United States v. Lohse

• Decision Date: 21 January 2014
• Docket Number: No. CR 13–4053–MWB.,CR 13–4053–MWB.
• Citation: 993 F.Supp.2d 947
• Parties: UNITED STATES of America, Plaintiff, v. Darran LOHSE, Defendant.
• Court: U.S. District Court — Northern District of Iowa

993 F.Supp.2d 947

UNITED STATES of America, Plaintiff,

v.Darran LOHSE, Defendant.

No. CR 13–4053–MWB.

United States District Court,

N.D. Iowa,

Western Division.

Jan. 21, 2014.

Mark A. Tremmel, U.S. Attorney's Office, Cedar Rapids, IA, Timothy T. Duax, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

R. Scott Rhinehart, Rhinehart Law, PC, Sioux City, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S POST–TRIAL MOTIONS

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.

INTRODUCTION

950

A.

Factual Background

950

B.

Procedural Background

951

II.

ANALYSIS

951

A.

Motion for a Judgment of Acquittal

951

1.

Standards

951

2.

Discussion

952

a.

Count I: Producing child pornography

952

b.

Counts II–VI: Receiving and possessing child pornography

956

B.

Motion for a New Trial

957

1.

Standards

957

2.

Discussion

957

III.

CONCLUSION

960

On November 6, 2013, a jury convicted Darran Lohse(Lohse) of producing, receiving, and possessing child pornography.During Lohse's trial, the government presented nine photographs, taken by Lohse, showing Lohse posing naked in a bed with his genitals on, or near, a sleeping, clothed, three-year-old girl's face.The jury found that all nine photographs constituted child pornography produced by Lohse.The jury also found that Lohse received and possessed numerous videos of child pornography on multiple hard drives and a compact disc found near Lohse's basement computer.

This case is now before me on Lohse's post-trial motions for a judgment of acquittal and a new trial.In his motions, Lohse argues that the nine photographs of him and the three-year-old girl are not “lascivious,” and, therefore, he cannot be convicted of producing child pornography.Additionally, Lohse argues that there is insufficient evidence to convict him of “knowingly” receiving or possessing the child pornography videos found in his basement.Finally, Lohse argues that the nine photographs were not admissible, and that, without them, there is a “substantial likelihood” that the jury would not have convicted him of receiving and possessing the child pornography videos.Thus, if I do not grant a judgment of acquittal, Lohse alternatively requests a new trial on the “receiving” and “possessing” counts.For the reasons discussed below, Lohse's post-trial motions are denied.

I.INTRODUCTION

In resolving Lohse's motion for a judgment of acquittal, I must “view the evidence in the light most favorable to the guilty verdict, giving the government the benefit of all reasonable inferences that may be drawn from the evidence.”United States v. Basile,109 F.3d 1304, 1310(8th Cir.), cert. denied,522 U.S. 866, 118 S.Ct. 173, 139 L.Ed.2d 115(1997).Thus, for the purposes of Lohse's motion for a judgment of acquittal, I present the following facts favorably to the government.

A.Factual Background

On Halloween 2011, Cassandra Steffens(Steffens) used a digital camera to take pictures of her three-year-old daughter, K.S., wearing her Tinker Bell costume.Two days later, Steffens decided to upload the pictures to Facebook.As she scrolled through the photographs on the camera's memory card, she stumbled upon other, more troubling pictures of her boyfriend, Lohse, with whom she lived, naked and posing on a bed where K.S. was sleeping.The photographs, which appeared to have been taken by Lohse on two different nights, showed Lohse placing his exposed genitals on, or near, K.S.'s face.K.S. was clothed and sleeping in all of the pictures.Nine of these photographs would later be used to prosecute Lohse.Those nine photographs specifically depict the following:

• Lohse naked and in a nearly horizontal position with his penis on, or very close to, K.S.'s hair;

• Lohse naked and standing at the head of the bed with the tip of his penis on, or very close to, K.S.'s right eye;

• An overhead view of the same pose described above;

• Lohse naked and kneeling over K.S. with his penis and testicles resting in her hair;

• A similar picture to that described above, with Lohse's penis near K.S.'s mouth and Lohse holding K.S.'s hair with his left hand; • Lohse naked and standing next to the bed with his penis on, or near, K.S.'s forehead;

