Opinion
21-cr-331 (VSB)
04-28-2023
UNITED STATES OF AMERICA, v. MICHAEL PASCHAL, Defendant.
OPINION & ORDER
VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE:
Before me are the motion to suppress seized electronic device evidence filed by Defendant Michael Paschal (“Paschal” or “Defendant”), (Doc. 70), and the Government's motion to permit a deposition under Federal Rule of Criminal Procedure Rule 15 (“Rule 15”), (Doc. 52). Also before me are the parties' motions in limine. In Defendant's motions limine, he seeks: (i) to preclude evidence of Defendant's alleged involvement with other commercial sex workers; and (ii) to preclude use of a statement that Defendant allegedly made during a search of his home. (Doc. 72.) The Government's motion seeks: (i) to preclude evidence or cross-examination concerning the sexual history of the alleged minor victim (“C.P.”); (ii) to preclude evidence or argument that C.P. consented to the trafficking or that Defendant intended to help C.P. by trafficking her; (iii) to admit statements by Tanesia Stokes (“Stokes”) and Jermaine Johnson (“Johnson”) as co-conspirators; (iv) to permit C.P. to testify under her first name or a pseudonym; (v) to admit evidence of C.P.'s prior consistent statements if her credibility is attacked; and (vi) to preclude evidence or argument concerning the potential consequences that Defendant would face if convicted. (Doc. 69.)
For the reasons explained below: Defendant's motion to suppress electronic device evidence is denied; the Government's motion for a Rule 15 deposition is granted; Defendant's motions in limine to preclude evidence of Defendant's alleged involvement with other commercial sex workers and to preclude statements that Defendant allegedly made during a search of his home are denied; the Government's motion in limine to preclude evidence or crossexamination concerning C.P.'s sexual history is granted in part and denied in part; the Government's motions in limine to preclude evidence or argument that C.P. consented or Defendant intended to help C.P. and to admit statements of Stokes and Johnson as co-conspirator statements are denied without prejudice; and the Government's motions in limine to allow C.P. to testify under a pseudonym, admit prior consistent statements if C.P.'s credibility is attacked, and preclude evidence or argument concerning the potential consequences of a conviction are granted.
For the purposes of this Opinion & Order, I incorporate by reference the background of this case described in my oral ruling at the final pretrial conference on April 26, 2023, denying Defendant's motion to suppress the Statement. Accordingly, I only include the information relevant to resolve the pending motions.
On February 21, 2023, Defendant filed a motion to suppress a statement (the “Statement”) that he allegedly made during the execution of a search warrant (the “First Warrant”) at his home (the “Search”) on December 14, 2020. (Docs. 46, 47.) In support of the motion to suppress the Statement, Paschal attached his sworn declaration. (Doc. 48.) On February 21, 2023, the Government requested a suppression hearing to take testimony from Special Agent Kevin Kuntz (“Agent Kuntz”), because he was going to take a leave of absence and would be unavailable during trial. (Doc. 49.) I granted this request and scheduled the hearing to take place on February 27, 2023. (Doc. 50.) On February 24, 2023, the Government requested that I allow a deposition of Agent Kuntz under Federal Rule of Criminal Procedure 15. (Doc. 52.) In the interest of efficiency, the parties agreed to treat the already scheduled suppression hearing as the Rule 15 deposition, subject to the Rule 15 requirements being met, and Defendant declined to depose Agent Kuntz separately. This request was made “without prejudice to a motion for reconsideration by the defendant.” (Id.) On February 27, 2023, I held that hearing. (the “February 27 Hearing”) During the hearing, I ruled that, “subject to . . . the defense's objection at a future date,” “the requirements of Rule 15” were met, and Agent Kuntz was questioned by both parties. (See 2-27 Tr. at 6-7.)
“2-27 Tr.” refers to the transcript of the February 27, 2023 hearing.
On March 6, 2023, the Government submitted an opposition to the motion to suppress the Statement. (Doc. 53.) On March 16, 2023, I granted Defendant's request to call two additional witnesses, Detective Scott Cote and Forensic Analyst Kevin Tillman, both of whom were present during the Search. (Doc. 58.) I held a hearing at which those witnesses testified on March 20, 2023. (Doc. 65.) On March 24, 2023, Defendant submitted a reply memorandum. (Doc. 64.) On March 29, 2023, the Government submitted a supplemental opposition. (Doc. 67.) On March 31, 2023, the motion to suppress the Statement became fully briefed when Defendant submitted their reply to the Government's supplemental opposition. (Doc. 68.)
