MALACHY E. MANNION, United States District Judge.
Before the court in this case with charges of sex trafficking, distribution of illicit drugs, interference with commerce by robbery, and felon in possession of a firearm is the joint pre-trial motion in limine filed by defendants Arthur Taylor, a/k/a "Arty", and Jordan Capone, a/k/a "Angel". (Doc. 730). Defendants seek to introduce evidence of prior and subsequent prostitution-related acts by the government's victim witnesses as an exception under FRE 412. The government opposes the motion arguing that defendants should be barred from offering any evidence at trial regarding alleged sexual activities of its sex trafficking victim witnesses except with respect to the defendants' cross examination of these witnesses about their prostitution activities for defendants and other members of the Black P-Stones. The government contends that the other acts of prostitution by its witnesses not related to the charges in this case are precluded under FRE 412 as "prior or subsequent" or "other" sexual behavior. For the reasons set forth below, the court will
On August 28, 2018, Taylor, along with Jordan Capone, were indicted and charged in a Third Superseding Indictment ("TSI"). (Doc. 690). Taylor was charged with eight counts, namely, Counts 1, 3, 4, 5, 6, 7, 8, and 9. Taylor was basically charged with: conspiracy to distribute in excess of 100 grams of heroin, crack cocaine, molly, Percocet, and marijuana, 21 U.S.C. § 846; conspiracy to commit sex trafficking by force and coercion, 18 U.S.C. § 1594(c); four substantive counts of sex trafficking by force and coercion, 18 U.S.C. § 1591(a) and (b)(1) and 2; one count of conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951(a); and one count of unlawful possession of a firearm by a convicted felon,18 U.S.C. § 922(g)(1).
Capone was charged with conspiracy to distribute in excess of 100 grams of heroin, crack cocaine, molly, Percocet, and marijuana, 21 U.S.C. § 846; possession with intent to distribute molly, 21 U.S.C. § 841(a)(1); conspiracy to commit sex trafficking by force, fraud, and coercion, 18 U.S.C. § 1594(c); and four substantive counts of sex trafficking by force, fraud, and coercion, 18 U.S.C. § 1591(a) and (b)(1) and 2.
In particular, both defendants are charged with conspiracy to commit sex trafficking by force, fraud, and coercion in Count 3. Count 3 also contains a section that specifies 15 overt acts which were allegedly committed in furtherance of the conspiracy as well as the relevant dates that the overt acts were committed. The TSI also alleges that the defendants conspired to violate § 1591 and maintained
On September 5, 2018, Taylor and Capone were arraigned and pled not guilty to all counts of the TSI against them. (Doc. 701).
On October 11, 2018, defendants jointly filed their instant motion in limine to introduce prior and subsequent prostitution related evidence regarding the government's witnesses. (Doc. 730). Defendants simultaneously filed their brief in support of their motion. (Doc. 730-1). The government filed its brief in opposition on October 23, 2018. (Doc. 734). Defendants did not file a reply brief.
After the filing of the TSI, the court granted defendants' motion to continue the trial and re-scheduled it for January 28, 2019. (Docs. 735 & 736).
Defendants' motion in limine is filed pursuant to Fed.R.Evid. 412. "Rule 412 prohibits the admissibility of `evidence offered to prove that a victim engaged in other sexual behavior' and `evidence offered to prove a victim's sexual predisposition.'" United States v. Williams, 666 Fed. Appx. 186, 200 (3d Cir. 2016), cert. denied, ___ U.S. ___, 138 S.Ct. 121, 199 L.Ed.2d 74 (2017). "Rule 412 applies in cases involving `alleged sexual misconduct,' conduct within the terms of the sex trafficking statute [18 U.S.C. § 1591]." Id. at 201. "The evidence ordinarily barred by Rule 412 is only admissible `in designated circumstances in which the probative value of the evidence significantly outweighs possible harm to the victim.'" Id. There are three exceptions under Rule 412(b)(1) where evidence of alleged sexual misconduct may be admitted. Id. The applicable exception in this case falls under Rule 412(b)(1)(c), evidence whose exclusion would violate the defendant's constitutional rights. There are two constitutional rights at issue herein, namely, defendants' right to present a full defense under the Fifth Amendment's Due Process Clause and defendants' right to confront witnesses under the Sixth Amendment.
Defendants contend that they should be permitted to offer evidence of prior and subsequent prostitution-related acts by the government's four victim-witnesses, identified as M.F., S.P., M.M., and K.E., as part of their rights under the Fifth and Sixth Amendments to offer a complete defense in their trial and to cross-exam and impeach witnesses. They argue that such evidence is admissible as an exception under FRE 412(b)(1)(C).
Defendants state that the information they received from the government during discovery indicated that M.F., S.P., M.M., and K.E. engaged in commercial sex acts before, during and after their alleged involvement with defendants. They also state that the discovery material indicated that three of the witnesses were recruited by the forth witness, S.P., to perform commercial sex acts for her as their madam. As such, defendants contend that they should be allowed to introduce this evidence at trial.
At the outset, the government does not challenge the defendants' ability to cross-examine its four victim witnesses about their acts of prostitution for defendants and other members of the Black P-Stones during the conspiracy alleged in the TSI. The government does however oppose defendants' request to introduce evidence and to cross-exam its victim witnesses regarding
Defendants' rights under the Fifth and Sixth Amendments are not unlimited. Nor is the right to cross-examine witnesses unlimited. See United States v. Senat, 698 Fed.Appx. 701, 704 (3d Cir. 2017) ("The Confrontation Clause does not limit a district court's `wide latitude ... to impose reasonable limits on such cross-examination,' including limits based on `harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'") (citations omitted). See also United States v. Lockhart, 844 F.3d 501 (5th Cir. 2016) (Fifth Circuit held that the district court's exclusion of evidence that victim was a prostitute before defendant's involvement with her did not violate defendant's right to a defense and to cross-exam the witness).
