United States v. Caroleo, 17-CR-177 (ENV). (2019)
Court: District Court, E.D. New York
Number: infdco20191015907
Visitors: 10
Filed: Sep. 26, 2019
Latest Update: Sep. 26, 2019
Summary: SHORT-FORM MEMORANDUM & ORDER ERIC N. VITALIANO , District Judge . Jury selection in this case is scheduled to start on November 12, 2019. Pursuant to Federal Rules of Criminal Procedure 12 and 16, Caroleo has filed a slew of pre-trial motions. Dkts. 50, 61, 67. Separately, the government has filed motions in limine. Dkt. 52. Having considered the submissions of the parties, and having heard argument on September 6, 2019, the motions are resolved in the manner and for the reasons as set f
Summary: SHORT-FORM MEMORANDUM & ORDER ERIC N. VITALIANO , District Judge . Jury selection in this case is scheduled to start on November 12, 2019. Pursuant to Federal Rules of Criminal Procedure 12 and 16, Caroleo has filed a slew of pre-trial motions. Dkts. 50, 61, 67. Separately, the government has filed motions in limine. Dkt. 52. Having considered the submissions of the parties, and having heard argument on September 6, 2019, the motions are resolved in the manner and for the reasons as set fo..
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SHORT-FORM MEMORANDUM & ORDER
ERIC N. VITALIANO, District Judge.
Jury selection in this case is scheduled to start on November 12, 2019. Pursuant to Federal Rules of Criminal Procedure 12 and 16, Caroleo has filed a slew of pre-trial motions. Dkts. 50, 61, 67. Separately, the government has filed motions in limine. Dkt. 52. Having considered the submissions of the parties, and having heard argument on September 6, 2019, the motions are resolved in the manner and for the reasons as set forth below.
Request Ruling
I. Defendant's Motions to Dismiss, Strike and Suppress
(A) Caroleo moves to dismiss counts 1 (A) Caroleo aims his Eighth Amendment
through 8 of the superseding indictment, on challenge at counts 1 through 8 without
the ground that they violate the Eighth differentiation, generalizing that they carry
Amendment's prohibition on cruel and mandatory minimum sentences of 10 and 15
unusual punishment. See Dkt. 61 ("Mot. to years upon conviction. This argument is
Dismiss"); Dkt. 61-1 ("Seltzer Aff.") ¶¶ 1-5; further embellished by defendant's overall
Dkt. 61-10 ("Def.'s Mem.") at 12. characterization of the indictment as
"overcharged," pegged to the text message of
In this indictment, Caroleo is charged
with distribution of child pornography (counts pornographic images, or "sexting,"1 by the
1 and 2), receipt of child pornography (count victims themselves. Counts 1 through 3, 7,
3), sexual exploitation and attempted sexual and 8, however, do not carry such mandatory
exploitation of a child (counts 4, 5, and 6), minimum sentences. See Dkt. 63 ("2nd Gov't
and possession of child pornography (counts Opp'n") at 6 n.3. The Court, therefore,
7 and 8). Dkt. 54 ("Superseding construes the Eighth Amendment challenge to
Indictment"). According to Caroleo, if apply only to counts 4 through 6, which
convicted, he will be subject to mandatory charge sexual exploitation of children and,
minimum sentences that are disproportionate upon conviction, carry a mandatory minimum
to the conduct charged. Caroleo contends that of 15 years imprisonment.2 But, to cut to the
because the charges are based on his receipt quick, Caroleo's arguments are premature, as
and possession of pornographic "selfies," i.e., even his own briefing suggests. He cites no
photographs taken by the minors themselves, case suggesting that such an argument is ripe
they present a novel factual pattern that at pre-trial. Indeed, the cases he cites all
Congress did not intend to address with the concern the imposition of sentence following
criminal provisions charged here. Def.'s conviction.
Mem. at 16-17.
Plainly, "Eighth Amendment
challenges are generally not ripe until the
imposition, or immediately impending
imposition, of a challenged punishment or
fine." Infinity Outdoor, Inc. v. City of New
York, 165 F. Supp. 2d 403, 431 (E.D.N.Y.
2001) (quoting Cheffer v. Reno, 55 F.3d 1517,
1523 (11th Cir. 1995)); see also United States
v. Caparotta, 890 F. Supp. 2d 200, 211 &
n.12 (E.D.N.Y. 2012) (rejecting facial
challenge to mandatory minimum sentence
under § 2251(b)(1) and concluding Eighth
Amendment challenge not ripe since "there
are no facts pertaining to defendant's
sentencing before the court"); United States v.
Santana, 761 F. Supp. 2d 131, 140 (S.D.N.Y.
2011) (finding mandatory minimum challenge
not ripe as to defendants not yet convicted
and noting that "[t]o decide such a question
based on uncertain facts would be to issue an
advisory opinion on a possible sentence a
Defendant could face if certain facts are
established" (emphasis in original)).
Viewed in the light of these
precedents, Caroleo's argument is not ripe for
adjudication, and he asserts no other
challenge to the charged statutes that would
be adjudicable at this juncture. Accordingly,
the motion to dismiss on Eighth Amendment
grounds is denied. The substance of the
argument may be renewed in another forum
should later circumstances warrant.
(B) Defendant moves to dismiss counts 4, 5, 6 (B) An indictment may be dismissed on
and 9 for prosecutorial vindictiveness. Mot. grounds of prosecutorial vindictiveness "if
to Dismiss at 1; Def.'s Mem. at 18-20; Seltzer actual vindictiveness has been demonstrated,
Aff. ¶¶ 4-6; Dkt. 64 ("Def.'s Reply") at 21.3 or if, under the circumstances, `there is a
His core argument is that the timing of the presumption of vindictiveness that has not
superseding indictment suggests the been rebutted by objective evidence justifying
government added charges on the eve of trial the prosecutor's action.'" United States v.
in retaliation for his decision to go to trial. Stewart, 590 F.3d 93, 122 (2d Cir. 2009)
Def.'s Mem. at 18-19. (citation omitted). However, "a prosecutor's
pretrial charging decision is presumed
legitimate," and the Second Circuit "has
consistently adhered to the principle that the
presumption of prosecutorial vindictiveness
does not exist in a pretrial setting." Id.
