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United States v. Ricker

United States District Court, D. South Dakota, Central Division

April 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
AMIN RICKER, Defendant.

          OPINION AND ORDER DENYING RENEWED MOTION FOR UDGMENT OF ACQUITTAL AND MOTION FOR NEW TRIAL

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         Amin Ricker (Ricker) was indicted on two counts of aggravated sexual abuse of a child, one count of travel with intent to engage in illicit sexual conduct, and one count each of transportation, distribution, receipt, and possession of child pornography. Doc. 36. Ricker pleaded not guilty and his case was tried to a jury between March 17 and March 22, 2019. The jury returned a verdict finding Ricker guilty on all seven counts. Doc. 204.

         Ricker, after the jury verdict, filed a renewed motion for judgment of acquittal or in the alternative for a new trial. Doc. 209. For the reasons explained in this Opinion and Order, those motions are denied.

         I. Summary of Facts

         Ricker's activity resulting in his indictment in this case first came to the attention of South Dakota law enforcement in February of 2017. On February 10, 2017, the South Dakota Internet Crimes Against Children Task Force received a "cyber tip" from the National Center for Missing and Exploited Children, triggered by inappropriate Instagram chats occurring between cheer_dad17 and nataliejewell40. The Instagram chat suggested that nataliejewell40 was a thirteen-year-old girl and that cheer_dad17 was an adult male who had sent a photograph of his penis and child pornography images of a prepubescent female presumably within the care and household of cheer_dad17. Tr. Ex. 9. Local law enforcement was given the IP address for cheer_dad17, and with the assistance of the internet provider identified the residence from which cheer_dad17 was accessing the internet as the home of Carol Peterson (Peterson) on Sully Avenue within Pierre, South Dakota. Tr. Ex. 8. Local law enforcement obtained a search warrant on February 13, 2017, and executed it in the early afternoon of February 14, 2017. Ricker, then 30 years old, was renting a bedroom from Peterson and was at the home when officers executed the search warrant. Ricker agreed to speak with Detective Sergeant Dusty Pelle (Detective Pelle). Ricker acknowledged that he was the holder of the Instagram account cheer_dad17, that he had been engaged in the communication with nataliejewell40, and that child pornography might be found on his electronic devices. Ricker denied hurting any child. Ricker later voluntarily stopped speaking with Detective Pelle. Tr. Ex. 11.

         Peterson, a grandmother who had worked for the State of South Dakota for forty years, had simply rented a room to Ricker within her home and was unaware of Ricker sending child pornography and lewd photographs by Instagram chat. Ricker once had shown her a photograph of his girlfriend, saying the girlfriend was nineteen, but Peterson had questioned that the girl appeared much younger and told Ricker of the need to date someone at least eighteen years of age. Ricker at one point had told Peterson that he had two children who lived in Texas with his sister; in fact, Ricker has no children. Otherwise, Peterson found Ricker to be responsible and self-sufficient and had no idea what Ricker was up to while using the internet within her home.

         Based on the search warrant, law enforcement seized from Ricker's person a Samsung Galaxy S7 and seized from Ricker's bedroom a white iPad, a pink Paris bag containing three more cell phones and seven flash drives, a Dell all-in-one PC, a Toshiba laptop computer, a Justice bag containing girls clothing, a Samsung Galaxy S4, an Acer laptop computer, a bag of girls panties, a Paris notebook containing a series of passwords and usernames, and a zip-lock bag of receipts and two girls' bracelets. Tr. Ex. 10.

         As it turns out, three of the devices were related to a prior state court child pornography case involving Ricker. The content on those three devices-a Toshiba laptop computer, Samsung SGHT99 Galaxy 3 cell phone, and ZTE Tracfone-formed the basis of the Beadle County criminal case styled State of South Dakota vs. Amin Ricker, CR 14-425. Tr. Ex. C. Circumstances of that case were introduced, without objection, both because Ricker as part of his defense contended that the child pornography found in his possession came from those devices involved in the Beadle county case which state authorities returned to him, and because Rule 414 of the Federal Rules of Evidence made the circumstances of that case admissible due to the close proximity of time and nature of his relationship with prepubescent female S.J. in Beadle County. See Fed.R.Evid. 414. This Court gave limiting instructions regarding the proper use of the information regarding the Beadle County criminal case, including Final Instruction No. 27 as follows:

This Court has received into evidence certain exhibits and testimony concerning the defendant's Beadle County criminal case. The defendant having been charged in Beadle County with similar crimes is not evidence that he committed any of the offenses alleged in the superseding indictment. Testimony concerning defendant's alleged actions toward S.J., if you believe the testimony, may be considered by you in deciding whether the defendant is guilty or not guilty of any crime charged in the superseding indictment.
The defendant is not on trial for any conduct in Beadle County, and you should be mindful of the date ranges alleged in the superseding indictment in this case when deciding if the defendant is guilty or not guilty of any of the crimes charged. Defendant is not alleged in this case to be guilty of possession of child pornography simply because his electronic devices were returned to him by Beadle County authorities without being purged of content. Defendant is only guilty of possession of child pornography if he knowingly acquired additional images of child pornography after the return of his electronic devices by Beadle County authorities or possessed child pornography during the time frame alleged through other devices not returned to the defendant by Beadle County authorities.

