Opinion
17-CR-177 (ENV)
09-26-2019
UNITED STATES OF AMERICA, v. BLAISE CAROLEO, Defendant.
SHORT-FORM MEMORANDUM & ORDER
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 |
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| I. Defendant's Motions to Dismiss, Strike and Suppress | |
| (A) Caroleo moves to dismiss counts 1through 8 of the superseding indictment, onthe ground that they violate the EighthAmendment's prohibition on cruel andunusual punishment. See Dkt. 61 ("Mot. toDismiss"); Dkt. 61-1 ("Seltzer Aff.") ¶¶ 1-5;Dkt. 61-10 ("Def.'s Mem.") at 12.In this indictment, Caroleo is charged | (A) Caroleo aims his Eighth Amendmentchallenge at counts 1 through 8 withoutdifferentiation, generalizing that they carrymandatory minimum sentences of 10 and 15years upon conviction. This argument isfurther embellished by defendant's overallcharacterization of the indictment as"overcharged," pegged to the text message of |
| with distribution of child pornography (counts |
| and possession of pornographic "selfies," i.e.,photographs taken by the minors themselves,they present a novel factual pattern thatCongress did not intend to address with thecriminal provisions charged here. Def.'sMem. at 16-17. | even his own briefing suggests. He cites nocase suggesting that such an argument is ripeat pre-trial. Indeed, the cases he cites allconcern the imposition of sentence followingconviction.Plainly, "Eighth Amendmentchallenges are generally not ripe until theimposition, or immediately impendingimposition, of a challenged punishment orfine." Infinity Outdoor, Inc. v. City of NewYork, 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 Statesv. Caparotta, 890 F. Supp. 2d 200, 211 &n.12 (E.D.N.Y. 2012) (rejecting facialchallenge to mandatory minimum sentenceunder § 2251(b)(1) and concluding EighthAmendment challenge not ripe since "thereare no facts pertaining to defendant'ssentencing before the court"); United States v.Santana, 761 F. Supp. 2d 131, 140 (S.D.N.Y.2011) (finding mandatory minimum challengenot ripe as to defendants not yet convicted |
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| His core argument is that the timing of thesuperseding indictment suggests thegovernment added charges on the eve of trialin retaliation for his decision to go to trial.Def.'s Mem. at 18-19. | presumption of vindictiveness that has notbeen rebutted by objective evidence justifyingthe prosecutor's action.'" United States v.Stewart, 590 F.3d 93, 122 (2d Cir. 2009)(citation omitted). However, "a prosecutor'spretrial charging decision is presumedlegitimate," and the Second Circuit "hasconsistently adhered to the principle that thepresumption of prosecutorial vindictivenessdoes not exist in a pretrial setting." Id.(citation omitted). That principle is consistentwith the Supreme Court's jurisprudence onthe subject, which distinguishes betweenpretrial and post-trial charging decisions. SeeUnited States v. Goodwin, 457 U.S. 368, 382,102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982)(declining to apply presumption ofvindictiveness before trial where defendantwas indicted on felony charges after decidingto go to trial on misdemeanor charges arisingout of the same incident). As the SupremeCourt has observed, "[a] prosecutor shouldremain free before trial to exercise the broad |
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| discretion entrusted to him to determine theextent of the societal interest in prosecution.An initial decision should not freeze futureconduct." Id.Without recourse to a presumption ofvindictiveness, Caroleo must point to directevidence of vindictiveness to prevail on thismotion—which he does not do. See UnitedStates v. Grant, No. 93-CR-85 (PKL), 1994WL 74853, at *5 (S.D.N.Y. Mar. 7, 1994)(denying pre-trial motion to dismiss). Thetiming of a superseding indictment, standingalone, does not show actual vindictiveness,which "requires a showing that a'prosecutor's charging decision [is] a 'directand unjustifiable penalty,' that resulted 'solelyfrom the defendant's exercise of a protectedlegal right.'" Stewart, 590 F.3d at 123(emphasis added) (citation omitted). "Putanother way, the defendant must show that'(1) the prosecutor harbored genuine animustoward the defendant, . . . and (2) [thedefendant] would not have been prosecuted |
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| except for the animus.'" United States v.Feneziani, No. 05-CR-290E, 2007 WL1613630, 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 shownby . . . 'direct' evidence, such as evidence of astatement by the prosecutor" (internal citationomitted.Consequently, because thepresumption of vindictiveness does not applyin a pretrial setting and Caroleo has failed toshow actual evidence of vindictiveness, themotion to dismiss counts 4, 5, 6 and 9 isdenied. | |
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| (C) Caroleo moves to strike the alias"Nimfeater" from the caption of the | (C) Federal Rule of Criminal Procedure 7(d)permits a court to "strike surplusage from the |