On April 10, 2023 Defendant filed an opposition to the Government's motion to permit a Rule 15 deposition of Agent Kuntz-as was permitted. (Doc. 71.) That same day, the parties submitted their motions in limine, (Docs. 69 and 72), and Defendant submitted a motion to suppress electronic device evidence, (Doc. 70). On April 20, 2023, the Government filed an omnibus opposition in response to Defendant's motions in limine, opposition to the Government's Rule 15 motion, and motion to suppress electronic device evidence. (Doc. 75.) Also on that day, Defendant filed an opposition to the Government's motions in limine and moved to admit three specific categories of evidence under Rule 412 of the Federal Rules of Criminal Procedure. (Doc. 76.) On April 23, 2023, the Government submitted a letter addressing certain points raised in Defendant's opposition. (Doc. 80.) On April 25, 2023, Defendant filed a letter replying to the Government's April 23 letter. (Doc. 82.) On April 26, 2023, I held a final pretrial conference, during which I denied Defendant's motion to suppress the Statement.
II. Motion for Rule 15 Deposition
A. Applicable Law
Under Fed. R. Crim. P. 15, “[a] party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice.” Fed. R. Crim. P. 15(a)(1). In order to demonstrate “exceptional circumstances,” a moving party must show that “(1) the prospective witness is unavailable for trial, (2) the witness' testimony is material, and (3) the testimony is necessary to prevent a failure of justice.” United States v. Cohen, 260 F.3d 68, 78 (2d Cir. 2001).
Defendant does not dispute the materiality of Agent Kuntz's testimony, (see Doc. 71), accordingly I only discuss the first and third factor in this Opinion & Order.
The first element, “unavailability,” “is to be determined according to the practical standard of whether under the circumstances the government has made a good-faith effort to produce the person to testify at trial.” United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984). “Moreover, the lengths to which the prosecution must go to produce a witness before it may offer evidence of an extra-judicial declaration is a question of reasonableness.” Id. (cleaned up). The second element, “materiality,” is met when the testimony is “highly relevant to a central issue in the case.” United States v. Alexandre, No. 22 CR. 326 (JPC), 2022 WL 9843495, at *2 (S.D.N.Y. Oct. 17, 2022) (internal quotation marks omitted). “When the first two prongs of the exceptional-circumstances test are met, the third prong, necessity to prevent a failure of justice, is likely satisfied if there are no substantial countervailing factors militating against the taking of the deposition.” United States v. Fargesen, No. 21 CR 602 (LAP), 2022 WL 4110303, at *2 (S.D.N.Y. Sept. 8, 2022) (cleaned up). “The nonmovant bears the burden of identifying countervailing factors.” Alexandre, 2022 WL 9843495, at *3.
B. Discussion
The Government was not aware of Agent Kuntz's plans to travel until late February and then promptly sought to determine whether Agent Kuntz's testimony was necessary. (Doc. 75 at 25.) One day after Defendant filed his motion to suppress the statement, and less than four days after being notified of Agent Kuntz's unavailability, the Government notified Defendant. (Id.) After Agent Kuntz was questioned by both parties at the suppression hearing, the Government offered to allow Defendant to question Agent Kuntz a second time which Defendant rejected. (Id.) Admittedly, the second questioning would have been shortly after the first, as Agent Kuntz left the country on March 2, 2023. (See Doc. 53-1 at 3.)
Defendant argues that Agent Kuntz is not legally unavailable for trial because his leave was voluntary. (Doc. 71 at 3.) I disagree. Contrary to Defendant's assertion, unavailability does not mean that it would be “impossible” for the witness to testify. (See Doc. 71 at 5.) Nor does it mean that the Government must take extraordinary actions to secure a witness's in-person testimony. As explained above, unavailability is determined by a practical standard, and is grounded in reasonableness. See Johnpoll, 739 F.2d at 709. While Agent Kuntz's unpaid leave of absence from his employment at Homeland Security Investigations (“HIS”) was voluntary, that does not automatically make him available. Defendant's focus on the fact that leave was voluntary is misplaced under the circumstances. Rather, it is important to understand the unique nature of Agent Kuntz's travel, including the timing and the activity for which he was volunteering.
