An Oconto Falls doctor convicted in federal court on a combined five counts of producing and transporting child pornography is seeking a new trial alleging he was found guilty on inadmissible evidence.
Jurors convicted Dr. Isaias R. Cupino Jr., 62, on five charges in April and acquitted on three other charges. In the government’s theory of the case, the five counts of conviction depended on images and videos showing mouth-to-mouth contact between Cupino and the alleged child victim, and Cupino’s and a child’s interaction with an adult sex doll.
In its motion for a new trial, Cupino’s attorney, Alf Langan, called the government’s offered proof “other acts evidence” not directly related to the counts of conviction and objected before and during the trial to it be admitted.
U.S. District Judge William Griesbach allowed in that evidence but wrongly gave jurors a limiting instruction that didn’t tie the evidence to specific counts and without “the rigorous gatekeeping analysis,” established by a
2014 appeals court decision, Langan wrote.
In denying Langan’s objection, Griesbach ruled the images relevant to “Dr. Cupino’s intent in producing the images and videos that are alleged to constitute child pornography.” The evidence involving the doll could infer that Cupino was trying to teach the child some sexual activity.
After determining that the “other acts evidence” was relevant, Griesbach concluded that without that evidence the government’s case would be “substantially weakened.”
The judge recognized that the evidence “created a real danger of unfair prejudice or jury confusion,” Langan wrote in the 16-page motion.
However, that prejudice or confusion could be eliminated if the jury is carefully instructed on the proper use of this evidence and the elements of the offense.
Jurors requested during deliberations to view those videos to see if they were associated with the same count. They acquitted Cupino on one count but convicted him on two other counts suggesting some juror confusion. The convictions were on counts which the government relied heavily on the other acts evidence, Langan wrote.
Allowing in the videos violated the U.S. Seventh Circuit of Appeals framework for admitting “other acts evidence,” Langan wrote. Doing so warrants a new trial for Cupino for the evidentiary errors that prohibited him from receiving a fair trial, Langan wrote.
In the government’s brief in opposition to a new trial, Assistant U.S. Attorney Timothy Funnell wrote that Langan is repeating the same challenges to the evidence that Griesbach rejected before and during the trial.
While the “other acts evidence” was admitted in a limited extent, the attorneys made their arguments to the jurors as to the weight it should be given. Griesbach instructed the jury on how to evaluate it including disregarding it totally. Langan agreed to the instruction, Funnell wrote in his 17-page brief.
Judges are given great authority to grant a new trial in the interest of justice; however, the grounds on which Langan bases his request are reserved for the most extreme cases, Funnell wrote. This case involved no error and nothing close to the type of injustice that would require a new trial, he wrote.
Cupino faces a lengthy sentence at his June 30 hearing. Griesbach can act on the new trial request before then.
