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

(a)(2), and one count of travel

with intent to engage in illicit sexual conduct, in violation of

(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

5 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

(a)(2), and one count of travel with intent to

6 engage in illicit sexual conduct, in violation of

(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

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.

10 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,

(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,

(D.D.C.

2011) (citing Wong Sun v. United States,

(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,

(2003) (citing United States v. Watson,

(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,

). “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,

(quoting Carroll v. United States,

(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,

.

“[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,

(D.C. Cir. 2013);

see also Illinois v. Gates,

(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,

(2013) (quoting Gates,

). 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,

(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,

(2009)

(quoting Chimel v. California,

(1969), abrogated by Davis v. United States,

(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,

(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,

(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.

. 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.”

. 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.”

. If at any time the suspect states that he wishes to remain

silent the interrogation must cease. See Maryland v. Shatzer,

(2010) (citing

Miranda,

). 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,

, 484–85 (1981). But “after

initially being advised of his Miranda rights, the accused may himself validly waive his rights

and respond to interrogation.”

; see also North Carolina v. Butler,

, 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,

, 269–70

(2011) (quoting Miranda,

, 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,

, 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,

(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,

, 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,

(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,

(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,

(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,

(D.C. Cir. 2012) (quoting

Schneckloth v. Bustamonte,

(1973)). “[T]he test for this is whether the

statement was a ‘product of an essentially free and unconstrained choice by its maker.’”

(quoting Culombe v. Connecticut,

(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,

. 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,

). 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,

.

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,

, 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,

(1978). Franks involved a defendant’s challenge to a warrant affidavit that,

according to the defendant, contained false statements.

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.”

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,

(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,

(D.C. Cir.

2016) (quoting United States v. Glover,

(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,

(1983). Judges “need not

confine their evaluations within rigorous legalistic boundaries but instead may use their common

sense.” United States v. Davis,

(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,

(D.C. Cir. 2013) (quoting United

States v. Leon,

(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

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,

, 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.”

.

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,

(D.C. Cir. 1998) (quoting United States v. Mitchell,

(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.’”

(quoting Mitchell,

).

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,

(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,

(D.D.C. 2013) (citing

United States v. Long,

(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,

. 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.”

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,

(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,

.

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,

(citing United States v. Chambers,

(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.

(emphasis in original); see also United States v. Sebolt,

(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,

(5th Cir. 2008))); United States v. Curtin,

(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,

(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,

(“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,

(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,

(“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,

(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,

(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,

(“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,

(quoting United States v. Wolford,

, 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,

(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,

(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,

(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,

, 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,

(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

32 Columbia to meet Detective Palchak and his fictitious daughter. See e.g., Hite,

(“[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,

(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,

). 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,

(6th Cir. 2006); see also United States v. Jones,

(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,

(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,

(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

(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

(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,

(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.

36 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,

(“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,

(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

(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,

, 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,

(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,

, 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,

, 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,

(8th Cir. 2012) (“Also, the

district court gave a limiting instruction that diminished the danger of prejudice.” (citing United

States v. Strong,

(8th Cir. 2005))); Hite,

(“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,

)). Indeed, the D.C. Circuit has noted that these types of limiting

instructions “ordinarily suffice to protect the defendant’s interests.” Long,

.

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).

39 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

40