United States v. Brown

          ORDER

          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 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 in such acts in violation of 18 U.S.C. § 2. Pending before the Court are:

1. Mr. Brown's Motion in Limine to Exclude Photographs of Text Messages (ECF No. 70), to which the government objects (ECF No. 78);

2. Mr. Brown's Motion in Limine to Exclude Irrelevant Backpage.com Postings (ECF No. 73), to which the government objects (ECF No. 81);

3. Mr. Brown's Notice of Intent to Offer A.A.'s^[1] Statement (ECF No. 74), and the government's objection thereto and Motion in Limine to Exclude A.A.'s Statement (ECF No. 80);

4. Mr. Brown's Motion in Limine to Exclude Photographs of Mr. Brown with A. A. and Another (ECF No. 75), to which the government objects (ECF No. 82);

5. Mr. Brown's Motion for an Order Directing the Government to be More Specific (ECF No. 76), and the government's response thereto (ECF No. 79); and

6. Mr. Brown's Motion in Limine to Exclude the Third Last-Minute Disclosure of Evidence (Cellebrite Report) (ECF No. 83), to which the government objects (ECF No. 84), and Mr. Brown replies (ECF No. 85).

         The Court addresses these motions seriatim.

         1. Photographs of Text Messages

         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.^[2] See Fed. R. Evid. 801(d)(2)(E).

         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 are in furtherance of a conspiracy. Thus, the text messages authored by A.A.-to both the undercover agent and Mr. Brown-are not hearsay.^[3]

         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.

         2. Previous Backpage.com Postings

         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 transporting] 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.

         3. A.A.'s Statement

         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.^[4] Mr. Brown also argues that A.A.'s statement is admissible under Rule 106's "rule of completeness." The government objects and moves in limine to exclude the transcript. ECF No. 80. It argues that the only possible ground for admitting the transcript would be as a prior inconsistent statement, and that the text messages and her statement are consistent.

         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 presents evidence that tends to attack the credibility of A. A. or proves to be inconsistent with a matter presented at trial concerning A.A., then the transcript will be admissible under Rule 806.

         Therefore, the government's Motion in Limine to Exclude A.A.'s Statement (ECF No. 80) is DENIED as stated.

         4. Photographs of Mr. Brown with ...