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allowing government to introduce prior act evidence in its case in chief to prove defendant's knowledge and intent where defendant, in opposition papers and at oral argument, did not deny he would dispute the issue of intent at trial and repeatedly emphasized that his alleged conduct did not demonstrate an intent to solicit minors to engage in sexual acts
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No. S1 04 Cr. 194 (PKL).
January 12, 2005
DAVID N. KELLY, ESQ., United States Attorney for the Southern District of New York, New York, NY, Brian R. Michael, Esq., Alexander H. Southwell, Esq., Attorneys for United States.
RICHARD F. BOULWARE, ESQ., The Legal Aid Society, Federal Defender Division, Southern District of New York, New York, NY, Attorney for Defendant.
OPINION AND ORDER
Defendant Matthew Adam Brand is charged with violating sections of the United States Code relating to the transport of minors for illegal sexual activity. Specifically, the Superseding Indictment ("Indictment") alleges that (1) on or about February 12, 2004, Brand traveled from New Jersey to New York for the purpose of engaging in sexual conduct with an individual he believed was 13-years-old, in violation of 18 U.S.C. § 2423(b), and (2) from on or about January 23, 2004 through on or about February 12, 2004, Brand used a computer, the internet and a telephone to attempt to entice the same individual to engage in sexual conduct, in violation of 18 U.S.C. § 2422(b). Defendant's trial is scheduled to begin January 18, 2005.
The original Indictment, filed March 1, 2004, only contained count one; the Superseding Indictment was filed on June 9, 2004, and added count two.
BACKGROUND
The Government alleges that from approximately January 23, 2004, through approximately February 12, 2004, Brand, by way of his America On-Line ("AOL") account and the screen name "Tempoteech," used a computer in his home in New Jersey to engage in instant message ("i-chat") and email communications with an individual he believed to be a 13-year-old girl named "Julie" residing in New York. See Government in limine motion ("Gov. Mot.") at 1-2. In fact, "Julie" was a special agent of the Federal Bureau of Investigation ("FBI") acting in an undercover capacity. Id. at 2. The Government plans to show that, over the course of their internet communications, "Julie" informed Brand that she was 13-years-old and emailed Brand a photograph purportedly of herself that depicted a young teenage girl. Id. In addition, Brand allegedly expressed an interest in engaging in sexual acts with "Julie" and arranged to meet "Julie" at the Port Authority bus terminal in New York. Moreover, the Government intends to present recordings of telephone conversations between Brand and an individual he believed to be "Julie" in which he (1) discussed certain sexual acts that they would engage in after they met, (2) reassured "Julie" that she would not get pregnant because he would use a condom, and (3) told "Julie" that he would be holding a sign bearing her name at the bus terminal. Id. at 3. On February 12, 2004, FBI agents arrested Brand outside the Port Authority bus terminal holding a sign bearing the name "Julie." Id.
AOL is an internet service provider that enables subscribers to access the internet and communicate with others via email and instant messages. Instant messages are real-time communications with others over the internet.
A screen name is pseudonym adopted by an internet user for purposes of identifying that user when communicating with others over the internet.
At a pre-trial conference held on December 15, 2004, the Government indicated that it would seek to introduce certain images found on a computer in Brand's home. Defense counsel noted its objection to the admissibility of the images, and the Court directed the parties to submit papers in support of their positions. On January 11, 2005, the parties appeared before the Court for oral argument.
In the present in limine motion, the Government seeks a ruling that (1) images of child erotica and child pornography from a computer in Brand's residence are admissible as direct evidence of the crimes charged in the Indictment; (2) alternatively, the images are admissible pursuant to Federal Rule of Evidence 404(b) to prove motive, intent, plan, knowledge, and absence of mistake or accident; and (3) two transcripts of AOL internet communications between Brand and two other undercover agents posing as 13-year-old girls are similarly admissible pursuant to Rule 404(b). One transcript purportedly memorializes an i-chat between Brand and "JennySFV13" while the other involves Brand and "Mizbonnie 13." See Gov. Mot., Exs. A-B.