This is not a case where a witness claims to be unavailable because of a vacation or busy work schedule. See, e.g., United States v. Kassar, 572 F.Supp.2d 375, 377 (S.D.N.Y. 2008) (finding witnesses to be available where justification was based on “theoretical future work commitments” or “a busy legal practice.”). Agent Kuntz is providing medical services through a Nongovernmental Organization (“NGO”) in an active warzone in Ukraine. (See 2-27 Tr. at 58.) Such circumstances are more akin to cases involving deployed military servicemembers. See, e.g., United States v. Cannon, 539 F.3d 601, 603 (7th Cir. 2008) (affirming use of Rule 15 deposition testimony for DEA Agent deployed to Iraq before trial); Ewalan v. Holbrook, No. C20-01497-JLR-SKV, 2022 WL 1477557, at *16 (W.D. Wash. Mar. 28, 2022), report and recommendation adopted, No. C20-1497JLR-SKV, 2022 WL 1469503 (W.D. Wash. May 10, 2022) (finding evidence indicates that witness on active duty with the Navy was unavailable for Confrontation Clause purposes); Russell v. Sec'y, Dep't of Corr., No. 8:16-CV-493-WFJ-AAS, 2021 WL 289053, at *4 (M.D. Fla. Jan. 28, 2021) (finding witness unavailable to testify where they were overseas on active duty military service); United States v. DeGideo, No. CRIM.04-100, 2004 WL 1535783, at *1 (E.D. Pa. June 18, 2004) (allowing Rule 15 deposition of FBI Agent who would be assigned to Iraq at time of trial.)
Travelling to and from Ukraine at this time for any purpose would prove logistically difficult. Such travel is further complicated by the fact that Agent Kuntz must coordinate with the NGO and make his way to locations within Ukraine that are close to or in the battlefield. (See 2-27 Tr. at 56 (“It takes typically between two and four days to travel into the country. And, that is barring any sort of disruption to the rail system via aerial bombardment or long range missiles.”); id. at 58 (“I would say from the United States it takes about that time. It takes about a day to fly from here to Poland, and then from Poland to Kyiv it takes -- about a 23-hour train ride. So it takes about a day and a half. Then following that train ride train ride to Kyiv, depending on where else you are, it can take one to days from there.”).) In other words, the planning for travel to and from Ukraine's war zones is logistically complicated and dangerous such that it would not be practical or reasonable for Agent Kuntz to either have rescheduled (assuming this would have been possible) his service in Ukraine or to return to the United States for trial. The danger that would be associated with Agent Kuntz's travel makes these circumstances comparable to situations where an ill or immunocompromised witness has a heightened risk of experiencing serious harm or death by attending trial. See United States v. Avenatti, No. 19-CR-374 (JMF), 2022 WL 103494, at *1 (S.D.N.Y. Jan. 11, 2022) (finding material witness unavailable where they were at increased risk of serious illness or death if they testified); United States v. Ahmed, No. 14-CR-277 (DLI), 2016 WL 3653961, at *2 (E.D.N.Y. July 1, 2016) (finding witness to be unavailable where medical condition meant “it would be dangerous” for him to travel).
This is bolstered by the fact the Department of State has issued a “Level 4: Do Not Travel” advisory for Ukraine and the Federal Aviation Administration has prohibited flights into, out of, and over Ukraine. (https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/ukraine-travel-advisory.html)
Defendant also argues that the Government has not shown that Agent Kuntz's testimony is “necessary to prevent a failure of justice.” (Doc. 71 at 5-6.) “When the first two prongs of the exceptional-circumstances test are met, the third prong, necessity to prevent a failure of justice, is likely satisfied if there are no substantial countervailing factors militating against the taking of the deposition.” Fargesen, 2022 WL 4110303, at *2. This is not surprising since the combination of a witness unavailability and the materiality of that witness's testimony- evidence that is probative to a jury's determination of guilt or innocence-suggests the importance of such testimony to a jury's mission as fact finders.
Defendant raises his rights under the Confrontation Clause as a possible countervailing factor, but I do not find that the Rule 15 deposition violates these rights. “The Confrontation Clause does not preclude admission of prior testimony of an unavailable witness . . . provided his unavailability is shown and the defendant had an opportunity to cross-examine.” Johnpoll, 739 F.2d at 710. Defendant was physically present at the February 27Hearing, represented by the same counsel, had advance knowledge that the Government sought to use Agent Kuntz's testimony under Rule 15, and was offered latitude to cross-examine Agent Kuntz. (See generally 2-27 Tr.) Defendant raises the issue that there is important context surrounding Agent Kuntz's testimony, including whether others during the Search heard the Statement or what exact words were allegedly used. (Doc. 71 at 7.) However, these topics were all explored on cross-examination of Agent Kuntz during the February 27 Hearing. (See 2-27 Tr.) With regard to whether others heard the Statement, Defendant examined Detective Cote and Forensic Analyst Tillman concerning whether they had heard the Statement, among other things, during the suppression hearing on March 20, 2023, and had the power to ask for the testimony of other law enforcement officers who were part of the Search. If Defendant was concerned that the transcript would be insufficient, they could have accepted the Government's offer to question Agent Kuntz again before he left the country, and presumably could have requested that the testimony be recorded. Instead, Defendant declined to question Agent Kuntz a second time. (Doc. 75 at 30.) Accordingly, I do not find that there are “substantial countervailing factors” that mitigate against the deposition. I find that the Government has established “exceptional circumstances” surrounding Agent Kuntz's ability to testify and maintain my decision that allowing a Rule 15 deposition is in the interest of justice.