(citation omitted). That principle is consistent
with the Supreme Court's jurisprudence on
the subject, which distinguishes between
pretrial and post-trial charging decisions. See
United States v. Goodwin, 457 U.S. 368, 382,
102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982)
(declining to apply presumption of
vindictiveness before trial where defendant
was indicted on felony charges after deciding
to go to trial on misdemeanor charges arising
out of the same incident). As the Supreme
Court has observed, "[a] prosecutor should
remain free before trial to exercise the broad
discretion entrusted to him to determine the
extent of the societal interest in prosecution.
An initial decision should not freeze future
conduct." Id.
Without recourse to a presumption of
vindictiveness, Caroleo must point to direct
evidence of vindictiveness to prevail on this
motion—which he does not do. See United
States v. Grant, No. 93-CR-85 (PKL), 1994
WL 74853, at *5 (S.D.N.Y. Mar. 7, 1994)
(denying pre-trial motion to dismiss). The
timing of a superseding indictment, standing
alone, does not show actual vindictiveness,
which "requires a showing that a
`prosecutor's charging decision [is] a `direct
and unjustifiable penalty,' that resulted `solely
from the defendant's exercise of a protected
legal right.'" Stewart, 590 F.3d at 123
(emphasis added) (citation omitted). "Put
another way, the defendant must show that
`(1) the prosecutor harbored genuine animus
toward the defendant, ... and (2) [the
defendant] would not have been prosecuted
except for the animus.'" United States v.
Feneziani, No. 05-CR-290E, 2007 WL
1613630, at *6 (W.D.N.Y. June 1, 2007)
(quoting United States v. Koh, 199 F.3d 632,
640 (2d Cir. 1999)); see also United States v.
Corbin, No. 09-CR-00354 (SJF) (WDW),
2009 WL 4505513, at *2 (E.D.N.Y. Dec. 1,
2009) (noting that "[a]nimus may be shown
by ... `direct' evidence, such as evidence of a
statement by the prosecutor" (internal citation
omitted.
Consequently, because the
presumption of vindictiveness does not apply
in a pretrial setting and Caroleo has failed to
show actual evidence of vindictiveness, the
motion to dismiss counts 4, 5, 6 and 9 is
denied.4
(C) Caroleo moves to strike the alias (C) Federal Rule of Criminal Procedure 7(d)
"Nimfeater" from the caption of the permits a court to "strike surplusage from the
indictment, arguing that it "serves no purpose indictment" upon a defendant's motion. To
other than to prejudice" him. Mot. to Dismiss prevail, the defendant must show that the term
at 2; Seltzer Aff. ¶¶ 9, 38. at issue is irrelevant to the crime charged,
inflammatory and prejudicial. United States
v. Mulder, 273 F.3d 91, 99 (2d Cir. 2001).
Even if prejudicial, "aliases will not be
stricken `when evidence regarding those
aliases ... will be presented to the jury,' for
example, as evidence of the crime or to assist
the jury in identifying a defendant." United
States v. Thompson, 141 F. Supp. 3d 188, 201
(E.D.N.Y. 2015) (denying motion to strike
alias "Love Pimpin" where defendant was
charged with, inter alia, running prostitution
ring and alias was necessary to understand
evidence at trial) (citations omitted), aff'd,
896 F.3d 155 (2d Cir. 2018).
Those are the exact purposes which
the government argues the alias serves here,
contending it is necessary "to connect Caroleo
to the crimes charged by matching him to the
username he used to entice minors to produce
and send him pornography," which is of
particular relevance because "some victims
may only ... be able to identify the defendant
as `Nimfeater.'" 2nd Gov't Opp'n at 27.
Furthermore, the government explains that the
alias is probative of the conduct charged,
since "`nimf' is a reference to a young
female" and "eater" a reference to a sexual
act. Id. The Court is satisfied, then, on these
representations by the government that
reference to defendant's alias is highly
probative and that it outweighs any prejudice
to him. The motion, therefore, is denied, but
with leave to renew at the close of the
government's case if defendant has a goodfaith
basis to do so. See United States v.
Persico, 621 F. Supp. 842, 861 (S.D.N.Y.
1985) (denying motion to strike with leave to
renew if government did not present evidence
for which alias was integral).
(D) To remedy the claimed abridgment of (D) Off the start, Caroleo does not
rights guaranteed by the Sixth and Fourth demonstrate that his assertion of an
Amendments, Caroleo moves to dismiss all ineffective assistance claim, typically
counts in the indictment, claiming ineffective reserved for post-conviction relief, is a proper
assistance of counsel during a proffer session ground for dismissal of an indictment before
with the Manhattan District Attorney's trial. See Strickland v. Washington, 466 U.S.
("DA") office, on August 15, 2016, in relation 668, 671, 104 S. Ct. 2052, 80 L. Ed. 2d 674
to a separate state-court prosecution for his (1984) (setting standard to set aside
alleged assault of a bus driver. Def.'s Mem. "conviction" or "sentence" for ineffective
at 7-11; Seltzer Aff. ¶ 7. He argues that his assistance of counsel). The mountain Caroleo
attorney in that action (who has never at any must climb is made all the higher by the fact
time represented him in the federal case) the alleged ineffectiveness came in the course
advised him to sign a consent form to search of a state court criminal proceeding that is
his cell phone, because the DA's office could still pending. Regardless, assuming that the
obtain a warrant even if he did not consent Court may consider the argument in the
and the state charge might be dismissed if he posture of a pretrial suppression motion, it
cooperated. Def.'s Mem. at 8. Relatedly, he fails when considered on the merits.
moves to suppress evidence seized from his To prevail on an ineffective assistance
cell phone, on September 9, 2016, and his claim, a claimant must show that "counsel's
home, on October 11, 2016, because those performance was deficient"—here, in the
searches were conducted pursuant to warrants state case—and "that the deficient
relying on information obtained during the performance prejudiced the defense,"
proffer session. Def.'s Mem. at 11, 21-22. meaning that "there is a reasonable possibility
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different." Strickland, 466 U.S. at 687, 693-94.
