United States v. Schohn

602 F.Supp.3d 447

UNITED STATES of America

v.Joshua A. SCHOHN, Defendant.

19-CR-139-A

United States District Court, W.D. New York.

Signed May 10, 2022

Laura A. Higgins, Meghan A. Tokash, Government Attorney, Charles Mark Kruly, U.S. Attorney's Office, Buffalo, NY, for United States of America.

Cheryl Meyers Buth, Meyers Buth Law Group PLLC, Orchard Park, NY, for Defendant.

DECISION AND ORDER

RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE

On November 1, 2021, a jury found pro se Defendant Joshua A. Schohn guilty of two counts of production and attempted production of child pornography, and two counts of possession of child pornography. The jury also found that as to the devices charged in the possession counts, Defendant possessed a visual depiction of a minor engaging in sexually explicit conduct who had not yet reached the age of puberty or was less than 12 years old.¹ Dkt. No. 112 (Jury Verdict); see Dkt. No. 52 (Second Superseding Indictment).

Defendant moves for a judgment of acquittal notwithstanding the jury's verdict pursuant to Federal Rule of Criminal Procedure 29(c) or, alternatively, for a new trial pursuant to Federal Rule of Criminal Procedure 33. Dkt. No. 120. The Government filed a response in opposition to the motions, Dkt. No. 129, and Defendant did not file reply papers, see Dkt. Nos. 137, 138. Oral argument was held remotely on April 6, 2022.² For the reasons stated below, the motions are DENIED.

BACKGROUND

Familiarity with the facts of the case and the evidence presented at trial is presumed. Nevertheless, the following is a brief summary of the evidence relevant to the instant motions. Because the Defendant was found guilty, the Court construes the evidence "in the light most favorable to the government, with all reasonable inferences drawn in its favor." United States v. Rowland , 826 F.3d 100, 105 n.1 (2d Cir. 2016) (quotation marks omitted); see Fed. R. Crim. P. 29.

The two production counts involved minor victims Jane 1 and Jane 2. The evidence at trial established that Jane 1 was 8 or 9 years old at the time of the criminal conduct, while Jane 2 was 6 or 7 years old at that time. The evidence further showed that Defendant surreptitiously video-recorded Jane 1 and Jane 2, the daughters of L.P., the latter who he was dating at the time.³ This occurred on an October 2018 trip to a waterpark in Erie, Pennsylvania, in their hotel room. Each video showed Defendant setting up, adjusting, and retrieving the camera. The first video (forming the basis for Count 1) depicted, in part, Jane 1 seated on the bathroom toilet while she urinated. Jane 1's vagina is visible in the video when she wipes herself after urinating. Defendant later converted this video into a GIF and several shorter videos,⁴ each showing Jane 1 urinating and wiping herself, with one entitled "goddamn." The second video (forming the basis for Count 2) depicted Jane 1 and Jane 2 changing into their pajamas. For a period, Jane 2 is completely nude, and her vagina is visible when she turns around and bends over. While filming this video Defendant adjusted his laptop screen to capture the entirety of Jane 1 and Jane 2.

A third video from the summer of 2018 (a few months before the waterpark incident) was introduced at trial pursuant to Rule 414, which showed Defendant masturbating beneath a blanket while touching Jane 1's inner thigh.

In January 2019, L.P. borrowed Defendant's cell phone and a couple weeks later accidentally happened upon some disturbing searches and videos in Defendant's YouTube history and Google search history (she was still logged into his YouTube and Google accounts and could also see real-time updates of his Internet activity). She decided to confront Defendant after the New York State Police told her that because the images did not show children's genitalia, they were not illegal under New York State law.

On February 5, 2019, L.P. secretly audio recorded a confrontation between herself, L.P.’s brother (who was Defendant's roommate at the time), and Defendant, which was played at trial. L.P. and her brother repeatedly accused Defendant of being a pedophile and watching sexual videos of children; Defendant did not deny these accusations but claimed that he was viewing the videos to "document them for a case" and to undercover an alleged, undercover child pornography ring. He also said he did not believe pedophilia was wrong. After a physical confrontation between Defendant and L.P., Defendant left his apartment and walked to a neighboring town. When New York State troopers were informed by L.P. of the earlier confrontation, a trooper picked up Defendant and took him to the New York State Police barracks.

