United States v. Lieu ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Criminal Action No.: 17-0050 (RC)
:
DAVID LIEU, : Re Document Nos.: 50, 52
:
Defendant. :
MEMORANDUM OPINION
GRANTING UNITED STATES’ MOTION TO ADMIT OTHER CRIMES EVIDENCE [50];
DENYING DEFENDANT’S MOTION TO SUPPRESS [52]
I. INTRODUCTION
Defendant David Lieu is charged by Superseding Indictment with one count of
distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of travel
with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). See
Superseding Indictment, ECF No. 48. The Government alleges that Mr. Lieu engaged in a series
of electronic communications with an undercover detective who was posing as a father of a
fictitious nine-year-old girl and that Mr. Lieu made arrangements to meet the fictitious father and
child for the purpose of engaging in illicit sexual activity with the daughter. This matter is
presently before the Court on two related evidentiary motions. First, Mr. Lieu moves to suppress
a variety of evidence based on his claim that the Government violated his constitutional
protections under the Fourth and Fifth Amendment. See Def.’s Mot. Suppress (“Def.’s Mot.”),
ECF No. 52. Second, the Government moves to admit evidence that Mr. Lieu (1) possessed
child pornography at his home, (2) had previously sexually abused his stepdaughter, and (3) was
communicating with someone, contemporaneous with his conversations with the undercover
detective, about his sexual interest in children. See United States’ Mot. Admit (“Gov’t Mot.”),
ECF No. 50. For the reasons stated below, the Court will deny Mr. Lieu’s motion to suppress
and grant the Government’s motion to admit the evidence of the prior bad acts, subject to a
limiting instruction.
II. BACKGROUND
A. Allegations of the Instant Offenses
The Government intends to prove the following allegations at trial. In the winter of 2016,
Detective Timothy Palchak was acting in an undercover capacity as part of the Metropolitan
Police Department-Federal Bureau of Investigation (“MPD-FBI”) Child Exploitation Task Force.
In that role, he posted an online advertisement on Craigslist intended to attract individuals with a
sexual interest in children. The advertisement read: “Any other young perv dads into no limit
taboo stuff, shoot me an email or leave me your kik, don’t want to say to[o] much on here.” An
individual with the profile name “Dave Loof” answered the ad via email, stating “[h]ey, I’m
totally a taboo/pervy dad. Yeah, I’m into that. What’s on your mind[?]” Detective Palchak, in
his undercover capacity, responded, “looking to meet other [young] dads that are into
[young]/incest, etc.” and asked for the individual’s username on an instant message platform
known as “KIK,” which “Dave Loof” supplied.
Thereafter, Detective Palchak initiated a conversation on KIK, telling the now-target of
the investigation that his name was “John.” The target, whose KIK username was “Dave Ell,”
told Detective Palchak that he was a 42-year-old man from “Nova”1 interested in “incst/yng.”
Detective Palchak asked the target whether he had “any lil ones.” Detective Palchak indicated
that he himself had a nine-year-old daughter. “Dave Ell” responded “[w]ow! . . . hot” and noted
1
“Nova” is a common regional shorthand used to reference “Northern Virginia.”
2
that he had two stepchildren, ages eleven and fourteen.2 “Dave Ell” then asked the detective for
details of any sexual acts that the detective had engaged in with his supposed nine-year-old.
Detective Palchak stated that he and his fictional daughter had engaged in reciprocal acts of oral
sex on one another. The target responded “Omfg. . . . . HOT,” asked whether she “like[d] it,”
and said that the detective was a “lucky dawg.” “Dave Ell” also asked if the detective had any
pictures.
Detective Palchak then turned to the subject of “Dave Ell’s” activities. Detective Palchak
asked whether “Dave Ell” ever got “any play or peeks” of his stepdaughters. The target
responded that he “used to . . about 4 ye[ar]s ago. Less now but get peeks.” He also indicated
that he did not have any pictures of his stepdaughters because “mom is watching like a hawk.”
Detective Palchak asked whether he had “[p]ics of any of what we like,” to which the target
responded “Plenty. Just not of mine.”
“Dave Ell” then raised the possibility of meeting in person. He first asked whether the
detective had ever done a meeting before. Detective Palchak stated that he had come close once
before, but it never came to fruition. He explained that he “was disappointed because [he] was
looking forward to it and she [referring to his fictional daughter] actually was too.” “Dave Ell”
responded “Damn. . . . I’d be more than happy to help out with that.” Detective Palchak
indicated that he “may be interested,” but he would have to know that “Dave Ell” was “safe” by
getting some sort of proof. Detective Palchak asked, of the pictures that “Dave Ell” had, what
the age was of the youngest child. “Dave Ell” indicated that the youngest was probably six years
old.
2
“David Ell” indicated that, for purposes of the chat, he wanted to reference the ages of
children using an age multiplier, presumably to obscure the fact that they were discussing
children.
3
The two then agreed to trade pictures. Although he initially indicated that he did not
have any pictures of his stepdaughters, “Dave Ell” indicated that he “[a]ctually found one” from
when one of his stepdaughters was seven years old. He then sent Detective Palchak an image of
a naked girl who appeared to be approximately seven years old and was date stamped May 2009,
which is consistent with the actual age of Defendant’s daughter at that time. Detective Palchak
then sent two images of his purported nine-year-old daughter, though the images in actuality
were not of a real child. “Dave Ell” responded with comments like, “[n]iiice,”“[d]amn hot,” and
“[g]od she looks delicious!” He also asked sexually explicit questions about the child like,
“[d]oes she like getting licked” and “[e]ver rub it on her own face?”
Detective Palchak noted that he sent the images so that “Dave Ell” would know that he
was “real/cool” and indicated that “a pic or 2 more from u will be all I need the[n] we can talk
about meeting up.” “Dave Ell” responded, “let me find some more proof for ya.” After
apparently looking for additional photographs, he stated “[d]amn . . . all the ones I have are on
another computer,” which he claimed was “in [his] NY apartment.” Nevertheless, Dave Loof
asked to switch their conversation to Yahoo Messenger, where he said he could share “some
tamer ones.”
The two then moved their conversation to Yahoo Messenger, where the target used the
username “roll8mi.” At that point, the target sent Detective Palchak several images of child
erotica3 and three images of child pornography. Each of the three images of child pornography
involved naked pre-pubescent girls between the ages of six and twelve years old posing in
3
Child erotica is generally understood to mean materials or items that are sexually
arousing to persons having a sexual interest in minors but that are not necessarily, in and of
themselves, obscene or that do not necessarily depict minors in sexually explicit poses or
positions.
4
sexually explicit positions. Thereafter, “roll8mi” asked Detective Palchak if he had ever seen
“vicky videos.” Detective Palchak understood the target to be referring to the child pornography
series involving the well-known child victim “Vicky.” The target indicated that he had a few of
her videos, but “lost most of the good ones.” Detective Palchak asked if “roll8mi” had “any of
those on [him],” to which “roll8mi” responded, “no . . . in my other computer.”
As the conversation progressed, “roll8mi” began to discuss having sexual contact with
his stepdaughter. He claimed that he started with his oldest stepdaughter when she was seven
years old. He said it “started out when [he] put her to bed one night.” He claimed that “she put
her hand on [his] thigh and started creeping up.” He said, “as soon as she did that mydick started
creeping to meet her hand” and “she made contact and played some that night.” He emphasized
that “the anticipation of what she would do next was enough to make [his] heart jump out of [his]
chest.” The target said that he “took it slow from there but she never went much further.”
Detective Palchak and “roll8mi” then began to arrange a meeting for the next day, when
Detective Palchak told the target he would have his supposed daughter. The target indicated that
he had to be in Owings Mills, Maryland until around 3:00 p.m. or so, but that he would be free
after that. Detective Palchak stated the he had to work until about 3:30 p.m. and said that they
“could meet at a bar near [his] apartment[,] grab a drink and then go back to [his] place and have
fun with her.” The target replied, “that would be sweet.” Detective Palchak then asked
“roll8mi” what he would be “interested in doing.” The target said he would “do everything
except cross your limits.” Detective Palchak said his “only limit is fucking,” and “everything
else is cool.” “Roll8mi” asked if “rubbing” was alright, to which Detective Palchak indicated
that it was, as was “all licking sucking and fingering.” “Roll8mi” replied that he was “good
with that” and that he “really love[d] licking and tasting anyway.” He noted that he hoped they
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could “play for a good long time.” The two then traded cell phone numbers and noted that they
looked forward to meeting one another.