To do so, he "must overcome the
presumption that, under the circumstances,
the challenged action might be considered
sound legal strategy." Id. at 694.
Caroleo argues that his attorney's
advice to sign the consent form was
ineffective because he did not explain
Caroleo's Fourth Amendment rights nor
conduct "any investigation into the contents
of the cell phone."5 Def.'s Mem. at 8.
However, Caroleo does not contest that the
DA requested to search his cell phone because
Caroleo himself had informed law
enforcement that it contained a video of his
scuffle with the bus driver, claiming that the
video would exculpate him on the resulting
assault charges. See 2nd Gov't Opp'n at 14 &
n.6; Def.'s Reply at 15. Thus, counsel's
advice, that the DA had probable cause to
obtain a search warrant for the cell phone
without his consent and that Caroleo might
receive credit for cooperating with authorities,
addressed the relevant Fourth Amendment
considerations in tandem with sound legal
strategy. The grounds for Caroleo's
ineffective assistance argument are made
shakier by his state attorney's sworn
statement that, prior to Caroleo's consent to
the search, he informed Caroleo of the
completeness of any government search of his
cell phone, and that he asked Caroleo if his
cell phone contained anything he did not want
the prosecution to see. Dkt. 68 ("Gallucci
Aff.") ¶ 7. Caroleo responded, in sum and
substance, that "there was nothing to worry
about." Id. ¶ 8. Given the information
available to counsel at that time, such advice
was not objectively unreasonable.
As for the scope of the information
available to counsel, Caroleo's role in
affirmatively bringing the contents of his cell
phone to the attention of law enforcement
undermines his related argument that counsel
unreasonably failed to investigate its contents
before advising him to consent to the search.
At the proffer session, the DA did not seek to
search his cell phone as a mere incident to his
arrest, as he implies here. See Def.'s Reply at
14-15. Caroleo put his cell phone in issue by
claiming that it contained exculpatory
evidence; such conduct would not reasonably
suggest to his attorney that there was a risk it
also contained incriminating evidence, albeit
of another crime. Caroleo, who, presumably,
knew the contents of his cell phone better
than any else, does not indicate that his
counsel had any reason to suspect it contained
incriminating evidence, nor that Caroleo was
in any way prevented from informing his
counsel to that effect when they spoke
privately at the proffer session. In fact,
despite noting the presence of his wife during
that conversation, Caroleo offers no
explanation for his withholding of this
information from counsel given his awareness
that the DA's office wanted to search the
visual media on his cell phone. Since
attorney advice requires the application of
legal principles to facts, Caroleo's silence
regarding obviously incriminating facts (i.e.,
his possession of child pornography), whose
very existence was known only to him,
precludes his shifting of blame to counsel in
hindsight.6
In any event, having himself
represented to prosecution that a critical video
recording of the incident resulting in his state
arrest was saved on his cellphone, had
Caroleo refused the search, it is inevitable that
state prosecution would have sought, and
obtained, a search warrant authorizing law
enforcement to keep the contents of his
phone. The images would, on this record,
have been discovered in plain view during the
execution of the warrant. Caroleo does not
contest that they were saved in the same
location as the bus driver video nor offer any
evidence to refute the government's
characterization that the visual media gallery
on his cell phone "contained ... plainly
visible images of child pornography."7 2nd
Gov't Opp'n at 17.
Simply put, Caroleo fails to show that
his counsel's performance was
constitutionally deficient. Indeed, based on
what Caroleo admits he informed his counsel
and the information Caroleo had himself
provided to state prosecutors, counsel's
advice to cooperate and permit review of the
videos on his phone was not deficient. That
this strategy led to the discovery of child
pornography in his phone is unfortunate for
him, but hardly the product of a constitutional
violation or any other misconduct he has
alleged in his motions. At the end of the day,
state court counsel's advice stemmed from
Caroleo's representation to authorities that
vital evidence of the underlying criminal
incident was depicted on his cellphone video.
That representation made a lawful warranted
search of the cellphone virtually inevitable, as
well as, among its fruits, the lawful discovery
of the child pornography video it also
contained. Accordingly, the motion to
dismiss, or, in the alternative, to suppress, is
denied.
(E) Pursuant to Federal Rule of Criminal (E) Rule 41(f)(1)(D) provides that "[t]he
Procedure 41, Defendant moves to suppress officer executing the warrant must promptly
evidence seized from his cell phone on return it—together with a copy of the
September 9, 2016 and his home on October inventory—to the magistrate judge designated
11, 2016. Mot to Dismiss at 2; Def.'s Mem. on the warrant." Even assuming, arguendo,
at 22-23; Seltzer Aff. ¶ 8. He contends that that a technical violation of the Rule had
the government failed to comply with Rule 41 occurred in the warrant process, suppression
because it did not file returns of the warrants would not be warranted, as such a violation
pursuant to which those searches were has no constitutional implications here and
conducted.8 Def.'s Mem. at 22. Caroleo has shown no harm affecting a
substantial right. See United States v. Burke,
517 F.2d 377 (2d Cir. 1975).
"[V]iolations of Rule 41 alone should
not lead to exclusion unless (1) there was
`prejudice' in the sense that the search might
not have occurred ... if the Rule had been
followed, or (2) there is evidence of
intentional and deliberate disregard of a
provision in the Rule." Id. at 386-87; see Fed.
R. Crim. P. 52(a) ("Any error, defect,
irregularity, or variance that does not affect
substantial rights must be disregarded."). In
the complete absence of any such showing,
consequently, the motion to suppress under
Rule 41 is denied.
(F) Defendant moves to suppress the firearm (F) The parties agree that the subject firearm
referenced in count 9 under the Fourth was discovered in a locked safe in Caroleo's
Amendment and, in light of the requested home, during a search for child pornography
suppression, to dismiss count 9. Mot. to under a warrant.
