United States v. Grisanti

          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 ...