The next day, February 4, 2016, the suspect sent a text message to Detective Palchak
stating that he could be at the designated bar in Washington, D.C. around 3:30 p.m. When
Detective Palchak indicated that he had told his daughter that he “might have company,” the
target responded “[a]wesome. . . . . so she’s expecting to play then :-)” He also expressed great
enthusiasm for their upcoming meeting, making statements like “damn I’m excited” and that he
had “[n]ever been so eager :-)”
Later, the suspect sent Detective Palchak a text message stating that he was leaving and
expected to arrive at the designated bar around 4:00 p.m. The detective described his clothing
and stated that he would wait for him inside at the corner of the bar. The target noted that he
would be wearing a “light sport coat with blue grey slacks.” At approximately 4:00 p.m.,
Defendant Lieu arrived at the bar and immediately approached Detective Palchak. The Detective
surmised that Mr. Lieu was the suspect he had been communicating with based on the clothes
that Mr. Lieu was wearing at that time. Detective Palchak then asked if he was “Dave,” to which
Mr. Lieu replied yes. Mr. Lieu then asked whether the detective was “John.” Detective Palchak
responded affirmatively and asked whether Mr. Lieu was looking forward to later, and Mr. Lieu
indicated that he was. At that point, members of the Child Exploitation Task Force placed Mr.
Lieu under arrest, searched his person, and recovered, among other things, a cellular telephone
and a driver’s license with a stated address in Camillus, New York.
Based on this alleged conduct, Mr. Lieu is now charged with one count of distributing
child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of travel with intent to
6
engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). See Superseding
Indictment, ECF No. 48.
B. Subsequent Investigation
1. Mr. Lieu’s Interview with FBI Agents
Following Mr. Lieu’s arrest, he was interviewed by FBI Agent Alicia McShane and FBI
Agent Jenny Cutalo-Patterson. At the beginning of Mr. Lieu’s interview, and before asking him
any questions whatsoever, Agents McShane and Cutalo-Patterson advised Mr. Lieu, both orally
and in writing, that he had a right to remain silent and that he had a right to have an attorney
present. Mr. Lieu orally represented to the agents that he understood those rights and that he was
“willing to cooperate.” Mr. Lieu initially represented, however, that he wanted to have a lawyer
before proceeding with the interview. But moments later, and without prompting from the
agents, he indicated that he wanted to “try to have a conversation” so long as he could answer
only the questions that he was comfortable with. The agents agreed that he could do so and that,
in fact, he was entitled to do so. Given that he had previously requested a lawyer and then asked
to have a “conversation,” the agents asked whether he was, in fact, waiving his right to a lawyer
at that moment. Mr. Lieu said he wanted to “run through the questions” and would defer on any
questions he felt he could not answer on his own. The agents told Mr. Lieu that they understood
this response to mean that he was waiving his right to an attorney for the time being and asked
Mr. Lieu if their understanding was correct. He indicated that it was. Agents then proceeded to
ask Mr. Lieu several questions, some of which Mr. Lieu was willing to answer and others that he
was not. Throughout all of this, the agents emphasized at multiple points that any refusal to
answer questions was within his right and would not change anything that would happen to him
going forward.
7
During the interview, the agents noted that Mr. Lieu had a New York driver’s license.
Mr. Lieu affirmed that his primary residence was in New York and that he had a wife, two step-
children, and a biological child. Mr. Lieu also explained that he was in the D.C. metropolitan
area on business and had traveled from a meeting in Maryland to the District of Columbia to
meet “John.” Mr. Lieu was not willing, however, to answer any further questions about how he
met “John” or the reasons for which he was meeting him. Based on Mr. Lieu’s unwillingness to
answer these types of questions, the agents decided to end the questioning.
2. Execution of Search Warrants
On February 8, 2016, based on the facts alleged above, a United States Magistrate Judge
from the Northern District of New York issued a warrant authorizing law enforcement officials
to execute a search of Mr. Lieu’s home in New York. Pursuant to the warrant, law enforcement
sought evidence that Mr. Lieu possessed child pornography in violation of 18 U.S.C. §§ 2252
and 2252A and were permitted to seize, among other things, computers and other electronic
media devices that might contain such evidence. That same day, the warrant was executed and
several computers and other electronics were seized, including an external hard-drive that
contained 397 images and 19 videos of child pornography, including approximately 41 media
files of the “Vicky Series.”
In addition to the search of Mr. Lieu’s home, federal agents also secured a warrant
authorizing the forensic examination of the phone that officials seized from Mr. Lieu’s person
upon his arrest. That examination revealed the conversation that had taken place with Detective
Palchak, but also electronic communications that Mr. Lieu had with another individual,
hereinafter referred to as John Doe. These other communications began on February 3, 2016, the
same day that Mr. Lieu began corresponding with the undercover detective.
8
This conversation, like the one with the undercover agent, was initiated by Mr. Lieu in
response to an advertisement posted on Craigslist that sought other individuals who were
interested in “taboo.” In his initial email to John Doe, Mr. Lieu emphasized that he was into
“young” and “taboo.” During this conversation, Mr. Lieu and John Doe exchanged stories of
sexually abusing minors and enthusiastically discussed their mutual sexual desires involving
children. For his part, Mr. Lieu admitted that he had had an “experience” with his stepdaughter
when she was approximately seven years old and stated that he “wish[ed] it coulda gone further
than it did.” And although she was now older, he claimed that he still caught “glimpses” of her
and stated that the child “[s]eems to have amnesia about it all.”
Mr. Lieu also told John Doe that he was supposed to meet with a nine-year-old that
evening. Mr. Lieu indicated that he was “[v]ery excited about it” and that he “was almost
shivering uncontrollably” the night before. Mr. Lieu told John Doe, that if it went “well,” he
would “see about expanding [the] circle to include” him. Mr. Lieu and John Doe ultimately
exchanged personal email addresses and made plans to meet in person after Mr. Lieu’s
encounter.
3. Interview with Mr. Lieu’s Oldest Stepdaughter
Based on Mr. Lieu’s statements that he had sexually abused his oldest stepdaughter, law
enforcement officials in New York decided to interview the child. The child initially told
investigators that, one time, when she was in the fifth grade, she was getting out of the shower
when she noticed that Mr. Lieu was in the bathroom with her. She claims that he looked at her
naked body and told her that she was beautiful.
The child also recounted other events that occurred starting from the time she was about
seven years old. The child told investigators that, at that time, Mr. Lieu began something he
9
called “national naked day.” On these “national naked days,” Mr. Lieu would apparently have
the child run around the house naked and then later they would both lay naked in bed together.
Mr. Lieu allegedly warned the child that she was not allowed to tell anyone about these exploits.
Investigators asked her if Mr. Lieu had ever touched her during one of these days, but she
initially claimed that she could not remember anything else. Several months later, however, she
asked to speak with police again. This time, she informed them, consistent with Mr. Lieu’s
accounts, that Mr. Lieu had engaged in sexual acts with her from the time that she was seven
years old until she was approximately ten. Specifically, she claimed that Mr. Lieu would “tuck
her in” at night and have her touch his unclothed penis before bed. This behavior suddenly
stopped, however, after the child began openly taking about “national naked day.”
C. The Current Motions
This case comes before the Court on two evidentiary motions. First, Mr. Lieu claims that
the Government violated his constitutional rights under the Fourth and Fifth Amendments and
that, therefore, certain evidence must be suppressed. Specifically, Mr. Lieu seeks suppression of
his cellular telephone, statements that he made to federal agents following his arrest, and the
various electronic devices that were seized from his home. The Government, on the other hand,
moves to admit evidence of Mr. Lieu’s prior acts under Rules 414 and 404(b) of the Federal
Rules of Evidence. Specifically, the Government seeks to introduce evidence that Mr. Lieu (1)
sexually abused his step-daughter when she was between the ages of seven and ten years old, (2)
possessed 397 images and 19 videos depicting child pornography, and (3) communicated
simultaneously with someone else about his sexual interest in children at the same time he was
communicating with the undercover agent. Gov’t Mot. at 1. Both motions have now been
briefed and on January 18, 2018, the Court heard oral argument from the parties.
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III. ANALYSIS
The Court first considers Mr. Lieu’s motion to suppress. In broad strokes, Mr. Lieu
essentially presents three arguments for why certain evidence should be suppressed. First, Mr.
Lieu argues that, notwithstanding what was said in the communications to Detective Palchak, the
agents had neither a warrant nor probable cause when they arrested him because they could not
at that time have been sure he was the person who had generated the messages in question.
Accordingly, he argues that this arrest violated his Fourth Amendment right against unreasonable
searches and seizures and that any evidence stemming from his arrest is fruit of the poisonous
tree and must be suppressed. Second, Mr. Lieu argues that the agents violated his rights under
the Fifth Amendment because he invoked his rights under Miranda v. Arizona. For this reason,
he argues that his post-arrest statements must be suppressed. Finally, he argues that, because his
post-arrest statements were used to support the warrant application for his home and the
application did not declare that the statements had been obtained in violation of his rights, the
warrant application was necessarily defective and any evidence obtained as a result of that search
warrant should be suppressed.
For the reasons stated below, the Court rejects each of Mr. Lieu’s contentions.