Dismiss at 1-2; Seltzer Aff. ¶ 6; Def.'s Mem. Caroleo does not argue that the search
at 20-21. He contends that the firearm "was of the safe was impermissible, either under
not in plain view, nor was it involved in the the specific terms of the warrant or under the
crimes being investigated" and giving rise to Fourth Amendment more broadly, as it was
the warrant under which the search was within the premises covered by the warrant
conducted. Def.'s Mem. at 20. He further and there was probable cause to believe it
argues that its "incriminating character was contained the contraband sought thereunder—
not `immediately apparent'" so as to permit i.e., child pornography. See United States v.
the application of the plain view doctrine. Id. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157,
72 L. Ed. 2d 572 (1982) ("A lawful search of
fixed premises generally extends to the entire
area in which the object of the search may be
found and is not limited by the possibility that
separate acts of entry or opening may be
required to complete the search."). Nor does
he argue that the firearm was not in plain
view within the safe itself, which was
properly subject to search.
Since law enforcement was aware of
Caroleo's status as a felon, rendering any
firearm possession on his part illegal, the
discovery of the firearm made it immediately
apparent that it might be contraband. Thus,
the seizure of the gun did not violate the
Fourth Amendment. See Minnesota v.
Dickerson, 508 U.S. 366, 375, 113 S. Ct.
2130, 124 L. Ed. 2d 334 (1993) ("[I]f police
are lawfully in a position from which they
view an object, if its incriminating character
is immediately apparent, and if the officers
have a lawful right of access to the object,
they may seize it without a warrant.").
Accordingly, the motion to suppress the
firearm and dismiss count 9 under the Fourth
Amendment is denied.
(G) In the alternative, Caroleo moves to sever (G) The government consents to the
count 9. Dkt. 67 ("Mot. to Sever"). He severance of count 9, informing the Court its
argues the evidence supporting count 9, intended evidentiary proof as to count 9 is
charging him as a felon in possession of a distinct from that of counts 1 through 8. Dkt.
firearm, is unrelated to counts 1 through 8, 71 (citing United States v. Jones, 16 F.3d 487,
which pertain exclusively to child 492 (2d Cir. 1994). The motion to sever
pornography. Id. at 2. He notes the count 9 is therefore granted.
possibility of wishing to testify as to the
ownership of the firearm, but not the child
pornography, but that he could not do so
while also on trial for the child-pornography
charges. Id. He also worries of the jury
learning about his prior felony conviction, as
the "aura of violence from possession of a
weapon" could result in prejudice that
outweighs any benefits to joinder of count 9.
Id.
II. Bill of Particulars and Outstanding Discovery
(A) Requested in the form of a bill of (A) "The court may direct the government to
particulars, Caroleo seeks the "name and/or file a bill of particulars," see Fed. R. Crim. P.
initials" of the Jane Does and the minors 7(f), a decision that rests within its sound
depicted in the images and videos giving rise discretion, United States v. Harding, 273 F.
to counts 1 through 4, 7 and 8 of the Supp. 2d 411, 429 (S.D.N.Y. 2003). Such an
superseding indictment.9 Dkt. 50-2 ("1st order is appropriate where needed "to apprise
BOP"). [defendant] of the charges with sufficient
precision so as to enable him to `prepare for
trial, to prevent surprise, and to interpose a
plea of double jeopardy should he be
prosecuted a second time for the same
offense.'" Id. (citation omitted). Thus, "[a]
bill of particulars is required `only where the
charges of the indictment are so general that
they do not advise the defendant of the
specific acts of which he is accused.'" United
States v. Chen, 378 F.3d 151, 163 (2d Cir.
2004) (citation omitted).
By contrast, an order directing the
government to file a bill of particulars is not
necessary "where the government has made
sufficient disclosures concerning its evidence
and witnesses by other means." Id. When the
sufficiency of disclosure is disputed, a
defendant bears the burden of showing
necessity, as well as prejudice that will result
from the denial of his request. United States
v. Raniere, 384 F. Supp. 3d 282, 322
(E.D.N.Y. 2019).
Caroleo fails to carry that burden here.
The government asserts that it has made the
relevant images and videos available for
review at the FBI's office, as well as provided
the user name of Jane Doe #1. Dkt. 53
("Gov't Opp'n") at 3. It is also providing him
forensic reports for the seized devices and
redacted PDFs of their content. See 2nd
Gov't Opp'n at 24-25. The language of the
superseding indictment, combined with these
evidentiary disclosures, sufficiently informs
Caroleo of the essential facts of the crimes
charged. The additional information he seeks
by way of a bill of particulars fails the
necessity test as a result. No undue prejudice
will attach to the denial of his request.10 This
holding is in accord with cases deciding
similar motions in cases of this sort. See
United States v. White, No. 07-CR-134S (SR),
2008 WL 5234340, at *1 (W.D.N.Y. Dec. 12,
2008) (denying request for bill of particulars
disclosing "detailed information" related to
contraband images where government made
the images available for review at U.S.
Attorney's office), R&R adopted, 2009 WL
393691 (W.D.N.Y. Feb. 16, 2009); United
States v. Diaz, 303 F. Supp. 2d 84, 89 (D.
Conn. 2004) (denying request for bill of
particulars "for the exact dates and specific
acts the government alleges [defendant]
performed, and the precise means by which
the pornographic materials were transported
in interstate commerce").
In line with this host of authority, the
motion is denied.