| indictment, arguing that it "serves no purposeother than to prejudice" him. Mot. to Dismissat 2; Seltzer Aff. ¶¶ 9, 38. | indictment" upon a defendant's motion. Toprevail, the defendant must show that the termat issue is irrelevant to the crime charged,inflammatory and prejudicial. United Statesv. Mulder, 273 F.3d 91, 99 (2d Cir. 2001).Even if prejudicial, "aliases will not bestricken 'when evidence regarding thosealiases . . . will be presented to the jury,' forexample, as evidence of the crime or to assistthe jury in identifying a defendant." UnitedStates v. Thompson, 141 F. Supp. 3d 188, 201(E.D.N.Y. 2015) (denying motion to strikealias "Love Pimpin" where defendant wascharged with, inter alia, running prostitutionring and alias was necessary to understandevidence at trial) (citations omitted), aff'd,896 F.3d 155 (2d Cir. 2018).Those are the exact purposes whichthe government argues the alias serves here,contending it is necessary "to connect Caroleoto the crimes charged by matching him to theusername he used to entice minors to produceand send him pornography," which is of |
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| particular relevance because "some victimsmay only . . . be able to identify the defendantas 'Nimfeater.'" 2nd Gov't Opp'n at 27.Furthermore, the government explains that thealias is probative of the conduct charged,since "'nimf' is a reference to a youngfemale" and "eater" a reference to a sexualact. Id. The Court is satisfied, then, on theserepresentations by the government thatreference to defendant's alias is highlyprobative and that it outweighs any prejudiceto him. The motion, therefore, is denied, butwith leave to renew at the close of thegovernment's case if defendant has a good-faith 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 torenew if government did not present evidencefor which alias was integral). | |
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| (D) To remedy the claimed abridgment ofrights guaranteed by the Sixth and FourthAmendments, Caroleo moves to dismiss allcounts in the indictment, claiming ineffective | (D) Off the start, Caroleo does notdemonstrate that his assertion of anineffective assistance claim, typicallyreserved for post-conviction relief, is a proper |
| assistance of counsel during a proffer sessionwith the Manhattan District Attorney's("DA") office, on August 15, 2016, in relationto a separate state-court prosecution for hisalleged assault of a bus driver. Def.'s Mem.at 7-11; Seltzer Aff. ¶ 7. He argues that hisattorney in that action (who has never at anytime represented him in the federal case)advised him to sign a consent form to searchhis cell phone, because the DA's office couldobtain a warrant even if he did not consentand the state charge might be dismissed if hecooperated. Def.'s Mem. at 8. Relatedly, hemoves to suppress evidence seized from hiscell phone, on September 9, 2016, and hishome, on October 11, 2016, because thosesearches were conducted pursuant to warrantsrelying on information obtained during theproffer session. Def.'s Mem. at 11, 21-22. | ground for dismissal of an indictment beforetrial. See Strickland v. Washington, 466 U.S.668, 671, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984) (setting standard to set aside"conviction" or "sentence" for ineffectiveassistance of counsel). The mountain Caroleomust climb is made all the higher by the factthe alleged ineffectiveness came in the courseof a state court criminal proceeding that isstill pending. Regardless, assuming that theCourt may consider the argument in theposture of a pretrial suppression motion, itfails when considered on the merits.To prevail on an ineffective assistanceclaim, a claimant must show that "counsel'sperformance was deficient"—here, in thestate case—and "that the deficientperformance prejudiced the defense,"meaning that "there is a reasonable possibilitythat, but for counsel's unprofessional errors,the result of the proceeding would have beendifferent." Strickland, 466 U.S. at 687, 693-94. To do so, he "must overcome the |
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| addressed the relevant Fourth Amendmentconsiderations in tandem with sound legalstrategy. The grounds for Caroleo'sineffective assistance argument are madeshakier by his state attorney's swornstatement that, prior to Caroleo's consent tothe search, he informed Caroleo of thecompleteness of any government search of hiscell phone, and that he asked Caroleo if hiscell phone contained anything he did not wantthe prosecution to see. Dkt. 68 ("GallucciAff.") ¶ 7. Caroleo responded, in sum andsubstance, that "there was nothing to worryabout." Id. ¶ 8. Given the informationavailable to counsel at that time, such advicewas not objectively unreasonable.As for the scope of the informationavailable to counsel, Caroleo's role inaffirmatively bringing the contents of his cellphone to the attention of law enforcementundermines his related argument that counselunreasonably failed to investigate its contentsbefore advising him to consent to the search. |
