United States District Court, D. New Jersey
L. LINARES, CHIEF JUDGE
matter comes before the Court by way of Defendant Gregory
John Schaffer's Motion for Judgment of Acquittal pursuant
to Rule 29 of the Federal Rules of Criminal Procedure.
Defendant's Motion was made orally at the conclusion of
trial on October 19, 2017. The Government opposes
Defendant's Motion. For the reasons set forth herein, the
Court denies Defendant's Motion.
29(a) of the Federal Rules of Criminal Procedure allows a
Defendant to move for a judgment of acquittal "[a]fter
the government closes its evidence or after the close of all
evidence." Fed. R. Crim. P. 29(a). "[T]he court on
the defendant's motion must enter a judgment of acquittal
of any offense for which the evidence is insufficient to
sustain a conviction." Id. In deciding such
Motions, the Court '"review[s] the record in the
light most favorable to the prosecution to determine whether
any rational trier of fact could [find] proof of guilt
beyond a reasonable doubt.'" United States v.
Swan, 2017 U.S. App. LEXIS 17417, *8-9 (3d Cir. Sept. 8,
2017) (quoting United States v. Caraballo-Rodriguez,
726 F.3d 418, 430 (3d Cir. 2013) (en banc)
(additional citations omitted).
argument is straightforward. According to Defendant, none of
the evidence in the record shows that Defendant himself
placed the sexually explicit materials onto his Acer Laptop
and/or the Gigaware External Hard Drive. Defendant concedes
that he appears in the videos that were presented to the jury
and the he engaged in sexual conduct with minor females. He
further concedes that the Government need not present
evidence that he personally recorded the videos and took the
subject illicit photographs. Rather, the crux of
Defendant's argument is that there is no evidence to
support the fact Defendant ever placed the illicit materials
on his electronic devices or knew that said materials were
even on same.
making this argument, Defendant relies on the case of
United States v. Lively, 852 F.3d 549 (6th Cir.
2017). Defendant Lively in that case had a co-defendant who
photographed Defendant Lively engaging in sexual conduct with
a nine-year old boy. Lively, 852 F.3d at 553. The
Government executed a search warrant at one of Defendant
Lively's co-defendant's homes. Id. There,
the Government located "three items that would prove
important to [Defendant] Lively's eventual
prosecution:" 1) a Kodak digital camera; 2) a SanDisk
memory card that was inside said camera; and 3) a computer
than contained a Seagate hard drive. Id. All three
items were admitted into evidence at Defendant Lively's
trial, along with testimony from a forensic expert.
Id. at 554-55.
conclusion of the Government's case, Defendant Lively
moved pursuant to Rule 29, arguing that: 1) the "hard
drive ... 'did not produce the visual depiction[s]'
of [Defendant] Lively abusing the minor, [but rather the]
Kodak camera did...;" and 2) "that the government
had introduced 'no evidence that [Defendant Lively] had
knowledge that' any of the images of himself 'were
on' the ... Seagate hard drive." Id. at
555-56. The district court denied Defendant Lively's
motion, finding that it was not necessary to show that
Defendant Lively had knowledge of the images. Id. at
Sixth Circuit affirmed Defendant Lively's conviction, but
made various holdings with respect to the evidence and the
Government's burden. Id. at 559. First, the
Circuit Court held that copying images onto a hard drive
constitutes production of child pornography. Id.
Additionally, and saliently, the Sixth Circuit found that a
third-party's copying of images that depicted Defendant
Lively engaging in sex acts with a minor did not render
Defendant Lively guilty of production of child pornography.
Id. at 560-61. In arriving at this conclusion, the
Court held that "there is no evidence in the record
suggesting that, when [Defendant] Lively sexually abused the
boy, he did so for the purpose of producing the Hard-Drive
Images." Id. at 562.
second point made by the Sixth Circuit is what Defendant
herein attempts to argue. As noted above, Defendant avers
that there is no evidence in the record that could lead a
reasonable fact finder to conclude that Defendant placed the
videos onto the Acer Laptop and/or Gigaware Hard Drive. Based
on this assertion, Defendant concludes that the Government
has not produced sufficient evidence that the images and
videos found on said devices were placed there by Defendant
and that he had knowledge of same. Accordingly, Defendant
believes the production of child pornography counts must be
Government's response is straightforward as well.
According to the Government, the record contains sufficient
evidence to lead a reasonable jury to conclude that Defendant
did in fact create the videos and images, and then,
thereafter, place same onto his Acer Laptop and'or
Gigaware Hard Drive. Specifically, the Government points to
the following evidence:
1. The sexually explicit videos of Allison and Ashley that
were found on the Acer Laptop
2. The Acer Laptop contained copies of the sexually explicit
videos of Allison on the desktop
3. The sexually explicit photographs that Defendant took of
Ashley were found ...