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United States v. Norris

United States District Court, S.D. Ohio, Western Division

April 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID M. NORRIS, Defendant.

          ORDER

          Susan J. Dlott United States District Court Judge

         This matter is before the Court on Defendant's Motion to Sever Count Three from Counts One and Two in the Indictment (Doc. 19), which the Government opposes (Doc. 24). Defendant has filed a reply, along with a Motion to Exclude Prior Conviction. (Doc. 25.) Also before the Court, and related to Defendant's Motions to Sever and to Exclude, is the United States' Notice of Intent to Introduce Evidence Pursuant to F.R.E. 404(b)(2), and its request that the Court issue a ruling in limine that evidence of Defendant's other crimes, wrongs, or acts are admissible at trial. (Doc. 27.) Defendant has filed a Reply in Opposition to the Government's Notice to Admit Other Acts Evidence Under Rule 404(b). (Doc. 28.) A hearing took place on February 21, 2017 as to all matters. (Docs. 29-31.) With the Court's approval, Defendant filed a post-hearing supplemental memorandum. (Doc. 32.)

         For the reasons that follow, Defendant's Motion to Sever will be DENIED, but his alternate Motion to Bifurcate will be GRANTED; and Defendant's Motion to Exclude will be GRANTED IN PART and DENIED IN PART. As to the United States' Rule 404(b)(2) Notice, this Court determines that evidence of Defendant's acts that underpin his 2005 state law conviction will be ADMISSIBLE at trial for the sole purpose of identity.

         I. BACKGROUND

         A. The Pleadings

         1. Defendant's Motion to Sever, or in the Alternative, Bifurcate

         Defendant is charged with advertising child pornography in violation of 18 U.S.C. § 2251(d) (Count 1), distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2), § 2252(b)(1) (Count 2), and penalties for registered sex offenders as set forth in 18 U.S.C. § 2260A (Count 3). (Doc. 1.) Notably, Count 3 of the indictment becomes relevant only if the United States is able to secure a conviction on Count 1, advertising. This is because Count 2, distribution, is not one of the enumerated federal offenses that triggers the enhanced statutory penalty under § 2260A, which reads as follows:

Whoever, being required by Federal or other law to register as a sex offender, commits a felony offense involving a minor under section 1201, 1466A, 1470, 1591, 2241, 2242, 2243, 2244, 2245, 2251, 2251A, 2260, 2421, 2422, 2423, or 2425, shall be sentenced to a term of imprisonment of 10 years in addition to the imprisonment imposed for the offense under that provision. The sentence imposed under this section shall be consecutive to any sentence imposed for the offense under that provision.

(Emphasis added.) To secure a conviction on Count 3, then, the United States must prove that Defendant committed the federal offense of advertising child pornography as alleged in Count 1 and that he committed that offense while being required to register as a sex offender. Thus, as to the second element, the United States will be required to introduce evidence related to Defendant's prior state conviction, attempted unlawful sexual conduct with a minor in violation of Ohio Rev. Code § 2923.02.

         Defendant acknowledges that all three counts are correctly joined under Fed. R. Crim. P. 8(a). (Doc. 19 at PageID 47.) But, pursuant to Fed. R. Crim. P. 14(a), he asks the Court to sever Count 3 from Counts 1 and 2, claiming prejudice. (Id. at PageID 45, 47, 50.) Because it necessarily results in a “multiplicity”[1] of litigation, a defendant must show “compelling, specific, and actual prejudice” that would result from a trial court's refusal to sever. United States v. Saadey, 393 F.3d 669, 678 (6th Cir. 2005).

         In support of substantial prejudice, and noting the context of a child pornography prosecution, Defendant cites United States v. Stout, 509 F.3d 796 (6th Cir. 2007). There the Government filed a notice of intent to introduce evidence of Stout's state court conviction for surreptitiously videotaping a neighbor's 14-year-old daughter in the shower to demonstrate his “knowledge and intent to receive and possess child pornography, as well as lack of mistake or accident.” Id. at 798 (internal citation and quotation omitted). Stout then filed a motion in limine pursuant to Fed.R.Evid. 404(b) and 403, [2] asking the trial judge to suppress evidence of the prior conviction as significantly more unfairly prejudicial than legitimately probative. The district court granted the motion in limine and excluded the prior bad acts evidence, and the Sixth Circuit affirmed. Id. at 799-804. The Sixth Circuit observed:

The public regards sexually-based offenses as particularly heinous. Sex offenders are required to register in the communities in which they live because of the perceived danger that they will act in conformity with their prior bad acts. In this respect, admission of prior convictions for sex crimes under Rule 404(b) in sexually-based offense cases presents a greater risk of the always present danger that the jury will convict the defendant on an improper basis-the propensity inference. A district court is free to consider that potential for unfair prejudice in its balancing.

Id. at 802. The district court also noted that a limiting instruction would be insufficient to guard against unfair prejudice, and the Sixth Circuit agreed. Id. Additionally, Defendant cites United States v. Hough, 385 F.App'x 535 (6th Cir. 2010), which affirmed a district court's decision to exclude from a child pornography (attempted receipt and possession) prosecution two reports of child molestation, a state criminal conviction for child molestation, and a state civil default judgment for child molestation. The evidence was admissible under Fed.R.Evid. 414 (Similar Crimes in Child-Molestation Cases), but the district court did not err in excluding it under Rule 403. Id. at 536.

