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United States v. Salard

United States District Court, D. Alaska

July 17, 2015



TIMOTHY M. BURGESS, District Judge.


Trial on the government's Superseding Indictment[1] 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]


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 On June 5, 2014, FBI Special Agent Anthony Peterson partially downloaded a file from the 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 IP address. There, FBI agents found a computer with cleaner software running. 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.


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, U.S. 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 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 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]

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.


The government seeks five independent rulings from the Court.[16] ...

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