Doc. 203 at 28.

         In short, the Beadle County case stemmed from Ricker's behavior in Huron, South Dakota, where he had been working for a railroad as a conductor. Ricker had developed an intense interest in 2013 and 2014 in eleven-year-old female S.J. S.J.'s mother allowed Ricker to hang out with her and her three children, and Ricker had given S.J.'s mother money for groceries. Ricker had asked the mother for alone time with S. J., but the mother refused. Around the time of S. J.' s twelfth birthday, the mother became aware of three love letters and one poem that Ricker (whose date of birth is in November of 1986 and was approximately sixteen years older than S.J.) had written and given to S.J. Tr. Ex. 246. S.J.'s mother took the letters to the Huron Police Department (Huron Police) and a detective then interviewed S.J. S.J. testified at trial, consistent with what she had told police, that Ricker would kiss her on the lips, give her hugs, and touch her in places like the side of her breasts. Ricker would tell her that he loved her and write letters to her. Ricker also had asked her to spend time alone and to go out of town with him, and had exchanged text messages of an inappropriate nature with her. Tr. Ex. 245, 246. S.J.'s older brother testified that Ricker had shown him naked photographs of thirteen-year-old girls and S.J.'s brother, a juvenile at the time, had told Ricker to delete those images or he would get in trouble.

         The Huron Police through a search warrant obtained two phones and the laptop computer from Ricker and conducted a forensic review of them. The Huron Police found forty images of child pornography on the Toshiba laptop, forty-one images of child pornography on the Samsung Galaxy 3 phone, and fifty-one images of child pornography on the ZTE Tracfone. Some of the same images of child pornography were on each of the devices. Both the Samsung Galaxy 3 and the ZTE Tracfone contain many images of S.J., including some images that focused on her clothed genital areas; none of those images of SJ. were of her naked or otherwise child pornography. Ricker worked out a plea agreement in Beadle County where he pleaded guilty on March 16, 2015, to possession or distribution of child pornography, and the other count of sexual contact with a child under sixteen was dismissed. Tr. Ex. 14, A, B. Ricker received a suspended imposition of sentence on May 26, 2015. Astonishingly, on July 7, 2015, based on a motion from the then Beadle County deputy state's attorney and an order from a state court judge, Beadle County authorities returned to Ricker the three electronic devices not purged of the child pornography. Tr. Ex. C. Thus, part of Ricker's defense in this case was that child pornography images in his possession were from a prior case for which he was not facing federal charges.

         On account of the return of electronic devices to Ricker by the Beadle County authorities after his conviction there, no forensic examination was done in this case on the three devices returned. The forensic examination done on the remaining iPad, cell phones, laptop, and flash drives, however, revealed an incredible trove of child erotica[1] and child pornography far exceeding anything involved in the Beadle County case. Indeed, on the devices not involved in the Beadle County case, Ricker had 30, 000 image files of child erotica and child pornography and over 100 video files of child erotica and child pornography. The forensic computer expert testified to what was contained on each device separately. The Apple iPad contained images related to the cyber tip from the Instagram chats and depicted pornographic images of two seven-year-old girls, S.M. and J.M., whose images Ricker as cheer_dad17 uploaded onto Instagram from the Apple iPad. Tr. Ex. 9, 19-21. There are a number of other images and searches on the Apple iPad associated with S.M. and J.M., as well as other child pornographic images. Tr. Ex. 9, 19-24. The search history of the Apple iPad had a number of searches associated with child pornography and child erotica. Tr. Ex. 26, 29. There were also searches related to S.M. and J.M. and Bogota, Texas, a community in which S.M. and J.M. had lived. Tr. Ex. 30.

         Ricker's Samsung Galaxy S7 had pornographic image files, instant message conversations on Kik Messenger, and pornographic images of a prepubescent female nude from the chest down on Kik Messenger. Tr. Ex. 31, 32, 38, 40-51. Ricker had been using a screen name kyliema2005, and an identity as "Lainie Marie" on Kik Messenger by using his cell phone. In January and February of 2017, Ricker using the identity of Lainie Marie had been chatting with 7Dante69 on Kik Messenger, including sending 7Dante69 links to a Dropbox account containing child pornography. Tr. Ex. 46. Dante had returned messages with links to a Russian website with child pornography. Tr. Ex. 46, 48. The Samsung phone also revealed that Ricker had a Dropbox account using the email kyliemarie84@yahoo.com and had upgraded to Dropbox Pro on February 2, 2017. Tr. Ex. 50, 51. Ricker had filled the Dropbox account with child pornography and child erotica to the point where he needed to expand the storage of the account. Tr. Ex. 60-66.

         The forensic examiner accessed the Dropbox account, which contained some of the same material as on Ricker's cell phone and iPad, as well as abundant child erotica and child pornography. Tr. Ex. 60-66. One Dropbox folder Ricker had entitled "For Dante," which had been deleted the night of February 9, 2017. A memory card from Ricker's cell ...


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