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United States v. Carl

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

December 28, 2017

United States of America, Plaintiff
v.
Phillip Michael Carl, Defendant

          ORDER

          James G. Carr Sr., U.S. District Judge

         This is a criminal case in which a federal grand jury has indicted the defendant, Phillip Michael Carl, on charges of sexual exploitation of a minor, 18 U.S.C. § 2251(a); enticement of a minor, 18 U.S.C. § 2422(b); and receipt of child pornography, 18 U.S.C. § 2252(a)(2).

         Pending is the defendant's motion to sever the sexual-exploitation charge from the remaining two counts. (Doc. 21).

         Discussion

         The exploitation charge alleges that defendant used the camera on his cellular phone to take a picture of his five-year-old cousin A.M.'s vaginal area. (Doc. 22 at 2, 5). According to the government, the photo depicts A.M.'s “pants pulled down, her head cut off, and her vaginal area as the focal point.” (Id. at 5).

         The enticement charge, in contrast, depends on defendant's attempt, via online chats, to persuade a thirteen-year-old girl (who, unbeknownst to defendant, was an undercover police officer posing as a child) to send him nude photos of herself. (Id. at 2-3). The receipt charge involves defendant's alleged possession of child pornography that does not feature A.M. (Id. at 3).

         Defendant contends that a joint trial on all three charges would prejudice his ability to defend against the enticement charge. (Doc. 21 at 3).

         He intends to argue that the photo of A.M. does not constitute “sexually explicit content” because the photo is not “lascivious.” (Doc. 21 at 4); see 18 U.S.C. § 2256(2)(A)(v) (defining sexually explicit content as “lascivious exhibition of the genitals or pubic area”). But if the jury learns of the evidence underpinning the other two counts, defendant contends, it is likely to draw the impermissible inference that he has a propensity to view child pornography, and from there conclude that he must be guilty of the enticement charge.

         The government responds that a severance is unwarranted because, inter alia, the evidence underpinning counts two and three would be admissible, via Fed.R.Evid. 404(b), to prove the exploitation charge.

         In its view, defendant's denial that the image of A.M. is “sexually explicit content” opens the door to evidence that “he knew, intended, planned, and had the motive to produce sexually explicit conduct involving a minor.” (Doc. 22 at 9). Because the evidence related to the enticement and receipt charges is therefore admissible to prove the exploitation charge, the government argues that joinder, not severance, is the appropriate course.

         Having considered these arguments and the Circuit's controlling decision in U.S. v. Brown, 579 F.3d 672 (6th Cir. 2009), I conclude that: 1) the evidence underpinning the enticement and receipt counts is inadmissible as to the exploitation charge; and, consequently 2) a severance is necessary to avoid the substantial risk of severe prejudice to the defense.

         A. Intent and “Sexually Explicit Conduct”

         To prove that defendant committed the offense of sexual exploitation of a minor, the government must establish that: 1) the victim was less than 18 years old; 2) the defendant used, employed, persuaded, induced, enticed, or coerced the minor to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and 3) the defendant produced the visual depiction using materials transported in interstate or foreign commerce. 18 U.S.C. § 2251(a).

         As noted above, “sexually explicit conduct” includes the “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). Under Sixth Circuit precedent, the factfinder may consider six ...


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