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| At the proffer session, the DA did not seek tosearch his cell phone as a mere incident to hisarrest, as he implies here. See Def.'s Reply at14-15. Caroleo put his cell phone in issue byclaiming that it contained exculpatoryevidence; such conduct would not reasonablysuggest to his attorney that there was a risk italso contained incriminating evidence, albeitof another crime. Caroleo, who, presumably,knew the contents of his cell phone betterthan any else, does not indicate that hiscounsel had any reason to suspect it containedincriminating evidence, nor that Caroleo wasin any way prevented from informing hiscounsel to that effect when they spokeprivately at the proffer session. In fact,despite noting the presence of his wife duringthat conversation, Caroleo offers noexplanation for his withholding of thisinformation from counsel given his awarenessthat the DA's office wanted to search thevisual media on his cell phone. Sinceattorney advice requires the application of |
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| him, but hardly the product of a constitutionalviolation or any other misconduct he hasalleged in his motions. At the end of the day,state court counsel's advice stemmed fromCaroleo's representation to authorities thatvital evidence of the underlying criminalincident was depicted on his cellphone video.That representation made a lawful warrantedsearch of the cellphone virtually inevitable, aswell as, among its fruits, the lawful discoveryof the child pornography video it alsocontained. Accordingly, the motion todismiss, or, in the alternative, to suppress, isdenied. | |
| (E) Pursuant to Federal Rule of CriminalProcedure 41, Defendant moves to suppressevidence seized from his cell phone onSeptember 9, 2016 and his home on October11, 2016. Mot to Dismiss at 2; Def.'s Mem.at 22-23; Seltzer Aff. ¶ 8. He contends thatthe government failed to comply with Rule 41because it did not file returns of the warrantspursuant to which those searches were | (E) Rule 41(f)(1)(D) provides that "[t]heofficer executing the warrant must promptlyreturn it—together with a copy of theinventory—to the magistrate judge designatedon the warrant." Even assuming, arguendo,that a technical violation of the Rule hadoccurred in the warrant process, suppressionwould not be warranted, as such a violationhas no constitutional implications here and |
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| Caroleo has shown no harm affecting asubstantial right. See United States v. Burke,517 F.2d 377 (2d Cir. 1975)."[V]iolations of Rule 41 alone shouldnot lead to exclusion unless (1) there was'prejudice' in the sense that the search mightnot have occurred . . . if the Rule had beenfollowed, or (2) there is evidence ofintentional and deliberate disregard of aprovision in the Rule." Id. at 386-87; see Fed.R. Crim. P. 52(a) ("Any error, defect,irregularity, or variance that does not affectsubstantial rights must be disregarded."). Inthe complete absence of any such showing,consequently, the motion to suppress underRule 41 is denied. | |
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| (F) Defendant moves to suppress the firearmreferenced in count 9 under the FourthAmendment and, in light of the requested | (F) The parties agree that the subject firearmwas discovered in a locked safe in Caroleo'shome, during a search for child pornography |
| suppression, to dismiss count 9. Mot. toDismiss at 1-2; Seltzer Aff. ¶ 6; Def.'s Mem.at 20-21. He contends that the firearm "wasnot in plain view, nor was it involved in thecrimes being investigated" and giving rise tothe warrant under which the search wasconducted. Def.'s Mem. at 20. He furtherargues that its "incriminating character wasnot 'immediately apparent'" so as to permitthe application of the plain view doctrine. Id. | under a warrant.Caroleo does not argue that the searchof the safe was impermissible, either underthe specific terms of the warrant or under theFourth Amendment more broadly, as it waswithin the premises covered by the warrantand there was probable cause to believe itcontained the contraband sought thereunder—i.e., child pornography. See United States v.Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157,72 L. Ed. 2d 572 (1982) ("A lawful search offixed premises generally extends to the entirearea in which the object of the search may befound and is not limited by the possibility thatseparate acts of entry or opening may berequired to complete the search."). Nor doeshe argue that the firearm was not in plainview within the safe itself, which wasproperly subject to search.Since law enforcement was aware ofCaroleo's status as a felon, rendering anyfirearm possession on his part illegal, thediscovery of the firearm made it immediately |
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| apparent that it might be contraband. Thus,the seizure of the gun did not violate theFourth Amendment. See Minnesota v.Dickerson, 508 U.S. 366, 375, 113 S. Ct.2130, 124 L. Ed. 2d 334 (1993) ("[I]f policeare lawfully in a position from which theyview an object, if its incriminating characteris immediately apparent, and if the officershave a lawful right of access to the object,they may seize it without a warrant.").Accordingly, the motion to suppress thefirearm and dismiss count 9 under the FourthAmendment is denied. | |
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| (G) In the alternative, Caroleo moves to severcount 9. Dkt. 67 ("Mot. to Sever"). Heargues the evidence supporting count 9,charging him as a felon in possession of afirearm, is unrelated to counts 1 through 8,which pertain exclusively to childpornography. Id. at 2. He notes thepossibility of wishing to testify as to theownership of the firearm, but not the childpornography, but that he could not do so | (G) The government consents to theseverance of count 9, informing the Court itsintended evidentiary proof as to count 9 isdistinct from that of counts 1 through 8. Dkt.71 (citing United States v. Jones, 16 F.3d 487,492 (2d Cir. 1994). The motion to severcount 9 is therefore granted. |
