HELEN GILLMOR, District Judge.
On April 4, 2019, Defendant James Dean Kalani Goeas was indicted under 18 U.S.C. § 2422(b). He is charged with one count of attempted coercion and enticement of a minor.
Defendant was arraigned and entered a plea of not guilty.
Pursuant to Federal Rules of Evidence 404(b), the Government notified Defendant that it intends to introduce evidence of five prior acts at trial. Defendant's voluntary post-
The Government intends to introduce Acts One, Two, and Five at trial as 404(b) prior acts evidence. The Government seeks to introduce evidence of these prior acts to show Defendant's motivation, intent, plan, knowledge, and lack of mistake in committing the charged conduct.
The Government indicates that it will not introduce Acts Three and Four as evidence pursuant to Federal Rules of Evidence 404(b), but seeks to reserve its right to cross-examine Defendant with this evidence in the event he testifies at trial.
Defendant challenges all five acts as being insufficiently proved. Defendant further challenges the acts as not being material to the charged conduct, not being temporally proximate to the charged conduct, and not being similar enough to the charged conduct to be admissible.
Defendant's motion is
On March 25, 2019, the Government filed a one-count criminal complaint against Defendant Goeas. (ECF No. 3).
On April 4, 2019, a Grand Jury returned a one-count sealed Indictment against Defendant. (ECF No. 13).
On April 8, 2019, Defendant was arraigned and entered a plea of not guilty. (ECF No. 16).
On July 10, 2019, the Court ordered the Government to file a notice in writing of its intent to use other acts evidence pursuant to Federal Rules of Evidence 404(b). (ECF No. 22).
On July 22, 2019, the Government sent Defendant a letter noticing its intent to use other acts evidence pursuant to Federal Rules of Evidence 404(b). (ECF No. 23-1).
On August 30, 2019, Defendant filed MOTION IN LIMINE NO. 1 (PRIOR ACTS EVIDENCE) to exclude the Government's proposed 404(b) evidence. (ECF No. 23).
On September 6, 2019, the Government filed their Response. (ECF No. 26).
On October 16, 2019, the Court held a hearing on Defendant's Motion in Limine. (ECF No. 28).
On March 22, 2019 the Federal Bureau of Investigation ("FBI") and the Hawaii State Attorney General's Office began an online sting operation. The goal of the sting was to apprehend sexual predators by having an undercover law enforcement officer pose as a minor male on Grindr, a prominent gay dating site.
On the same day the sting was initiated, Defendant Goeas began a chat with the fake Grindr account created by the undercover agent. (Grindr Chat, attached as Ex. 1 to Opposition, ECF No. 26-1). The agent responded by telling Defendant that his name was "Rooster" and that he was "really really young ... 13." (Grindr Chat, attached as Ex. 1 to Opposition, ECF No. 26-1). The undercover agent reiterated later in the conversation that he was "only 13."
The pair exchanged phone numbers and eventually moved their conversation from Grindr to text message. Rooster again stated that "im 13." (Text Exchange, attached as Ex. 3 to Opposition, ECF No. 26-3). Despite Rooster restating that he was underage, Defendant asked Rooster to send a photo.
The following day Defendant texted Rooster again. The conversation quickly became more sexually explicit. Defendant asked Rooster about his sexual history and preferences. He then suggested, among other things, that the pair "cuddle," "touch," make each other "feel good with each movement of the hand," and find each other's "sensitive spot."
Defendant repeatedly suggested the two meet in-person.
After his arrest, Defendant, a former police officer, was read his
(404(b) Notice Letter, attached as Ex. A to Defendant's Motion to Exclude, ECF No. 23-1).
The Government seeks to admit evidence of Acts One, Two, and Five to show Defendant's motivation, intent, plan, knowledge, and lack of mistake in committing the charged offence.
The Defense challenges the admission of all five acts on a variety of grounds. (Motion in Limine, ECF No. 23).
Federal Rule of Evidence 404(b) provides:
Fed. R. Evid. 404(b).
The Ninth Circuit Court of Appeals has held that "other acts" evidence is admissible if:
"[T]he issue of what a defendant's state of mind was immediately prior to his contact with a sexual target purporting to be a minor" is a material question of fact that the prosecution must prove in internet sting cases.
There is no "inflexible rule" for excluding material other act evidence that occurred after a certain amount of time.
Material, timely evidence need only meet a "low threshold" to be deemed sufficient under 404(b).
Finally, material other act evidence must be similar to the charged conduct to be admissible. "[I]f the other act is not sufficiently similar to the crime charged, `it does not tell the jury anything about what the defendant intended'" to do in the relevant instance, it merely represents inadmissible propensity evidence.
Rule 404(b) is a rule of inclusion-not exclusion.
