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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : Crim. No. 4:14-CR-0254

:

v. : (Judge Brann)

:

CHRISTOPHER G. LEE, :

:

Defendant. :

MEMORANDUM

June 2, 2015

I. BACKGROUND

On October 1, 2014, a federal grand jury returned an indictment charging 

Defendant Christopher G. Lee with coercion and enticement of a minor by means 

of interstate commerce in violation of 18 U.S.C. § 2422(a) (Count 1); transporting 

a minor with the intent to engage in sexual activity in violation of 18 U.S.C. § 

2423(a) (Count 2); receipt of child pornography in violation of 18 U.S.C. 

2252A(a)(2) (Count 3); and knowingly possessing child pornography in violation 

of 18 U.S.C. § 2252A(a)(5)(B). On March 18, 2015, a superseding indictment was 

returned amending Count 4 to include language relating to images of prepubescent 

minors and adding production of child pornography in violation of 18 U.S.C. § 

2251(a); and tampering with evidence in violation of 18 U.S.C. § 1512(c). 

On May 1, 2015, Defendant filed a motion to sever counts of the 

superseding indictment pursuant to Rule 8(a) of the Federal Rules of Criminal 

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Procedure or, in the alternative, Rule 14(a) of the Federal Rules of Criminal 

Procedure. He seeks to sever Counts 1 and 2 from Counts 3 through 6. In 

accordance with the following reasoning, Defendant’s motion to sever is granted 

and separate trials are ordered on Counts 1-2 and Counts 3-6.

II. RULE 8(a) JOINDER

Defendant first argues that the six charges were improperly joined under 

Rule 8(a) because the charged offenses do not share a factual nexus, do not arise 

out of a common series of acts, and there is no connection between the charges 

alleged. The Government counters that joinder is appropriate under 8(a) because 

the offenses involving child pornography are similar in character to the offenses 

regarding enticement of a minor.

Federal Rule of Civil Procedure 8(a) states, “The indictment or information 

may charge a defendant in separate counts with 2 or more offenses if the offenses 

charged . . . are of the same or similar character, or are based on the same act or 

transaction, or are connected with or constitute parts of a common scheme or 

plan.” Fed. R. Crim. P. 8(a). “Rule 8(a) is construed broadly in favor of initial 

joinder of offenses that are of the same or similar character. . . . Indeed, Rule 8(a) 

is not limited to crimes of the ‘same’ character but also covers those of ‘similar’

character, which means nearly corresponding; resembling in many respects; 

somewhat alike; having a general likeness.” See United States v. Hersh, 297 F.3d 

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1233, 1241 (11th Cir. 2002); United States v. Brown, No. 1:CR02-146-02, 2002 

WL 32739530, at *3 (M.D.Pa. Dec. 17, 2002) (“Joinder of charges is the rule 

rather than the exception, and Rule 8 is construed liberally in favor of initial 

joinder.”); United States v. Hudgins, Criminal Action No. 06-490-01, 2007 WL 

1695376, at *2 (E.D.Pa. June 12, 2007). Its purpose is to promote economy of 

judicial and prosecutorial resources. See United States v. Goreki, 813 F.2d 40, 42 

(3d Cir. 1987). Courts across the nation have consistently held that offenses 

involving child pornography and offenses involving sexual molestation of minors 

are of a similar character. See, e.g., U.S. v. Nestor, Criminal No. 07-369, 2008 WL 

191217, at *1 (W.D.Pa. Jan. 22, 2008); Hersh, 297 F.3d at 1242 (holding that the 

defendant’s acts of traveling to engage in sexual activity with a minor and 

possession of child pornography were similar because they reflected his repeated 

participation in the sexual exploitation of minors); United States v. Bentley, 475 

F.Supp.2d 852, 858-59 (N.D.Iowa 2007) (“[T]he child pornographer, like the child 

rapist, displays a sexual interest in children.”); United States v. Riccardi, 258 

F.Supp.2d 1212, 1230 (D.Kan. 2003) (finding that the offenses of possession of 

child pornography and attempt to induce a minor to engage in sex differed slightly 

but the underlying culpable conduct was the same: an intent to engage in sexual 

activity with a child); Child Pornography Prevention Act of 1996, Pub. L. No. 104-

208, § 121, 110 Stat. 3009, *3009-26-27 (1996) (demonstrating a finding by 

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Congress that there is a strong link between pedophilic behavior and child 

pornography).

Defendant attempts to differentiate these cases by arguing that the 

underlying facts of those cases demonstrated that the defendants used the child 

pornography in their attempts to entice the children. The Court disagrees. Rather, 

in holding that the offenses were of similar character, the courts in the aboveenumerated cases in no way relied upon the fact that the defendant had used the 

pornography to entice the children. See e.g., Hersh, 297 F.3d at 1242

(“Collectively, the counts charge Hersh with child molestation and child 

pornography – which plainly represent acts of similar character involving 

extraordinary mistreatment of children.”). The fact that the offenses do not share a 

factual nexus or arise out of a common series of acts goes only to a determination 

that of whether those offenses are based on the same transaction or are part of a 

common plan; those arguments do not negate the body of case law which has held 

that such offenses are of a similar character. Accordingly, the Court finds that the 

six Counts were properly joined under Rule 8(a).