In the interim, L.P. sought medical attention as the confrontation with Defendant had escalated to a physical encounter. A friend of L.P.’s brother was entrusted to make sure Defendant's laptop did not lock so that the screen remained operational, and to see whether there was any content on the laptop of Jane 1 and Jane 2. L.P.’s brother's friend found the videos of Jane 1 and Jane 2 from the hotel room, along with many other materials depicting children. He changed the laptop settings so that it would not switch to "sleep" mode and testified that he did not access the Internet or do anything to alter, modify, or add to any files on the laptop. When L.P. returned to the apartment and saw the videos of her children, she went to the State police and gave them Defendant's laptop and cell phone, stating she believed the images constituted child pornography

Defendant was interviewed at the barracks and made a number of incriminating statements, including that he had a folder on his laptop labeled "senti," which he described as "like sentimental" where he stored his child pornography. He also admitted to filming Jane 1 and Jane 2 in Pennsylvania so he could "see it later," turning one of those videos into a GIF, and filming himself masturbating while touching Jane 1's thigh and "was thinking about maybe ..." but he "got too nervous and was like no don't do that." Defendant also admitted that he had been viewing child pornography for about five years; there was "probably a lot" of it on his devices; the forensic investigators would find images of children from approximately ages 5 to 17; and he searched for the images using terms such as "PTHC," i.e. , "preteen hardcore," and "CP," i.e. , "child pornography." The entire three-hour interview, which was audio- and video-recorded, was played for the jury.

After Defendant's arrest, New York State Police Investigator John Lombardi (hereinafter, "Investigator Lombardi") later performed a forensic analysis of Defendant's laptop and cell phone pursuant to a search warrant. Investigator Lombardi found many "files of interest" on each device, specifically, over 4,000 unique images and over 1,000 unique videos on the laptop, including those in a folder named "senti," and over 400 unique images on the cell phone. He also retrieved identical copies of a resume on each device entitled with Defendant's name.

Defendant sought to prevent the introduction of the images into evidence by stipulating that the evidence met the statutory definition of child pornography. The Government rejected the proposed stipulation, and, over a defense objection, the Court permitted the introduction of 10 images and 1 video clip from the laptop, and 7 images from the cell phone. Only the jury was shown these images for several seconds each, on a PowerPoint-type display, and the gallery did not see the images of child pornography. Also, over Defendant's objection, the jury was shown the video of Defendant masturbating while touching Jane 1's inner thigh.

Defendant elected to testify in his own defense during the trial.⁵ He claimed that while he was seen on the videos filmed in the waterpark hotel room, he did not knowingly record Jane 1 and Jane 2; rather, some unidentified individual must have set up his laptop to immediately begin recording once it was opened. Defendant speculated that this individual may have been L.P.’s brother, or L.P.’s brother's friend. Defendant also theorized that someone else planted child pornography on his devices and made the shortened video of Jane 1 wiping herself that was labeled "goddamn." As to the video of Defendant masturbating while touching Jane 1, Defendant testified that it was not him in the video. And regarding his interview with the police, Defendant testified that he was "lying [his] ass off" to them and merely told them what they wanted to hear.

Despite Defendant's trial testimony, Defendant was found guilty by the jury of all four counts in the Second Superseding Indictment after a five-day trial, discounting the forfeiture phase. The jury made the additional finding that Defendant possessed a visual depiction of a minor engaging in sexually explicit conduct who had not yet reached the age of puberty or was less than 12 years old as to each of the two possession counts.

DISCUSSION

The Court first notes that Defendant's Rule 29/ Rule 33 motion was untimely. The 14-day deadline was November 16, 2021, if counting from the date the forfeiture phase of the trial was determined and the jury was discharged, yet the motion was filed on the Court's electronic filing system on November 17, 2021. Even so, because the Government did not raise the timeliness issue in its papers, the Court deems it forfeited and addresses the motion on the merits. See United States v. Robinson , 430 F.3d 537, 541-542 (2d Cir. 2005).

Defendant argues that the Government failed to prove Count 2 by legally sufficient evidence and venue as to Counts 1 and 2, and that the guilty verdict was otherwise manifestly unjust. The Court concludes otherwise.

I. Defendant's Rule 29 Motion

Defendant moves for a judgment of acquittal notwithstanding the jury's verdict on two bases: (1) venue in the Western District of New York was not established as to Counts 1 and 2, and (2) the evidence is insufficient to sustain...