The Government seeks to introduce the following "other act" evidence under Federal Rules of Evidence 404(b):
(404(b) Notice Letter, attached as Ex. A to Defendant's Motion to Exclude, ECF No. 23-1). The Government seeks to submit this evidence to prove Defendant's "motivation, intent, plan, and knowledge, and to rebut any inference that the defendant made a mistake of fact."
Defendant raises a global challenge to the sufficiency of all of the Government's evidence. Defendant also challenges each Act for a variety of specific reasons. The Court will address the sufficiency issue first, before addressing the admissibility of each Act individually.
Evidence of the prior acts is derived from Defendant's own statement made when he was interviewed after his arrest. Defendant asserts that, without additional proof, his statement is per se insufficient as 404(b) evidence.
Defendant concedes that the uncorroborated statement of a single witness can be sufficient 404(b) evidence.
Defendant asserts that an otherwise admissible uncorroborated witness statement should not be admitted if it is made by a defendant. According to Defendant, different rules apply to defendant statements requiring the government to do more before they can be admitted under Federal Rules of Evidence 404(b). Defendant has provided no case law to support this interpretation. By contrast, courts have held that just like the uncorroborated statement of a single witness, the uncorroborated statement of a single defendant is sufficient 404(b) prior act evidence.
Defendant's argument that uncorroborated statements by a defendant are per se inadmissible is incorrect. Uncorroborated defendant statements are admissible if they are reliable.
The first indication of reliability is that Defendant's statements are against his penal interest. Statements against a declarant's penal interest are generally considered reliable "because it is presumed that one will not make a statement damaging to one's self unless it is true." Weinstein's Federal Evidence, § 804.06[1] (2nd ed. 2019);
Defendant is a former police officer. Defendant was read his
The Court finds no support for Defendant's argument that the uncorroborated statement of a defendant is per se insufficient as 404(b) evidence. The Court finds that Defendant's statements in this case are sufficiently reliable to be admissible under 404(b).
In Act One, a fifteen year old male spent the night at Defendant's home as a guest of Defendant's stepson. According to Defendant, he and the minor male ended up sharing a bed and engaging in sexual activity. Unlike the current conduct, Act One did not involve the use of the internet or a cellphone to meet and coerce a minor. Under 404(b), other acts "need not be identical" to the currently charged conduct but must be "similar enough to be probative of intent."
"Prior bad acts over ten years old are not too remote to prove intent where those acts were very similar to the offense conduct."
Act One is not admissible as 404(b) evidence.
Defendant stated that Act Two occurred approximately seven years ago. (Statement, attached as Ex. 4 to Opposition, ECF No. 26-4). During this incident, Defendant met a fifteen year old male on a social media dating application. Defendant and the minor met in person and engaged in sexual activity several times.
Act Two is nearly identical to the charged conduct. In both instances, Defendant used the internet to attempt to interact with a minor for illicit sexual purposes. The similarity of the prior act is relevant to show Defendant's intent in the most recent incident. Given the similarity of the acts, the fact that Act Two occurred seven years ago does not make it too distant to be relevant.
Act Two is similar to the charged conduct, is being used to prove a material point in the current case, has been shown to be sufficiently reliable, and is close enough in time to be admitted as 404(b) evidence.
The evidence also satisfies the Rule 403 balancing test. Virtually all evidence is prejudicial or it would not be material. Relevant evidence is excludable when it is "unfairly" prejudicial.
The Government acknowledges that it will not introduce evidence of Acts Three or Four at trial under 404(b). The Government reserves its right to cross-examine Defendant with these statements in the event he testifies at trial.
The Government characterizes the fifth "act" it seeks to admit—and the Defense seeks to exclude—as "the defendant stated that he was remorseful for his conduct and that he would apologize to the juvenile males involved were he to see them." (404(b) Notice Letter, attached as Ex. A to Defendant's Motion to Exclude, ECF No. 23-1). The full transcript of this portion of the interrogation reads:
(Statement, attached as Ex. 4 to Opposition, ECF No. 26-4).
Defendant's brief statement of remorse offers no additional detail about the Acts stated by Defendant. The Court is admitting the statements related to Act Two under 404(b). The Court finds there would be little, if any, additional probative value from the Fifth statement given its brevity and Defendant's failure to finish his sentence.
The prior inconsistent statement of an opposing party is admissible impeachment evidence.
While the Government may not submit Acts One, Three, Four, or Five into evidence under Rule 404(b), as statements of a party opponent, these Acts may be admissible to impeach Defendant if he takes the stand and makes an inconsistent statement. The Court will rule on the ultimate admissibility of Defendant's statements if this issue arises at trial.
DEFENDANT'S MOTION IN LIMINE NO. 1 (PRIOR ACTS EVIDENCE) (ECF No. 23) is
IT IS SO ORDERED.