III. RULE 14(a) SEVERANCE

Defendant next contends that, even if the Court finds the Counts to be 

properly joined under Federal Rule of Criminal Procedure 8(a), the Counts should 

be severed pursuant to Federal Rule of Criminal Procedure 14(a) because clear and 

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substantial prejudice would result from their joinder. He argues specifically that a 

jury would be unable to compartmentalize the evidence as it relates to the separate 

allegations and, further, that evidence pertaining to the child pornography counts 

(Counts 3 through 6) would be inadmissible under Federal Rule of Evidence 

404(a) to prove the enticement charges (Counts 1 and 2), and vice versa. The 

Government responds that the evidence pertaining to the offenses in the instant 

matter can easily be presented separately and in a manner that will not confuse a 

jury.

Rule 14(a) states, “If the joinder of offenses or defendants in an indictment, 

an information, or a consolidation for trial appears to prejudice a defendant or the 

government, the court may order separate trials of counts, sever the defendants’ 

trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). A 

court should sever charges “only if there is a serious risk that a joint trial would 

compromise a specific trial right of one of the defendants, or prevent the jury from 

making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 

U.S. 534, 539 (1993). Specifically, the defendant must demonstrate that “clear and 

substantial prejudice” will result if all the charges are tried jointly. See United 

States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005). Clear and substantial prejudice 

exists if the jury would be unable “to compartmentalize the evidence” as it relates 

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to each individual count. Id.; see also United States v. Avila, 610 F.Supp.2d 391, 

397 (M.D.Pa. 2009) (Conner, J.). 

In this case, the Defendant seeks to sever the counts relating to enticement 

and coercion of a minor and the counts relating to child pornography. In 

determining the validity of a motion to sever, courts may consider any relevant 

factor which would generate a showing of clear and substantial prejudice. 

Particularly informative in this case is the fact that pursuant to Federal Rule of 

Evidence 404(b), the evidence of the severed counts would not be admissible in a 

trial on the other counts, if the counts were not joined. The Court can think of no 

reason, and the Government has provided none, why the evidence relating to the 

child pornography charges would be admissible in a trial on enticement and 

coercion, other than to prove propensity, which is explicitly prohibited by Rule 

404(b). Fed. R. Evid. 404(b) (“Evidence of a crime, wrong, or other act is not 

admissible to prove a person’s character in order to show that on a particular 

occasion the person acted in accordance with the character.”). Introduction of this

evidence of child pornography in the trial for coercion and enticement would 

produce clear and substantial prejudice that the jury would rely upon the evidence 

for an improper purpose, that is, to determine guilt based on propensity.1

 

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In their brief in opposition to Defendant’s Motion to Sever, the Government has made the bald assertion that “[t]he 

evidence will show that Lee used the Boal Mansion and the docent program to recruit young boys to come to live 

with him (Count 1 – Coercion and Enticement and Count 2 Transportation) [and] filmed some of them in order to 

produce his pornography (Count 5 – Production of Pornography). . .” However, the Government provides no context 

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Moreover, a limiting instruction to the jury would be insufficient to 

overcome the prejudice caused by the introduction of what would otherwise be 

inadmissible evidence. See Zafiro, 506 U.S. at 539 (“When the risk of prejudice is 

high, a district court is more likely to determine that separate trials are necessary, 

but . . . less drastic measures, such as limiting instructions, often will suffice to 

cure any risk of prejudice.”). Even with limiting instructions, it would be 

psychologically impossible for a jury to disregard the evidence of child 

pornography in deciding Defendant’s guilt of coercion and enticement, or vice 

versa. See United States v. Noyes, No. 1:08-cr-55-SJM-1, 2010 WL 5058346, at *2 

(W.D.Pa. Dec. 6, 2010) (holding that in determining whether to sever counts, a 

court can consider whether the jury would be able to segregate the evidence as to 

each count). Consequently, Defendant’s motion to sever is granted pursuant to 

Rule 14(a).

IV. CONCLUSION

In accordance with the foregoing reasoning, Defendant’s motion to sever 

counts of the superseding indictment is granted. Counts One and Two are hereby 

severed from Counts Three through Six and separate trials are ordered.

 

for nor elaboration on this allegation and, as far as the Court is aware, the Superseding Indictment only charges the 

Defendant with the coercion and enticement of one victim – 17 year old John Doe # 1. Nevertheless, despite the 

evidentiary determination that the Court makes today, to the extent the Government seeks to prove coercion and 

enticement of multiple victims under Counts 1 and 2, and their relationship to Count 5, the Court will be willing to 

reconsider its ruling under Rule 404(b) at a later date.

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BY THE COURT: 

s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge 

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