United States v. Goodale

• Decision Date: 28 November 2011
• Docket Number: Case No. 2:11–cr–37–1.
• Citation: 831 F.Supp.2d 804
• Parties: UNITED STATES of America, Plaintiff, v. Nathaniel GOODALE, Defendant.
• Court: U.S. District Court — District of Vermont

831 F.Supp.2d 804

UNITED STATES of America, Plaintiff,

v.Nathaniel GOODALE, Defendant.

Case No. 2:11–cr–37–1.

United States District Court, D. Vermont.

Nov. 28, 2011.

Christina E. Nolan, United States Attorney's Office, Burlington, VT, for Plaintiff.

Cara L. Cookson, Esq., Lisa B. Shelkrot, Esq., Langrock Sperry & Wool, LLP, Burlington, VT, Peter F. Langrock, Langrock Sperry & Wool, LLP, Middlebury, VT, for Defendant.

OPINION and ORDER

WILLIAM K. SESSIONS III, District Judge.

On April 21, 2011, a grand jury indicted Defendant Nathaniel Goodale for possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The charges stem from Defendant's secret video recording of his allegedly 17–year–old stepdaughter in the bathroom while she disrobed to shower and use the toilet, among other things. The charge is primarily based upon the video evidence. See Opp'n to Mot. in Limine 6, ECF No. 8.

Defendant has filed two motions. First, Defendant submits a motion in limine to exclude video evidence and a related motion to dismiss, and second, Defendant moves to dismiss for lack of jurisdiction on the basis that the statute is unconstitutional.

Statement of the Facts

Defendant Nathaniel Goodale lived with his stepdaughter (hereinafter “J1”) and her mother in a residence in Vermont. The government alleges that Defendant secretly videotaped and photographed J1 using the bathroom during the time period from fall of 2009 through the summer of 2010. Superseding Indictment, ECF No. 12. When Defendant first began making these recordings, he would stand outside the bathroom window and take photos and short videos. Opp'n to Mot. in Limine 7. In July 2010, Defendant told J1 he had romantic feelings for her. After this confession, Defendant began secretly videotaping J1 from inside the bathroom. These recordings are 20–25 minutes long, and capture J1's nude pubic area when she entered the shower and got on and off the toilet. Id.

According to the government, Defendant created these recordings by entering the bathroom immediately before J1 and placing a video camera in a woven basket on a shelf across from the area of the bathroom containing the toilet and shower entry. The recordings reveal Defendant carefully positioning the video camera lens through a hole in the basket to capture the toilet and shower entry area of the bathroom. The government estimates that the area captured by the camera constituted around half of the total area in the bathroom. Id. at 8.

Defendant would save these videos on an external hard drive and on a thumb drive. Defendant further selected certain still images to save on the thumb drive which he culled from these videos. Defendant later described the images on the thumb drive as his favorite images. These still images depicted J1's nude pubic area exposed as she used the toilet or shower. Additionally, the thumb drive contained images of J1 and her girlfriends that Defendant allegedly took without permission. These images depict J1 and her friends engaging in various activities including many images of the girls in bathing suits. Defendant used a computer program to alter these images by transforming J1's bikini or clothing into a nude color to make her appear naked. Id. at 8–9.

Law enforcement first learned that Defendant was secretly videotaping J1 in the bathroom in the summer of 2010. After Defendant revealed the videotaping during a visit with a couple's therapist, the therapist reported his behavior to the Department of Children and Family Services who then contacted the Vermont State Police. On August 11, 2010, Detective Aimee Nolan of the Vermont State Police contacted J1 and her mother. J1 had only recently learned that Defendant had been videotaping her in the bathroom, and J1 became extremely upset when discussing the situation with Detective Nolan. J1 explained that she never felt comfortable around Defendant, including the way he hugged her and patted her on the back. Defendant and J1's mother then voluntarily turned over the hard drive and thumb drive to Detective Nolan. Id.

Next, Defendant spoke with Detective Nolan. Defendant confessed that he had been struggling to suppress his attraction to J1 for several years. Defendant detailed the progression of his recordings, from the early recordings taken by standing outside the bathroom window to eventually concealing the video camera in the woven basket inside the bathroom. Defendant also confirmed that he told J1 about his feelings for her, which he explained “freaked her out.” Detective Nolan asked whether he ever touched J1 “in any way [he thought] crossed the line.” Defendant responded, “Close. But, I mean spotting—gymnastics ... [s]ometimes on a spot, I would move my hand slightly more than it had to be, but I never really touched any real private area.” Providing an example, Defendant explained that he would intentionally place his hand on her upper thigh, closer to her groin, instead of placing his hand on her inner thigh toward the knee. During this conversation, Defendant also admitted he would masturbate while watching his video recordings of J1 and while sniffing her undergarments and leotards. Id. at 9.