Specifically, the Court finds that the circumstances known to the agents at the time of Mr. Lieu’s
arrest were sufficient to support a finding of probable cause. Therefore, there was no violation of
Mr. Lieu’s Fourth Amendment rights with respect to his arrest or the search of his person.
Moreover, the Court finds that there was no violation of Mr. Lieu’s Fifth Amendment rights
because, after being advised of his right to remain silent and his right to an attorney, Mr. Lieu
made a voluntary, knowing, and intelligent waiver of those rights when he decided to speak with
the federal agents. For that reason, the affidavit supporting the warrant to search Mr. Lieu’s
11
home was not defective and, in any event, the warrant contained sufficient factual underpinnings
to support a probable cause determination even in the absence of Mr. Lieu’s post-arrest
statements. Accordingly, the Court finds no basis to suppress any evidence and consequently
denies Mr. Lieu’s motion.
The Court then addresses the Government’s Motion to admit evidence of certain prior
acts under Rules 414, 404(b), and 403 of the Federal Rules of Evidence. Specifically, the
Government seeks admission of evidence that (1) Mr. Lieu possessed child pornography at his
home, (2) Mr. Lieu had previously sexually abused his stepdaughter, and (3) Mr. Lieu,
contemporaneous with his communications with the undercover detective, was also
communicating with someone else about his sexual interest in children. The Court finds that
each of these categories of evidence is variously admissible under Rules 404(b) and 414 as to
each of the charges currently pending against Mr. Lieu. However, the Court will endeavor to
ensure that the admission of this evidence is not unduly prejudicial by instructing the jury
concerning the purposes for which they may consider this evidence.
A. Mr. Lieu’s Arrest and Seizure of Items from His Person
Mr. Lieu argues that the agents “lacked both a warrant and probable cause to seize,
search[,] and arrest Mr. Lieu.” Def.’s Mot. at 4. For this reason, Mr. Lieu argues that any
evidence seized from his person, any statements that he subsequently made to police, and any
other evidence that might have flowed from his arrest must be suppressed. See Def.’s Mot. at 4.
For the reasons set forth below, Mr. Lieu’s arguments fail.
The Fourth Amendment guarantees that the “right of the people to be secure in their
persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause.” U.S. Const. amend. IV. Thus, all seizures must be
12
“founded upon reasonable, objective justification.” United States v. Gross, 784 F.3d 784, 786
(D.C. Cir. 2015) (internal quotation marks and citations omitted). “[W]hen the government
conducts an unconstitutional search or seizure, the Court must exclude any evidence obtained as
the ‘fruit’ of that search or seizure.” United States v. Sheffield, 799 F. Supp. 2d 22, 28 (D.D.C.
2011) (citing Wong Sun v. United States, 371 U.S. 471, 484 (1963)).
Courts have expressed a judicial preference for arrests that occur as a result of warrants,
where probable cause has been evaluated dispassionately by a magistrate judge. However, a
“warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed
in the officer’s presence, is consistent with the Fourth Amendment if the arrest is supported by
probable cause.” Maryland v. Pringle, 540 U.S. 366, 370 (2003) (citing United States v. Watson,
423 U.S. 411, 424 (1976)). “Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”
Devenpeck, 543 U.S. at 152, (citing Pringle, 540 U.S. at 371). “The quantum of information
which constitutes probable cause—evidence which would ‘warrant a man of reasonable caution
in the belief’ that a felony has been committed—must be measured by the facts of the particular
case.” Wong Sun, 371 U.S. at 479 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).
In this case, the various communications between Detective Palchak and the target of the
investigation gave law enforcement reasonable grounds to believe that the suspect with which
they had been conversing had distributed child pornography and intended to engage in sexual
relations with a minor. Mr. Lieu does not dispute this. Rather he argues that the officers were
unreasonable in believing that he was the person who sent the messages. Mr. Lieu premises his
argument on the fact that, prior to his arrest, law enforcement did not know exactly what he
looked like. But, the confluence of several factors made it eminently reasonable for officers to
13
believe that he was the person responsible. To start, Mr. Lieu arrived at the designated location
at the designated time. Once inside, Mr. Lieu immediately proceeded to a specified location in
the bar and approached the detective—a man that Mr. Lieu obviously did not know. Moreover,
the target of the investigation had indicated that he would be wearing a “light sport coat with
blue grey slacks,” which matched the clothing that Mr. Lieu was wearing at that time.
Furthermore, in the short conversation that then ensued, Mr. Lieu confirmed that his name was
“Dave”—the same name the target gave to the detective—and asked if the detective’s name was
“John”—the fake name that the detective had supplied. And when Detective Palchak—again, a
stranger to Mr. Lieu—asked whether he was “looking forward to later,” Mr. Lieu affirmed that
he was. Law enforcement therefore had every reason to believe that Mr. Lieu was the same
person with whom they had been messaging.
But Mr. Lieu argues that the names “Dave” and “John” are relatively common names and
that the clothing description is too general to support the connection that the agents made. Mr.
Lieu’s argument fails to recognize, however, that the standard of probable cause “deals with
probabilities and depends on the totality of the circumstances.” Pringle, 540 U.S. at 371.
“[P]robable cause does not require certainty, or proof beyond a reasonable doubt, or proof by a
preponderance of the evidence.” United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013);
see also Illinois v. Gates, 462 U.S. 213, 235 (1983) (“Finely-tuned standards such as proof
beyond a reasonable doubt or by a preponderance of the evidence . . . have no place in the
[probable-cause] decision.”). Instead, all that is required is “the kind of ‘fair probability’ on
which ‘reasonable and prudent [people], not legal technicians, act.’” Florida v. Harris, 568 U.S.
237, 244 (2013) (quoting Gates, 462 U.S. at 238). So, even if any one factor described above
might prove too common or innocuous to support a finding of probable cause when viewed in
14
isolation, when viewed together in the aggregate, they at the very least create a “fair probability”
that Mr. Lieu was the same individual with whom agents had been communicating. Cardoza,
713 F.3d at 660 (finding probable cause to arrest defendant for drug charges, even though “it
remained possible that Cardoza would turn out not to be a drug dealer” (emphasis in original)).
Therefore, based on all of the circumstances known to law enforcement at the time, they had
probable cause to place Mr. Lieu under arrest.
This finding necessarily leads to the inexorable conclusion that the subsequent search of
Mr. Lieu’s person and the seizure of his cellular telephone were both proper. It is well
established that, following a lawful arrest, officers are permitted to search “the arrestee’s person
and the area within his [or her] immediate control.” Arizona v. Gant, 556 U.S. 332, 339 (2009)
(quoting Chimel v. California, 395 U.S. 752, 763 (1969), abrogated by Davis v. United States,
564 U.S. 229 (2011)). That is precisely what happened here and, in doing so, officers came
across Mr. Lieu’s cellular telephone. Believing the device to contain relevant evidence, agents
were permitted to seize and secure the device. See Riley v. California, 134 S. Ct. 2473, 2486
(2014). The law enforcement officers subsequently obtained a search warrant authorizing a
forensic examination of the phone, which did in fact contain Mr. Lieu’s communications with
Detective Palchak and Mr. Lieu’s communication with John Doe. Mr. Lieu makes no argument
that the search incident to arrest, the seizure of his phone, or the subsequent examination of the
phone pursuant to a warrant were in any way improper or violated Mr. Lieu’s rights.
Accordingly, evidence of Mr. Lieu’s cellular phone and the data that it contained need not be
suppressed.
15
B. Mr. Lieu’s Post-Arrest Statements and Evidence Seized from His New York Home
Mr. Lieu also seeks to suppress his post-arrest statements and evidence seized from his
home in New York on additional grounds. The premise of Mr. Lieu’s argument is that, during
his post-arrest interview with Agents McShane and Cutalo-Patterson, he invoked his right to an
attorney. Thus, according to Mr. Lieu, any post-arrest statements he made must be suppressed.
Furthermore, he argues that “[e]ven though the [G]overnment obtained a warrant to search Mr.
Lieu’s New York home, agents did not have a good faith basis to rely on the warrant” because,
according to Mr. Lieu, the agents “misled the Court by not disclosing that they procured the
statement on which they were relying [in the warrant application] despite Mr. Lieu’s invocation
of Miranda rights.” Def.’s Mot. at 5. The Court is unpersuaded for several reasons.