With respect to a sex trafficking offense under § 1591(a), the government must prove through the four victim witnesses that the defendants "`kn[ew] that force, fraud, or coercion' would be used to cause [the witnesses] to engage in a commercial sex act." United States v. McIntyre, 612 Fed.Appx. 77, 78-79 (3d Cir. 2015). Threats of force or coercion is defined for purposes of § 1591(a) to include "`threats of serious harm to or physical restraint against any person,' and `any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person.'" Id. at 80.
Defendants argue that the alleged prior and subsequent commercial sex acts of the four witnesses are relevant to show that their prostitution-related acts were consensual and not forced by defendants and, that they were not compelled to engage in prostitution to avoid "serious harm." They also state that the stated evidence shows the women freely consented to engage in prostitution and that no threats or coercion was required based on the witnesses' prior and later performance of commercial sex acts. Further defendants state that the evidence will show S.P. recruited the other three women to work as prostitutes for her and, that she advertised their services on the internet and other media. Defendants state that this evidence will show S.P. was not a victim and that the other women did not have to be forced by them to work as prostitutes, which is an element of the § 1591(a) charge. In particular, defendants state that the evidence of the alleged prior and subsequent prostitution activities of the four women shows that they engaged in prostitution for the financial gain and not because defendants forced and coerced them to do so. Defendants also point out that M.M. had previously worked as a prostitute with a pimp named "Young" or "Forty" and that is how they met her.
The government relies, in part, on Williams, supra.
In Williams, id. at 201, the Third Circuit stated:
(footnote omitted).
Ultimately, the Third Circuit in Williams, did not decide whether the district court erred by prohibiting the evidence regarding the victim's prior acts as a prostitute since the court found that it was harmless because the victim admitted that she was a prostitute for 12 years before she became involved with defendant and that she acted voluntarily as a prostitute for defendant.
Although the Third Circuit has not decided the issue presented herein under FRE 412, this court concurs with the appellate courts cited in Williams as well other cases in which the courts have ruled on this issue, namely: Untied States v. Carson, 870 F.3d 584 (7th Cir. 2017), cert. denied, ___ U.S. ___, 138 S.Ct. 2011, 201 L.Ed.2d 266 (2018); United States v. Mack, 808 F.3d 1074 (6th Cir. 2015); U.S. v. Elbert, 561 F.3d 771 (8th Cir. 2009); U.S. v. Chin, 606 Fed.Appx. 538 (11th Cir. 2015); U.S. v. Valenzuela, 495 Fed.Appx. 817 (9th Cir. 2012).
Additionally, in United States v. Thompson, 178 F.Supp.3d 86, 90 (W.D.N.Y 2016), defendant was charged with sex trafficking under § 1591(a) and the court granted the government's motion in limine prohibiting the defendant "from introducing or eliciting evidence of the victims' pre- and post-indictment sexual behavior, including prostitution." The court found that defendant's Fifth and Sixth Amendments rights were not violated by preventing defendant from offering evidence related to the sexual activity of the victim witnesses before and after the time period at issue in the indictment.
The court in Thompson, id. at 92, then explained as follows:
(footnotes omitted).
The court in Thompson, id. at 92, also explained why defendant's right to confront witnesses under the Sixth Amendment was not violated based on the court's discretion to impose reasonable limits on cross-examination. The court in Thompson, id. at 93-94,, then discussed the Confrontation Clause in the context of Rule 412 and stated as follows:
Finally, the court in Thompson, id. at 93, stated that "even if Rule 412(a) did not prohibit the Defendant from impeaching the victims with prior prostitution-related convictions, the impeachment value of such evidence would be substantially out-weighed by unfair prejudice and embarrassment to the victims." (citations omitted).
As such, the court in Thompson, id. at 94, found that the exception under FRE 412(b)(1)(c) did not apply and defendant's constitutional rights were not violated by barring any evidence of the victims' pre and post-indictment sexual activity.
This court concurs with the well-reasoned rationale of the Thompson Court with respect to its analysis and conclusions that a defendant's Fifth and Sixth Amendment rights are not violated by precluding the defendant from offering evidence or testimony that the victims engaged in prostitution before and after the conspiracy charged in the indictment. See also United States v. Overton, 2017 WL 6347084, *6-*7 (W.D.N.Y. Dec. 13, 2017); Gemma, 818 F.3d at 34 (the First Circuit found no error with the district court's refusal to direct the government to provide defendant with additional evidence about one of its victim-witness' prior prostitution in a case in which defendant was charged under § 1591(a), and found that the decision to exclude it "would not violate [defendant's] constitutional rights.").
Therefore, the court will deny defendants' motion in limine under FRE 412 and not allow them to introduce any evidence or testimony of alleged prior and subsequent prostitution and commercial sex acts by M.F., S.P., M.M., and K.E., since the exclusion of this evidence in this case will not violate defendants' constitutional rights under the Fifth and Sixth Amendments to present a complete defense and to cross-exam the government's witnesses. The probative value of such evidence
Based on the foregoing, the court will
