United States District Court, N.D. Ohio, Western Division
G. Carr Sr., U.S. District Judge
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).
is the defendant's motion to sever the
sexual-exploitation charge from the remaining two counts.
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).
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).
contends that a joint trial on all three charges would
prejudice his ability to defend against the enticement
charge. (Doc. 21 at 3).
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.
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.
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.
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.
Intent and “Sexually Explicit Conduct”
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).
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