1. Mr. Lieu’s Post Arrest Statements
First, it is clear that any statements obtained from Mr. Lieu after his arrest were obtained
only after Mr. Lieu voluntarily, knowingly, and intelligently waived his rights. The Fifth
Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a
witness against himself.” U.S. Const., amend. V. In 1966, the United States Supreme Court
issued the landmark decision Miranda v. Arizona, 384 U.S. 436 (1966), which announced a set
of prophylactic measures intended to protect a suspect’s Fifth Amendment right from the
“inherently compelling pressures” of custodial interrogation. Id. at 467. In that case, the
Supreme Court reasoned that “[u]nless adequate protective devices are employed to dispel the
compulsion inherent in custodial surroundings, no statement obtained from the defendant can
truly be the product of his free choice.” Id. at 458. Thus, under Miranda, prior to questioning, a
suspect “must be warned that he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the presence of an attorney, either
16
retained or appointed.” Id. at 444. If at any time the suspect states that he wishes to remain
silent the interrogation must cease. See Maryland v. Shatzer, 559 U.S. 98, 104 (2010) (citing
Miranda, 384 U.S. at 444). Likewise, if the suspect states that he wants a lawyer, the
interrogation must immediately stop and it may not resume “until counsel has been made
available to him” or “the accused himself initiates further communication, exchanges or
conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). But “after
initially being advised of his Miranda rights, the accused may himself validly waive his rights
and respond to interrogation.” Id. at 484; see also North Carolina v. Butler, 441 U.S. 369, 372–
76 (1979). It is the Government’s burden, however, to show that “the defendant ‘voluntarily,
knowingly and intelligently’ waived his rights.” J.D.B. v. North Carolina, 564 U.S. 261, 269–70
(2011) (quoting Miranda, 384 U.S. at 444, 475–76).
Based on the audio recording of Mr. Lieu’s interview with federal agents, the Court has
no difficulty finding that the Government has met its burden in demonstrating a valid waiver.4
4
Because Mr. Lieu’s waiver of rights is so clear from the record, the Court assumes for
purposes of this opinion that all of the questions asked constituted “interrogation” under
Miranda. However, there may be good reason to doubt that assumption for at least some of the
questions asked of Mr. Lieu given that they arguably sought only basic identifying information.
Standard questions that are unlikely to elicit incriminating responses, such as “where do you
live,” are not typically considered coercive enough to be constitute an “interrogation.” See e.g.,
United States v. Edwards, 885 F.2d 377, 385–86 (7th Cir. 1989) (“In our opinion, questions such
as ‘what is your name?’ and ‘where do you live?’ will not usually constitute interrogation within
the meaning of Miranda,” even if these questions are asked at the time of arrest, rather than
during the booking process); United States v. Guiterrez, 92 F.3d 468, 471 (7th Cir.1996) (“Prior
to or after arresting a suspect, law enforcement officers may ask preliminary questions as to
identity, but they may not conduct a custodial interrogation”); United States v. Foster, 227 F.3d
1096, 1102–03 (9th Cir. 2000) (“a definition of interrogation that included any question posed by
a police officer would be broader than that required to implement the policy of Miranda itself;
[o]nly questions reasonably likely to elicit an incriminating response from the suspect amount to
interrogation”) (citations and quotation marks omitted; punctuation altered for clarity). While
other courts have not foreclosed the possibility that such questions may, under certain
circumstances, be interrogative in nature, see United States v. Knope, 655 F.3d 647, 652 (7th Cir.
2011), the Court need not necessarily resolve that question here because, even if Mr. Lieu’s
17
First, Mr. Lieu’s decision to speak with the agents was both knowing and intelligent. A waiver is
knowing and intelligent if it was “made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475
U.S. 412, 421 (1986). Federal agents advised Mr. Lieu of his right to remain silent and his right
to an attorney, both orally and in writing, before asking Mr. Lieu any questions. Mr. Lieu then
represented that he understood those rights. Moreover, the audio recording reveals no apparent
language barrier impeding Mr. Lieu’s ability to communicate with the agents, it appears that Mr.
Lieu had no trouble grasping any concepts presented to him, and he spoke intelligently and
discerningly throughout his interview. In addition, Mr. Lieu further demonstrated his
understanding of the consequences of waiver when he agreed to selectively answer only some
questions but not others. And Mr. Lieu himself makes no argument that he either did not
understand his rights or that he did not understand the consequence of waiver. Accordingly, the
Court finds that Mr. Lieu’s waiver of rights was both knowing and intelligent. See Colorado v.
Spring, 479 U.S. 564, 575 (1987) (holding that “trial court was indisputably correct in finding
that [defendant]’s waiver was made knowingly and intelligently within the meaning of Miranda”
because “there [was] no allegation that [defendant] failed to understand the basic privilege
guaranteed by the Fifth Amendment[,] [n]or [was] there any allegation that he misunderstood the
consequences of speaking freely to the law enforcement officials”).
Moreover, the facts and circumstances surrounding Mr. Lieu’s decision to speak with
agents after his arrest suggest that it was a voluntary choice and not one borne out of any undue
coercion. “Voluntariness turns on whether the ‘defendant’s will was overborne’ when he gave
statements were the product of a custodial interrogation, his responses were made after a
voluntary, knowing, intelligent waiver of his rights.
18
his statement.” United States v. Murdock, 667 F.3d 1302, 1305 (D.C. Cir. 2012) (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). “[T]he test for this is whether the
statement was a ‘product of an essentially free and unconstrained choice by its maker.’” Id.
(quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961). To assess this question, a court
must consider the “totality of all the surrounding circumstances—both the characteristics of the
accused and the details of the interrogation.” Schneckloth, 412 U.S. at 226. Among other
factors, courts should consider “the defendant’s age and education, the length of detention,
whether the defendant was advised of his rights, and the nature of the questioning.” Murdock,
667 F.3d at 1305–06 (citing Schneckloth, 412 U.S. at 226). But “[a]n express written or oral
statement of waiver of the right to remain silent or of the right to counsel is usually strong proof
of the validity of that waiver.” Butler, 441 U.S. at 373.
Here, although Mr. Lieu initially requested a lawyer before proceeding with the
interview, he then—only moments later and without prompting from the agents—asked that they
have a “conversation” and “run through the questions” without the presence of his lawyer.5
5
In the interview, agents asked Mr. Lieu to sign a written waiver of rights after they had
orally advised him. This document formed the basis of Mr. Lieu’s Miranda challenge because it
appears that, at some point, someone wrote the word “INVOKED” on the signature line. This
notation seems to refer to the fact that Mr. Lieu initially stated he would not answer questions
without his lawyer present. However, it does not appear to account for the fact that he then
changed his position and invited the agents to proceed with the interview. The Supreme Court
has stated that police may resume an interrogation after a defendant invokes his right to counsel
if “the accused himself initiates further communication, exchanges, or conversations with the
police.” Edwards, 451 U.S. at 484–85. That is, he must “evince[] a willingness and a desire for
a generalized discussion about the investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1045–46
(1983) (plurality). A careful review of the audio from Mr. Lieu’s interrogation demonstrates that
this is precisely what happened here. Indeed, Mr. Lieu made it quite clear to agents that he was
inviting conversation about the circumstances of his arrest and that he wished to proceed with the
interview without his lawyer present. The Court has no reason to believe that Mr. Lieu spoke
with agents involuntarily or that agents acted in any way improper by proceeding with the
interview. Accordingly, the Court has no reason to believe that this document evidences a
contravention of Mr. Lieu’s rights under Miranda.
19
When the agents asked for clarification, Mr. Lieu confirmed that he was waiving his right to an
attorney at that moment. Throughout Mr. Lieu’s interview, the agents treated Mr. Lieu with both
kindness and respect. The agents attempted to ensure that he was comfortable and spoke with
him in a calm and conversational tone. They also repeatedly reassured Mr. Lieu that he was
permitted to invoke his Fifth Amendment rights at any time and that he would suffer no ill
consequences for doing so. And Mr. Lieu, in fact, did refuse to answer several questions during
the interview. Mr. Lieu’s ability to discern which questions he wanted to answer is further
evidence that his will was not overborne and that his post-arrest statements to the agents were
made voluntarily and were not the product of undue coercion. Finally, Mr. Lieu himself makes
no argument that he was coerced, intimidated, tricked or cajoled into making any waiver or
statement during the interview with agents. For all of these reasons, the Court finds that Mr.
Lieu’s waiver of his rights was made voluntarily.
Because Mr. Lieu’s statements were made only after he was advised of his rights and
after Mr. Lieu decided to voluntarily, knowingly, and intelligently waive those rights, the Court
finds no reason to suppress Mr. Lieu’s post-arrest statements.
2. Evidence Seized from Mr. Lieu’s New York Home
The Court’s conclusion that Mr. Lieu’s Fifth Amendment rights were not violated
necessarily resolves, Mr. Lieu’s other argument—that the affidavit supporting the warrant
application, which sought authorization to search Mr. Lieu’s New York home, was defective
because it, in part, relied on those statements. But even if Mr. Lieu’s statements had been
obtained in violation of Miranda—which they were not—the Court would nonetheless find that
the warrant was valid.