The Government argues that defendant's intent to commit the charged crimes will be the primary dispute at trial because he cannot effectively challenge the facts that he used the internet and telephone to communicate with an individual he believed was 13-years-old and that he traveled from New Jersey to New York to meet the same individual. Accordingly, the images should be admitted as direct evidence, the Government maintains, because they reveal Brand's sexual interest in young children and confirm his use of the computer and the internet to further that interest. In the alternative, the Government contends that the images, along with the two transcripts of AOL i-chat communications, should be admitted pursuant to Rule 404(b) to prove Brand's motive, intent, plan, knowledge, and the absence of mistake or accident.
Defendant objects to the admission of the images and the transcripts on the grounds that they are irrelevant, unfairly prejudicial, and potentially confusing to the jury. Defendant asserts, inter alia, that the material is irrelevant because there is no established causal link between viewing child pornography or conducting non-sexual internet conversations with minors and future attempts to engage in sexual conduct with minors. Furthermore, the transcripts of defendant's internet conversations with two other allegedly 13-year-old girls should not be admitted under Rule 404(b) because there are fundamental differences between those two conversations and defendant's communications with the alleged victim, most notably the fact that the transcripts do not contain any solicitation of sexual contact. Finally, defendant argues that the unfair prejudice resulting from the admission of this highly inflammatory material would substantially outweigh any probative value it may contain.
DISCUSSION
I. Motions in Limine
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 41 n. 4 (1984) (noting that although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the District Court's inherent authority to manage the course of trials); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); Nat'l. Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 283 (S.D.N.Y. 1996). Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Noble v. Sheehan, 116 F. Supp. 2d 966, 969 (N.D. Ill. 2000);see also Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94 Civ. 5520, 1998 WL 665138, at * 3 (S.D.N.Y. Sept. 25, 1998) (denying a motion in limine to preclude presentation of evidence regarding a potential punitive damages claim because the motion was too sweeping in scope to be considered prior to trial). Indeed, courts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context. See Nat'l. Union Fire Ins. Co., 937 F. Supp. at 287 (citing Hawthorne Partners v. ATT Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993)). Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the [movant's] proffer." Luce, 469 U.S. at 41.
II. Admissibility of the Images as Direct Proof of the Crimes Charged in the Indictment
"It is well established in the Second Circuit that `evidence of uncharged criminal activity is not considered other crimes evidence under Fed.R.Evid. 404(b) if it 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. Nektalov, 325 F. Supp. 2d 367, 370 (S.D.N.Y. 2004) (Leisure, J.) (citing United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000)). If evidence is deemed admissible as direct proof of the charged crimes, as distinguished from "others acts" under Rule 404(b), the Government need not fulfill Rule 404(b)'s notice requirement and the Court is not required to instruct the jury against making an improper inference of criminal propensity. Id. at 372. Moreover, "where it is not manifestly clear that the evidence in question is intrinsic proof of the charged crime, the proper course is to proceed under Rule 404(b)." Id.
The Government describes the images in question as "child erotica (nude minor girls)" and "child pornography (nude minor girls and boys engaged in sex acts and in lewd and lascivious poses)." Gov. Mot. at 3. It argues that the pornographic images are admissible as direct evidence on two independent grounds: (1) they reveal Brand's sexual interest in young girls, and thus tend to demonstrate that he planned to engage in sexual acts with "Julie;" and (2) they confirm that he used the computer and the internet to satisfy that interest. The Court is unwilling to make the significant inferential leap required by the Government's argument. The mere presence of erotic or pornographic images of children on a computer used by defendant is not "intrinsic proof" that defendant intended to engage in sexual conduct with a particular child or that he used a computer or a telephone to entice a particular child to engage in sexual conduct. Furthermore, given the general nature of the images and the fact that they do not specifically relate to the crimes at issue, the Court is reluctant to conclude that the possession of the images arises out of the same transaction or series of transactions referenced in the Indictment. Similarly, these non-specific images cannot be considered "inextricably intertwined" with evidence regarding the charged offenses or "necessary to complete the story of the crime on trial." Nektalov, 325 F. Supp. 2d at 370.