With regard to lay witnesses, Defendant could have subpoenaed them to testify or interviewed them as part of the preparation of his defense.
Neither party raised with me the possibility of recording Agent Kuntz's suppression testimony, and, despite the preference for in-person testimony, Rule 15 does not require testimony to be videotaped or audiotaped.
C. Motion to Suppress Electronic Device Evidence
Defendant seeks to suppress “the use of the fruits of the search on the home of Mr. Paschal on December 14, 2020.” (Doc. 70 at 1.) Defendant seeks suppression on the grounds that the Government failed to timely review and disclose evidence seized from the electronic devices. (Id.) In opposition the Government argues that (1) Defendant lacks standing to raise his Fourth Amendment claims; (2) the search complied with the Fourth Amendment and discovery obligations; and (3) the good faith exception applies even if there was error. (Doc. 75 at 10.)
On December 14, 2020, law enforcement officers executed a search of Defendant's home, pursuant to the First Warrant. (Id. at 2.) The First Warrant, issued on December 11, 2020, authorized agents to seize or copy electronic devices and “review the ESI contained therein for evidence, fruits, and instrumentalities” of sex trafficking of a minor; seized items could include “[c]ellphones, computers, digital cameras, storage media, and other electronic devices.” (Doc. 70-2 at 6.) During the Search, officers seized nineteen electronic devices. (Id.) On June 17, 2021, the Government produced responsive material from only two of the seized devices. (Id. at 3.) The discovery letter accompanying the production stated: “If you wish to inspect any of the evidence listed on the search warrant report, please let me know and I will make arrangements for you to do so.” (Doc. 75 at 5.) On March 21, 2023, Defendant sent a letter to the Government requesting confirmation that all electronic data from seized devices had been produced. (Doc. 70 at 3.) After receiving this letter, the Government asked Defendant to identify any seized devices belonging to Defendant (other than his phone) and asked law enforcement officers to create a report summarizing the extraction status of devices. (Doc. 75 at 6-7.) Defendant did not respond to this request. (Id.)
I note that Defendant did not present the Government with evidence that the owners of the other electronic devices would consent to the release of the contents of their phones.
On April 3, 2023, the Government produced an HSI Report of Investigation dated March 31, 2023, which stated that material had been extracted from eleven of the nineteen devices. (Doc. 70 at 3.) This was the first time Defendant became aware that material was collected from more than just two devices and none of the additional material had been produced to the defense. (Id.at 3-4.) One of these devices was a phone that belonged to Stokes (the “Stokes Phone”). (Id. at 4.) On April 4, 2023, the Government sought and was granted a new search warrant for the Stokes Phone. (Id.) That same day, the Government began and completed a review of the Stokes Phone for responsive material and produced that material to Defendant. (Doc. 75 at 7.) On April 5, Defendant sought additional information from the Government related to the review of the electronic devices. (Id.) On April 6, the Government provided additional information and noted that Defendant had not identified devices that belonged to him other than his phone. (Id.)
1. Applicable Law
According to the Fourth Amendment, “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “A defendant seeking to suppress the fruits of a search by reason of a violation of the Fourth Amendment must show that he had a ‘legitimate expectation of privacy' in the place searched.” United States v. Hamilton, 538 F.3d 162, 167 (2d Cir. 2008) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)); see also United States v. Villegas, 899 F.2d 1324, 1333 (2d Cir. 1990) (“A defendant has no right to have evidence suppressed on Fourth Amendment grounds unless the breached privacy expectation was his own rather than that of a third party.”). “This inquiry involves two distinct questions: first, whether the individual had a subjective expectation of privacy; and second, whether that expectation of privacy is one that society accepts as reasonable.” Hamilton, 538 F.3d at 167 (citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).
