United States District Court, D. Rhode Island
J. McConnell, Jr. United States District Judge.
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 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).
Court addresses these motions seriatim.
Photographs of Text Messages
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. See Fed. R. Evid. 801(d)(2)(E).
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)).
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
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
Defendant's Motion in Limine to Exclude Photographs of
Text Messages (ECF No. 70) is DENIED as stated.
Previous Backpage.com Postings
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).
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).
Defendant's Motion in Limine to Exclude Irrelevant
Backpage.com Postings (ECF No. 73) is GRANTED.
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. 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.
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.
the government's Motion in Limine to Exclude A.A.'s
Statement (ECF No. 80) is DENIED as stated.
Photographs of Mr. Brown with ...