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United States v. Tolbert

United States District Court, D. New Mexico

July 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD ALVIN TOLBERT, Defendant.

          MEMORANDUM OPINION AND ORDER

         This case comes before the Court on the United States' Motion in Limine to Admit Evidence at trial Pursuant to Rules 414 and 404(b) [Doc. 175][1]. After considering the parties' briefs, the evidence they have put before the Court, and the relevant authorities, the Court concludes that the Government's proffered evidence of Defendant's prior bad acts is admissible under both Rule 404(b) and Rule 414. Accordingly, the motion will be granted.

         BACKGROUND

         The Government has charged Defendant Donald Tolbert (“Tolbert”) with one count of notice and advertisement of visual depictions of minors engaged in sexually explicit conduct occurring from January 22, 2012 to September 20, 2012; seven counts of receipt of a visual depiction of minors engaged in sexually explicit conduct occurring from August 17, 2012 to September 16, 2012; three counts of distribution of a visual depiction of minors engaged in sexually explicit conduct occurring on July 17, 2012, August 7, 2012, and September 1, 2012, respectively; two counts of possession of a matter containing visual depictions of minors engaged in sexually explicit conduct on September 20, 2012; and a single count of a felony committed by a registered sex offender occurring on January 22, 2012. [See Doc. 48]. According to the Government, the charges arise from three sources: (1) Tolbert's public profile on IMGSRC.ru, including both the words and the photographs posted in that profile, (2) emails to and from Tolbert's AOL email accounts, and (3) evidence recovered from the eMachine described in Count 12 and the Dell computer which were recovered from the home of Defendant's mother, Margaret Tolbert.

         DISCUSSION

         I. Evidence of Prior Acts the Government Seeks to Admit at Trial

         The Government seeks admission of evidence of Defendant's convictions for sexual abuse, as well as other sexual abuse and bad acts for which he either was acquitted or was not charged. The following are the alleged facts the United States seeks to elicit at trial.

         A. Prior acts involving Jane Doe-1

         The Government intends to offer evidence of Tolbert's convictions for molestation of Jane Doe-1, his cousin, when she was 9 to 10 years old from approximately August of 2002 to approximately August of 2003. A portion of Tolbert's conduct served as the basis for Tolbert's 2006 state court convictions for two counts of criminal sexual contact of a minor in the third degree (child under thirteen), one count of kidnapping, and one count of bribery of a witness (threats or bribes - reporting). State v. Tolbert, D-202-CR-2004-03555 (NM 2d Jud. Dist. Ct. Aug. 25, 2006). It appears that Tolbert was also charged with, but not convicted of, a third count of criminal sexual contact of a minor in the third degree (child under thirteen) with regard to Jane Doe-1.[2] All three criminal sexual contact counts specified contact with Jane Doe-1's breasts.

         At Tolbert's state court trial, Jane Doe-1 testified that when Tolbert was living with her and her mother, he would read Jane Doe-1 books at night, then touch her breasts while her mother was in another room or at work; she also stated that Tolbert threatened to hurt Jane Doe-1's mom if she told anyone what he did. Jane Doe-1 also described an incident at a cousin's birthday party when Tolbert “tried or did French kiss” her, touched her breasts, and blocked her escape from the room. Jane Doe-1 offered additional details about the foregoing events during a safehouse interview.

         At the safehouse interview Jane Doe-1 also described sexual abuse that was not charged, including that when she was asleep Tolbert would stick his hand inside her pajamas and touch her genitals. She also described an incident when she was ten that occurred at a swimming pool. She stated that Tolbert touched her breasts under her bathing suit.

         On August 25, 2006, a jury convicted Tolbert of two counts of criminal sexual contact of a minor in the third degree (child under thirteen), one count of kidnapping, one count of bribery of a witness (threats or bribes - reporting), and one misdemeanor count of battery. See Doc. 162-1. Later that year, the court sentenced him to six years in prison. Doc. 162-2. On November 16, 2009, Tolbert was released to complete a five-year term of supervised probation. Doc. 162-3. On September 15, 2010, the state court revoked Tolbert's probation and sentenced him to 330 days of incarceration to be followed by a new term of probation. Doc. 162-5. On November 29, 2012, the court revoked Tolbert's probation a second time for failure to comply with the condition of probation requiring that he not violate any laws or ordinances of the State of New Mexico and sentenced him to 1, 460 days of incarceration. Doc. 162-7.