It is axiomatic that “the proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas, 439 U.S. at 130 n.1. Accordingly, a defendant asking a court to suppress evidence must demonstrate a legitimate expectation of privacy in the area that was searched. See, e.g., id.; Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); see also United States v. Dore, 586 Fed.Appx. 42, 46 (2d Cir. 2014) (“As [the defendant] conceded below, he did not submit an affidavit establishing that the cell phones in question belonged to him or that he had a subjective expectation of privacy in them. Nor did [the defendant] assert a privacy interest in the cell phones in some other manner. Consequently, [the defendant] does not have standing to assert Fourth Amendment rights in those phone records.”).
Although Defendant is correct that the Fourth Amendment requires the Government to complete its review within a reasonable amount of time, that is not to say that the Government must affirmatively “seek out information like a private investigator and valet gathering evidence and delivering it to opposing counsel.” United States v. Avenatti, 559 F.Supp.3d 274, 280 (S.D.N.Y. 2021) (cleaned up). “The Government's discovery and disclosure obligations extend only to the information and documents in the government's possession.” United States v. Brennerman, 818 Fed.Appx. 25, 29 (2d Cir. 2020). The Government is not subject to any requirement to review all data that could have been collected from every electronic device seized. “The Government's review need only be reasonable, not perfect, and law enforcement is given significant latitude in determining how to execute a warrant.” United States v. Lumiere, No. 16 CR. 483, 2016 WL 7188149, at *6 n.9 (S.D.N.Y. Nov. 29, 2016). Defendant does not deny that the other electronic devices belonged to others. Each of those individuals has a privacy interest in their devices such that the Government would be required to get a search warrant to search them-as the Government did with the Stokes Phone-I find that here, where the Government collected devices within the confines of the warrant, identified Defendant's phone, seized data pursuant to the warrant, and declined to devote resources to reviewing all other devices, the steps taken were reasonable.
As Defendant correctly identifies, blanket suppression is the proper remedy when the Government flagrantly disregards the terms of a warrant. (Doc. 70 at 7.) “Government agents ‘flagrantly disregard' the terms of a warrant so that wholesale suppression is required only when (1) they effect a ‘widespread seizure of items that were not within the scope of the warrant, and (2) do not act in good faith.” United States v. Shi Yan Liu, 239 F.3d 138, 1402d Cir. 2000). (cleaned up). I do not find that Defendant has shown any evidence of “widespread seizure of items that were not within the scope of the warrant” or a lack of good faith that would amount to the sort of “flagrant disregard” that would be required to wholesale suppress the data obtained from the Search. See id.; see also Davis v. United States, 564 U.S. 229, 237 (2011) (observing that suppression exacts a “heavy toll” because it “requires courts to ignore reliable, trustworthy evidence,” and should only be taken as “a ‘last resort'” (quoting Hudson v. Michigan, 547 U.S. 586 (2006))).
I also note that Defendant does not have standing to challenge searches of electronic devices that are not his devices. A “defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party.” United States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002) (quoting United States v. Payner, 447 U.S. 727, 731 (1980)); see also United States v. Sterling, No. 22-CR-247(EK), 2023 WL 184447, at *1 (E.D.N.Y. Jan. 13, 2023) (finding defendant lacked standing to challenge the search warrant with respect to a device which belonged to another person that was seized from the car that defendant was driving); United States v. Lucas, 382 F.Supp.3d 280, 284 (W.D.N.Y. 2019) (finding defendant did not have a privacy interest in a third-party's phone even though it was seized from defendant's hotel room). Defendant cites to Alderman v. United States for the proposition that a homeowner-defendant may object to the use of property belonging to third-parties; however, the court did not say that the defendant's privacy right extended to the third-parties. Rather, the items were suppressed because they “were the fruits of an unauthorized search of his house.” 394 U.S. 165, 177 (1969). In other words, they were suppressed because the defendant's privacy interest in his home was violated. Here, the search of Paschal's home was done pursuant to a warrant and Defendant expressly “is not asking the Court to strike down the warrant as invalid-e.g., that the probable cause finding was deficient or that the warrant was overbroad.” (Doc. 82 at 3.) Accordingly, Defendant's motion to suppress all electronic data evidence is DENIED.
D. Defendant's Motions in Limine
1. Evidence Related to Other Commercial Sex Workers
Defendant argues that evidence related to other commercial sex workers should be excluded because it is irrelevant and impermissible character evidence. (Doc. 72 at 3, 5.) The Government opposes and seeks to offer such evidence as direct evidence of the charged conduct or, in the alternative, under Federal Rule of Evidence 404(b). (Doc. 75 at 32-44.)
