argues that FRE 404(b) and 414 permit admission of the above evidence under the standard set forth by the Ninth Circuit in Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000); see also United States v. LeMay, 260 ...


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