• Lohse naked and kneeling on the bed with his penis close to K.S.'s face;

• Lohse naked and standing or crouching over K.S.'s head such that his penis rests on her forehead; and

• Lohse naked and standing over the bed with his penis directly above, and possibly touching, K.S.'s forehead;

Upon finding these photographs, Steffens left Lohse's house, contacted the police, and turned the photographs over to the responding officers.After seeing the photographs, the police arrested Lohse, obtained a search warrant, returned to the house, and seized a number of items, including hard drives and compact discs from Lohse's basement.After examining these items, police found multiple videos of child pornography on a number of hard drives and a compact disc. Police also analyzed the videos' metadata and determined that at least four of the videos stored on one of the hard drives had been downloaded using the internet.

I will discuss additional facts as they become relevant to the analysis below.

B.Procedural Background

On October 24, 2013, the government filed a superseding indictment, charging Lohse with six counts:

• Count I: Sexual Exploitation of a Child, in violation of 18 U.S.C. §§ 2251(a)and2251(e), for allegedly producing nine photographs of child pornography;

• Count II: Receipt of Child Pornography, in violation of 18 U.S.C. §§ 2252(a)(2)and2252(b)(1), for allegedly downloading videos of child pornography; and

• Counts III, IV, V, and VI: Possession of Child Pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B)and2252A(b)(2), for allegedly possessing videos of child pornography on three different hard drives/servers and a compact disc.

(Docketno. 40).Lohse pleaded not guilty to all six counts.Prior to trial, Lohse filed a motion to dismiss Count I, arguing that the nine photographs at issue did not constitute child pornography as a matter of law (docket no. 24), which I denied (docket no. 39).This case proceeded to trial on November 5 and 6, 2013.At the close of the government's evidence, Lohse moved for a judgment of acquittal on all counts.I deferred ruling on Lohse's motion until after receiving a verdict.On November 6, 2013, a jury convicted Lohse of all six counts (docket no. 72).On November 15, 2013, Lohse filed post-trial motions renewing his motion for a judgment of acquittal and moving for a new trial on Counts II though VI (docket no. 77).I must now decide whether to grant Lohse's post-trial motions.

II.ANALYSIS

A.Motion for a Judgment of Acquittal

1.Standards

Federal Rule of Criminal Procedure 29 governs Lohse's motion for a judgment of acquittal.Rule 29(a) provides: “After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”When the defendant moves for a judgment of acquittal after the government rests,

[t]he court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.

Fed.R. Crim.P. 29(b).If the jury returns a guilty verdict, the defendant may renew a motion for a judgment of acquittal“within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.”Fed.R. Crim.P. 29(c)(1).“If the court reserve[d] decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.”Fed.R. Crim.P. 29(b).Here, Lohse made his Rule 29 motion when the government rested and he presented no additional evidence.Thus, I may consider the entire trial record in deciding whether to grant Lohse's motion.

A judgment of acquittal is only appropriate if “the evidence is insufficient to sustain a conviction.”Fed.R. Crim.P. 29(a).“The standard for determining the sufficiency of the evidence is strict, and a guilty verdict should not be lightly overturned.”United States v. Jiminez–Perez,238 F.3d 970, 972–73(8th Cir.2001)(citingUnited States v. Ryan,227 F.3d 1058, 1063(8th Cir.2000)).“Sufficient evidence exists to support a verdict if ‘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.’ ”Id. at 972(quotingJackson v. Virginia,443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979)).Thus, I may grant a judgment of acquittal “only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.”United States v. Tate,633 F.3d 624, 628(8th Cir.2011)(quotingUnited States v. Morales,445 F.3d 1081, 1084(8th Cir.2006))(internal marks omitted).As I noted above, I must “view the evidence in the light most favorable to the guilty verdict, granting all reasonable inferences that are supported by that evidence.”Id.(quotingUnited States v. Milk,447 F.3d 593, 598(8th Cir.2006)).

2.Discussion

a. Count I: Producing child pornography

In his motion for a judgment of acquittal, Lohse argues that, while admittedly “disturbing,” the nine photographs of Lohse and K.S. are not child pornography.Lohse was convicted of producing child pornography in violation of 18 U.S.C. § 2251(a) and (e).Section 2251(a) provides, in part:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished as provided under subsection (e) ... if that visual depiction was produced or transmitted using materials that have been...