John J. McConnell, Jr., United States District Judge.
Before the Court are a series of pretrial motions filed by both the government and the defendant Devon Brown. The government has charged Mr. Brown in an indictment
The Court addresses these motions seriatim.
The government seeks to introduce photographs of text messages from the phone that was in A.A.'s possession at the time of her arrest. The government alleges these photographs show the existence of a prostitution conspiracy between A.A. and Mr. Brown. The government asserts that the messages are between A.A. and Mr. Brown and between A.A. and the undercover police officer who was posing as a customer of A.A. Mr. Brown objects, claiming that the text messages contain impermissible hearsay to which there is no exception, that their introduction would violate his Sixth Amendment right to confrontation, and that they are otherwise not authenticated. The government responds by asserting that the photographs of the text messages are not hearsay because Mr. Brown's coconspirator made them during and in furtherance of the conspiracy.
Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not hearsay where "[t]he statement is offered against an opposing party and ... was made by the party's coconspirator during and in furtherance of the conspiracy." Statements are admissible under Rule 801(d)(2)(E) when a court finds it is "more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy." United States v. Ortiz, 966 F.2d 707, 715 (1st Cir. 1992) (quoting United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977)).
A review of the evidence the government intends to prove at trial shows that it is more likely than not that A.A. and Mr. Brown were members of a prostitution conspiracy when A.A. authored her text messages, and that those statements
The text messages authored by the undercover agent to A.A., however, may or may not be hearsay. The undercover agent is not a coconspirator, making Rule 801(d)(2)(E) unavailable to admit his messages directly. Nevertheless, certain of the undercover agent's messages may be admissible if it is shown that a coconspirator — A. A. — adopted the undercover officer's statements.
Therefore, Defendant's Motion in Limine to Exclude Photographs of Text Messages (ECF No. 70) is DENIED as stated.
Mr. Brown seeks to exclude an assortment of Backpage.com posts from June through September 2015, six to nine months before the incident alleged in the indictment. Mr. Brown asserts that these ads are irrelevant under Rule 401, unfairly prejudicial under Rule 403, and represent impermissible character evidence under Rule 404(b). The government counters that this evidence is "intrinsic to the crime" charged and therefore admissible, and that it is not impermissible under Rule 404(b). See United States v. Epstein, 426 F.3d 431, 439 (1st Cir. 2005).
The ads from months earlier are not intrinsic to this crime. The crime charged is "knowingly transport[ing] an individual in interstate commerce ... with intent that the individual engage in prostitution" in March 2016. ECF No. 3. These ads, which are remote in time and not similar in content to the ads involved in the crime charged, do not tend "to make a fact more or less probable than it would be without the evidence." Fed. R. Evid. 401. Moreover, it is not permissible Rule 404(b) evidence because this remote evidence does not have a "special relevance" to any issue to be decided in this case. See United States v. Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000).
Therefore, Defendant's Motion in Limine to Exclude Irrelevant Backpage.com Postings (ECF No. 73) is GRANTED.
Mr. Brown gave notice of his intent to introduce a transcript of an interview between police officers and A.A. that took place after A.A. was arrested and charged with prostitution. ECF No. 74. Mr. Brown seeks to admit A.A.'s statement under Rule 806 in response to the admission of the text messages discussed above in section l.
The transcript, or portions of it, may be admissible under either Rule 106 or 806, but the Court cannot make that determination pretrial. If the evidence is such that the transcript "in fairness ought to be considered at the same time," then it will be admissible under Rule 106. If the transcript
Therefore, the government's Motion in Limine to Exclude A.A.'s Statement (ECF No. 80) is DENIED as stated.
Mr. Brown objects to the government's introduction of a photograph showing Mr. Brown with A.A. and another woman. The government seeks to introduce the photograph to show that Mr. Brown knew A.A. Mr. Brown objects, asserting that the photograph would play into racial stereotyping about African American men as "sexual exploiters" of white women, and thus, would be unfairly prejudicial.
Federal Rule of Evidence 403 allows the Court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury ... or needlessly presenting cumulative evidence." The photograph here is unfairly prejudicial to Mr. Brown because of its sexualized and potentially racial nature. The government has charged him with a crime that involves sex and the photograph could inappropriately prejudice him on this topic. Moreover, the government has other non-prejudicial ways of proving its assertion that Mr. Brown and A.A. knew each other, including testimony from police officers that the officers saw them in the car together.
Therefore, Defendant's Motion in Limine to Exclude Photographs of A.A. with Another (ECF No. 75) is GRANTED.
Mr. Brown asks the government to be more specific in its identification of certain items of evidence. ECF No. 76. The government responded with specificity. ECF No. 79. Therefore, Mr. Brown's Motion for More Specific Responses (ECF No. 76) is DENIED AS MOOT.
The last motion before the Court (ECF No. 83) is the most involved and requires a more detailed recitation of facts and procedure.
A grand jury indicted Mr. Brown on October 11, 2016-over a year and a half ago-with one count of knowingly transporting an individual across state lines to participate in prostitution in violation of 18 U.S.C. § 2421 and aiding and abetting such acts in violation of 18 U.S.C. § 2.
On November 2, 2016, Mr. Brown's attorney sent a second request for discovery.
After the Court sent out its first trial notice (ECF No. 12), Mr. Brown requested a continuance (ECF No. 13), in part to allow "additional time ... to confer with the government following the defense's review [of] the discovery." The Court granted this request as well as subsequent requests the following two months. ECF No. 17; ECF No. 22 ("additional time is needed as the government has indicated supplemental discovery is forthcoming").