Evidence of uncharged criminal conduct is not impermissible character evidence if the conduct “arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial.” United States v. Carboni, 204 F.3d 39, 44 (2d Cir.2000) (quotation marks omitted); see also United States v. Quinones, 511 F.3d 289, 309 (2d Cir.2007). In United States v. Kelsey, the Second Circuit held that the defendant's “involvement in adult prostitution” was “directly relevant to the operation of the charged conspiracy [to sex traffic a minor] and his participation in [trafficking a minor].” 807 Fed.Appx. 61, 65-66 (2d Cir. 2020).
I find that evidence related to Defendant and other sex workers is “inextricably intertwined” with the charged conduct and is necessary to complete the story for the jury. Unlike in United States v. Graham, where the evidence of other sex workers pre-dated the victim's experience with the defendant, here, it would be extremely difficult for C.P. to describe her experience when she allegedly communicated with, lived with, and had experiences similar to other women involved in sex work for Defendant. No. 14-CR-500 NSR, 2015 WL 6161292, at *2 (S.D.N.Y. Oct. 20, 2015). Further, the evidence may also be offered to prove intent. “Where intent to commit the crime charged is clearly at issue, evidence of prior similar acts may be introduced to prove that intent.” United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987). As in Graham, “testimony regarding the Defendant's prior dealings with prostitutes is admissible under Rule 404(b)(2) of the Federal Rules of Evidence as evidence of intent or modus operandi.” 2015 WL 6161292, at *2. Accordingly, Defendant's motion in limine to exclude evidence related to other commercial sex workers is DENIED.
2. The Alleged Statement
At the final pretrial conference, I denied Defendant's motion to suppress the Statement. Now, Defendant seeks to exclude the Statement allegedly made during the execution of a search warrant in his home under Fed.R.Evid. 403. (Doc. 72 at 9.) The Government argues that the Statement is admissible because it more probative than prejudicial. (Doc. 75 at 46.) I agree. Agent Kuntz testified, subject to cross examination, about his recollection of the Statement. (See Doc. 53-1, “2-27 Tr.”) The statement was also recorded in a report regarding the execution of the search warrant. (Doc. 53-2.) Although the Statement is prejudicial, as is all inculpatory evidence, it is highly relevant and not “unduly prejudicial” such that exclusion is warranted under Rule 403.
E. The Government's Motions in Limine
1. C.P.'s Sexual History
The Government seeks to exclude any evidence related to C.P.'s sexual history that is separate from the offense conduct under Federal Rules of Evidence 412, 401, and 403. (Doc. 69 at 3.) Federal Rule of Evidence 412 precludes introduction of “evidence offered to prove that a victim engaged in other sexual behavior” or “to prove a victim's sexual predisposition” unless it is offered to prove a source of physical evidence, consent, or if it's exclusion “would violate the defendant's constitutional rights.” Fed.R.Evid. 412. Defendant argues that this restriction is overly broad and seeks to admit certain testimony that is “inextricably intertwined with the charged conduct, and is necessary to protect Mr. Paschal's constitutional rights.” (Doc. 76 at 4.) Defendant seeks to offer evidence that C.P.: (1) engaged in sex work prior to meeting Defendant, (2) was sexually active prior to meeting Defendant, and (3) was dating and living with one or more men in New York. (Doc. 76 at 5.) I find that evidence related to C.P.'s sexual activity prior to or after the offense conduct, and descriptions thereof, falls squarely within the realm of evidence barred by Rule 412. United States v. Rivera, No. 13-CR-149 KAM, 2015 WL 1886967, at *5 (E.D.N.Y. Apr. 24, 2015). However, because evidence that C.P. lived with others while in New York is not, in itself, “other sexual behavior.” I decline to preclude such evidence under Rule 412.
Defendant analogizes this case to United States v. Ray, where evidence of a sexual encounter was admissible because it was “‘inextricably intertwined' with the sexual behavior charged.” 2022 WL 729861, at *1 (S.D.N.Y. Mar. 10, 2022). In that case, the sexual encounter described was among the conduct for which the defendant was being charged. The analog to such conduct in this case would be evidence of sex work performed by C.P. at the direction of Defendant and not, as Defendant seeks to admit, evidence related to sexual acts performed independently of the apparent sex trafficking. Defendant also cites to United States v. Graham, where the district court explicitly rejected the argument that excluding evidence of “the victims' sexual predisposition of history of prostitution” would violate the defendants' constitutional rights, stating that the position “finds no support in relevant case law.” No. 12-CR-311, 2015 WL 1120255, at *6 (W.D.N.Y. Mar. 12, 2015), aff'd, 707 Fed.Appx. 23 (2d Cir. 2017). Another case cited by Defendant, United States v. Frey, allowed evidence that the victims were sex workers because the defendant met (and attempted to kidnap) them while trying to interact with them in their capacity as sex workers. No. 219CR537DRHSIL, 2022 WL 2359665, at *5 (E.D.N.Y. June 30, 2022). These circumstances differ from the present case, where there is no evidence to suggest that when Defendant and Stokes met C.P. and her friend they were seeking to receive sexual services for money. (See Doc. 76 at 1.) Notably, the court in Frey did not allow evidence of the victims' “conduct with others before and after [defendant's] allegedly criminal actions.” Frey, 2022 WL 2359665 at *5. Accordingly, the Government's motion to preclude evidence concerning C.P.'s sexual history is GRANTED as to C.P.'s prior and subsequent sexual activity but DENIED to the extent it seeks to preclude evidence unrelated to sexual conduct, such as the fact that C.P. lived with others for periods of time while in New York.
