MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S POST-TRIAL MOTIONS
MARK W. BENNETT, Chief District Judge.
On November 6, 2013, a jury convicted Darran Lohse (Lohse) of producing, receiving, and possessing child pornography. During Lohse's trial, the government presented nine photographs, taken by Lohse, showing Lohse posing naked in a bed with his genitals on, or near, a sleeping, clothed, three-year-old girl's face. The jury found that all nine photographs constituted child pornography produced by Lohse. The jury also found that Lohse received and possessed numerous videos of child pornography on multiple hard drives and a compact disc found near Lohse's basement computer.
This case is now before me on Lohse's post-trial motions for a judgment of acquittal and a new trial. In his motions, Lohse argues that the nine photographs of him and the three-year-old girl are not "lascivious, " and, therefore, he cannot be convicted of producing child pornography. Additionally, Lohse argues that there is insufficient evidence to convict him of "knowingly" receiving or possessing the child pornography videos found in his basement. Finally, Lohse argues that the nine photographs were not admissible, and that, without them, there is a "substantial likelihood" that the jury would not have convicted him of receiving and possessing the child pornography videos. Thus, if I do not grant a judgment of acquittal, Lohse alternatively requests a new trial on the "receiving" and "possessing" counts. For the reasons discussed below, Lohse's post-trial motions are denied.
In resolving Lohse's motion for a judgment of acquittal, I must "view the evidence in the light most favorable to the guilty verdict, giving the government the benefit of all reasonable inferences that may be drawn from the evidence." United States v. Basile, 109 F.3d 1304, 1310 (8th Cir.), cert. denied, 522 U.S. 866 (1997). Thus, for the purposes of Lohse's motion for a judgment of acquittal, I present the following facts favorably to the government.
A. Factual Background
On Halloween 2011, Cassandra Steffens (Steffens) used a digital camera to take pictures of her three-year-old daughter, K.S., wearing her Tinker Bell costume. Two days later, Steffens decided to upload the pictures to Facebook. As she scrolled through the photographs on the camera's memory card, she stumbled upon other, more troubling pictures of her boyfriend, Lohse, with whom she lived, naked and posing on a bed where K.S. was sleeping. The photographs, which appeared to have been taken by Lohse on two different nights, showed Lohse placing his exposed genitals on, or near, K.S.'s face. K.S. was clothed and sleeping in all of the pictures. Nine of these photographs would later be used to prosecute Lohse. Those nine photographs specifically depict the following:
Lohse naked and in a nearly horizontal position with his penis on, or very close to, K.S.'s hair;
Lohse naked and standing at the head of the bed with the tip of his penis on, or very close to, K.S.'s right eye;
An overhead view of the same pose described above;
Lohse naked and kneeling over K.S. with his penis and testicles resting in her hair;
A similar picture to that described above, with Lohse's penis near K.S.'s mouth and Lohse holding K.S.'s hair with his left hand;
Lohse naked and standing next to the bed with his penis on, or near, K.S.'s forehead;
Lohse naked and kneeling on the bed with his penis close to K.S.'s face;
Lohse naked and standing or crouching over K.S.'s head such that his penis rests on her forehead; and
Lohse naked and standing over the bed with his penis directly above, and possibly touching, K.S.'s forehead;
Upon finding these photographs, Steffens left Lohse's house, contacted the police, and turned the photographs over to the responding officers. After seeing the photographs, the police arrested Lohse, obtained a search warrant, returned to the house, and seized a number of items, including hard drives and compact discs from Lohse's basement. After examining these items, police found multiple videos of child pornography on a number of hard drives and a compact disc. Police also analyzed the videos' metadata and determined that at least four of the videos stored on one of the hard drives had been downloaded using the internet.
I will discuss additional facts as they become relevant to the analysis below.
B. Procedural Background
On October 24, 2013, the government filed a superseding indictment, charging Lohse with six counts:
Count I: Sexual Exploitation of a Child, in violation of 18 U.S.C. §§ 2251(a) and 2251(e), for allegedly producing nine photographs of child pornography;
Count II: Receipt of Child Pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), for allegedly downloading videos of child pornography; and
Counts III, IV, V, and VI: Possession of Child Pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2), for allegedly possessing videos of child pornography on three different hard drives/servers and a compact disc.
(Docket no. 40). Lohse pleaded not guilty to all six counts. Prior to trial, Lohse filed a motion to dismiss Count I, arguing that the nine photographs at issue did not constitute child pornography as a matter of law (docket no. 24), which I denied (docket no. 39). This case proceeded to trial on November 5 and 6, 2013. At the close of the government's evidence, Lohse moved for a judgment of acquittal on all counts. I deferred ruling on Lohse's motion until after receiving a verdict. On November 6, 2013, a jury convicted Lohse of all six counts (docket no. 72). On November 15, 2013, Lohse filed post-trial motions renewing his motion for a judgment of acquittal and moving for a new trial on Counts II though VI (docket no. 77). I must now decide whether to grant Lohse's post-trial motions.
A. Motion for a Judgment of ...