On March 21, 2017, the government further supplemented its production of discovery. In this production, the government disclosed a "Cellebrite
Mr. Brown requested a trial continuance on May 2, 2017 (ECF No. 25), and again on May 24, 2017 (ECF No. 28), because "additional time [was] needed to review... the supplemental discovery that was provided by the government." ECF Nos. 25, 28.
On July 6, 2017, Mr. Brown filed a plea agreement. ECF No. 32. On July 25, 2017, during the course of the plea colloquy with the Court, Mr. Brown did not agree with the facts as stated by government and the hearing ended without a change of plea.
Two months later, on September 12, 2017, the government provided further discovery. ECF No. 84-1 at 105. The discovery included "a 41-page document that purported to be cellphone records from TracF one Wireless Inc. regarding a prepaid cell phone that was seized from A.A. at the time of her arrest." ECF No. 47 at 3. Mr. Brown alleges that the documents had been in the government's possession for months, but that it did not turn them over until the eve of trial.
On September 22, 2017, Mr. Brown filed a Motion to Compel.
In October and each of the next three months, Mr. Brown, with the assent of the government, moved for trial continuances. ECF Nos. 52, 56, 59, 62. On February 9, 2018, the Court sent out a trial notice notifying the parties that trial would begin in March 2018. ECF No. 67; see Text Order, Feb. 28, 2018.
At some point, the government learned that Detective Grasso was unavailable to testify at trial, and it had Cranston Detective William Palmer reimage Mr. Brown's phone and prepare a new report, which the government sent to Mr. Brown on February 23, 2018. ECF No. 84 at 9.
On March 6, 2018, the government provided Mr. Brown's attorney another new Cellebrite report on Mr. Brown's cellphone. ECF No. 83-1. This new report was different from its predecessors. As the government explains:
ECF No. 84 at 3 (footnote omitted).
The government points out that this new Cellebrite report captured much more than the previous report, including extensive data on Mr. Brown's location, cell tower locations, text messages, Facebook conversations, and web browsing history. Id. at 3-5. The government told Mr. Brown's attorney that most of the cellphone information the government had intended to use in court at the upcoming trial was "not readily discernible" from the previously disclosed report and that the previous report "omits a fair amount of detail." ECF No. 83-1. The government describes this new, 4,693-page report as "highly-probative evidence." ECF No. 84 at 1; ECF No. 85 at 1.
Mr. Brown now moves to exclude this newly disclosed Cellebrite report. ECF No. 83. Mr. Brown claims the Court should exclude this report because of its late disclosure after a long period of late and incomplete disclosures by the government. Id. The government responds by claiming that this information was only recently discovered, that they would not object to a
Under Federal Rule of Criminal Procedure 16(d)(2), if a party fails to comply with its discovery obligations, the court may:
"In criminal cases, the government has broad disclosure obligations." United States v. Kifwa, 868 F.3d 55, 60 (1st Cir. 2017). "[T]he government's disclosures must be made in a timely manner." Id. The Court must ultimately consider what is just under the circumstances. See Fed. R. Crim. P. 16(d)(2).
The central issue here is whether the late produced "physical" Cellebrite report should be excluded. However, the late disclosure of this report must be taken in the context of a history of discovery from the government that was at best slow, sporadic, and untimely. For example, five days after the Court arraigned Mr. Brown, he sent a letter to the government requesting discovery. ECF No. 85-1. Instead of responding within the five days ordered by the Court (ECF No. 5), the government responded fifty-two days later. ECF No. 84 at 1. Additionally, this response does not appear to have included the first cellphone report conducted by the Warwick Police in March 2016. See ECF No. 84-1 at 138-39. This response was neither timely nor complete. Moreover, it violated this Court's order on timeliness. The government does not explain the incomplete or late disclosure, or why it ignored this Court's order concerning when its disclosures were due.
The late disclosures continued. About three months later — and a year after the alleged incident occurred — the government disclosed another round of information to Mr. Brown, now including the report extracted from Mr. Brown's phone over a year earlier. Then, six months later, and two days before the Court's pretrial conference, on September 12, 2017, the government turned over a further batch of discovery, this time including another forty-one-page analysis of Mr. Brown's cellphone. Understandably, Mr. Brown's frustration led him to file a motion to compel, including for the phone report, which Mr. Brown argues he never received. The government subsequently re-produced all of the discovery to Mr. Brown.
Now, in March of this year, the government — for the first time — disclosed an in-depth "physical" report of the phone which contained extremely detailed information not previously disclosed. Although the government argues that it did not have this report in its possession any earlier, it most certainly had Mr. Brown's phone, and had every opportunity over the preceding two years to conduct this analysis. Although there is no evidence the government acted intentionally or in bad faith in producing this report, this late production comes at the end of a long series of late disclosures, concerns evidence that the government admits is crucial to its case, and runs contrary to the purpose of Rule 16 of the Federal Rules of Criminal Procedure.
The timely disclosure requirement of Rule 16 is only effective if the government timely analyzes and tests the evidence it has in its possession. This is the only way to ensure that the discovery process proceeds
Mr. Brown's phone had been in the possession of the government for two years. The government knew it needed to extract information from the phone in order to prove its case; it describes the information contained in the phone as central to its case. However, the government failed to run the proper test on the phone in a timely fashion. While the government argues that the original two police officers simply failed to do a full analysis of the phone, that does not relieve the government of its responsibility to act with due diligence in obtaining the evidence necessary to prove its case in a timely fashion and turning it over to the defendant.
Considering the government's lack of diligence in timely analyzing the evidence in its possession, the history of late disclosures in this case, the defendant's right to discovery under Rule 16, as well as the defendant's right to have his charges expeditiously adjudicated, the Court concludes that the "physical" Cellebrite report recently disclosed to the defendant should be excluded under Rule 16(d)(2).
For the foregoing reasons, the Court:
IT IS SO ORDERED:
