United States v. Lukassen
| Decision Date | 25 October 2022 |
| Docket Number | 8:20-CR-268 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. GREGORY LUKASSEN, Defendant. |
| Court | U.S. District Court — District of Nebraska |
MEMORANDUM AND ORDER ON MOTION FOR JUDGMENTS OF ACQUITTAL
This matter is before the Court on Defendant's Motion for Judgments of Acquittal, made orally at trial, under Federal Rule of Criminal Procedure 29(a). Defendant argues that based on the evidence at trial no reasonable jury could find that Defendant “knowingly” distributed, received possessed, or accessed with intent to view child pornography. Filing 103 at 1-5. The Government opposes Defendant's Motion. Filing 104. For the reasons stated below, the Court denies Defendant's Motion.
The Superseding Indictment charged Defendant in two counts. Count I alleged that Defendant “knowingly receive[d] and distribute[d] . . . any visual depiction” of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Filing 66 at 1. Count II alleged that Defendant “knowingly possess[ed] and knowingly access[ed] with intent to view at least one matter which contained a visual depiction” of child pornography, “including at least one image depicting a prepubescent minor and a minor under the age of twelve years old,” in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).[1] Filing 66 at 1-2.
This case proceeded to trial before the undersigned judge on October 4, 2022. Filing 89 (Text Minute Entry). At trial, Don Harris, Vice President of Technical Operations and Legal Compliance for the social media company Mocospace, testified that on September 16 and 17 of 2017 a user named “greg.l.1972” uploaded four images of child pornography on Mocospace in a user-to-user chat. The account for “greg.l.1972” included the phone number 402-957-1272 and listed the user's location as Omaha, Nebraska. At the time, Defendant, who was born in 1972, had the phone number 402-957-1272 and lived in Bellevue, Nebraska. After being alerted that user “greg.l.1972” had uploaded child pornography, Mr. Harris drafted a report and sent it to the National Center for Missing and Exploited Children (NCMEC).
In 2019, after receiving the NCMEC report from Mocospace, as well as similar reports from other electronic service providers, Roy Howell, an investigator with the Bellevue Police Department, located Defendant at Defendant's residence in Bellevue, Nebraska. Officer Howell then interviewed Defendant at the Bellevue Police Department.
At trial, a recording of the interview was played. During the interview, Defendant admitted to receiving child pornography from other users while chatting online on different websites. He denied having any interest in child pornography, although he disclosed that he had engaged in incest fantasies while chatting with others online.
Forensic examinations of Defendant's devices were conducted. The examinations revealed over 65 thumbnail images[2] of child pornography in the thumbcache of Defendant's computer and additional thumbnail images of child pornography on a MicroSD card. Officer Howell testified that at least one of the thumbnail images, located on both Defendant's computer and MircoSD card, was the same as one of the images uploaded by the user “greg.l.1972” on Mocospace as outlined in Mr. Harris's NCMEC report. Officer Howell explained that computers generate thumbnail images when the original image is viewed or downloaded by the computer's user. Officer Howell stated that the presence of thumbnail images indicates that the image was at some time located or viewed on the computer. He admitted that there was no evidence showing that Defendant could view the thumbnail images themselves, however. He also stated that some of the thumbnail images on Defendant's devices had a creation date of March 1, 2018, which is after the “greg.l.1972” account uploaded child pornography images to Mocospace, although he clarified that the creation date is not necessarily the same date that the image was saved to a device.
After the Government rested, Defendant moved for judgments of acquittal on both counts under Federal Rule of Criminal Procedure 29(a). Pursuant to Rule 29(b), the Court reserved ruling on Defendant's motion.
On October 5, 2022, the jury returned unanimous guilty verdicts on both counts of the Superseding Indictment. Filing 95 (Text Minute Entry); Filing 99.
