United States v. Roberson

• Decision Date: 04 January 2022
• Docket Number: Criminal Action No. 21-102 (JDB)
• Citation: 581 F.Supp.3d 65
• Parties: UNITED STATES of America, v. Michael ROBERSON, Defendant.
• Court: U.S. District Court — District of Columbia

581 F.Supp.3d 65

UNITED STATES of America,

v.Michael ROBERSON, Defendant.

Criminal Action No. 21-102 (JDB)

United States District Court, District of Columbia.

Signed January 4, 2022

Nicholas George Miranda, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge Defendant Michael Roberson is charged by indictment with one count of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). A jury trial on this charge is currently set to begin January 31, 2022. In advance of trial, the government filed the instant motion in limine seeking admission of three categories of evidence pursuant to Federal Rule of Evidence 404(b). For the reasons explained below, the Court will grant the government's motion in full.

Background ¹

In September 2015, defendant Michael Roberson initiated an email conversation with "Email Address 2,"² seeking access to an online cloud storage account maintained by Email Address 2 that contained videos and images of child pornography (the "Dropbox Account"). See Gov't's Mot. in Lim. to Introduce Evid. Pursuant to Fed. R. Evid. 404(b) [ECF No. 32] ("Gov't Mot.") at 1–2. Before giving defendant the password for the Dropbox Account, however, Email Address 2 asked him to "send ... one vid so I know what you like." Id. at 1. Defendant complied on September 7, 2015, sending Email Address 2 a short video depicting the rape of a prepubescent child by an adult male. Id. Defendant's transmission of this video forms the basis for the instant charge of distribution of child pornography. See Indictment [ECF No. 1]. From September 2015 through November 2016, Roberson maintained a sporadic email correspondence with Email Address 2 that eventually totaled approximately seventy messages. Gov't Mot. at 1. Over those fourteen months, defendant repeatedly requested renewed access to the Dropbox Account, and the passwords he received from Email Address 2 often alluded to the account's contents, using words like "kiddy," "baby," "virgin," and "pedos." Id. at 1–2. In addition, defendant and Email Address 2 discussed their reactions to the videos in the Dropbox Account as well as their general sexual interest in children. Id. at 2

During the same period in which he was corresponding with Email Address 2, defendant also searched the internet for content associated with the sexualization of children.³ Gov't Mot. at 3. In January 2016, defendant searched for "child sex doll" and "child sex doll porn," and throughout 2016, he searched the terms "babysitter porn," "brother sister porn," and "father daughter porn." Id. In January 2016, Roberson sought out and accessed news articles describing someone in a clown costume sexually abusing a child, while in November 2016, defendant ran a search for "podesta art collection," a supposed cache of images depicting nude children. Id.

Defendant's involvement with Email Address 2 came to the attention of law enforcement in 2019, and agents with Homeland Security Investigations interviewed defendant three times in March of that year. See Mem. Op., Nov. 15, 2021 [ECF No. 30] at 2. During their first interview on March 7, 2019, defendant consented to have his cell phone "imaged," a process by which investigators replicated the data on the phone at the time of imaging. See id. at 9, 24–26. When agents analyzed the data, they discovered multiple thumbnail images depicting minors engaged in sexually explicit conduct. Gov't Mot. at 2.

On February 9, 2021, a federal grand jury in the District of Columbia indicted Roberson on one count of distributing child pornography, arising from his September 7, 2015 transmission of the pornographic video to Email Address 2. See Indictment. The government filed the instant motion in limine in November 2021, asking the Court to admit three categories of evidence: the entirety of defendant's communications with Email Address 2; excerpts from his browser and search history suggesting his sexual interest in children; and the sexually explicit images of children found on his phone.⁴ See Gov't Mot. at 3–5. This evidence, the government contends, will not be offered to prove defendant's character (a forbidden purpose under Federal Rule of Evidence 404(b)(1) ) but will be offered instead to show his motive, intent, knowledge, identity, and/or absence of mistake in committing the alleged crime (all permissible purposes under Rule 404(b)(2) ). See id.; see also Fed. R. Evid. 404(b) ("Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.... This evidence may be admissible for another purpose...."). In addition, the government argues that defendant's correspondence with Email Address 2 is not subject to Rule 404(b)'s limitations at all, as those messages are not "other acts" but instead are "intrinsic to the charged criminal conduct." Gov't Mot. at 3. The motion is fully briefed and ripe for decision.

