USA v. Salard

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
GREG ALAN SALARD,
Defendant.
Case No. 1:14-cr-00012-TMB
ORDER REGARDING MOTIONS IN
LIMINE
I. 	INTRODUCTION
Trial on the government’s Superseding Indictment1 charging Defendant Greg Alan Salard
with distribution, receipt, and possession of child pornography is scheduled to begin on July 20,
2015. Before the Court are three motions in limine regarding the presentation or exclusion of
evidence at trial.2
II. 	BACKGROUND
Much of the evidence in this case will be forensic evidence associated with a computer
found in Defendant’s residence that was linked to the IP address 65.74.22.111. On June 5, 2014,
FBI Special Agent Anthony Peterson partially downloaded a file from the 65.74.22.111 IP
address that Agent Peterson concluded contained child pornography. On October 15, 2014, the
FBI executed a search warrant on Defendant’s home, which was the address associated with the
65.74.22.111 IP address. There, FBI agents found a computer with cleaner software running.
1 Dkt. 42 (Superseding Indictment).
2 Dkt. 47; Dkt. 48; Dkt. 49.
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Agent Peterson stopped the cleaner software before it completed its session. He was then able to
review a list of files that had been downloaded onto the computer using the Ares file-sharing
program, though the files themselves were not present. From that list, Agent Peterson identified
608 files with hash values — an identifying alphanumeric sequence unique to a specific digital
file — known to be associated child pornography. Multiple files from this list had previously
been the subject of criminal prosecution and included videos of children with a known age and
identity. These videos are specifically identified in Count II of the Superseding Indictment.
III. 	DEFENDANT’S FIRST MOTION IN LIMINE
The government intends to present to the jury exhibits of still images and screen shots
from the videos identified in the Superseding Indictment. Because the videos were not found on
the computer, exhibits will be based on copies of the videos known to correspond to the hash
values derived from the files on the computer. Defendant seeks to exclude this evidence.3 He
contends that he will stipulate that the hash values of the files listed in the Superseding
Indictment correspond with hash values of files known to contain child pornography. Having so
stipulated, he argues that the danger of unfair prejudice in presenting images to the jury
substantially outweighs any remaining probative value.
Defendant is not the first in a child pornography case to seek to avoid having videos or
images presented to the jury by stipulating that the materials are child pornography. He relies
heavily on one such case, US v. Merino-Balderrama, in which the Ninth Circuit reviewed a
district court’s decision to permit the government to show portions of films depicting child
3 Dkt. 48.
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pornography to the jury despite the defendant’s offer to stipulate to the content of the films.4 In
that case, the defendant had discovered a briefcase with pornographic materials that included
individually-boxed videos of child pornography. Each box cover bore a still, taken from the
corresponding film, of children engaged in sexual conduct.5 The Ninth Circuit concluded that
the district court abused its discretion in permitting the jury to see portions of the videos because
the films were less probative of the defendant’s knowledge regarding the films than were their
box covers.6 Of particular importance to the court, the government offered no evidence that the
defendant had knowledge of the films’ contents. The defendant had merely stumbled upon the
films and there was nothing to dispute his claim that, though he tried to view the films by
holding the film stock up to light, he was unable to discern any images. Thus, the films were less
probative of his knowledge than their covers, which he undisputedly did see.7
Here, in contrast, the government intends to present evidence that Defendant had
knowledge of the contents of the files — that he viewed images and videos that he downloaded
and possessed, and that he attempted to play others but was unsuccessful.8 This renders Merino-
Balderrama inapposite to this case.9 Moreover, the court in Merino-Balderrama based its
4 United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir. 1998).
5 Id. at 760.
6 Id. at 762–63.
7 Id.
8 Dkt. 54 at 8.
9 See United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008) (“Even more importantly, for
every image shown to the jury there was forensic evidence that the files had actually been
opened and viewed after downloading. This is what makes this case distinguishable from United
States v. Merino–Balderrama.”); see also United States v. Dodds, 347 F.3d 893, 898 (11th Cir.
2003) (“Dodds argues that his case parallels Merino–Balderrama's . . . . Belying Dodds's claim,
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conclusion on comparing the probative value of the stills from the box covers relative to the
probative value of the videos. Here, there is nothing analogous to the box covers that could be
presented to the jury instead of the government’s proffered evidence. Indeed, it is only still
images — just like the box covers — that the government intends to show the jury. These still
images are “highly probative of the state of mind with which the files were received and
possessed.”10
Further, with distinguishable exceptions like Merino-Balderrama, “courts are in near-
uniform agreement that the admission of child pornography images or videos is appropriate, even
where the defendant has stipulated, or offered to stipulate, that those images or videos contained
child pornography.”11 Relying on a stipulation to establish an element of a crime — even
without considering that the government here has indicated that it does not intend to accept the
stipulation — may “rob the evidence of much of its fair and legitimate weight,” allowing the
defendant to “stipulate or admit his way out of the full evidentiary force of the case as the
Government chooses to present it.”12
however, is the government's evidence of Dodds's guilt, which included the eye-witness
testimony of Dodds's roommate who observed Dodds looking at the pornographic pictures on his
computer, the fact that child pornographic images continued to be accessed after Shofner had left
the base, and the fact that the images were placed into a file and/or a cd-rom named after
Dodds.”).