Defendant argues that, if the Court deems the images admissible, an evidentiary hearing will be necessary to determine their origin because such images can be saved onto an individual's computer without their knowledge or intent. See Defendant's in limine motion ("Def. Mot.") at 1-2. At this stage, the Court need only decide by a preponderance of the evidence whether a jury could reasonably find that defendant viewed and saved the images. See Huddleston v. United States, 485 U.S. 681, 690 (1988). The Court finds that this standard is satisfied by the Government's proffer that the images were saved to a folder corresponding to defendant's AOL account on a computer in defendant's residence. See Gov. Mot. at 3.
Accordingly, the Court finds the images are not admissible as direct proof of either of the crimes charged in the Indictment.
III. Admissibility of the Images and the Transcripts as Relevant "Prior Act" Evidence Under Rule 404(b)
A. Applicable Law
While evidence of prior acts may not be admitted solely to disparage a defendant's character, such evidence may be admitted for certain other purposes. See United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996); United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994). Federal Rule of Evidence 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
Fed.R.Evid. 404(b). The Supreme Court has set forth four requirements that should be followed by courts exercising their discretion under Rule 404(b): "Prior bad-acts evidence must be (1) offered for a proper purpose, (2) relevant, and (3) substantially more probative than prejudicial. In addition, (4) at the defendant's request, the district court should give the jury an appropriate limiting instruction." United States v. Downing, 297 F.3d 52, 58 (2d Cir. 2002) (citing Huddleston, 485 U.S. at 691-92).
The Second Circuit has adopted an "inclusionary approach" under Rule 404(b), admitting evidence of prior crimes, wrongs or acts "unless it is introduced for the sole purpose of showing the defendant's bad character, or unless it is overly prejudicial under Fed.R.Evid. 403 or not relevant under Fed.R.Evid. 402."Pascarella, 84 F.3d at 69; see also United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). The Court need not make a preliminary finding by a preponderance of the evidence under Rule 104(a) that the other act occurred before admitting such evidence at trial. See Huddleston, 485 U.S. at 687-90. Rather, the Court should "examine all the evidence in the case and decide whether the jury could reasonably find [that the other act was committed] by a preponderance of the evidence." Id. at 690.
In defining the parameters of the admissibility of Rule 404(b) evidence, the Second Circuit has noted,
"evidence that does not directly establish an element of the offense charged [is admissible] in order to provide background for the events involved in the case." In particular, evidence of other bad acts may be admitted to provide the jury with the complete story of the crimes charged by demonstrating the context of certain events relevant to the charged offense. Inserra, 34 F.3d at 89 (quoting United States v. Skowronski, 968 F.2d 242, 246 (2d Cir. 1992)). Furthermore, "[w]here a defendant claims that his conduct has an innocent explanation, prior act evidence is generally admissible to prove that the defendant acted with the state of mind necessary to commit the offense charged." United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993).
Finally, although it is well settled that evidence of other crimes may be used to show a person's knowledge or intent, see United States v. Bok, 156 F.3d 157, 165-66 (2d Cir. 1998), other crimes evidence offered to prove the defendant's knowledge or intent may be admitted only after the defendant has asserted a state of mind defense, putting knowledge and intent at issue.See Riverwoods v. Chappaqua Corp., 30 F.3d 339, 345-46 (2d Cir. 1994) (finding intent at issue after the defendant asserted in its answer and opening statement that it had no intent to extort); United States v. Myerson, 18 F.3d 153, 166 (2d Cir. 1994) (holding similar acts by the defendant admissible when the defendant asserted a state of mind defense); Colon, 880 F.2d at 656-57 (concluding that prior acts inadmissible when the defendant claimed he did not do the charged act at all). In its motion papers, the Government contended that Brand's intent to commit the charged offenses will be the "primary dispute" at trial. Gov. Mot. at 4. While Defendant, in his opposition papers and at oral argument, did not expressly assert a state of mind defense, he did not deny that he would dispute the issue of intent during trial and he repeatedly emphasized that viewing child pornography and participating in non-sexual internet conversations with individuals believed to be children hardly demonstrates an intent to solicit minors to engage in sexual acts. Thus, for purposes of this decision, the Court finds that defendant has put his intent to commit the charged crimes at issue and that evidence of prior acts may be admitted at this stage if the criteria discussed above are satisfied.
