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United States v. Defoggi

United States District Court, D. Nebraska

December 30, 2014



LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on the Motion for Acquittal under Federal Rule of Criminal Procedure 29, and Motion for New Trial under Federal Rule of Criminal Procedure 33 (Filing No. 260), filed by Defendant Timothy DeFoggi ("Defendant"). For the reasons stated, the Motion for Judgment of Acquittal will be granted in part, and the Motion for New Trial will be denied.


On August 19, 2014, through August 22, 2014, the Court held a jury trial on the charge against the Defendant. On August 26, 2014, the jury returned a verdict on all seven counts alleged in the Indictment (Filing No. 1). The Defendant now moves for a judgment of acquittal because the evidence produced at trial failed to satisfy some of the elements in each of the seven counts. Alternatively, he moves for a new trial because of the unduly prejudicial effect of evidence adduced at trial.


1. Standard of Review

Under Rule 29, the Court "must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. Fed. R. Crim. P. 29(a). Rule 29(c) permits defendants to move the Court to set aside a verdict and enter judgment of acquittal after trial. "A district court must consider a motion for judgment of acquittal with very limited latitude' and must neither assess the witnesses' credibility nor weigh the evidence." United States v. Johnson, 474 F.3d 1044, 1048 (8th Cir. 2007) (quoting United States v. Thompson, 285 F.3d 731, 733 (8th Cir. 2002)). The evidence must be viewed in a light most favorable to the government, and the government is afforded the benefit of all reasonable inferences. United States v. Peters, 462 F.3d 953, 957 (8th Cir. 2006). The Court must uphold the jury's verdict "if there is an interpretation of the evidence that would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt." Thompson, 285 F.3d at 733. Further, the Court "must uphold the jury's verdict even where the evidence rationally supports two conflicting hypotheses' of guilt and innocence." Peters, 462 F.3d at 957 (quoting United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir.2004)).

2. Count I: Child Exploitation Enterprise

Count I alleged that Defendant engaged in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g). A person violates § 2252A(g) if the person commits one of the offenses listed in 18 U.S.C. §§ 1591, 1201, or one of the offenses listed in Chapters 109A, 110, or 117 of Title 18, "as a part of a series of felony violations constituting three or more separate incidents and involving more than one victim, and commits those offenses in concert with three or more other persons." 18 U.S.C. § 2252A(g). Viewing the evidence in a light most favorable to the Government, the standard for entering a judgment of acquittal has not been met.

The evidence tied the Defendant to the online aliases "fuckchrist" and "PTasseater" on the PedoBook website, and activity associated with those identities was attributable to him. ( See Filing No. 234 at 309-312[1] (establishing Tor traffic at the residence around 5:00 am); Filing No. 234 at 316 (establishing that one person from the basement level, who was not Christopher Casto, fled to the main level of the residence); Filing No. 234 at 354-356 (establishing that upon entering the main floor of the residence, Special Agent Smith observed Defendant kneeling on the floor with a laptop in his hands); Filing No. 234 at 356-358 (establishing that SA Smith had to remove Defendant forcibly from the laptop and observed that the laptop was actively downloading a file from a Tor hidden service website called Onion Pedo Video Archive, a website dedicated to the distribution of child exploitation material videos); Filing No. 234 at 251-254 (establishing that user "fuckchrist, " in his private messages, told other members that he resides in the Maryland/D.C./Virginia area and that he is usually on the website in the early morning, between 3 am and 6 am, before his roommate wakes up); Filing No. 235 at 562 (establishing that Defendant's domestic partner wakes up around 6:30 or 7:00 am); Filing No. 234 at 259-286 (establishing that through various law enforcement investigative techniques, including open source searches, administrative subpoenas, and cooperation with foreign law enforcement, the names "fuckchrist" and "PTasseater" were uniquely identified as belonging to Defendant)).

There is also evidence that Defendant engaged in child exploitation activities prohibited by Chapter 10 of Title 18. For example, Special Agent Gordon testified that on four particular dates named in the Indictment under Counts IV through VII (11/21/2012, 11/26/2012, 12/4/2012, and 12/8/2012), the Defendant accessed numerous images of child pornography, depicted in Exhibits 5A through 5D and 6A through 6D, which captured user activity logs from the website as well as screen shots of that activity. (Filing No. 234 at 233-245.) Special Agent Gordon testified that the Defendant "actually clicked on and viewed" child pornography files, as indicated by the user log entries, on all four dates. ( See, e.g., Filing No. 234 at 234-239.) There was also evidence of Defendant's intent through, for example, his discovery of a website dedicated to the sexual exploitation of children, which could not be found without extensive knowledge of Tor and an effort to maintain anonymity while accessing child pornography, ( see Filing No. 232 at 135-138, 145-146; see also Filing No. 234 at 383-382); and his registration as a member of the website, creating a profile page, selecting or accepting other members as "friends, " requesting or soliciting child pornography from other users, and soliciting and obtaining membership in various groups. ( See Filing No. 232 at 146, 170-181; Filing No. 234 at 249.)

The government also presented at trial substantial evidence to show the Defendant's participation in a criminal conspiracy with three or more other persons. Specifically, Special Agent Gordon's testimony and the exhibits admitted during his testimony established that the images of child pornography accessed by the Defendant on the dates for which he was charged with accessing with intent to view child pornography were posted by three or more other site members. ( See, e.g., Filing No. 234 at 240 (testimony that all the pages viewed by user "fuckchrist" on December 4, 2012, during a particular session contained images of child pornography uploaded by the user "jackspade."); Filing No. 234 at 245 (testimony that on December 8, 2012, user "fuckchrist" accessed numerous web-pages featuring images of child pornography uploaded by other members of the website)). Evidence of Defendant's actions on the website included registration of a username, creation of a persona, interaction with other users via private messages, the joining of public groups, the joining of private groups where child pornography shared was limited to group members, and solicitation of particular child pornography from other users. Accordingly, this evidence is sufficient to support the jury's finding of guilt on Count I.

3. Counts II and III: Conspiracy to Advertise or Distribute Child Pornography

Defendant moves to dismiss Counts II and III because they are lesser included offenses of Count I. The Government concedes that Counts II and III are lesser included offenses of Count I. Because the Court finds that the evidence adduced at trial supports the conviction under Count I, the convictions under Counts II and III will be vacated and the Court will not impose a sentence on those Counts. Should the Court of Appeals find the evidence is insufficient to support an element of the greater offense of Count I, the Court may revisit Counts II and ...

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