A federal prosecutor wants to use newly found images of child pornography police allegedly discovered on a defendant’s phone to prove he’s the sort of person who would traffic in child pornography.
Sgt. First Class Daniel Gene Gumm of the Wyoming National Guard already faces up to 40 years in prison on one child-porn distribution charge and another possession charge in the U.S. District Court for Wyoming, alleging that he possessed and trafficked images of prepubescent minors in sex acts last November and December.
Gumm was indicted May 16.
Now Wyoming Assistant U.S. Attorney Seth Griswold is asking the federal court to let more child pornography images into the case as evidence, to show Gumm has a propensity for viewing illegal sex content.
Police reviewed Gumm’s phone again July 20, Griswold wrote in a Monday court filing. And the investigators found two more suspected child-porn images depicting “early pubescent” females engaged in sex acts.
One of the girls was “choking herself with some sort of object” while performing a sex act, Griswold’s filing says.
An agent is prepared to testify that both girls appear to be younger than 14, the prosecutor wrote.
Because Of Tricky Rape Cases
Normally prosecutors have to avoid using “character evidence,” or evidence showing someone’s character, in their trial evidence unless the evidence also supports and pertains to the charged crimes.
But Congress in 1994 crafted another evidence rule to avoid nebulous sex-crime trials, according to Griswold’s filing. He says the rule allows prosecutors to show juries evidence that an alleged sex offender has a propensity to commit sex crimes, even if that evidence didn’t apply to the conduct summarized in the case charges.
“Congress enacted these rules in part to address a frequent problem in sexual-assault cases – trials presenting he-said, she-said stalemates, what Congress described as ‘unresolvable swearing matches,’” reads the filing, quoting from earlier case law.
“Courts are to ‘liberally’ admit evidence of prior uncharged sex offenses,” Griswold added.
We Won’t Hear From Those Girls
But in this case, no one expects victim testimony since it’s an illegal porn case, the filing says.
Still, Griswold argued that these newfound images don’t prejudice Gumm unfairly, they won’t make for unnecessary delay or confusion, and they’ll be needed as character evidence under Congress’ unique rule.
Maybe It Was A Hacker
Also, Griswold said he expects Gumm to say his phone or messaging app was hacked.
“The defendant has pleaded not guilty and it is anticipated the defendant will argue his Kik (messaging) account was hacked or that someone accessed his phone without his knowledge,” reads the filing. “The Government believes he will continue to vigorously dispute every element of the charged crimes.”
Gumm’s case is ongoing.
The Wyoming National Guard has told Cowboy State Daily it, too, will take action after and depending upon the outcome of the case.