(B) Caroleo requests "copies of all the images (B) The government affirms that the
that are the basis of all the charges in the contraband images they intend to introduce as
indictment" and reserves the right to move in evidence will be made available to defense
limine regarding any such evidence the counsel one week before trial at the U.S.
government intends to introduce. 1st BOP ¶ Attorney's office in Brooklyn, Gov't Opp'n at
6; Seltzer Aff. ¶ 7. Caroleo then modified his 4, and that defense counsel could now view,
request as to the contraband images, with the assistance of an FBI agent, all digital
conceding that they must be viewed at the files supporting the possession counts, in their
FBI office rather than turned over to the unredacted form, at the FBI office. The
defense, but asking the Court to "order the government also represented at oral argument
government to prepare a file that defense its intention to provide the defense with
counsel can view at the FBI office ... and redacted copies of all digital files supporting
provide sufficient information so that each the possession counts. Defense counsel
image corresponds to a particular count in the expressed satisfaction with her ability to
indictment." Dkt. 55 ("Def.'s Opp'n") at 18. access all discoverable material on Caroleo's
He also seeks copies "of all text messages, seized devices. Accordingly, Caroleo's
videos and photos that are not contraband request is moot.
from [his] phone, including but not limited to,
those items that may be evidence at the trial."
Id.
(C) Pursuant to Federal Rule of Criminal (C) Rather than respond point-by-point, the
Procedure 16, Caroleo makes various requests government responds that it has already
for additional discovery and asks that the provided the requested discovery or made it
government be precluded from presenting available at the FBI office. See 2nd Gov't
evidence at trial that it fails to turn over in Opp'n at 24-25. Defense counsel conceded at
compliance with its discovery obligations. oral argument that no discovery request
See Dkt. 61 ¶ 8, Seltzer Aff. ¶¶ 10-11; Dkt. remains outstanding. Accordingly, this
61-1 at 11-13 ("Disco Mot."). request is denied as moot.
III. Government's Motions in Limine
(A) Pursuant to 18 U.S.C. § 3509(d)(3), the (A) Caroleo expands on the proposition
government requests a protective order previewed earlier offensively in support of his
preventing the public disclosure of the full own pretrial motions, contending that a
names and user names of the Jane Does listed hearing is needed to determine whether the
under counts 4 through 6. Dkt. 52 ("Gov't victims are still minors, and opposes the
Mot.") at 4-7; id. at 3 n.2. Specifically, the government's request in the event that they
government requests that the minors be are not, because they would no longer be
referred to as Jane Does during any motion
practice, and identified only by their first "child[ren] in need of this protection."11
names "during trial and any ancillary Def.'s Opp'n at 10-12. He also argues that
proceedings." Id. at 7. In addition, it requests their screen names may be pertinent to issues
that transcripts of such proceedings be at trial, for example, if a screen name has a
redacted to refer to the victims as Jane Does. sexual connotation that may refute the
Id. government's proof as to the coercion
element of the exploitation counts. Id.
It is beyond dispute, of course, that
§ 3509(d)(3) authorizes a court to issue an
order protecting a minor victim of sexual
abuse or exploitation "from public disclosure
of the name of or any other information
concerning the child in the course of the
proceedings, if the court determines that there
is a significant possibility that such disclosure
would be detrimental to the child." In light of
the obvious reasons why such disclosure
would be detrimental, protective orders are
routinely granted in cases involving sexual
exploitation or abuse of minors—even where
the victims are no longer minors at the time of
trial. See United States v. Thompson, 178 F.
Supp. 3d 86, 96 (W.D.N.Y. 2016) (granting
motion for protective order as to minor
victims of sex crimes); United States v. Kelly,
No. 07-CR-374 (SJ), 2008 WL 5068820, at
*2 (E.D.N.Y. July 10, 2008) (same); United
States v. Paris, No. 3:06-CR-64 (CFD), 2007
WL 1484974, at *2 & n.2 (D. Conn. May 18,
2007) (granting motion for protective order
where sex crime victims were "no longer
children" based on finding of "legitimate and
substantial" government interest in protecting
them "from the likely adverse personal,
professional and psychological consequences"
of public identification).
The government's proposed order—
identifying victims by first name only during
trial and ancillary proceedings, and referring
to them as Jane Does in motion practice and
transcripts of proceedings—is narrowly
tailored to serve a compelling government
interest, consistent with appellate case law.
See Thompson, 178 F. Supp. 3d at 96 (citing
Globe Newspaper Co. v. Superior Court for
Norfolk Cty., 457 U.S. 596, 607, 102 S. Ct.
2613, 73 L. Ed. 2d 248 (1982)); Paris, 2007
WL 1484974, at *2. Since the government
asserts that the screen name of Jane Doe #1
contains "easily identifiable portions of [her]
name," those conditions should extend to her
screen name, such that any identifying
information beyond her first name must be
redacted.12 See Gov't Mot. at 5. The same
restriction is imposed as to the screen names
of the other Jane Does as well.
Accordingly, the motion for protective
order is granted, as set forth above.13
(B) Pursuant to Federal Rule of Evidence 412, (B) Under Rule 412, in a proceeding
the government seeks to preclude submission "involving alleged sexual misconduct,"
of evidence and argument regarding the Jane evidence offered "to prove that a victim
Does' other sexual behavior and purported engaged in other sexual behavior" or to
sexual predispositions. Gov't Mot. at 7-12. "prove a victim's sexual predisposition" is not
admissible. Fed. R. Evid. 412(a).14
Caroleo seeks to invoke two
exceptions to this provision, which allow
"evidence of specific instances of a victim's
sexual behavior with respect to the person
accused of the sexual misconduct, if offered
by the defendant to prove consent or if
offered by the prosecutor;" and "evidence
whose exclusion would violate the
defendant's constitutional rights."15 Fed. R.
Evid. 412(b)(1)(B), (C). He wants to question
the Does as to whether they "had a history of
sexting, sending selfies and taking sexually
explicit photos" of themselves. Def.'s Opp'n
at 14.
First, Caroleo argues that he must
cross-examine the minors as whether the
contraband images resulted from his
solicitation, or "previously existed, or whether
[they] engaged in this type of activity despite
any words used by [defendant]."16 Def.'s
Opp'n at 13. Questioning as to when the
specific images at issue under counts 4
through 6 were taken, and under what
circumstances, is permissible, because it
directly concerns the offenses charged, rather
than the Does' "other sexual behavior."
