United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Defendant Enrique Castaneda Jr. has filed a motion titled, "Motion for Judge to Review Video on DVDs In Camera Before It Is Shown to the Jury" and has asked this Court to review the Government's video evidence before trial to determine if the videos meet the legal definition of child pornography. As a result of a hearing on the motion, the Court agreed to review the video evidence for the limited purpose of determining whether it is relevant for admissibility purposes in the event of a jury trial for receipt and possession of child pornography.
After this review, the Court finds that the video evidence is relevant for a jury to assess whether the content meets the definition of child pornography under federal law. Therefore, the Court grants Castaneda's motion to the extent that it agreed to a pretrial review of the videos in camera, but the Court denies the motion to the extent that it asks the Court to make a legal determination of whether the content constitutes child pornography.
I. Factual and Procedural Background
In April 2013, a grand jury indicted Enrique Castaneda Jr., charging him with receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The charges stem from an investigation of a Canadian movie production company that advertised DVD movies and streaming videos featuring boys under the age of 18. The investigation led to a search warrant for Castaneda's residence in Saint George, Kansas, where federal agents seized 23 DVD movies containing images of nude boys. According to the Government, Castaneda admitted to ordering approximately 20 DVDs. Castaneda estimated the boys in the videos to be 12 to 16 years old. Both parties agree that the videos do not depict sexual intercourse. The parties disagree, however, about whether the videos depict "lascivious exhibition of the genitals or pubic area of any person, " which is included in the definition of "sexually explicit conduct" prohibited by the child pornography statutes.
In February 2014, Castaneda filed a motion titled, "Motion for Judge to Review Video on DVDs In Camera Before It Is Shown to the Jury." (Doc. 34). A hearing was held in April 2014, and a jury trial was continued pending resolution of the motion. As a result of the hearing, the Court agreed to review the Government's evidence and provides the following factual summary.
The United States Attorney's Office has provided the Court with selected excerpts of the videos seized from Castaneda. These excerpts are represented to be typical of all the videos seized, and are the complete selection of video material which the prosecution intends to produce at the jury trial. The selections, which total about an hour in length, appear to be drawn from three or more separate videos. They are all very similar, however.
All of the videos show young boys, ages 12 to 14 (they not only appear that age, but at one brief point on the video they all briefly identify themselves, and place their ages within that range). The boys are totally undressed except for brief moments on the video, most of which involve them undressing. The boys are both pre-pubescent and pubescent, the majority being pubescent. Their genitals are plainly visible over half of the time, probably three-fourths of the time, but not always. They are never the focus of the camera shot - that is, the camera never zooms in to focus on the genitals to the exclusion of the boys' faces or other surroundings (though on a few occasions the camera zooms in on the boys' faces to the exclusion of the genitals). None of the genitals are ever aroused, and they are never touched by another's hands or face. The only genital contact ever visible is that which occurs naturally during the wrestling scenes (i.e., a leg or the back may make passing contact during the tumbling of wrestling), and one occasion where one boy readjusts his own genitals for only a second or two.
The videos are all of boyish antics: play-wrestling, splashing water around in a locker room, playing air guitar, pillow-fighting, boyish "acrobatics, " sliding around a slippery locker room floor, playing twister, and lots of giggling laughter. There is more than one scene in the shower, all with hand-held spray shower nozzles, but the focus of those scenes is either on the back or legs, or on spraying water around the room generally - the genitals are never sprayed or washed or focused on in any way.
If the boys in these videos were all wearing gym shorts (or, for the shower and locker room scenes, swim trunks), and otherwise did exactly what they are doing in the videos, nothing about these videos would strike anyone as remotely sexual. Of course, they are not wearing shorts in these videos, but are plainly and obviously naked. Likely, the same boys and same activities in shorts or swim trunks would not have sold videos. The marketability of these videos doubtlessly is due to the boys' exposure, but the utter lack of focus or attention to the genitals certainly makes them atypical pornography.
The motion before the Court asks that the Court review the Government's DVD evidence before it is presented to a jury for the purpose of determining whether the videos meet the legal definition of child pornography. Specifically, Castaneda has asked the Court to make this determination under Federal Rules of Evidence 104 and 403.
The Tenth Circuit has not addressed the issue of whether a federal court is authorized to conduct such a preliminary review of the Government's evidence, or if so, what procedure is appropriate for such a review. The Eighth Circuit has directed lower courts to conduct such a preliminary review but provided little guidance about the procedure to be used. Lower courts have suggested that such a review may be conducted through a motion in limine to exclude evidence before trial or before ruling on an evidentiary objection during trial. Most courts agree that a court may not conduct a preliminary review of the sufficiency of the evidence for the purpose of resolving a motion to dismiss. It does not appear that the propriety of conducting a pretrial preliminary review under a motion in limine has been the subject of appellate review.
As noted earlier, the Court has reviewed the videos provided by the United States Attorney's Office. The remaining question to resolve the pending motion is whether the videos are legally child pornography. For the purposes of this motion, the parties and the Court have agreed that the Court is limiting its review to whether the ...