2. Consent to Trafficking or Desire to Help C.P.
The Government seeks to preclude Defendant from arguing that C.P. consented to trafficking or that he intended to help C.P. by trafficking her. (Doc. 69 at 8.) Defendant opposes this motion, arguing that evidence related to C.P.'s consent is relevant to the defense of Count 4. (Doc. 76 at 12-13.) As Defendant recognizes, “sex work is a crime even when all parties consent to the exchange.” (Id. at 12.) In response, Defendant states that he “has no intention of offering a defense based on consent or Mr. Paschal's intention to ‘help' C.P. when that is not a valid legal defense, and will not of course argue to the jury that Mr. Paschal should be acquitted on that basis.” (Doc. 76 at 13.) However, with regard to Count Four, Defendant asserts that “the government's own evidence of the offense conduct clearly indicates C.P. was not coerced into sex work by Mr. Paschal, was not made to see clients she did not want to see or do things she did not want to do, and was not held against her will.” (Id.) The Government does not offer any specific evidence that they seek to preclude, and I accept Defendant's assertion that counsel will not offer defenses based on consent or other invalid legal arguments. Accordingly, the Government's motion is DENIED without prejudice to raising objections during trial should questions call for impermissible testimony or impermissible arguments be made.
This ruling should be read in the context of my prior ruling on C.P.'s sexual history.
3. Statements of Stokes and Johnson
The Governments seeks to admit certain statements made by Stokes and Johnson as admissible “co-conspirator statements.” (Doc. 69 at 11-12.) Defendant opposes the admission of this testimony on the ground that such evidence is hearsay. (Doc. 76 at 14.) A statement that is “offered against an opposing party and was made by the party's co-conspirator during and in furtherance of the conspiracy” is not hearsay. Federal Rule of Evidence 801(d)(2)(E); United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999) (same). In order to admit a statement that would otherwise be hearsay under this rule, a district court must find “by a preponderance of the evidence (a) that there was a conspiracy, (b) that its members included the declarant and the party against whom the statement is offered, and (c) that the statement was made during the course of and in furtherance of the conspiracy.” United States v. Farhane, 634 F.3d 127, 161 (2d Cir. 2011) (quotation marks omitted).
The party offering the statement must show that there is “a common agreement to achieve a particular objective in furtherance of which the out-of-court statement is made,” but “the objective of the joint venture need not be any particular crime charged in the indictment.” United States v. Coppola, 671 F.3d 220, 246 (2d Cir. 2012) (quotation marks omitted). Although the party offering the statements must show that “the declarants were members of the conspiracy,” they need not prove the declarants' particular “roles in the conspiracy[y].” United States v. Olivo, 664 Fed.Appx. 77, 80 (2d Cir. 2016). There is also “no requirement that the person to whom the statement is made also be a member.” United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1199 (2d Cir. 1989).
Count One of Defendant's indictment is “conspiracy to commit sex trafficking.” (Doc. 5.) The Government asserts that Stokes and Johnson assisted Defendant in trafficking C.P. and conspired with Defendant to traffic C.P. (Doc. 69 at 13.) In support of this argument, the Government offered a sample of text messages between Defendant, Stokes, and Johnson. (Id. at 13-16.) The Government subsequently explained that it “has produced draft exhibits to the defense reflecting the coconspirator statements of Stokes it presently seeks to admit” and that the Government does not presently seek to admit coconspirator statements of Johnson. (Doc. 80 at 3.) While the statements may be admissible for reasons other than their truth, i.e., as proof of knowledge, plan, or motive, I find that the admissibility of statements as co-conspirator statements would be appropriate only after a foundation is made during trial. See United States v. Patel, No. 3:21-CR-220 (VAB), 2023 WL 2643815, at *45 (D. Conn. Mar. 27, 2023) (deferring ruling until trial “particularly because the Government must first establish the existence of a conspiracy and that specific statements were made in furtherance of that conspiracy to utilize the co-conspirator exception.”); United States v. Ilori, No. 21-CR-00746 (MKV), 2022 WL 2452258, at *3 (S.D.N.Y. July 5, 2022) (“Defendant is free to object that any particular statement does not meet the [coconspirator hearsay exception] tests described above, and the Court cannot rule until it has the information necessary to do so.”); In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 643 F.Supp.2d 471, 476 (S.D.N.Y. 2009) (“Indeed, courts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context.” (internal quotation marks omitted)). This will allow the relevant specific statements to be considered alongside possible corroborating evidence. Accordingly, this motion is DENIED without prejudice to renewal.