         B. Prior acts involving Jane Doe-2 and Jane Doe-3

         Jane Doe-2, Tolbert's second cousin, reported that between approximately December 1999 and continuing to approximately August 2003, when she was approximately 12 years old, Tolbert ask Jane Doe-2 if she wanted to see his penis. Jane-Doe declined, but Tolbert told her that if she wanted to see a penis that she should come to him not someone else. Doc. 175-5 at 6.

         Jane Doe-2 also reported that on another occasion during that same time period Tolbert was rough-housing with Jane Doe-3, then 13 to 14 years old, in the same swimming pool. Jane Doe stated that Tolbert ripped off Jane Doe-3's bikini top and exposed her breasts. Tolbert then volunteered to “fix” Jane Doe-3's bikini top, but Jane Doe-3 declined. Shortly thereafter, Jane Doe-3 departed with her mother, and both avoided contact with Tolbert and Jane Doe-2 after that. Doc. 175-5 at 7-8.

         Tolbert was not criminally charged for this conduct.

         C. Prior acts involving Jane Doe-4

         Jane Doe-4 states that when she was a child under 14 years of age, Tolbert assaulted her. The incidents took place in or around Jane Doe-4's house, which was in the same neighborhood as Tolbert's mother's home, where he was living at the time. Jane Doe-4 claimed that Tolbert snuck into her house, held her down, attempted to force her to kiss him. Jane Doe-4 stated that on another occasion, Tolbert put his hand down her shirt.

         D. Alleged “grooming” of Jane Doe-5

         Jane Doe-5 (also sometimes referred to as “L.R.”) is the niece of Felicia Cabrera, Tolbert's friend or girlfriend at the time of the charged conduct. A picture of Jane Doe-5 appears as the profile picture of “Yungmuffman” on a Russian image-sharing platform, IMGSRC.ru. The Government avers that the profile belongs to Tolbert. On the profile description, Tolbert states, “I love girls between 8-15 . . .” Doc. 175-6. Pictures of Jane Doe-5 also appear in the album “Felicia, ” which is linked to the Yungmuffman profile. Doc. 175-7. The pictures are accompanied by the comments “Not yet, ” and “soon.” Id. Notably, a chat linked to an image of Jane Doe-5 and Cabrera includes comments that appear to discuss pictures of Jane Doe-5. According to the Government, pictures of Jane Doe-5 also feature prominently in the Samsung phone seized from Tolbert's residence. Approximately 22 of the 31 images on that phone feature Jane Doe-5 or another young girl.

         E. Prior possession of child pornography

         The Government avers that Jane Doe-1's mother, a relative of Tolbert, recalls when Tolbert lived with his mother as an adult prior to 2001 at 760 57th Street NW, Albuquerque, NM 87105. Jane Doe-1's mother reported that Tolbert boasted about his collection of naked pictures of girls. According to the Government, Tolbert claimed that he used his connections as a liquor distributor driver to entice girls to obtain naked picture of them. The Government further asserts that Jane Doe-1's mother recalls seeing some of the photographs in a drawer in Tolbert's bedroom at his mother's house. Jane-Doe-1's mother reported the photos were of naked girls, some of whom appeared to be minors.

         F. Evidence of online communications, internet searches, and other information from searched electronics

         The Government intends to offer evidence of online activity, much of which will be used to support the charges in this case. For example, it will offer the IMGSRC.ru profile that allegedly belonged to Tolbert, which includes chat messages and photographs. The Government will also offer email conversations sent from the email account abc123ddt@aol.com that are related to that IMGSRC.ru profile as well as child pornography attached to those emails. The Government will offer additional emails from donnieisagod@aol.com that contain a mix of child pornography and child erotica. In addition, this evidence will include information obtained from the computers seized from Tolbert's mother's home. According to the Government, this includes evidence that the user of those computers accessed both the YUNGMUFFMAN profile on IMGSRC.ru and the donnieisagod@aol.com email address, images of child pornography and erotica recovered from those computers ...


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