20
Mr. Lieu’s argument is based on the Supreme Court’s decision in Franks v. Delaware,
438 U.S. 154 (1978). Franks involved a defendant’s challenge to a warrant affidavit that,
according to the defendant, contained false statements. Id. at 157–58. The Court held that
“where the defendant makes a substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by the affiant in the
warrant affidavit, and if the allegedly false statement is necessary to the finding of probable
cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. at
155–56. Entitlement to a so-called Franks hearing, however, requires a showing that “(1) the
affidavit contained false statements; (2) the statements were material to the issue of probable
cause; and (3) the false statements were made knowingly and intentionally, or with reckless
disregard for the truth.” United States v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010) (internal
quotation marks omitted). The D.C. Circuit “has extended Franks to apply not only where the
Government is alleged to have made false statements but also where a defendant alleges that the
Government ‘knowingly and intentionally (or with reckless disregard) omitted a fact that would
have defeated probable cause.’” United States v. Williams, 827 F.3d 1134, 1146 (D.C. Cir.
2016) (quoting United States v. Glover, 681 F.3d 411, 419 (D.C. Cir. 2012)).
Here, Mr. Lieu argues that “[t]he agents misled the Court by not disclosing that they
procured the statement on which they were relying despite Mr. Lieu’s invocation of Miranda
rights.” Def.’s Mot. at 5. But, as discussed above, Mr. Lieu made a knowing, intelligent, and
voluntary waiver of his Miranda rights during his interview with agents. Thus, the Court finds
that the Defendant has not identified any misstatement or omission in the warrant affidavit, let
alone an omission that was knowing, intentional, or made with reckless disregard. Accordingly,
Mr. Lieu’s challenge fails on this basis alone.
21
But even if there was an omission, the omission was not material to the issue of probable
cause. The Supreme Court has described the assessment of probable cause for purposes of a
search warrant as “a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Judges “need not
confine their evaluations within rigorous legalistic boundaries but instead may use their common
sense.” United States v. Davis, 617 F.2d 677, 692 (D.C.Cir.1979). Moreover, courts “ordinarily
do not suppress evidence seized pursuant to a search warrant unless the warrant affidavit was ‘so
lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable.’” United States v. Cardoza, 713 F.3d 656, 659 (D.C. Cir. 2013) (quoting United
States v. Leon, 468 U.S. 897, 923 (1984)).
Here, the warrant application at issue contained sufficient grounds to believe that there
may be evidence of a crime at Mr. Lieu’s home, even if the Court were to purge Mr. Lieu’s
statements from the affidavit. The warrant application sought authorization to search Mr. Lieu’s
New York home for evidence that Mr. Lieu had received or possessed child pornography, in
violation of 18 U.S.C. §§ 2252 and 2252A. The only statements from Mr. Lieu’s interview
reported in the warrant application were Mr. Lieu’s confirmation that he lived in New York with
his wife, two stepchildren, and biological daughter and that he was in the D.C. area on business
when he was arrested. The sole import of this information for purposes of the probable cause
determination would seem to be that he lived in New York—the place to be searched.
But even without Mr. Lieu’s statements, the affidavit supporting the warrant application
gave ample reason to believe that there may be evidence of a crime at his New York residence.
During Mr. Lieu’s conversation with the undercover agent, Mr. Lieu apparently sought to
22
provide Detective Palchak images of child pornography as a means of demonstrating that he was
not law enforcement or otherwise to prove that he was serious about meeting with the supposed
father. Mr. Lieu wrote “ok . . . . let me find some more proof for ya,” but stated that “all the ones
[he] [had] are on another computer,” which he indicated were “in [his] NY apartment.”
Likewise, during their discussion of a series of child pornographic videos known as “Vicky
videos,” Mr. Lieu indicated that he had one such video “in [his] other computer.” According to
the affidavit, at the time of Mr. Lieu’s arrest, he was in possession of a valid New York state
driver’s license, which indicated a current address in Camillus, New York. Aff. ¶ 24.
Subsequent investigation confirmed that all of Mr. Lieu’s vehicles were registered at that address
and a woman living at the address confirmed that she was married to Mr. Lieu. Aff. ¶ 25.
Consequently, the other details of the affidavit provided ample support for a finding of probable
cause and issuance of the warrant, even when discounted for Mr. Lieu’s statements. Thus, the
Court finds that the items and materials seized from Mr. Lieu’s home were properly seized
pursuant to a valid warrant and that Mr. Lieu has not identified any legitimate basis upon which
the items should be suppressed.
C. Admissibility of Mr. Lieu’s Prior Acts
Having found no violations of the defendant’s constitutional rights and no reason
therefore to suppress any evidence, the Court must now address the question raised by the
Government’s motion: whether evidence of certain prior bad acts may be admitted for a
permissible purpose under the Federal Rules of Evidence. The Government seeks to introduce
evidence pertaining to three matters that it claims are relevant to the charges against Mr. Lieu.
First, the Government seeks admission of evidence that Mr. Lieu sexually abused his
stepdaughter when she was between the ages of seven and ten years old. See Gov’t Mot. at 1.
23
Second, the Government wishes to introduce evidence showing that Mr. Lieu possessed 397
images and 19 videos depicting child pornography on an electronic media storage device at his
home. See Gov’t Mot. at 1, 9. Lastly, the Government would like to introduce evidence that, at
the same time that Mr. Lieu was communicating with the undercover agent, he was
simultaneously communicating with someone else about his sexual interest in children. See
Gov’t Mot. at 1. The Court finds that evidence concerning all of these matters may be properly
introduced variously under Rules 404(b) and 414 of the Federal Rules of Evidence, subject to a
limiting jury instruction.
1. Rules 404(b)
The Court first considers the admissibility of the proposed evidence under Rule 404(b).
Rule 404(b) generally prohibits admission of evidence of other crimes, wrongs, or acts to prove
that the defendant has a propensity to commit the charged crime. However, evidence of those
other acts may be admissible for other purposes, including proving motive, intent, knowledge,
identity, or absence of mistake. Fed. R. Evid. 404(b). “Although the first sentence of Rule
404(b) is framed restrictively, the rule itself is quite permissive, prohibiting the admission of
other crimes evidence in but one circumstance—for the purpose of proving that a person’s
actions conformed to his character.” United States v. Bowie, 232 F.3d 923, 929–30 (D.C. Cir.
2000) (internal citations and quotations omitted). Thus, Rule 404(b) is properly regarded as one
of “inclusion rather than exclusion.” Id. at 929.
In addressing admissibility of prior acts under the Federal Rules, this Circuit employs a
two-step analysis. “Under the first step, which addresses Rule 404(b), ‘[the court] must
determine whether the evidence is relevant to a material issue other than character.” United
States v. Burch, 156 F.3d 1315, 1323 (D.C. Cir. 1998) (quoting United States v. Mitchell, 49 F.3d
24
769, 775 (D.C. Cir. 1995)). “‘If so, [the court] proceed[s] to the second inquiry,’ under Federal
Rule of Evidence 403, ‘whether the probative value is substantially outweighed by the
prejudice.’” Id. (quoting Mitchell, 49 F.3d at 775).
In this case, Mr. Lieu is charged with distribution of child pornography and travel with
intent to engage in illicit sexual conduct. Importantly, the distribution charge requires that the
Government demonstrate that Mr. Lieu sent the images of child pornography to Detective
Palchak “knowingly” and the travel offense requires that he traveled to the District “for the
purpose of engaging in [] illicit sexual conduct with another person.” Consequently, Mr. Lieu’s
state of mind at both the time that he sent the images to Detective Palchak and then later traveled
to the District of Columbia is likely to be a central issue at trial. Indeed, it is often true that, in
cases such as this, a defendant’s mental state is a highly contested issue and usually a key aspect
of the accused’s defense at trial. “Federal courts repeatedly have held that the government may
offer evidence in its case-in-chief in anticipation of an expected aspect of the defense.” United
States v. Curtin, 489 F.3d 935, 940 (9th Cir. 2007). Upon consideration of the categories of
evidence that the Government seeks to admit, the Court is persuaded that the proposed evidence
is relevant to material issues other than character with regard to all charges against Mr. Lieu—
namely, motive, intent, knowledge, and absence of mistake.
“A prior bad act does not have to involve the exact same intent of the charged offense in
order to be relevant.” United States v. Hite, 916 F. Supp. 2d 110, 116 (D.D.C. 2013) (citing
United States v. Long, 328 F.3d 655, 661 (D.C. Cir. 2003)) (emphasis in original). “Evidence of
a similar act must meet a threshold level of similarity in order to be admissible to prove intent,”
but that evidence is not required to have “exact congruence.” Long, 328 F.3d at 661. Indeed,
“admissible bad acts evidence need not show incidents identical to the events charged so long as
25
they are closely related to the offense, and are probative of intent rather than mere propensity.”