B. Images
The Government asserts that the images are admissible under Rule 404(b) because Brand's viewing and possession of them demonstrates his sexual interest in children and such conduct is probative of his intent to fulfill that interest with "Julie." Prior act evidence cannot be admitted as proof of defendant's knowledge or intent unless the other act is "sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the knowledge [or intent] inference advocated by the proponent of the evidence." United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) (Kearse, J.) (citation omitted). "Similarity, being a matter of relevancy, is judged by the degree in which the prior act approaches near identity with the elements of the offense charged. There is no necessity for synonymity but there must be substantial relevancy. . . ." Id. (citation omitted). Thus, prior act evidence should be deemed inadmissible on grounds of relevance if it does not offer a reasonable basis for inferring knowledge or intent. Id.
The Court finds that the Government offers the images for a permissible purpose other than to show a propensity to commit the crimes charged. Moreover, the Court concludes that such images are relevant to the crimes charged. Indeed, evidence that Brand exhibited an interest in child erotica and child pornography on the internet in the period leading up to the charged conduct is pertinent to whether he used the internet in an attempt to engage in sexual conduct with "Julie." Defendant's argument that the images are irrelevant because the Government has not established a causal link between viewing child pornography and soliciting children for sex is unavailing because it overstates the Government's burden. See Fed.R.Evid. 401 ("`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). While defendant is free to proffer this argument at trial to challenge the weight to be accorded to the images, it is insufficient to preclude their admission. Furthermore, defendant's reliance on Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002), is misplaced as the Free Speech Court addressed the First Amendment implications of a ban on virtual child pornography and made no "clear pronouncement[s]" concerning the relevancy of evidence. See Def. Mot. at 3.
As noted in Part II(A), supra, defendant's "causal link" argument suggests that he will contend that his intentions with respect to "Julie" were non-sexual. Thus, as the Government has stated, defendant's state of mind will likely be a central issue at trial. Certainly one's conduct can serve as a valuable insight into their state of mind. See, e.g., Huddleston, 485 U.S. at 685-86 ("Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct."). Accordingly, the Court, while obviously cognizant of their inflammatory nature, finds that the probative value of the images substantially outweighs the risk of unfair prejudice to Brand, particularly if an appropriate limiting instruction is provided at the time they are offered and again when the jury is charged. Moreover, evidence suggesting the viewing of child pornography is not unduly prejudicial within the context of a case alleging an attempt to engage in sexual acts with a child. See United States v. Williams, 205 F.3d 23, 24 (2d Cir. 2000) (finding no unfair prejudice from the introduction of prior act evidence where the evidence did not concern conduct more serious than the charged crime and district court gave a proper limiting instruction). As a result, the Court rules that the images are admissible subject to an evidentiary hearing so that the Court may determine the number of images that will be admitted and how those images will be presented to the jury.
C. "JennySFV13" Transcript
On August 5, 2003, Brand allegedly engaged in an i-chat with "JennySFV13," who indicated that she was a 13-year-old female from Los Angeles. At the outset, Brand asked, "do you like older guys [?]," and then apparently emailed her a picture of him. He then asked her if she had ever been to "jersey" and following her negative response, he stated, "oh we could see the city its fun." Later in the i-chat, the Government intends to show that the two engaged in the following exchange, with Brand using the screen name "Tempoteech":
Tempoteech: do you like to hold hands
JennySFV13: yeah
Tempoteech: and kiss
JennySFV13: yeah
Tempoteech: we would have fun
JennySFV13: kewl
Tempoteech: yes very
As the i-chat concluded, Brand made the following comments, "i bet you have a pretty smile," "your cute," and "wish i could see you."
