United States v. Heinrich, No. 19-3035 (3d Cir. 2020)
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A four-year-old stated that Heinrich had pulled her pants down and taken pictures. Pennsylvania state police conducted a consensual search of Heinrich’s electronic devices and found sexually explicit images of two children. Heinrich was charged with 15 counts of using or inducing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct, 18 U.S.C. 2251(a), and one count of possessing material depicting the sexual exploitation of a minor, section 2252(a)(4)(B). Heinrich admitted to taking the pictures and that they depicted sexually explicit conduct but planned to defend himself against the production charges, claiming he lacked the requisite specific intent.
Heinrich proffered an expert witness, a psychologist. The government moved to exclude that evidence as inadmissible because the charged offenses were general intent crimes and under Federal Rules of Evidence 401, 403, 702, or 704(b). After a hearing on the applicability of Rule 704(b), the judge’s law clerk conducted a telephonic status conference, stating that the court intended to grant the government’s motions based on Rules 403 and 704(b). No opinion or order was docketed. The judge did not participate in the conference, which was unrecorded and not transcribed. Heinrich entered a conditional guilty plea and appealed.
The Third Circuit vacated without addressing the merits of the ruling, noting the “impossible position” of attempting “to review an adjunct-presented non-ruling that caused the Defendant to plead guilty.” District courts must articulate their Rule 403 reasoning on the record.
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