Id. Moreover, “to be relevant, the Government’s proposed Rule 404(b) evidence does not have
to prove the Defendant’s intent, it need only make it more probable that the Defendant possessed
the requisite intent.” Hite, 916 F. Supp. 2d at 117 (emphasis in original). “What matters is that
the evidence be relevant ‘to show a pattern of operation that would suggest intent’ and that tends
to undermine the defendant’s innocent explanation.” Long, 328 F.3d at 661.
In the context of crimes involving sexual exploitation of minors, it is generally accepted
in this Circuit and elsewhere, that “evidence of a defendant’s sexual attraction to children (or
teenagers) is probative of the specific intent element of criminal statutes involving sexual activity
with minors.” Hite, 916 F. Supp. 2d at 117 (citing United States v. Chambers, 642 F.3d 588, 595
(7th Cir. 2011)). Indeed, “[w]hether or not the Defendant is sexually attracted to children,
though not necessarily dispositive, is relevant to the broader question” of whether the defendant
possessed the requisite intent to engage in a crime involving sexual predation of children. Id.
(emphasis in original); see also United States v. Sebolt, 460 F.3d 910, 917 (7th Cir. 2006)
(evidence demonstrating “sexual interest in children . . . serve[s] as evidence of the defendant's
motive to commit a charged offense involving the sexual exploitation of children”); United
States v. Moore, 425 F. App’x. 347, 352 (5th Cir. 2011) (“[E]vidence of other sexual offenses
committed by the defendant does not need to be similar in every respect to the charged
offense”—it only “needs to be probative as to some element of the charged offense.” (citing
United States v. Dillon, 532 F.3d 379, 389 (5th Cir. 2008))); United States v. Curtin, 489 F.3d
935, 952 (9th Cir. 2007) (“[C]ontextual and circumstantial evidence becomes acutely relevant to
a defendant’s material state of mind ‘prior to his contact’ with the object of his sexual attention
and . . . such evidence is not only admissible, but may be critical.”). In this case, each of the
26
prior acts that the Government seeks to introduce demonstrates Mr. Lieu’s sexual attraction to
children and are therefore relevant to questions of intent and knowledge with respect to each of
the crimes with which he is charged.
a. Collection of Child Pornography
There is, of course, an obvious connection between Mr. Lieu’s possession of child
pornography and his state of mind with respect to the charge involving the distribution of child
pornography. Indeed, Mr. Lieu’s possession of other child pornography demonstrates a sexual
interest in children that tends to make it more probable that Mr. Lieu distributed images of child
pornography knowingly and that it was not merely a mistake. See e.g., United States v. Brown,
862 F.2d 1033, 1038 (3d Cir. 1988) (finding “no difficulty with the admission into evidence of
the child pornography found . . . in [defendant]’s home” in case involving charge of knowing
receipt of child pornography because it was relevant to show “proof of . . . intent, . . . knowledge,
. . . or absence of mistake or accident.” (quoting Fed. R. Evid. 404(b) (alterations in original));
Long, 328 F.3d at 663 (“It hardly can be denied that ‘in cases where a defendant is charged with
unlawful possession of something, evidence that he possessed the same or similar things at other
times is often quite relevant to his knowledge and intent with regard to the crime charged.’”
(quoting United States v. King, 254 F.3d 1098, 1100 (D.C. Cir. 2001))).
Likewise, Mr. Lieu’s collection is relevant to the travel charge and the question of Mr.
Lieu’s “purpose” in meeting Detective Palchak. In cases where the charged crime involves a
question of whether the defendant intended to have sexual contact with a minor, courts routinely
find that possession of such material is admissible under Rule 404(b) as probative of the
defendant’s sexual attraction to children. See e.g., Hite, 916 F. Supp. 2d at 118 (“Defendant’s
access to child pornography is relevant to the Defendant’s intent in this case insofar as it is
27
probative of his sexual attraction to children” in case involving two counts of attempted coercion
and enticement of a minor.); United States v. Hardy, 520 F. App’x. 835, 840 (11th Cir. 2013)
(admission of evidence of defendant’s prior possession of child pornography under Rule 404(b)
was not an abuse of discretion because “possession of child pornography depicting young boys
and the charged offense involve the same mental state, as both involve a sexual interest in young
boys[,]” which “makes it more likely that he intended to persuade, induce, entice, or coerce a 12-
year-old boy to engage in sexual activity with him”); United States v. Brand, 467 F.3d 179, 197
(2d Cir. 2006) (“[T]he fact that [defendant] had images of child pornography on his computer
made it more probable than it would be without the evidence that [defendant]’s intent was to
travel to New York to engage in illicit sexual activity and to attempt to entice a minor to engage
in sexual activity.” (internal citations, quotation marks, and alterations omitted)).
In his opposition to the Government’s motion, Mr. Lieu makes a rather puzzling
argument concerning his access to the child pornography. He argues that the child pornography
is not relevant because he did “not have [] access to images and videos found on a computer in
New York . . . because the government alleges that he was in the Districts of Columbia and
Maryland.” Pl.’s Opp’n at 1. Mr. Lieu emphasizes that, while the hard drive was found in his
home, it is a home that he “shared . . . with other people.” Pl.’s Opp’n at 1. As we know, those
other people were his wife, two stepdaughters, and biological daughter. Mr. Lieu does not
seriously contend that the materials in fact belonged to any of them. Indeed, there is every
reason to find that Mr. Lieu was in constructive possession of the child pornography because it
was found in his home and he specifically linked himself to it when he told Detective Palchak
that this material could be found there. See United States v. Dorman, 860 F.3d 675, 681 (D.C.
Cir. 2017) (“Constructive possession of contraband found in a shared space in the defendant's
28
home can be shown only where it was kept in plain view . . . or where there is additional
evidence, including the defendant’s presence and conduct at the time of the search or an item in
his control, linking him to the contraband.” (internal citations omitted)). More importantly,
whether Mr. Lieu had immediate physical access to the material at the exact moment of his
alleged offenses does not detract from its relevance on the issues related to his state of mind. His
possession alone is indicative of his sexual interests in children and it is especially probative of
his state of mind as to the charged offenses because, during his conversation with Detective
Palchak, he specifically referenced his interest in these photographs and videos.
While the Court finds that the images likely have significant probative value, the Court
will at this time reserve judgment as to the extent of their admissibility under Rule 403 because
the Government has not yet identified the images that it wishes to present at trial or the form in
which it wishes to present them. As discussed above, a defendant’s possession of child
pornography is generally admissible under Rule 404(b) in cases such as this because such
evidence is regarded to be probative of matters of motive, intent, knowledge, and absence of
mistake. Moreover, the probative value of such material may be heightened if they are, for
example, representative of the conduct at issue in the case. See Hite, 916 F. Supp. 2d at 119
(“The revised exhibit should include images accessed in 2012 to the extent they are
representative of the type of sexual conduct the Defendant discussed with JP.”). On the other
hand, the Government has identified literally hundreds of photographs and nearly twenty videos
depicting sexually explicit images of children. Thus, there is a rather apparent danger that
presentation of each photograph and video would likely be needlessly cumulative. And while
“the risk of unfair prejudice is minimized by the ‘already-graphic nature of the case,’” Hite, 916
F. Supp. 2d at 120 (quoting United States v. Wolford, 386 F. Appx. 479, 484 (5th Cir. 2010)), the
29
Court cannot fully and properly weigh the probative, prejudicial, and redundancy value of the
images without first having reviewed precisely what it is that the Government intends to
introduce at trial, see United States v. Curtin, 489 F.3d 935, 957 (9th Cir. 2007) (“The
inflammatory nature and reprehensible nature of these abhorrent[,] [prurient] stories, although
generally relevant, is such that a district court making a Rule 403 decision must know precisely
what is in the stories in order for its weighing discretion to be properly exercised and entitled to
deference on appeal.”). Accordingly, the Court finds that, as a general matter, the images and
videos of child pornography found at Mr. Lieu’s home are admissible under Rule 404(b), but this
admissibility is subject to this Court’s review of the evidence so that it may determine the
number of images that might be admitted and how they may be presented.
b. Prior Abuse of Mr. Lieu’s Step Daughter
Like the evidence of Mr. Lieu’s possession of child pornography, Mr. Lieu’s alleged
abuse of his stepdaughter is probative of issues of knowledge, intent, motive, and absence of
mistake with respect to the charged crimes. Indeed, like possession of child pornography, a prior
act of molestation demonstrates a prurient interest in children, and courts have frequently
admitted evidence of such acts under Rule 404(b) in cases involving charges of child
pornography and crimes involving travel for purposes of engaging in illicit sexual misconduct.