However, questioning as to whether any of
the minors had previously taken other
pornographic selfies is irrelevant. Such other
sexual behavior or predisposition has no
bearing on a jury determination as to whether
the government has met its burden of proof to
show that Caroleo attempted to and/or did
"employ, use, persuade, induce, entice and
coerce a minor ... to engage in sexually
explicit conduct, for the purpose of producing
one or more visual depictions of such
conduct," as charged under counts 4 through
6. Since Caroleo is not constitutionally
entitled to the admission of irrelevant
evidence, he may not avail himself of the
Rule 412(b)(1)(C) exception.17
Caroleo also invokes consent in
relation to the coercion element, but confuses
the issues by framing his argument under
Rule 412(b)(1)(B), the exception for
"evidence of specific instances of a victim's
sexual behavior with respect to the person
accused of the sexual misconduct, if offered
by the defendant to prove consent." See
Def.'s Opp'n at 13. Although Caroleo can
defend against the charges by arguing the
absence of proof regarding enticement or
coercion, he cannot seek to admit evidence of
prior purported "consensual sexting" between
himself and the minors, who, as a matter of
law, cannot consent to sexual conduct with
adults, including involvement in child
pornography.18 See United States v. Corley,
679 F. App'x 1, 4 (2d Cir.), cert. denied, 138
S. Ct. 205, 199 L. Ed. 2d 135 (2017). Rather
than present an inroad under any Rule 412(b)
exception, such testimony might actually
present evidence of additional uncharged
crimes.
Caroleo has failed to show that his
proposed questioning is permissible under
Rule 412. The government's motion,
therefore, is granted to the extent set forth
above.
(C) Pursuant to Federal Rule of Evidence (C) Caroleo contends that resolution of this
405(a), the government moves to preclude the issue is premature, because he has not yet
introduction of evidence of Caroleo's determined whether he will testify at trial.
background, education, or health. Gov't Mot. Def.'s Opp'n at 16. What he overlooks in his
at 12-13. dash for the pause button is that such
evidence might also be presented through the
testimony of other witnesses, not just by
defendant himself. In other words, it is ripe
for consideration.
First, Rule 405(a) governs methods of
proving character, not the admissibility of
character evidence. Admissibility is
determined under Rule 404, which provides
that "[e]vidence of a person's character or
character trait is not admissible to prove that
on a particular occasion the person acted in
accordance with the character or trait." Fed.
R. Evid. 404(a)(1). Thus, "[e]vidence that a
defendant engaged in prior good acts, when
the defendant has not been charged with
`ceaseless' criminal conduct is generally
irrelevant and inadmissible [at trial]." United
States v. Rivera, No. 13-CR-149 (KAM),
2015 WL 1725991, at *2 (E.D.N.Y. Apr. 15,
2015).
Similarly, irrelevant testimony as to
health or medical conditions is barred, as it
"could well cause the jury to be influenced by
sympathies having no bearing on the merits of
the case." United States v. Watts, 934 F.
Supp. 2d 451, 481 (E.D.N.Y. 2013) (citing
United States v. Paccione, 949 F.2d 1183,
1201 (2d Cir. 1991)).
Evidence regarding Caroleo's
background, education or health, such as
whether he "is a dedicated father," Gov't Mot.
at 13, is not relevant to the conduct charged
here, and poses a substantial risk of
misleading the jury and confusing the issues.
See Fed R. Evid. 401, 403. Accordingly,
other than with respect to ordinary pedigree
information elicited from him should Caroleo
take the stand, the motion to preclude such
evidence is granted.
(D) Pursuant to Federal Rules of Evidence (D) "It is well-established precedent that
402 and 403, the government moves to jurors should not be informed about the
preclude evidence and argument as to possible consequences of their verdict due to
possible punishment and collateral the likelihood that prejudice, unfairness, and
consequences of conviction. Gov't Mot. at confusion that would result." United States v.
13-15. Watts, 934 F. Supp. 2d 451, 464 (E.D.N.Y.
2013). Indeed, jurors are routinely instructed
not to consider the consequences of their
verdict. United States v. Blume, 967 F.2d 45,
49 (2d Cir. 1992). Caroleo does not oppose
this request. See generally Def.'s Opp'n.
Accordingly, the motion, resting on these
grounds, is granted.
(E) The government seeks to admit evidence (E) Caroleo contends that the arrest and still-pending
of Caroleo's February 2016 arrest for assault assault charge are unrelated to the
of a bus driver, arguing that it is not barred issues in this case and would be prejudicial if
under Federal Rule of Evidence 404(b) admitted in evidence. Def.'s Opp'n at 16-17.
because it is inextricably intertwined with the He notes that "[t]he obvious purpose of the
discovery of evidence on his cell phone government's attempt to get evidence of the
giving rise to the federal charges. Gov't Mot. bus arrest before a jury is to show bad
at 16-18. character or criminal propensity." Id. at 17.
The Court agrees. Although the assault led to
the later discovery of the evidence at issue in
this case, it is irrelevant to the offenses
charged here and has no probative value. It is
not background evidence of events leading up
to the crimes charged here, nor does it fall
within the "series of transactions as the
charged offense[s]" in this case. See Gov't
Mot. at 17. Assuming for argument sake that
the proffered evidence is relevant, under the
balancing test required by Rule 403, the
prejudice flowing from its admission far
outweighs any probative value it might have.
As a result, the motion is denied.
So Ordered.
