United States v. Lieu
| Decision Date | 17 October 2018 |
| Docket Number | Criminal Action No.: 17-0050 (RC) |
| Parties | UNITED STATES OF AMERICA v. DAVID LIEU, Defendant. |
| Court | U.S. District Court — District of Columbia |
Re Document Nos.: 66, 71, 72, 73
Defendant David Lieu has been charged with distributing child pornography and traveling with the intent to engage in illicit sexual conduct with a person under the age of eighteen. The charges arise from an investigation conducted jointly by the Washington, D.C. Metropolitan Police Department ("MPD") and the Federal Bureau of Investigation ("FBI"), during which Mr. Lieu allegedly exchanged child pornography with an undercover detective and traveled from Maryland to Washington, D.C. to engage in sexual activity with the undercover detective's fictitious child.
Presently before the Court are three ripe pretrial motions filed by Mr. Lieu. First, Mr. Lieu asks this Court to reconsider its orders (1) denying Mr. Lieu's motion to dismiss the indictment and (2) granting the government's motion for leave to admit evidence of Mr. Lieu's prior acts. Second, Mr. Lieu seeks disclosure of the grand jury materials related to his indictment, and an evidentiary hearing. For the reasons stated below, the Court denies Mr. Lieu's motions.
The MPD-FBI Child Exploitation Task Force began its investigation of Mr. Lieu in early 2016. MPD Detective Timothy Palchak, posing as the father of a fictitious nine-year-old girl, posted an ad designed to attract individuals with a sexual interest in children, on an internet message board. Mr. Lieu responded to that ad, triggering a series of electronic messages between Mr. Lieu and Detective Palchak related to Detective Palchak's fictitious child and other children.
In his communications with Detective Palchak, Mr. Lieu discussed his prior illicit sexual conduct with his step-daughter, sent Detective Palchak several images of child erotica and child pornography, and arranged to meet Detective Palchak and the fictitious child on February 4, 2016 to engage in illicit sexual activity with the child. On that date, Mr. Lieu traveled from Maryland to Washington D.C. and met Detective Palchak at a pre-arranged location, where Mr. Lieu was arrested. Mr. Lieu was charged, and subsequently indicted by a grand jury, with one count of distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of interstate travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). See Compl., ECF No. 1; Superseding Indictment, ECF No. 48.
As noted, this case comes before the court on three ripe pretrial motions filed by Mr. Lieu. Mr. Lieu seeks the disclosure of the grand jury materials related to his indictment. He also asks that the Court reconsider its decisions on two motions filed after Mr. Lieu's indictment; one by Mr. Lieu and one by the government.
First, Mr. Lieu seeks reconsideration of his December 2016 pro se motion to dismiss the indictment issued against him under 18 U.S.C. § 2423(b). See generally Mem. Supp. Def.'s Mot. Recons. Initial Mot. to Dismiss Indictment ("Indictment Mem."), ECF No. 72. Under that statute:
"A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both."
18 U.S.C. § 2423(b). In support of his motion to dismiss, Mr. Lieu argued that: (1) the Court lacks subject matter jurisdiction over this action; (2) Section 2423(b), by its text, cannot apply to Mr. Lieu's alleged actions; (3) Section 2423(b) violates the Commerce Clause of the United States Constitution; and (4) Section 2423(b), as applied to Defendant, impermissibly criminalizes "mere thought." Lieu I, 313 F. Supp. 3d at 173-74. The Court denied the motion. Id. at 176.
Second, Mr. Lieu seeks reconsideration of the government's October 2017 motion, under Federal Rule of Evidence 404(b), for the admission of evidence of Mr. Lieu's prior bad acts. See generally Second Mot. Opp'n Gov't's Mot. Leave Admit Evidence Other Crimes Pursuant Fed. R. Evid. 404(b) ("Prior Acts Mem."), ECF No. 71.3 In its motion, the government sought to admit three categories of prior act evidence: (1) evidence that Mr. Lieu sexually abused his stepdaughter when she was between the ages of seven and ten years old; (2) evidence showing that Mr. Lieu possessed 397 images and 19 videos depicting child pornography on an electronic media storage device at his home; and (3) evidence that, at the same time that Mr. Lieu was communicating with Detective Palchak, he was communicating with someone else about his sexual interest in children. Lieu II, 298 F. Supp. 3d at 51. The Court held that "each of the prior acts that the Government seeks to introduce demonstrates Mr. Lieu's sexual attraction to children and are therefore relevant to questions of intent and knowledge with respect to each of the crimes with which he is charged." Id. at 53. The Court also concluded that tailored, limiting jury instructions could sufficiently prevent the prior bad act evidence from unfairly prejudicing the jury against Mr. Lieu. Id. at 60. Accordingly, it granted the government's motion. Id.