         As an alternative to severance, because Fed. R. Crim. P. 14(a) allows a court to “provide any other relief that justice requires, ” Defendant asks for bifurcation, permitting the jury to hear evidence related to Count 3 only if the United States first secures a conviction on Count 1. (Id. at PageID 45, 47, 51.)[3] In support, Defendant cites United States v. Never Misses A Shot, No. 13-30013-RAL, 2013 WL 3872837 (D.S.D. July 25, 2013). In that case the defendant was indicted with two counts of aggravated sexual abuse of a child and two counts of abusive sexual contact of a child. Id. at *1. He also was accused of having committed the abusive sexual contact in one of the two counts at a time when he was required to register as a sex offender, and so he likewise was charged with a violation of § 2260A. Id. To avoid “any possibility that the jury might infer [the defendant] is guilty of Counts I through IV because of his alleged status as a registered sex offender, ” the trial judge agreed to conduct the trial in two phases. Id. at *3.

         In response, the United States argues that Defendant's assertion of prejudice is conclusory and, regardless, his prior conviction would be admissible under Fed.R.Evid. 413 and 414. (Doc. 24 at PageID 60.) It does not attempt to distinguish Never Misses A Shot. The United States' brief prompted not only a reply from Defendant[4] but also a preemptive Motion to Exclude Prior Conviction. (Doc. 25.) The United States' formal Rule 404(b)(2) Notice followed. (Doc. 27.)

         2. The United States' Notice of Intent to Introduce Evidence Pursuant to Fed.R.Evid. 404(b)(2)

         Evidence of a “crime, wrong, or other act” is inadmissible to prove propensity, but admissible for other purposes, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(1), (2). This rule “actually is a rule of inclusion rather than exclusion, since only one use is forbidden and several permissible uses of such evidence are identified.” United States v. Carney, 387 F.3d 436, 450 n.11 (6th Cir. 2004) (citation and quotation omitted).

         At trial, the United States seeks to introduce evidence of Defendant's prior 2005 conduct of utilizing a similar screen name, engaging in similar conversations regarding the sexual abuse of children, and using identical verbiage as alleged with respect to the current charged offenses. (Doc. 27 at PageID 75.) The United States is not seeking to introduce the fact that Defendant was convicted in connection with his 2005 conduct; rather, it wishes to introduce only the acts themselves because of their “extraordinary” similarities to his conduct in 2012. (Id.) The United States contends that the other acts evidence is admissible to establish Defendant's identity and to show his motive, intent, and knowledge in committing the crimes charged. (Id. at PageID 76- 82.)

         a. Current Charged Offenses

         In its Notice, the United States proffered the following facts with respect to the current charged offenses. In May 2012, an undercover investigator working with the Woodstock, Virginia police was conducting online child pornography probes. (Id. at PageID 72.) Portraying himself to be a 37-year-old mother of two girls (ages seven and twelve), the investigator entered a chat room on an “UnderNet”[5] server. (Id.) An individual using the screen name “Hrtcnt” initiated a private chat with him, beginning their exchange with “hello, were you used young.” (Id.) Later in the chat “Hrtcnt”-who stated he was 30-years-old[6]-asked the investigator, “Do your girls get used?” (Id.) “Hrtcnt” also stated he had had sex with a six-year-old girl in the past, whose mother was a “stripper/escort” and out at night. (Id. at 73.) “Hrtcnt” told the investigator that he did not trade child pornography in the chat room in which they were conversing. (Id.) However, he posted a direct link to the tor[7] browser and gave the investigator his screen name and added him as a friend. (Id.) When their conversation resumed, “Hrtcnt's” screen name changed to “wntlilgrl, ” who then provided links to a “bunch of vids” and a “bunch of pics”-both depicting child pornography-as well as links to other webpages where child pornography could be accessed. (Id.) “wntlilgrl” also sent a video depicting what appeared to be an adult male having anal sex with a small child, who, according to “wntlilgrl, ” was two-years-old. (Id.) After sending the video, “wntlilgrl” asked the investigator, “When you think of lil girls being used do you prefer them to like it or don't care?” (Id.) Following up, “wntlilgrl” stated the he “get[s] harder when they don't like it” and he thinks “girls get used to it faster and are more obedient when they are hurt and punished more as well.” (Id.)

         During their initial chat, the investigator was able to capture “Hrtcnt's” IP address. (Id.) The service provider was Time Warner Cable/Road Runner in Ironton, Ohio, and the subscriber was Connie Norris, 114 S. 7th Street, Ironton, Ohio 45638. (Id. at PageID 73-74.) The matter then was referred to the Cincinnati Field Office for Homeland Security, where Defendant, a registered sex offender, was identified as a potential resident at the Ironton address. (Id. at PageID 74.)

         b. Other Acts Evidence

         In its Notice, the United States proffered that an undercover officer with the Westerville, Ohio police department would testify that he engaged in an online chat with Defendant on June 10, 2005. (Id. at PageID 76.) During that chat, Defendant, using the screen name “hrtg1, ” made statements to the effect that he likes to sexually hurt and abuse young girls. (Id.)

         B. The February 21, 2017 Hearing

         During direct examination by the United States, as promised, City of Westerville Police Officer Brett Peachey testified that he engaged in an online chat with Defendant on June 10, 2005, posing as a 14-year-old girl. During the chat, Officer Peachey identified himself as “columbus__girl__larissa.” Defendant, using the screen name “hrtg__1, ” asked “larissa” if she had been “used” before, and told her he liked to abuse girls and hurt them with sex. He asked her for sex, and promised to bring condoms and vodka. Defendant told “larissa” that he was 23-years-old and his name was David. He described himself as 6'3” tall and weighing 220 pounds, with auburn hair. “larissa” asked Defendant to call her cell phone when he was half-an-hour away from the address she gave him, and also asked what kind of car he would be driving. When Defendant arrived in the vehicle he had ...


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