FootNotes
1. "Sexting" refers to the transmission of sexually explicit or pornographic material by text message or other forms of digital communication. In labeling this a "sexting" case in his motion papers, Caroleo overlooks that the "sexting" conduct alleged under several counts is a particular sub-set of that activity— specifically, the transmission of child pornography, produced by the child, to an adult—which is not synonymous with the broader phenomenon of "sexting" generally. Clarification of this issue at the outset is critical to its understanding because several of Caroleo's pre-trial arguments hinge on his contention that "sexting" presents novel issues of law. However, the novel issues he identifies relate to sexting cases in which no adult was involved. In support of his "novelty" proposition, Caroleo goes on to argue, incorrectly, that the prosecution of former Congressman Anthony Weiner is the only known federal case in which an adult has been prosecuted for "sexting" a minor without in-person physical contact. See Def.'s Mem. at 6-7 (noting that Weiner pleaded guilty to 18 U.S.C. § 1470, for transferring obscene material to a minor). He also claims that his counsel "has been unable to find any sexting case brought under [federal exploitation and child pornography laws] in any federal jurisdiction in this country." Id. at 5. A deeper dive proves otherwise. For example, YouTube personality Austin Jones pleaded guilty to one count of receipt of child pornography, under § 2252A(a)(2)(A), for having enticed minor fans to film and send him pornographic videos. United States v. Jones, No. 17-CR-417 (N.D. Il.). In addition, multiple courts within the Second Circuit have recently accepted guilty pleas in cases involving similar conduct charged under federal exploitation and child pornography statutes. See, e.g., United States v. Robinson, No. 18-CR-404 (N.D.N.Y.) (accepting guilty plea to charge of sexual exploitation of a child under § 2251); New Paltz Man Pleads Guilty to Sexually Exploiting Four Children, DOJ Press Release (alleging Robinson "persuaded, induced, enticed, or coerced boys between the ages of 11 and 13 to masturbate and/or show him their genitalia .... then captured the activity in video files he saved to electronic storage devices"), https://www.justice.gov/usao-ndny/pr/new-paltz-man-pleads-guilty-sexually-exploiting-four-children; United States v. Seegar, No. 18-CR-250 (W.D.N.Y.) (accepting guilty plea to charge of receipt of child pornography under § 2252A); Darien Center Man Pleads Guilty To Receiving Child [Pornography] From Young Girls, DOJ Press Release (alleging Seegar "used [an] Instagram profile ... to communicate with the girls and asked them for sexually explicit photos"), https://www.justice.gov/usao-wdny/pr/darien-center-man-pleads-guilty-receiving-child-ponography-young-girls. At least one other pending case has been charged under a similar theory. See United States v. Tunison, No. 19-MJ-5011 (W.D.N.Y.) (charging § 2251 violations); Olean Man Arrested For Production Of Child Pornography, DOJ Press Release (alleging Tunison "used one or more social media applications to communicate with" and send "numerous lewd images of himself to the minor, and solicited the minor to produce and send various images of herself to him"), https://www.justice.gov/usao-wdny/pr/olean-man-arrested-production-child-pornography. The Court also notes that, though substantive case law addressing an adult's solicitation of pornographic selfies from minors is limited, in one such case the Second Circuit ruled that the district court, at the sentencing phase, had "reasonably recognized that [it] could neither be dismissed as only `sexting,' nor justified as `just joking around.'" United States v. Broxmeyer, 699 F.3d 265, 270 (2d Cir. 2012) (internal citations omitted). The Circuit's additional observation as to the implications of "selfies" as the specific format for the production of child pornography is instructive: the production of pornographic selfies by a minor victim simply means that the defendant using the minor "both as the model and the photographer in his attempt to produce child pornography." Id. at 281 (emphasis in original). This dual exploitation does not remove actionable conduct from the reach of the charged federal statutes, as written. In any event, Caroleo's related argument that the facts alleged here do not satisfy the elements of the offense charged is, ultimately, an issue for the jury, not a basis for pre-trial dismissal. See Def.'s Mem. at 17.
2. Based on the allegations in the superseding indictment, and amplified by the parties' motion papers and representations at the September 6, 2019 hearing, counts 1 through 3 do not involve "selfies" sent to Caroleo. Those charges address alleged conduct of defendant with regard to child pornography that is not alleged to have been produced and sent to him by the depicted minor victims, but by other adults in possession of the images. See 2nd Gov't Opp'n at 2 (describing images of child pornography allegedly sent to Caroleo by other adults); id. at 3-4 (discussing alleged conduct as to Jane Does 1-3, corresponding to counts 4-6 of Superseding Indictment). As for counts 7 and 8, the prosecution represented at the hearing they result from his alleged possession of a multitude of child pornography files on two of his electronic devices. Caroleo does not argue that those images, no matter how they were produced and were received by him, do not meet the statutory definition of child pornography. (Indeed, some of the images that are the subject of counts 7 and 8 may have been "produced" by one or more of the Jane Does). Thus, his proportionality argument based on the claimed "novelty" of applying federal child pornography laws to "sexting" is factually limited to counts 4 through 6. Even if the argument was assumed to apply to the other counts, the same result would obtain on ripeness grounds.
3. The charges presented in counts 5, 6, and 9 were asserted for the first time in the superseding indictment. Count 4 in the superseding indictment modifies what was charged in count 1 in the original indictment, by moving the start date of the offense back from February 15, 2016 to January 24, 2016. See Dkt. 13 at 1; Superseding Indictment at 2-3. The balance of count 4 is otherwise the same as it was in count 1 of the original indictment. Although, initially, Caroleo also sought to dismiss counts 7 and 8 on the same ground, he conceded on reply that those counts were contained in the original indictment, in identical form, and narrowed his request accordingly. Def.'s Reply at 21.
4. To the extent that Caroleo bemoans his pretrial detention, see Def.'s Mem. at 19, the Court notes that he was initially released on home detention and only remanded to custody following his failure to comply with court-imposed conditions of release. Furthermore, while the Court is cognizant that Caroleo's trial date was adjourned by six months in light of the superseding indictment, Def.'s Reply at 19, he does not move to dismiss on speedy trial grounds.
5. Although the government notes that Caroleo is still represented by the same attorney in the state-court case, see 2nd Gov't Opp'n at 13, the defense represented to the contrary at oral argument.
6. Moreover, Caroleo's after-the-fact assertion that he "never read" the consent form and "believed from [his] conversation with [his] lawyer that by signing the form it only meant that [he] was consenting for [the DA] to review the bus driver video" does not present a basis for suppression or dismissal. See Dkt. 61-2 (Def.'s Aff.") ¶ 13. Importantly, there is not the slightest hint in defendant's papers suggesting that Caroleo was unable to read or that he executed the consent form under duress or coercion.
