Challenging Expert Testimony in Child Pornography Cases

United States v. Red Legs, 20-3506

This conviction arises from defendant’s taking of sexually explicit photos of his ex-girlfriend’s ten-year-old daughter. Red Legs argues that the district court erred by admitting Imel’s testimony. “We review evidentiary issues for clear abuse of discretion and will reverse the district court’s judgment ‘only when an improper evidentiary ruling affected the defendant’s substantial rights or had more than a slight influence on the verdict.’” United States v. Omar, 786 F.3d 1104, 1112 (8th Cir. 2015) (citation omitted). Red Legs contends that Imel lacked the qualifications necessary to provide an expert opinion as to identity-based upon the comparison of finger and knuckle creases as shown in the two sets of photos.

Red Legs’s conviction arises from his taking of sexually explicit photos of his ex-girlfriend’s ten-year-old daughter. “We recite the facts in the light most favorable to the jury’s verdict.” United States v. Galloway, 917 F.3d 631, 632 (8th Cir. 2019) (citation omitted).

Pritzkau removed and hid a piece of paper containing Red Legs’s email address and password as well as his Facebook login information. The email address contained Red Legs’s full name, and the Facebook password appeared to be a reference to his children.

Red Legs stayed in the bedroom for a couple of minutes before walking back to the living room. Pritzkau testified that she realized the photos depicted L.B.E.’s vagina based upon her recognition of five items shown: a black-and-white-striped blanket and a multi-colored zebra-print blanket on L.B.E.’s bed; L.B.E.’s white underwear and a pair of black pajama shorts that L.B.E. had asked to borrow from Pritzkau the day before; and L.B.E.’s finger that had a dark spot due to an infection.

Officers testified that the metadata established that the original photos were taken approximately one minute apart, around the time Pritzkau saw Red Legs enter the bedroom where L.B.E. Law enforcement contacted Anthony Imel, a forensic examiner for the Federal Bureau of Investigation, to help identify whose fingers were pulling aside the underwear in the photos.

In June 2020, a grand jury returned a three-count superseding indictment against Red Legs, charging him with aggravated sexual abuse of a child (Count 1), sexual exploitation of a child (Count 2), and possession of child pornography (Count 3). Before trial, the government filed a notice of intent to offer Imel’s expert testimony, and Red Legs filed a notice of intent to call his own expert witness, Dr. Glenn Langenburg, to rebut Imel. Red Legs also filed a motion for a pretrial Daubert hearing regarding Imel’s proposed testimony, which the district court granted. The district court concluded that the government met the Daubert standard and Imel’s testimony was admissible under Federal Rule of Evidence 702.

“We review evidentiary issues for clear abuse of discretion and will reverse the district court’s judgment ‘only when an improper evidentiary ruling affected the defendant’s substantial rights or had more than a slight influence on the verdict.’” United States v. Omar, 786 F.3d 1104, 1112 (8th Cir. 2015) (citation omitted).

Red Legs contends that Imel lacked the qualifications necessary to provide an expert opinion as to identity-based upon the comparison of finger and knuckle creases as shown in the two sets of photos. Red Legs claims that Imel instead used a generic method unreliable for the comparison of finger and knuckle creases. We need not decide whether the district court abused its discretion by admitting Imel’s testimony because if there was any error, it was harmless. Red Legs also made inculpatory statements to Pritzkau, including an apology, when she confronted him about the explicit photos.