10 Ganoe, 538 F.3d at 1123–24.
11 United States v. Cunningham, 694 F.3d 372, 391 (3d Cir. 2012) (citing Ganoe, 538 F.3d at
1123–24).
12 Old Chief v. United States, 519 U.S. 172, 186-87 (1997); see also United States v. Polouizzi,
564 F.3d 142, 153 (2d Cir. 2009) (“[T]he government generally has a right to present evidence,
rather than accept a stipulation, to establish the ‘human significance’ of the fact and ‘to implicate
the law's moral underpinnings.’”); United States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st
Cir. 2008) (“The government need not accept a defendant's attempt to use a stipulation to
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Nonetheless, the Court must still ensure that the risk of unfair prejudice does not
substantially outweigh the probative value of the evidence.13 The government argues that it will
minimize prejudice when presenting the evidence by publishing to the jury only a single copy of
the image or screen shot of the video, allowing each member of the jury to view the image and
pass it to the next juror, and then collecting each image and maintaining possession of the images
throughout the trial.14 These steps, in conjunction with a careful voir dire and cautionary
instructions to the jury, can be sufficient to minimize potential unfair prejudice.15
For these reasons, the Court concludes that the risk of unfair prejudice does not
substantially outweigh the probative value of the government’s evidence from the videos charged
in the Superseding Indictment. The Court denies Defendant’s motion to exclude this evidence.
IV. 	GOVERNMENT’S FIRST MOTION IN LIMINE
The government seeks five independent rulings from the Court.16 They are as follows.
A. 	Motion to admit the charged images containing child pornography
For the reasons provided in denying Defendant’s first motion in limine, the Court grants
the government’s motion to admit images of child pornography captured from the videos
identified in the Superseding Indictment.17
overcome the right of the government ‘to make a full presentation of the crime currently
charged.’”).
13 See Fed. R. Evid. 403.
14 Dkt. 54 at 7; Dkt. 47 at 5.
15 See Ganoe, 538 F.3d at 1124.
16 Dkt. 47.
17 Id. at 2–6.
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B. 	Motion to admit evidence of the uncharged child pornography files
The government seeks to provide testimony regarding the approximately 600 child
pornography videos identified by hash values that were not included in the Superseding
Indictment.18 The government intends to ask its case agent to describe some of the file names,
their contents, and the locations on Defendant’s computer in which they were found.19
Defendant requests the government to specifically identify which of the approximately 600
videos it intends to introduce as exhibits at trial and to provide notice about what information it
intends to elicit through its witnesses so that Defendant can properly respond.
To the extent Defendant seeks this information to properly respond to the government’s
motion, the government has provided sufficient information for Defendant to oppose the motion.
The government was clear that it “does not intend to seek admission or publication of the
uncharged files” and will offer only brief commentary on the videos’ names, locations, and
contents.20 This information, even though it relates to uncharged videos, is admissible under
Federal Rule of Evidence 404(b).
Rule 404(b) permits evidence of a crime, wrong, or other act to prove “knowledge, . . . ,
absence of mistake, or lack of accident.”21 Testimony that Defendant’s computer contained
evidence of over 600 files of child pornography is probative of his knowledge.22 For one, the
18 Id. at 6–10.
19 Id. at 8.
20 Id. at 9–10.
21 Fed. R. Evid. 404(b)(2).
22 See United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir. 2014) (affirming the district
court’s admission under Rule 404(b) of uncharged videos in a child pornography case because
“[t]he uncharged videos were probative of [the defendant’s] knowledge and relevant to his
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volume of material makes it unlikely that the files were downloaded accidentally. The location
of the files on the computer is also probative of knowledge, particularly where files with titles
indicative of child pornography are stored with files with less informative titles.23 Further, the
risk of unfair prejudice is minimized by providing only brief commentary on the file names,
locations, and contents, rather than displaying to the jury images from the uncharged files.24
The Court thus grants the government’s motion to provide testimony regarding the
uncharged files. To the extent Defendant seeks more specific information from the government
in order to respond to this testimony at trial, however, he has a right to receive that information
under Rule 404(b).25 The government shall provide Defendant with a list of uncharged files it
intends to have its case agent testify about, if the government has not already done so.
C. 	Motion to exclude Defendant’s out-of-court statements
Defendant does not intend to introduce any of his out-of-court statements.26 This portion
of the government’s motion is therefore denied as moot.
defenses either that he downloaded the videos accidentally while downloading legal pornography
or other files on LimeWire, or that a hacker had downloaded the videos to his computer”).