Similar to its position regarding the admissibility of the images, the Government argues that the transcript shows that Brand was motivated by a sexual interest in young girls when communicating with "Julie," rather than other benign motives or mistake. Moreover, the Government maintains that the transcript is admissible because the i-chat is closely related in character and in time to Brand's communications with "Julie." The Court agrees.
Brand's i-chat with "JennySFV13" occurred less than six months before the conduct at issue began and as with "Julie," he encouraged "JennySFV13" to meet him in person. However, what is most significant to the Court is the portion of the i-chat where Brand leads "JennySFV13" into a discussion of a sexual nature. Brand suggests to "JennySFV13" that he would like to hold hands with her and kiss her and immediately thereafter, states that they would "have fun" together. While this language may not be explicitly sexual, sexual undertones are clearly perceptible. In light of the fact that Brand is charged with attempting to persuade a minor to engage in sex acts, this i-chat is sufficiently similar to the charged conduct to permit a reasonable jury to draw from it an inference that Brand was motivated by a sexual intent in his interactions with "Julie." Moreover, like the images, the risk of unfair prejudice against Brand following from the admission of the transcript may be mitigated by a limiting instruction. Accordingly, the "JennySFV13" transcript is admissible subject to a proper limiting instruction.
D. "Mizbonnie13" Transcript
Just as the transcript of the "JennySFV13" i-chat is admissible primarily because of its sexual character, the Court finds that the transcript of the "Mizbonnie13" i-chat is not sufficiently relevant, and therefore inadmissible, due to its non-sexual subject matter. The Court recognizes that certain aspects of this internet conversation resemble the alleged contacts with "Julie:" (1) Brand used the same AOL account and screen name; (2) the exchange occurred on December 30, 2003, less than one month prior to the time Brand began communicating with "Julie;" (3) like "Julie," "Mizbonnie13" indicated that she was 13-years-old; and (4) Brand also asked "Mizbonnie13" if she dated older men and encouraged her to visit him in "jersey."
However, over the course of the i-chat, Brand never demonstrated a sexual interest in children generally or in "Mizbonnie13" in particular. While he did seek to meet her in person and offered to take care of her by buying her "things" and taking her "places," this conduct does not necessarily reflect a desire to engage in sexual acts with her or an effort to induce her to engage in sex acts. At oral argument, the Government contended that the transcript constitutes a "pre-cursor communication" to potential sexual acts. However, that the Government did not proffer the portion of the internet conversation that refers to those potential sexual acts suggests that such a conversation did not occur. The Government's line of reasoning here is simply too attenuated. Rule 404(b) permits the admission of evidence of relevant prior acts, not the admission of evidence that may precede relevant prior acts.
The lack of any discussion of a sexual nature here, either explicit or implicit, is fatal to the Government's argument for admissibility because it prevents Brand's i-chat with "Mizbonnie13" from "approach[ing] near identity" with the elements of the offenses charged. Aminy, 15 F.3d at 260; see also United States v. Mills, 895 F.2d 897, 907 (2d Cir. 1990) (noting that Rule 404(b) permits prior act evidence to prove a "`signature crime,' i.e., a modus operandi where the crimes are so `nearly identical in method as to ear-mark them as the handiwork of the accused'"), cert. denied, 495 U.S. 951 (1990). Consequently, the transcript is not sufficiently relevant, and the Court is unwilling to find that its probative value substantially outweighs the risk of unfair prejudice. Thus, the "Mizbonnie13" transcript is inadmissible.
CONCLUSION
Based on the foregoing, the Government's motion in limine is GRANTED in part and DENIED in part. The images of child erotica and child pornography are admissible subject to an evidentiary hearing so that the Court may determine the number of images to be admitted and how those images will be presented to the jury. Further, the transcript of defendant's i-chat with "JennySFV13" is admissible and may be used by the Government in its case-in-chief subject to an appropriate limiting instruction. However, the transcript of defendant's i-chat with "Mizbonnie13" is inadmissible.
The parties are directed to appear for an evidentiary hearing regarding the admission and presentation of the images on January 13, 2005 at 4:00 pm.