Defendant apparently created these videos and images solely for his personal use. The record contains no evidence showing Defendant intended to sell or distribute any of these videos or images to any other person.

Discussion

I. The Motion in Limine to Exclude Video Evidence, and related Motion to Dismiss

Defendant seeks to exclude the video through his motion in limine on relevance grounds. Mot. in Limine 2, ECF No. 6. Trial judges are authorized to rule on motions in limine pursuant to their general authority to manage trials, even though these rulings are not explicitly authorized by the Federal Rules of Evidence. Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). A district court will “exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds.” United States v. Ozsusamlar, 428 F.Supp.2d 161, 164 (S.D.N.Y.2006). The movant has the burden of establishing that the evidence is not admissible for any purpose. The trial judge may reserve judgment on a motion in limine until trial to ensure the motion is considered in the proper factual context. Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 937 F.Supp. 276, 283 (S.D.N.Y.1996).

The heart of Defendant's argument is that the video is not child pornography. Defendant contends that because the video does not contain a visual depiction of a minor “engaging in sexually explicit conduct,” which is a required element under 18 U.S.C. § 2252(a)(4)(B), the video is not relevant and must be excluded. SeeFed.R.Evid. 401. The statute defines “sexually explicit conduct” as “actual or simulated ... lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). In an effort to argue that a “reasonable jury could not conclude that the visual depictions in this case constitute ‘lascivious exhibition’ of the young woman's genitals or pubic area,” Defendant cites the so-called Dost factors and cases standing for the proposition that mere nudity is not sexually explicit conduct. Mot. in Limine 3–6. In addition, Defendant contends that because the video must be excluded, the government cannot carry its burden of proof and the case must be dismissed.

The law is well settled that “whether a given depiction is lascivious is a question of fact for the jury.” United States v. Frabizio, 459 F.3d 80, 85 (1st Cir.2006), see also United States v. Rivera, 546 F.3d 245, 253 (2d Cir.2008) (approving jury instructions on issue of lasciviousness of image). Defendant is essentially moving to dismiss the indictment by asking the Court to remove the question of lasciviousness from the hands of the jury. The government cites to several authorities which reject pretrial motions similar to the present motion. Opp'n to Mot. in Limine 3–5; see Frabizio, 459 F.3d at 88 (“No other circuit court, as best we can tell, has ever approved the use of the Dost factors in a pretrial proceeding to remove the consideration of the lasciviousness of an image from a jury.”). It appears that the removal of the question of whether a video depicts a child engaging in “lascivious exhibition of the genitals or pubic area” from the hands of the jury through a pretrial motion is without precedent.

In any case, it is not this Court's role to second-guess the Grand Jury's indictment at this stage of the proceedings. The Grand Jury indictment is based primarily on the video evidence. See Opp'n to Mot. in Limine 9. The Grand Jury found probable cause that the images depicted sexually explicit conduct, and that finding alone makes the images relevant.

Even if it were appropriate for this Court to make a pretrial determination of the lasciviousness of the images, this question nonetheless cannot be answered outside the context of the trial. “The term ‘lascivious' is not self-defining.” United States v. Rivera, 546 F.3d 245, 249 (2d Cir.2008), cert. denied,555 U.S. 1204, 129 S.Ct. 1395, 173 L.Ed.2d 644 (2009). “[A]s used in the child pornography statute, the ordinary meaning of the phrase ‘lascivious exhibition’ means a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.” United States v. Musumeci, 307 Fed.Appx. 471, 473 (2d Cir.2008) (unpublished) (quoting United States v. Knox, 32 F.3d 733, 745 (3d Cir.1994)); see also Rivera, 546 F.3d at 252 (“Congress chose the word ‘lascivious,’ which has to do generally with sexual arousal.”).

However, not every exposure of the pubic area is a lascivious exhibition. United States v. Amirault, 173 F.3d 28, 33 (1st Cir.1999). The Second Circuit describes United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986)aff'd sub nom. United States v....