23 See Ganoe, 538 F.3d at 1123 (“The fact that even those files that were not explicitly titled also
turned out to contain child pornography and were likewise placed in the ‘z’ folder strongly
suggests that the images had to have been viewed in order to be categorized.”).
24 See Hardrick, 766 F.3d at 1056.
25 See Fed. R. Evid. 404(b)(2) (“On request by a defendant in a criminal case, the prosecutor
must: provide reasonable notice of the general nature of any such evidence that the prosecutor
intends to offer at trial.”).
26 Dkt. 53 at 3.
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D. 	Motion to exclude reference to Defendant’s potential punishment
Defendant does not intend to refer to any potential punishment.27 This portion of the
government’s motion is therefore denied as moot.
E. 	Motion to designate the United States’ case agent and exclude witnesses from
the courtroom
Under Federal Rule of Evidence 615, the Court, at a party’s request, must order witnesses
excluded from trial so that they cannot hear other witnesses’ testimony.28 The Court therefore
grants the government’s request to exclude witnesses. The Court further orders that no excluded
witness or excluded prospective witness may be shown, provided, or have read to him any
transcript or transcript portion of another witness’s pretrial or trial testimony.29
Rule 615 lists four categories of persons excepted from the rule: (a) “a party who is a
natural person”; (b) “an officer or employee of a party that is not a natural person, after being
designated as the party’s representative by its attorney”; (c) “a person whose presence a party
shows to be essential to presenting the party’s claim or defense”; and (d) “a person authorized by
statute to be present.”30 The government seeks to designate Agent Peterson so that he may be
27 Id.
28 Fed. R. Evid. 615.
29 Although the Ninth Circuit has not considered whether Rule 615 prohibits a sequestered
witness from reading transcripts of a hearing, United States v. Kirschenman, 262 F. App'x 819,
821 (9th Cir. 2008), excluding a witness from a hearing would have little effect if the witness
could review testimony in the transcripts. See United States v. Jimenez, 780 F.2d 975, 980 (11th
Cir. 1986) (“[T]here is no difference between reading and hearing testimony for purposes of
Rule 615. Either action can violate a sequestration order.”).
30 Fed. R. Evid. 615(a)–(d).
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permitted to remain in the courtroom throughout the duration of the trial. The Court grants this
request under Rule 615(b).31
Defendant agrees to exclude witnesses from the courtroom but seeks to except the
defense investigator and any members of the defense team.32 Because the Court is unaware if
any of these individuals are expected to testify or if the government opposes their exception from
the exclusion order, this issue can be discussed at the continuation of the Pre-Trial Conference on
July 20, 2015.
V. 	DEFENDANT’S SECOND MOTION IN LIMINE
The government seeks to introduce evidence that Defendant committed acts of child
molestation against his adopted daughter (“Juvenile A”) beginning around 2004 when she was
six years old.33 The evidence will include testimony from Juvenile A. Defendant seeks to
exclude this evidence with his second motion in limine.34
As discussed at the Pre-Trial Conference on July 17, 2015, the Court will reserve its
ruling on this motion until after the government has introduced its other evidence at trial.35 The
31 See United States v. Thomas, 835 F.2d 219, 222–23 (9th Cir. 1987) (finding that an FBI agent,
as an officer for the government, was properly excluded from a Rule 615 order).
32 Dkt. 53 at 3.
33 See Dkt. 40.
34 Dkt. 49.
35 See United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001) (approving of the district
court reserving its ruling on Rule 414 evidence until after the prosecution had presented its other
evidence). The government has indicated in the July 17, 2015 Pre-Trial Conference that it will
plan to call Juvenile A as its final witness.
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parties shall not reference Juvenile A or her testimony during their opening statements and shall
also instruct their witnesses to refrain from mentioning Juvenile A or her testimony.
VI. 	CONCLUSION
For these reasons, and subject to the conditions discussed in this order, the Court
DENIES Defendant’s first motion in limine (Docket No. 48); GRANTS in part the
government’s first motion in limine (Docket No. 47) as it relates to admitting charged images of
child pornography, admitting testimony regarding the uncharged child pornography, and
designating Agent Peterson as a representative excepted from the exclusion of witnesses under
Rule 615, and DENIES in part the government’s motion as it relates to Defendant’s out-of-
court statements and references to Defendant’s potential punishment; and reserves ruling on
Defendant’s second motion in limine (Docket No. 49).
The parties shall submit to the Court joint proposed curative jury instructions regarding
images shown to the jury from the charged videos and regarding testimony provided to the jury
about uncharged videos and other files. If the parties are unable to agree on the instructions they
shall file their respective proposed instructions with the Court no later than 12:00pm on July 20,
2015.
Further, if Defendant seeks to exclude evidence of conduct that occurred before the
charged time period, Defendant shall file an additional motion in limine to allow the Court to
review the arguments and to allow the government to respond.
Dated at Anchorage, Alaska, this 17th day of July, 2015.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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