4. C.P.'s Use of First Name or Pseudonym
The Government requests that C.P. be permitted to testify using only her first name or a pseudonym. (Doc. 69 at 17.) Defendant requests that C.P. testify using a pseudonym with a first and last name. (Doc. 76 at 22-23.) The Government did not object to Defendant's request to use a pseudonym last name, subject to the parties' agreement to execute a sealed stipulation. (Doc. 80.) Based on the parties' representations at the final pretrial conference on April 26, 2023, the matter appears to be resolved. This motion is hereby GRANTED.
Relatedly, the parties have a remaining dispute regarding whether the jury will be informed that C.P. is using a pseudonym. I find it most reasonable to inform the jury that C.P. will be using a pseudonym. This procedure is consistent with other sex- trafficking cases in this district. See e.g. United States v. Maxwell, No. 20-CR-330 (AJN), 2021 WL 5999410, at *21 (S.D.N.Y. Dec. 19, 2021). I have not found a case where the jurors were not informed that a witness was using a pseudonym, absent an agreement between the parties to do so. See e.g. United States v. Kandic, No. 17CR449NGGRER, 2022 WL 1266431, at *6 (E.D.N.Y. Apr. 28, 2022) (“[Defendant] consents to using pseudonyms so long as the jury is not made aware of their use, a caveat to which the government agrees.”). The parties are ordered to meet and confer and propose language for any limiting instruction that may be necessary to minimize any risk of prejudice to Defendant.
5. Prior Consistent Statements
The Government requests that they be permitted to introduce prior consistent statements made by C.P. if Defendant challenges her credibility at trial. (Doc. 69 at 19-20.) Defendant agreed “with the government's plain statement of the law that a testifying witness' prior statement is admissible when his or her credibility is attacked” but maintains that “the Government should not use this avenue as a vehicle for improper bolstering.” (Doc. 76 at 24.) Consistent with the parties' representation at the pretrial conference, this motion is hereby GRANTED, subject to the caveat that Defendant may still object to such evidence if it is improper.
6. Potential Consequences of Conviction
The Government requests that “evidence or argument concerning the potential consequences Defendant would face if convicted should be precluded.” (Doc. 69 at 23.) Defendant “agrees that neither party may offer evidence with respect to the potential sentence he may receive if convicted.” (Doc. 76 at 25.) In light of the parties' agreement, this motion is hereby GRANTED.
III. Conclusion
For the foregoing reasons, it is hereby:
ORDERED that Defendant's motion to suppress electronic device evidence is DENIED.
IT IS FURTHER ORDERED that the Government's motion to permit a Rule 15 deposition is GRANTED.
IT IS FURTHER ORDERED that the Government's motion in limine to preclude evidence or cross-examination concerning C.P.'s sexual history is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the Government's motions in limine to preclude evidence or argument that C.P. consented or Defendant intended to help C.P. and to admit statements of Stokes and Johnson as co-conspirator statements are DENIED without prejudice.
IT IS FURTHER ORDERED that the Government's motions in limine to allow C.P. to testify under a pseudonym, admit prior consistent statements if C.P.'s credibility is attacked, and preclude evidence or argument concerning the potential consequences of a conviction are GRANTED.
IT IS FURTHER ORDERED that Defendant's motions in limine to preclude evidence of Defendant's alleged involvement with other commercial sex works and to preclude statements that Defendant allegedly made during a search of his home are DENIED.
The Clerk of Court is respectfully directed to file this Opinion & Order under seal so that it is viewable to only the Court and the parties. The parties are ordered to meet and confer and, within thirty (30) days of the entry of this Order, submit proposed redactions to this Opinion & Order so that it can be filed. The Clerk of Court is respectfully directed to terminate the open motions at Documents 46, 69, 70, and 72.
SO ORDERED.