United States District Court, W.D. New York
For Terry M. Dickinson, also known as Terry Dickinson, Defendant: Leslie Ellen Scott, Mark D. Hosken, LEAD ATTORNEYS, Federal Public Defender Office, Buffalo, NY.
For USA, Plaintiff: Tiffany H. Lee, LEAD ATTORNEY, Richard A. Resnick, U.S. Attorney's Office, Rochester, NY.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge.
Defendant Terry Dickinson (" Defendant" ) is charged with multiple counts of distribution, receipt, and possession of child pornography allegedly in violation of 18 U.S.C. § 2252A. (Dkt. 75). This case is scheduled for trial to commence on April 28, 2014. On April 8, 2014, the Government served a notice of intent to introduce evidence of Defendant's alleged prior crimes pursuant to Federal Rule of Evidence 414 or, in the alternative, Federal Rule of Evidence 404(b). (Dkt. 81). On April 21, 2014, Defendant submitted a motion in limine to exclude the evidence. (Dkt. 88 & 89). The Government supplemented its notice by letters dated April 22, 2014, and April 24, 2014.
In sum, the Government seeks to introduce the following evidence pursuant to Rule 414 or, alternatively, Rule 404(b):
(1) Testimony from Defendant's daughter, born in 1988, that at the age of 16 (i.e. in approximately 2004), she discovered a notebook detailing her father's past sexual experiences including the first time he had sex with a little girl, and that during this same time period she discovered a videotape depicting her father sexually abusing her. The Defendant's daughter will testify that she destroyed the videotape. She will also testify that she recalls being sexually abused by the Defendant from approximately four until nine years of age (i.e. from approximately 1992 until 1997).
(2) Handwritten notes found in a black notebook/binder seized from the Defendant's residence on August 18, 2010, containing various descriptions of sexual abuse of children engaged in by Defendant, including incidents where the abuse was videotaped. The Government has explained that it will authenticate the handwriting in the notebook as belonging to Defendant with his daughter's testimony. According to the Government's statements at a court appearance on April 24, 2014, Defendant's daughter is not able to testify that the notebook that she purportedly observed in 2004 is the same notebook that was seized in August 2010.
(3) Testimony from a witness identified as A.P., who was born in 1986 and who the Government contends was identified by name in the notebook, about an incident when Defendant allegedly fondled her when she was between the ages of seven and nine (i.e. between 1993 and 1995).
After reviewing the proposed evidence, the Federal Rules of Evidence, and the case law addressing the issue, I have concluded as follows:
(1) I will not allow the testimony of Defendant's daughter about discovering a notebook or videotape depicting sexual abuse in the 2004 time frame.
(2) I will not allow the testimony of Defendant's daughter that she was sexually abused by her father from ...