See e.g., United States v. Meacham, 115 F.3d 1488, 1495 (10th Cir. 1997) (“We cannot say that
the district court abused its discretion in admitting the prior acts evidence under Rule 404(b)”
because “the government had to prove intent to travel interstate to sexually abuse the minor
relative and the stepdaughters’ testimony suggests a similar pattern of sexual abuse of female
minor relatives made possible by exploitation of familial authority.”); United States v. Dhingra,
371 F.3d 557, 565 (9th Cir. 2004) (“[t]estimony regarding sexual contact with a minor is
30
particularly relevant in the context of a prosecution under § 2422(b) because intent is a key
element of a crime” and “[w]hat could be more probative of illicit purpose than carrying through
with the sex act itself?”); United States v. Russell, 662 F.3d 831, 846–47 (7th Cir. 2011) (holding
that evidence of prior molestation was allowed under Rule 404(b) to show defendant’s motive in
taking obscene photographs of children).
Under the circumstances presented here, the Court concludes that the probative value of
the evidence is not substantially outweighed by undue prejudice. First, the Court is convinced
that evidence of Mr. Lieu’s alleged assault on his stepdaughter is particularly salient on the issue
of Mr. Lieu’s intent and knowledge. To start, this alleged conduct occurred within
approximately four years of the alleged crimes at issue, which is not so remote in time as to have
lost all relevance to the crimes at issue. See e.g., United States v. Knope, 655 F.3d 647, 657 (7th
Cir. 2011) (“The other acts occurred within the past three years, sufficiently close in time to his
arrest to be relevant to the offense.”). Its relevance is further confirmed, however, by the fact
that Mr. Lieu expressly raised this alleged abuse in his communications with Detective Palchak
and, later, with John Doe. Because Mr. Lieu himself raised this conduct in his communications,
the truth and veracity of his assertions on that topic are highly informative of his state of mind.
Indeed, by corroborating these interactions, it casts doubt on the notion that his communications
with the detective were merely a manifestation of harmless sexual fantasy or some other morbid
curiosity and were, in fact, a reflection of his actual intent and desires. In addition, evidence that
Mr. Lieu abused his stepdaughter between the ages of seven and ten demonstrates, not just a
sexual interest in children, but an actual and specific sexual interest in female children of
approximately that age. This is relevant because it is consistent with the crimes with which he is
charged. Indeed, the images that he sent to Detective Palchak depicted girls between the ages of
31
six and twelve years old and he is accused of traveling into the District to have sex with a nine-
year-old girl. Thus, it paints a picture that Mr. Lieu sent images of child pornography knowingly
and that he traveled to the district with an actual and serious purpose to abuse a female child of
that age.
Weighing against this rather significant and probative evidence is minimal prejudice.
While the alleged abuse would certainly seem abhorrent, based on the representations made to
the Court, it does not appear that the evidence will be especially graphic in the context of the
crimes with which Mr. Lieu has been charged. Likewise, the Court has no reason to believe that
the testimony on the topic will be especially voluminous or otherwise dominate the trial.
Accordingly, the Court finds that evidence of Mr. Lieu’s alleged abuse of his stepdaughter is
admissible under Rules 404(b) and 403.
c. Mr. Lieu’s Communications with John Doe
Finally, the Court finds that evidence that Mr. Lieu engaged in explicit discussions with
John Doe is properly admissible under Rules 404(b) and 403 and is relevant to the issues of
knowledge, intent, motive, and absence of mistake. Mr. Lieu initially made contact with John
Doe through the Craigslist website and the two then enthusiastically discussed their mutually
shared sexual interest in children. Thus, at a minimum, these communications demonstrate Mr.
Lieu’s sexual interest in children, and are therefore relevant to Mr. Lieu’s knowledge at the time
he sent the images of child pornography to Detective Palchak. Moreover, in light of the fact that
Mr. Lieu is charged with using the Craigslist website to arrange a meeting with a supposed father
of a young girl for the purpose of sexually abusing a child, Mr. Lieu’s communications with John
Doe are sufficiently similar to the charged conduct to permit a reasonable jury to draw from it an
inference that Mr. Lieu was motivated by a sexual intent when he traveled into the District of
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Columbia to meet Detective Palchak and his fictitious daughter. See e.g., Hite, 916 F. Supp. 2d
at 121 (“[E]vidence the Defendant engaged in explicit discussions of sexual contact with minors,
regardless of whether or not he followed through with plans to meet in person, is probative of his
intent to entice or coerce the minors to engage in illicit sexual activity.”); United States v.
McDarrah, 351 F. App’x. 558, 561, 563 (2d Cir. 2009) (holding that trial court properly
admitted four emails that defendant sent to “erotic services advertisements on Craigslist” under
Rule 404(b) because they were “relevant to his knowledge and intent, because he wrote those
emails to girls he knew could be minors . . . and his emails showed his interest in actual sexual
conduct”); Knope, 655 F.3d at 657 (holding that chats showing that defendant “had expressed
interest in having sex with minors in the past, that he had attempted to meet with at least one
minor [] for this purpose, and that he attempted to distinguish between actual minors and other
who might pose as minors on the internet . . . was relevant to establishing [defendant]’s
knowledge, intent, and lack of mistake”) (citing Sebolt, 460 F.3d at 917). And, just as he
admitted to Detective Palchak, Mr. Lieu admits in this conversation with John Doe that he had
sexual contact with his stepdaughter, further adding to its probative value on the issue of intent,
knowledge, and absence of mistake. See Hite, 916 F. Supp. 2d at 122–23 (defendant’s “repeated
admission” in an electronic chat transcript that “in the past he had sexual contact with an eleven
year-old boy” was “highly relevant to the Defendant’s intent to actually coerce or entice the
minors at issue in this case.”). But perhaps the most probative aspect of this correspondence is
the fact that it occurred contemporaneously with Mr. Lieu’s conversation with the undercover
agent and Mr. Lieu expressly referenced his upcoming meeting with the undercover agent. In
fact, Mr. Lieu expressed great enthusiasm for his upcoming meeting with the agent and his
fictitious daughter and gave no indication that his desire to meet them involved fantasy rather
33
than actual intent. Thus, for these reasons, the conversation is highly probative of Mr. Lieu’s
state of mind around the time of his alleged offenses.
After closely reviewing the transcript of Mr. Lieu’s conversation with John Doe, the
Court finds that the risk of unfair prejudice does not substantially outweigh its probative value.
As noted above, the transcript of Mr. Lieu’s communications with John Doe is highly probative
of Mr. Lieu’s state of mind—an issue that is likely to be of critical importance in this case.
Although the graphic nature of the conversation may be prejudicial in some sense, the
conversation is relatively brief and, given that the subject matter of this case is centered on
sexual exploitation of minors, any prejudice to Mr. Lieu cannot be said to be wholly “unfair.”
See id. at 123 (“The subject matter of the Defendant’s conversations with Aussie creates some
risk of prejudice,” but “in a case that by definition concerns sexual activity with minors, the
discussions with Aussie are not unduly prejudicial.” (emphasis in original)). Accordingly, the
Court finds that Mr. Lieu’s conversation with John Doe is admissible under Rule 404(b) and 403.
2. Rule 414
In addition to Rule 404(b), the Government argues that evidence of Mr. Lieu’s collection
of child pornography and his abuse of his stepdaughter are independently admissible under Rule
414. As discussed above, the admissibility of a defendant’s prior acts is ordinarily governed by
Rule 404, which prohibits using evidence to show that the defendant has a propensity to act in a
certain manner and that the defendant, in fact, acted in accordance with that propensity in a given
instance. Fed. R. Evid. 404(b)(1),(2). But, cases involving “child molestation” are different.
Rule 414(a) provides that “[i]n a criminal case in which a defendant is accused of child
molestation, the court may admit evidence that the defendant committed any other child
molestation” and emphasizes that “[t]he evidence may be considered on any matter to which it is
34
relevant.” Fed. R. Evid. 414(a). Thus, Rule 414 “create[s] an exception to the general ban on
propensity evidence contained in Rule 404(b).” United States v. Seymour, 468 F.3d 378, 385
(6th Cir. 2006); see also United States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014) (“Rule 414
removes Rule 404(b)’s blanket ban on propensity inferences in child-molestation cases.”). In
fact, Rule 414 embodies a “strong legislative judgment that evidence of prior sexual offenses
should ordinarily be admissible.” United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997).
The Rule’s historical notes suggest that “[t]o implement the legislative intent, the courts must
liberally construe these rules to provide the basis for a fully informed decision of sexual assault
and child molestation cases, including assessment of the defendant’s propensities and questions
of probability in light of the defendant’s past conduct.” Fed. R. Evid. 413 Historical Notes.
Nevertheless, “Rule 414 evidence remains subject to Rule 403’s balancing between probative
value and unfair prejudice.” United States v. Joubert, 778 F.3d 247, 254 (1st Cir. 2015).
To determine the applicability of Rule 414, the Court must first consider the threshold
issue of whether this is a criminal case in which Mr. Lieu has been “accused of child
molestation,” as the Rule defines that term. Under Rule 414, “child molestation” is defined to
include, among other things, crimes under federal law involving “any conduct prohibited by 18
U.S.C. chapter 109A and committed with a child,” “any conduct prohibited by 18 U.S.C. chapter
110,” as well as certain other crimes of a sexual nature committed with children6 or attempts or
conspiracies to engage in such conduct. See Fed. R. Evid. 414(d)(2).
