969 F.3d 860 (8th Cir. 2020), 19-1584, United States v. Bartunek

Docket Nº:19-1584
Citation:969 F.3d 860
Opinion Judge:COLLOTON, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gregory BARTUNEK, Defendant-Appellant.
Attorney:Donald James Kleine, Michael P. Norris, Assistant U.S. Attorney, U.S. Attorney's Office, District of Nebraska, Omaha, NE, for Plaintiff-Appellee. Gregory Bartunek, Pro Se. Alexis S. Mullaney, Attorney, Andrew J. Wilson, Carlson & Burnett, Omaha, NE, for Defendant-Appellant.
Judge Panel:Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.
Case Date:August 12, 2020
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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969 F.3d 860 (8th Cir. 2020)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gregory BARTUNEK, Defendant-Appellant.

No. 19-1584

United States Court of Appeals, Eighth Circuit.

August 12, 2020

Submitted: May 14, 2020.

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Appeal from United States District Court for the District of Nebraska - Omaha.

Donald James Kleine, Michael P. Norris, Assistant U.S. Attorney, U.S. Attorney's Office, District of Nebraska, Omaha, NE, for Plaintiff-Appellee.

Gregory Bartunek, Pro Se.

Alexis S. Mullaney, Attorney, Andrew J. Wilson, Carlson & Burnett, Omaha, NE, for Defendant-Appellant.

Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

After a jury trial, Gregory Bartunek was convicted of distribution of child pornography and possession of a visual depiction involving a minor engaged in sexually explicit conduct. See 18 U.S.C. § § 2252A(a)(2), 2252(a)(4)(B). On appeal, Bartunek challenges two evidentiary rulings and the denial of a motion for a mistrial. We conclude that there was no reversible error and therefore affirm.

I.

In March 2016, law enforcement officers received a tip that an internet protocol address at Bartunek's residence had uploaded child pornography to a website called Omegle. Investigators executed a search warrant at the residence and determined that Bartunek was the sole occupant. Officers seized two computer hard drives and a thumb drive that together contained over 400 images of child pornography. Some of the images bore a stamp showing that they were downloaded from the Omegle website.

A grand jury charged Bartunek with one count of distribution of child pornography, see 18 U.S.C. § 2252A(a)(2), and one count of possession of a visual depiction involving a minor engaged in sexually explicit conduct. See id. § 2252(a)(4)(B). The case proceeded to trial, and a jury convicted Bartunek on both counts. The district court1

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sentenced him to a term of 204 months' imprisonment.

II.

On appeal, Bartunek challenges the district court's admission of photographs of four life-sized dolls found in his bedroom. The dolls were replicas of children, ranging in age from infancy to five years, and were dressed in children's underwear. Some of the dolls were altered to include a rubber nodule that appeared to be a penis.

Before trial, Bartunek moved to exclude the photographs on the ground that they were inadmissible character evidence. The court denied the motion, saying that the photographs were admissible under Federal Rule of Evidence 404(b), but provided that Bartunek could raise an objection at trial. The government responded that the dolls should be admissible without limitation as evidence "inextricably intertwined" with the charged offense. The court reserved ruling on that contention. When Bartunek objected at trial, the court apparently adopted the government's position. The court explained that "at the very least it's a 404(b) issue," but given "the timing, what the search warrant was for, [and] what was found on the search warrant," the doll evidence rose "to the level of circumstantial evidence and it's not propensity evidence in this case." The court also determined that the probative value of the evidence was not substantially outweighed by unfair prejudice.

Bartunek argues that the court erred because he lawfully possessed the dolls, and they were unrelated to possession or distribution of child pornography. He complains that the evidence was character evidence that is inadmissible under Rule 404(b). We review the district court's evidentiary rulings for abuse of discretion. United States v. Steinmetz, 900 F.3d 595, 600 (8th Cir. 2018).

Rule 401 provides that evidence is relevant if it tends to make a fact more or less probable and the fact is of consequence in determining the action. Fed.R.Evid. 401. Even where evidence is relevant under Rule 401, however, Rule 404(b)(1) prohibits use of a defendant's prior act to prove his character in order to show that on a particular occasion he acted in accordance with the character. This prohibition does not extend to evidence that is "intrinsic" to the charged offense, including evidence that is "inextricably intertwined" with the alleged crime. See United States v. Guzman, 926 F.3d 991, 999-1000 (8th Cir. 2019).

We are skeptical of the government's position that the doll evidence was "inextricably intertwined" with the charged child pornography offenses, and thus outside the limitations on character evidence under Rule 404. This court has ruled that evidence of "child erotica" found on a defendant's Secure Digital memory card, and offered to show his sexual interest in children and knowledge of child pornography images on the same card, was not intrinsic to charges of transporting and receiving child pornography. United States v. Fechner, 952 F.3d 954, 961 (8th Cir. 2020). So too, evidence that a defendant had sexual contact with his stepdaughter was not intrinsic to charges that he possessed sexually explicit photographs of the stepdaughter that were taken on occasions distinct from the sexual contact. United States v. Heidebur, 122 F.3d 577, 580 (8th Cir. 1997). The government's examples of "inextricably intertwined" evidence are not analogous to the setting here. See United States v. Moberg, 888 F.3d 966, 969 (8th Cir. 2018) (per curiam) (defendant's admission that he was familiar with the "Jenny" series of child pornography was intrinsic to charge that he knowingly possessed images from the "Jenny" series); United States v. Shores, 700 F.3d 366, 370-71 (8th Cir. 2012)

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(evidence that defendant conducted drug transaction just outside a residence was intrinsic to charge that he controlled the residence for purpose of distributing drugs); United States v. O'Dell, 204 F.3d 829, 833-34 (8th Cir. 2000) (evidence that defendant possessed drugs during period of charged drug conspiracy was intrinsic to conspiracy charge).

But the district court's initial ruling that the doll evidence was admissible under Rule 404(b) was sound. Bartunek's theory of defense was that someone else accessed his internet service, downloaded images to his devices, and distributed the child pornography. The dolls were relevant to overcome the defense by showing Bartunek's motive for acquiring and distributing child pornography. That Bartunek derived...

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