United States District Court, S.D. Indiana, New Albany Division
ENTRY ON GOVERNMENT'S NOTICE OF INTENT TO USE
EVIDENCE UNDER F.R.E. 414 AND 404 AND DEFENDANT'S MOTION
TO EXCLUDE
TANYA
WALTON PRATT, JUDGE
This
matter is before the Court on the Government's Notice of
Intent to Use Evidence under F.R.E. 414 and 404, (Filing
No. 77), and Defendant Adrian Grisanti's
(“Grisanti”) Motion to Exclude Government's
Use of Evidence under F.R.E. 414 and 404 (Filing No.
83). For the reasons explained below, Grisanti's
Motion is denied. The Court will discuss
evidence admissible under Federal Rule of Evidence 414, then
turn to evidence admissible under Federal Rule of Evidence
404.
I.
BACKGROUND
The
Government alleges that on January 28, 2015, Grisanti created
the user account “THISISMEE222” on
“Playpen”, a hidden website that exclusively
contained all manner of content related to child pornography,
child exploitation, and illegal sexual conduct with minors.
In March 2015, the Federal Bureau of Investigations
(“FBI”) served an administrative subpoena on
AT&T for the registered user identified as
“THISISMEE222”. As a result, the FBI obtained
data from logs on “Playpen, ” court-authorized
monitoring by law enforcement, and the court-authorized
deployment of a network investigative tool
(“NIT”), which revealed that Playpen user
“THISISMEE222” repeatedly accessed child
pornography on Playpen between January 28, 2015 and February
24, 2015. (Filing No. 35 at 9.) The NIT identified
the internet protocol address of a business, Our Place Drug
and Alcohol Education Services (“Our Place”),
located 400 East Spring Street, New Albany, Indiana, and a
Media Access Control (“MAC”) address identified a
specific work computer. The work computer was identified as
belonging to Grisanti.
On
August 18, 2015, the FBI obtained a search warrant from the
United States District Court for the Southern District of
Indiana for Grisanti's work computer. (Filing No. 35
at 10.) Agents executed the warrant and searched
Grisanti's workplace and located the computer that had
been used to access Playpen. The computer's unique MAC
address, a feature of internal hardware, matched the one
observed on Playpen. Id. The FBI left the computer
after conducting limited forensic analysis and came back the
next day with a second search warrant; however, upon
returning the FBI found the computer in question was no
longer at Grisanti's work station.
On
August 19, 2015, the FBI obtained additional search warrants
from this District and the Western District of Kentucky to
search Grisanti's person, residence, and vehicle.
(Filing No. 35-3; Filing No. 35-4;
Filing No. 35-5.) Law enforcement agents discovered
Grisanti's work computer in the trunk of his car with the
hard drive missing. Id. The FBI also found a smashed
thumb drive in the dumpster of the business. Id.
Agents interviewed Grisanti during the search of his car and
he denied knowing that child pornography was on his work
computer. Specifically, he said that he did not download or
view any child pornography, had no idea how child pornography
was found on his computer, saying, “it must be a
mistake.” Subsequent forensic analysis of
Grisanti's devices was performed. In the internet
browsing history, registry, and recently viewed files of both
the work computer and the home computer, the FBI located
multiple common child pornography files derived from Playpen.
(Filing No. 35 at 10.) Thereafter, Grisanti was
indicted for receiving child pornography from Playpen in
violation of 18 U.S.C. § 2252A(a)(2), possession of
child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B), and destruction of evidence in violation of
18 U.S.C. § 1519. (Filing No. 1.)[1]
At
trial, the Government seeks to introduce non-child
pornography evidence found on Grisanti's work computer,
personal MacBook, and images in Grisanti's email account.
The Government believes that Grisanti transferred files from
his work computer to his email account and to an external
hard drive. (Filing No. 77 at 3.) Additionally,
several child pornography and non-child pornography files
recovered from Grisanti's MacBook were identified as
files derived from Playpen. Id.
A.
Non-Child Pornography evidence on work
computer
The
Government recovered Grisanti's browsing history from
various websites. On Grisanti's work computer the website
Omegle was visited. Id. Omegle is a publically
available social media site where strangers can meet and
interact via webcams. The Government alleges that Omegle is
frequently used by sexual predators to exploit minors. In
fact, Omegle's home page displays a warning:
“Predators have been known to use Omegle, so please be
careful.” The FBI located multiple screenshots on
Grisanti's work computer from Omegle of clothed minor
females that appear to be between the ages of 10-15 on
webcams. The Government concedes that the images are legal,
but points out that the majority of Grisanti's child
pornography offenses depict females of the same age range.
It was
also discovered that Grisanti accessed the website,
www.girlswithmuscle.com, which contains a collection of
photographs of females that appear to be teenagers with many
in bathing suits or cheerleading uniforms. There were
approximately 120 thumbnail images in the thumbs.db file of
his work computer that appear to be from this website. Again,
the Government concedes the photographs are legal, but argues
the frequency of thumbnail images indicate that Grisanti has
an interest in teenagers. Id. at 3-4. Grisanti's
browser history also contained images from “The
Fappening”, which was a series of nude celebrity
photographs that were hacked and distributed on the internet.
The download history included images of Olympic gymnast M.M.,
including one of her in the shower when she was 17 years old.
Id. at. 4.
B.
Non-child Pornography evidence on MacBook
Forensic
analysis of a MacBook computer taken from Grisanti's home
recovered an image that contained the website information of
www.enterdarknet.com accompanied by the slogan “Young,
Fresh, and Forbidden.” Id. The website
references the onion router (“TOR”) as being
available if needed, which is the same network users of
Playpen used to access child pornographic
content[2]. The Government's review of the
website displayed “an animated female child on the
cover page and the site offered a service to members, for a
fee, that allows them to obtain ‘ultimate privacy'
while downloading content form the internet.”
Id.
C.
Non-child Pornography evidence in Grisanti's email
account
On or
about December 10, 2015, Microsoft provided the contents of
Grisanti's email, pursuant to a search warrant.
(Filing No. 77 at 5.) The email account did not
reveal evidence of child pornography, however, there was
evidence that Grisanti was capturing images of teenagers via
an iPhone and sending the images to his email account.
Id. Additionally, the same images were located on
his work computer. The images were similar to the content
that could be found on www.girlswithmuscle.com and depicted
various teenage girls in bikinis and one of a female in a
spandex athletic top and shorts. Id. On June 10,
2010, Grisanti sent a video clip to his email account and
titled it “Hat”. The video contained a female,
possibly a teenager, taking off her shirt and exposing her
breast. Id. On July 24, 2013, Grisanti sent an email
titled “Manning” to his personal account via an
iPhone. The message read “@Carlygonewild”. Public
database searches revealed that this ...