"Although the Federal Rules do not specifically provide for motions for reconsideration in criminal cases, the Supreme Court has recognized, in dicta, the utility of such motions." United States v. Ferguson, 574 F. Supp. 2d 111, 113 (D.D.C. 2008); see also United States v.Dieter, 429 U.S. 6, 8 (1976) (per curiam) (). Courts in this District have, therefore, entertained motions for reconsideration in criminal cases by importing the standards of review governing motions for reconsideration in civil cases. See, e.g., In Matter of Extradition of Liuksila, 133 F. Supp. 3d 249, 255-56 (D.D.C. 2016); United States v. Hassanshahi, 145 F. Supp. 3d 75, 80-81 (D.D.C. 2015); United States v. Slough, 61 F. Supp. 3d 103, 107-08 (D.D.C. 2014); United States v. Cabrera, 699 F. Supp. 2d 35, 40-41 (D.D.C. 2010). With respect to interlocutory decisions, such as the Court's decisions at issue here, courts in this District have adopted the civil standard that reconsideration of an interlocutory decision is available "as justice requires." Hassanshahi, 145 F. Supp. 3d at 80; Slough, 61 F. Supp. 3d at 107-08; United States v. Sunia, 643 F. Supp. 2d 51, 60-61 (D.D.C. 2009).
"[A]sking 'what justice requires' amounts to determining, within the Court's discretion, whether reconsideration is necessary under the relevant circumstances." Hassanshahi, 145 F. Supp. 3d at 80 (quoting Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005)). In making this determination, the Court considers whether it "patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court." Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (citation and internal quotation marks omitted).
The Court is also guided by certain generally applicable principles. First, "[m]otions for reconsideration are committed to the sound discretion of the trial court." Hassanshahi, 145 F. Supp. 3d at 80 (quoting United States v. Trabelsi, No. 06-0089, 2015 WL 5175882, at *2 (D.D.C. Sept. 3, 2015)). Second, the moving party bears the burden "to show thatreconsideration is appropriate and that harm or injustice would result if reconsideration were denied." United States v. Hemingway, 930 F. Supp. 2d 11, 13 (D.D.C. 2013). Third, and finally, a motion for reconsideration is "not simply an opportunity to reargue facts and theories upon which a court has already ruled." New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995); see also Singh, 383 F. Supp. 2d at 101 .
Federal Rule of Criminal Procedure 6 states that a court may authorize disclosure of grand jury materials "at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed. R. Crim. P. 6(e)(3)(E)(ii). The D.C. Circuit has established that a defendant must show a "particularized need" for such materials. Riding v. DOJ, 38 F. App'x 20, 21, 2002 WL 1359490, at *1 (D.C. Cir. 2002) (per curiam) (unpublished); accord United States v. Broyles, 37 F.3d 1314, 1318 (8th Cir. 1994) (); United States v. Puglia, 8 F.3d 478, 480 (7th Cir. 1993) (same); United States v. Lisinski, 728 F.2d 887, 893 (7th Cir. 1984) (same). It is "settled that conclusory or speculative allegations of misconduct do not meet the particularized need standard; a factual basis is required." United States v. Naegelei, 474 F. Supp. 2d 9, 10 (D.D.C. 2007).
The Court first considers Mr. Lieu's motions for reconsideration, then considers his motion for disclosure of the grand jury materials. With respect to Mr. Lieu's motions for reconsideration, the Court concludes that Mr. Lieu has failed to show that the Courtmisunderstood his prior arguments, that it overlooked...
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