Legal Standard

Courts in this circuit follow a "two-step mode of analysis" in determining the admissibility of evidence of other acts by the defendant. United States v. Anderson, 174 F. Supp. 3d 494, 496 (D.D.C. 2016) (quoting United States v. Burch, 156 F.3d 1315, 1323 (D.C. Cir. 1998) ). The first step in this analysis "addresses Rule 404(b)" and requires the court to "determine whether the evidence is relevant to a material issue other than character." See United States v. Lieu, 298 F. Supp. 3d 32, 51 (D.D.C. 2018) (quoting Burch, 156 F.3d at 1323 ), aff'd, 963 F.3d 122 (D.C. Cir. 2020). If the proposed evidence clears Rule 404(b)'s hurdle, the court must then assess "whether the probative value [of the evidence] is substantially outweighed by the prejudice" under Federal Rule of Evidence 403. Id. (quoting Burch, 156 F.3d at 1323 ).

Federal Rule of Evidence 404(b) permits the introduction of "[e]vidence of any other crime, wrong, or act" for certain purposes, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b). But such evidence "is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Id. As the D.C. Circuit has noted, " ‘Rule 404(b) is a rule of inclusion rather than exclusion,’ ‘prohibiting the admission of other crimes evidence in but one circumstance—for the purpose of proving that a person's actions conformed to his character.’ " United States v. Machado-Erazo, 901 F.3d 326, 333 (D.C. Cir. 2018) (some internal citation marks omitted) (first quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000) ; then quoting United States v. Crowder, 141 F.3d 1202, 1206 (D.C. Cir. 1998) (en banc)). In other words, so long as the evidence is not put forward for an improper character purpose, it may pass through Rule 404(b)'s screen. See, e.g., United States v. Oseguera Gonzalez, 507 F. Supp. 3d 137, 159 (D.D.C. 2020) ("[U]nder Rule 404(b), any purpose for which bad-acts evidence is introduced is a proper purpose so long as the evidence is not offered solely to prove character." (quoting United States v. Miller, 895 F.2d 1431, 1436 (D.C. Cir. 1990) )).

Because Rule 404(b) applies exclusively to evidence of other acts, however, only "[a]cts ‘extrinsic’ to the crime charged are subject to Rule 404(b)'s limitations; acts ‘intrinsic’ to the crime are not." United States v. McGill, 815 F.3d 846, 879 (D.C. Cir. 2016) (per curiam). The D.C. Circuit has adopted a very narrow understanding of what counts as an "intrinsic" act, explicitly rejecting the application of that label to evidence that merely " ‘complete[s] the story’ or ‘incidentally involve[s]’ the charged offense or ‘explain[s] the circumstances’ " surrounding it. Bowie, 232 F.3d at 928 ; see also United States v. Wilkins, 538 F.Supp.3d 49, 70 & n.4 (D.D.C. 2021) (collecting cases); United States v. Alexander, 331 F.3d 116, 125–26 & n.13 (D.C. Cir. 2003) (characterizing Bowie as expressing "dissatisfaction with the extrinsic-intrinsic distinction"). Instead, "the D.C. Circuit has identified two narrow circumstances encompassing intrinsic evidence: the evidence ‘is either of an act that is part of the charged offense or is of acts performed contemporaneously with the charged crime ... if they facilitate the commission of the charged crime.’ " Oseguera Gonzalez, 507 F. Supp. 3d at 159 (alteration in original) (some internal quotation marks omitted) (quoting United States v. Moore, 651 F.3d 30, 63 (D.C. Cir. 2011) ); accord Bowie, 232 F.3d at 929. Likewise, an act offered as "direct evidence of a fact in issue" also counts as "intrinsic." Alexander, 331 F.3d at 126.

Yet compliance with Rule 404(b) —whether because the act in question is intrinsic to the charged conduct or because the evidence is offered for a permissible purpose—"does not itself assure admission of the other crimes evidence." Bowie, 232 F.3d at 930. Even evidence that makes it past Rule 404(b)'s screen must still survive Rule 403's balancing test: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. " Rule 403 establishes a high barrier to justify the exclusion of relevant evidence, by requiring that its probative value must be ‘substantially’ outweighed by considerations such as ‘unfair’ prejudice." United States v. Lieu, 963 F.3d 122, 128 (D.C. Cir. 2020), aff'g 298 F. Supp. 3d 32 (D.D.C. 2018). "Evidence is unfairly prejudicial if it prejudices a defendant's case ‘for reasons other than its probative value,’ such as by creating ‘an undue tendency to suggest decision...