In this case, only one of the two charges against Mr. Lieu comes within Rule 414’s
definition of “child molestation.” Count One of the superseding indictment, which concerns Mr.
Lieu’s alleged distribution of child pornography, is a crime under 18 U.S.C. chapter 110 and
6
The term “child” is further defined as “a person below the age of 14.”
35
therefore constitutes “child molestation” under Rule 414. See 18 U.S.C. § 2252(a)(2). On the
other hand, Count Two, which involves travel with intent to engage in illicit sexual conduct, is
found in chapter 117 of Title 18. Thus, it does not fall within Rule 414’s inclusion for crimes
found in chapters 109A or 110.7 Moreover, the acts alleged for purposes of Count Two do not
fall within the other acts enumerated in Rule 414, which generally involve sexual contact with
persons under the age of 14. See 18 U.S.C. § 2423(b). The Government makes no argument for
why Rule 414 evidence should be considered for purposes of Count Two. Thus, to the extent
that Rule 414 applies, it applies only to evidence used for purposes of Count One.
The next step then is to assess whether the evidence that the Government seeks to admit
is “evidence that the defendant committed [another] child molestation” and whether it is relevant
to the current charge. See Fed. R. Evid. 414(a). The Government seeks to admit the evidence of
Mr. Lieu’s collection of child pornography and evidence that Mr. Lieu sexually abused his
stepdaughter when she was seven-years-old. See Gov’t Mot. at 8–10. The Court has no trouble
finding that such matters constitute “child molestations” for purposes of the Rule and that they
are relevant to Count One.
First, the images and videos of child pornography discovered at Mr. Lieu’s home clearly
constitute “child molestation” under the Rule because, like Count One, knowing possession of
child pornography is conduct prohibited by 18 U.S.C. chapter 110. See 18 U.S.C. §
2252A(a)(5)(B). Moreover, as discussed in greater detail above, his possession of this material
is certainly relevant to the distribution charge for it is helpful in proving intent, knowledge, and
absence of mistake or accident. See Brown, 862 F.2d at 1038 (finding “no difficulty with the
7
Although the Government initially claimed in its motion that the Count Two was a
crime under chapter 110, it notified the Court at oral argument that this claim was in error.
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admission into evidence of the child pornography found . . . in [defendant]’s home” in case
involving charge of knowing receipt of child pornography because it was relevant to show “proof
of . . . intent, . . . knowledge, . . . or absence of mistake or accident.” (quoting Fed. R. Evid.
404(b) (alterations in original)); Long, 328 F.3d at 663 (“It hardly can be denied that ‘in cases
where a defendant is charged with unlawful possession of something, evidence that he possessed
the same or similar things at other times is often quite relevant to his knowledge and intent with
regard to the crime charged.’” (quoting United States v. King, 254 F.3d 1098, 1100 (D.C. Cir.
2001))).
Likewise, evidence that Mr. Lieu sexually abused his seven-year-old stepdaughter is also
properly admissible under Rule 414 for purposes of Count One. According to the Government,
Mr. Lieu’s stepdaughter, in her discussions with police, indicated that Mr. Lieu had “engaged in
sexual acts with her, beginning from when she was seven years old until she was ten years old.”
Gov’t Mot. at 9. Specifically, she claimed that Mr. Lieu would “‘tuck her in’ at night and have
her touch his unclothed penis before bed.” Gov’t Mot. at 9. Such conduct constitutes “child
molestation” as it is a “crime under federal law” involving “contact between the defendant’s
genitals . . . and [a] part of a child’s body.” Fed. R. Evid. 414(d)(2)(D); see also 18 U.S.C. §§
2241(c) (aggravated sexual abuse with children), 2244(5) (abusive sexual contact). It is also
conduct prohibited by 18 U.S.C. § 109A that was committed with a child under the age of 14.
Fed. R. Evid. 414(d)(2)(A). And, as discussed above, Mr. Lieu’s alleged abuse of his daughter is
relevant to the charged offenses because, like the evidence of child pornography found in his
home, if true, it demonstrates Mr. Lieu’s sexual interest in children and is admissible to prove his
propensity to possess and distribute prurient materials involving children. See United States v.
Foley, 740 F.3d 1079, 1087–88 (7th Cir. 2014) (“Under Rule 414, Minor Male B’s testimony
37
about his past molestation was admissible to prove [defendant]’s propensity to produce and
possess child pornography under federal law.”); United States v. Moore, 425 F. App’x. 347, 352
(5th Cir. 2011) (holding that, in case where defendant was charged with receiving and possessing
child pornography, trial court did not abuse discretion in admitting “the testimony and diary
excerpts of his stepdaughter, who alleged that [defendant] had molested her when she was
twelve,” to prove that defendant had a “sexual interest in children” under Rule 414); United
States v. Bentley, 475 F. Supp. 2d 852, 858 (N.D. Iowa 2007) (admitting Rule 414 evidence
because “[i]f the jury finds that Defendant sexually molested [victims], there would be evidence
that Defendant has a sexual interest in children and thus has a propensity to commit the crimes
alleged in the Second Superseding Indictment,” which are production, possession and
transportation of child pornography.)
Consequently, the Court finds that evidence of Mr. Lieu’s collection of child
pornography and his alleged abuse of his stepdaughter may be properly admitted under Rule 414
and may be used to demonstrate propensity with respect to Count One,8 but only so long as the
8
There is conflicting authority on the issue of how evidence of “child molestation” may
be used in cases in which some, but not all, of the charges against a criminal defendant amount to
“child molestation.” Some courts have held that the evidence may only be considered in relation
to the crimes that fall within Rule 414’s definition. See United States v. Schuttpelz, No. 07-
20410, 2010 WL 363319, at *1 (E.D. Mich. Jan. 22, 2010) (“Insofar as Congress, in FRE 414,
requires admission at trial of evidence of a prior child molestation offense[], the Court finds
admissible Defendant’s prior conviction, noted by the Government-but only as to the Counts that
come under 414”). Other courts, however, have emphasized the sweeping language that
Congress employed in the rules specific to sexual assaults and child molestations and the
legislative intent to interpret those rules broadly. Indeed, they point out that Rules 413 and 414
permit evidence of certain prior acts to be admitted in any “case in which a defendant is accused
of” certain sex crimes and broadly permits the evidence to be “considered on any matter to
which it is relevant.” See United States v. Boyajian, No. 09-933, 2012 WL 4094977, at *10 n.8
(C.D. Cal. Sept. 17, 2012) (“[a]lthough defendant contends that Count One does not charge
defendant with an act of sexual assault and therefore the Rule 413 evidence is inadmissible as to
that offense, Rule 413 does not differentiate between or among counts in an indictment,” rather
“the plain language of the statute is that prior acts are admissible in any ‘case’ in which a
38
probative value of this evidence is not substantially outweighed by the danger of unfair prejudice
under Rule 403, an issue discussed in greater detail supra.
3. Jury Instruction
Finally, the Court finds that it is appropriate in this case to issue a limiting jury
instruction concerning the evidence of Mr. Lieu’s prior acts. In cases such as this, courts often
issue these types of instructions as a means of diminishing the danger of unfair prejudice to
defendants. See e.g., United States v. Cooke, 675 F.3d 1153, 1157 (8th Cir. 2012) (“Also, the
district court gave a limiting instruction that diminished the danger of prejudice.” (citing United
States v. Strong, 415 F.3d 902, 906 (8th Cir. 2005))); Hite, 916 F. Supp. 2d at 126 (“the Court
shall instruct the jury as to the limited purposes for which the evidence is admitted, at the time of
admission and in the final instructions, which substantially limits any risk of unfair prejudice.”
(citing Long, 328 F.3d at 662)). Indeed, the D.C. Circuit has noted that these types of limiting
instructions “ordinarily suffice to protect the defendant’s interests.” Long, 328 F.3d at 662.
Therefore, the Court will instruct the jury, both at the time that the prior acts evidence is
admitted and in the final instructions, as to the limited purposes for which the evidence may be
considered. The parties are encouraged to provide the Court with proposed instructions for this
purpose.
defendant is so accused.”). Nevertheless, this Court sees no need to resolve this split of authority
here because, even though the travel offense does not independently come within Rule 414’s
definition of “child molestation,” as discussed above, a jury may properly consider evidence of
Mr. Lieu’s collection of pornography and his alleged sexual abuse of his stepdaughter as to that
charge under Rule 404(b).
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IV. CONCLUSION
For the foregoing reasons, the Court DENIES Mr. Lieu’s motion to suppress and
GRANTS the Government’s motion to admit. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
Dated: February 8, 2018 RUDOLPH CONTRERAS
United States District Judge
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