7. On reply, Caroleo insists that a warrant for the bus driver video would not have led to the discovery of the child pornography, because it would have been limited to the bus driver video only, and the other content on his cell phone would not have been in plain view during retrieval of that video. Def.'s Reply at 16-17. However, his assertion that a search warrant could be executed with such precision as to retrieve that video with near-surgical isolation, precluding even a glimpse of the surrounding stored files, appears to have no factual basis. Furthermore, his analogy to an impermissible search of a closet where a warrant has only authorized a limited search of a "drawer in a particular desk" is inapposite, see id.; since the contraband images were stored in the same location as the bus driver video, the storage of multiple items in that location would actually resemble the storage of multiple items within the same dresser drawer; opening the drawer would put all items in it in plain view, not just the item specifically sought. And, again, in any event, the question presented here is not the scope of a hypothetical state search warrant. The pertinent issue is whether a Strickland violation in the state case invalidated the voluntariness of his consent pursuant to which the search was conducted.
8. Caroleo argues that Rule 41(c)(2) requires that the warrant be executed within 10 days. Def.'s Mem. at 22. However, he appears to cite a prior version of that rule. See United States v. Burke, 517 F.2d 377, 381 (2d Cir. 1975). The current version of Rule 41(c)(2) simply provides that a warrant may be issued for "contraband, fruits of crime, or other items illegally possessed," without imposing any 10-day window. Caroleo also cites Rule 41(f)(4), which does not exist on the currently active version of the rule.
9. This motion was filed prior to the issuance of the superseding indictment. As noted earlier, the counts in the original indictment are renumbered in the superseding indictment: count 1 is now 4, counts 2 and 3 are now 1 and 2, count 4 is now 3, count 5 is now 7, and count 6 is now 8. Caroleo's motion referenced the original count numbers, but the Court uses the superseding indictment count numbers here for the sake of clarity.
10. Although Caroleo has not amended his request to seek the same information as to Jane Does #2 and #3, referenced under counts 5 and 6 added in the superseding indictment, such request would be denied on the same grounds.
11. Based on the facts set forth by the government, it appears that all three Jane Does will likely still be minors at the time of trial, or will have just passed the age of majority.
12. Since the government states that it has disclosed the screen names of the minor victims to defense counsel, the issuance of the protective order will not impede Caroleo's preparation for trial. Gov't Mot. at 6 n.4.
13. If the public identification of any adult witness should be subject to similar restrictions under the protective order—i.e., if an adult witness is related to and/or shares a last name with any minor victim, whose identity would be revealed by the public identification of the adult witness by their full name—the government may file a supplemental motion on ECF prior to trial.
14. The Court notes at the outset that, though colloquially known as a "rape shield" provision, the Rule applies in any "sexual misconduct" proceeding, by its terms. Similarly, its exclusion of evidence of "other sexual behavior" is not limited to physical sexual contact. Caroleo argues that Rule 412(a) does not apply here, because the Advisory Notes describe excludable "sexual behavior" as activities involving "actual physical conduct," whereas his proposed questioning would not address any victim's prior in-person sexual activity. Def.'s Opp'n at 14. However, the Advisory Notes also state that "behavior' should be construed to include activities of the mind, such as fantasies of dreams" and describe excludable predisposition evidence as evidence "relating to the alleged victim's mode of dress, speech, or life-style." Thus, a victim's prior engagement in sexual or pornographic photographs would qualify under this broad understanding of evidence excludable under Rule 412(a).
15. Caroleo also alleges that, "[w]hile the government portrays [them] as ... victim[s]," the minors are "guilty of the same criminal activity charged against [him] ... [as] aider[s] and abetter[s] under Federal law. This cannot be said of any victim of a rape, sexual assault, forced prostitution or similar crimes." Def.'s Opp'n at 11. The statement that the minors are "guilty of the same criminal activity" misunderstands the theory of criminal liability for the exploitation offenses. A victim of a coercion offense, for example, cannot be convicted of aiding and abetting the coercive act against herself, since aiding and abetting is premised on facilitation of the offense, which would contradict proof of coercion.
16. Caroleo also asserts that "it is not [his] words that are on trial in this case. It is the photos that were taken by Jane Doe[s] ... that are at issue." Def.'s Opp'n at 12. On the contrary, since one element of the exploitation charges is that Caroleo persuaded, enticed or coerced the minors to produce the images, his words are, quite literally, on trial.
17. Defendant insists that, if he were permitted to pursue this line of questioning, he should be exempted from the mandatory effect of Rule 412(c), which provides that if a party intends to offer Rule 412(b) evidence, they "must file a motion that specifically describes the evidence and states the purpose for which it is to be offered ... at least 14 days before trial unless the court, for good cause, sets a different time." Fed. R. Evid. 412(c)(1)(A), (B). The defense states that, because Caroleo's interactions with the minors was "anonymous," under screen names, neither he nor his counsel may investigate their prior sexual histories. Def.'s Opp'n at 13. However, his lack of information regarding the alleged victims' prior sexual histories does not exempt him from the mandatory effect of Rule 412(c). If anything, it only highlights that his proposed questioning would be a baseless fishing expedition into the minors' other sexual histories, which flouts the purpose of Rule 412. See Advisory Committee Notes (Rule 412 "aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process.").
18. This basic legal principle requires emphasis in light of Caroleo's repeated comparison of the charges against him with charges filed against minors for producing pornographic selfies; what Caroleo overlooks is that, in all of those cases, the photographs were sent to other minors, with no alleged adult involvement in the production or distribution of the images. See Def.'s Opp'n at 12 & n.5. Prosecutions of minors under child pornography laws for sending photos of themselves to other minors, with no adult involvement, may raise novel legal questions, but the prosecution of adults for soliciting pornographic images of and from minors, whether in person or online, does not. See supra n.1.
Source: Leagle