Under Federal Rule of Criminal Procedure 29(a), either after the government rests or after the close of all 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.” Fed. R. Crim. P. 29(a). If a court reserves decision a motion for a judgment of acquittal, “it must decide the motion on the basis of the evidence at the time the ruling was reserved.” Fed. R. Crim. P. 29(b). When considering a motion for judgment of acquittal under Rule 29(a), the court views the “evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accept[s] all reasonable inferences that support the verdict.” United States v. Magallon, 984 F.3d 1263, 1287-88 (8th Cir. 2021); but see United States v. Aponte, 619 F.3d 799, 804 (8th Cir. 2010) (). “The district court does not assess the credibility of witnesses or weigh evidence in deciding a motion for judgment of acquittal.” Magallon, 984 F.3d at 1288. It is unnecessary for the court “to ensure witness testimony was corroborated” and instead “assumes the jury found witness testimony credible that was favorable to the verdict.” Id.
A court must grant a motion for a judgment of acquittal “only if there is no interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt.” United States v. Broeker, 27 F.4th 1331, 1335 (8th Cir. 2022) (internal quotation marks omitted) (quoting United States v. Gonzalez, 826 F.3d 1122, 1126 (8th Cir. 2016)); see also United States v. Johnson, 639 F.3d 433, 437-38 (8th Cir. 2011) (). “If evidence consistent with guilt exists,” the motion should not be granted even if “the facts and the circumstances may also be consistent with some innocent explanation.” United States v. Moberg, 888 F.3d 966, 970 (8th Cir. 2018). Indeed, “[e]ven where the evidence rationally supports two conflicting hypotheses” a judgment of acquittal is not warranted. See United States v. Reichel, 911 F.3d 910, 916 (8th Cir. 2018) (quoting United States v. Huyck, 849 F.3d 432, 441 (8th Cir. 2017)).
Defendant's argument in support of his Motion for Judgments of Acquittal focuses on the “knowingly” requirement of the charged offenses. Specifically, Defendant argues that the evidence is insufficient to show that he knowingly distributed, received, possessed, or accessed with intent to view child pornography. Filing 103 at 1. According to Defendant, the thumbnail images located on his computer and MicroSD card do not prove that any of these images were the child pornography uploaded to Mocospace via the “greg.l.1972” account. Rather, Defendant asserts, the Government simply asked the jury to “make a leap that the thumbnails for files which no longer exist show that [Defendant] knew the contents prior to receiving them and deleting them or that he actively exercised control over them after he was aware of the nature of the subject matter.” Filing 103 at 5. Defendant further points out that a few of the thumbnail images on Defendant's devices had a “file creation date” after the time the account uploaded images of child pornography to Mocospace. Filing 103 at 3.
The Government responds that the evidence is sufficient to prove that Defendant acted knowingly because the Mocospace account associated with the child pornography uploads had the same phone number as Defendant, listed the user's location as a location similar to Defendant's, and had a screen name consistent with Defendant's name and year of birth. Filing 104 at 3-4. When Defendant's computer and MicroSD card were searched, the Government highlights, one of the images of child pornography found on these devices was the same image uploaded to Mocospace. Filing 104 at 4. The Government reasons that the evidence is consistent with Defendant knowingly and intentionally receiving child pornography during online chats and deleting them after viewing them and satisfying himself. Filing 104 at 4.
The offenses charged in the Superseding Indictment all required that Defendant acted “knowingly.” See 18 U.S.C. § 2252(a)(2) (); id. at § 2252(a)(4)(B) (proscribing punishment for any person who “knowingly possesses, or knowingly accesses with intent to view . . . any visual depiction” of child pornography “by any means including by computer”); see also United States v. Croghan, 973 F.3d 809, 824 (8th Cir. 2020) ( that the three separate crimes of possession, receipt, and access of child pornography under 18 U.S.C. § 2252A “require the defendant to have acted ‘knowingly'”). As the Eighth Circuit Court of Appeals noted in United States v. Croghan, the scienter element in these offenses is of “critical importance in the internet context given spam and the prevalence and sophistication of some computer viruses and hackers that can prey upon innocent...
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