| while also on trial for the child-pornographycharges. Id. He also worries of the jurylearning about his prior felony conviction, asthe "aura of violence from possession of aweapon" could result in prejudice thatoutweighs any benefits to joinder of count 9.Id. | |
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| II. Bill of Particulars and Outstanding Discovery | |
| (A) Requested in the form of a bill ofparticulars, Caroleo seeks the "name and/orinitials" of the Jane Does and the minorsdepicted in the images and videos giving riseto counts 1 through 4, 7 and 8 of thesuperseding indictment. Dkt. 50-2 ("1stBOP"). | (A) "The court may direct the government tofile a bill of particulars," see Fed. R. Crim. P.7(f), a decision that rests within its sounddiscretion, United States v. Harding, 273 F.Supp. 2d 411, 429 (S.D.N.Y. 2003). Such anorder is appropriate where needed "to apprise[defendant] of the charges with sufficientprecision so as to enable him to 'prepare fortrial, to prevent surprise, and to interpose aplea of double jeopardy should he beprosecuted a second time for the same |
| offense.'" Id. (citation omitted). Thus, "[a]bill of particulars is required 'only where thecharges of the indictment are so general thatthey do not advise the defendant of thespecific acts of which he is accused.'" UnitedStates v. Chen, 378 F.3d 151, 163 (2d Cir.2004) (citation omitted).By contrast, an order directing thegovernment to file a bill of particulars is notnecessary "where the government has madesufficient disclosures concerning its evidenceand witnesses by other means." Id. When thesufficiency of disclosure is disputed, adefendant bears the burden of showingnecessity, as well as prejudice that will resultfrom the denial of his request. United Statesv. 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 therelevant images and videos available forreview at the FBI's office, as well as providedthe user name of Jane Doe #1. Dkt. 53 |
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| States v. Diaz, 303 F. Supp. 2d 84, 89 (D.Conn. 2004) (denying request for bill ofparticulars "for the exact dates and specificacts the government alleges [defendant]performed, and the precise means by whichthe pornographic materials were transportedin interstate commerce").In line with this host of authority, themotion is denied. | |
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| (B) Caroleo requests "copies of all the imagesthat are the basis of all the charges in theindictment" and reserves the right to move inlimine regarding any such evidence thegovernment intends to introduce. 1st BOP ¶6; Seltzer Aff. ¶ 7. Caroleo then modified hisrequest as to the contraband images,conceding that they must be viewed at theFBI office rather than turned over to thedefense, but asking the Court to "order thegovernment to prepare a file that defensecounsel can view at the FBI office . . . andprovide sufficient information so that eachimage corresponds to a particular count in the | (B) The government affirms that thecontraband images they intend to introduce asevidence will be made available to defensecounsel one week before trial at the U.S.Attorney's office in Brooklyn, Gov't Opp'n at4, and that defense counsel could now view,with the assistance of an FBI agent, all digitalfiles supporting the possession counts, in theirunredacted form, at the FBI office. Thegovernment also represented at oral argumentits intention to provide the defense withredacted copies of all digital files supportingthe possession counts. Defense counselexpressed satisfaction with her ability to |
| indictment." Dkt. 55 ("Def.'s Opp'n") at 18.He also seeks copies "of all text messages,videos and photos that are not contrabandfrom [his] phone, including but not limited to,those items that may be evidence at the trial."Id. | access all discoverable material on Caroleo'sseized devices. Accordingly, Caroleo'srequest is moot. |
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| (C) Pursuant to Federal Rule of CriminalProcedure 16, Caroleo makes various requestsfor additional discovery and asks that thegovernment be precluded from presentingevidence at trial that it fails to turn over incompliance with its discovery obligations.See Dkt. 61 ¶ 8, Seltzer Aff. ¶¶ 10-11; Dkt.61-1 at 11-13 ("Disco Mot."). | (C) Rather than respond point-by-point, thegovernment responds that it has alreadyprovided the requested discovery or made itavailable at the FBI office. See 2nd Gov'tOpp'n at 24-25. Defense counsel conceded atoral argument that no discovery requestremains outstanding. Accordingly, thisrequest is denied as moot. |
| III. Government's Motions in Limine | |
| (A) Pursuant to 18 U.S.C. § 3509(d)(3), thegovernment requests a protective orderpreventing the public disclosure of the fullnames and user names of the Jane Does listedunder counts 4 through 6. Dkt. 52 ("Gov'tMot.") at 4-7; id. at 3 n.2. Specifically, thegovernment requests that the minors bereferred to as Jane Does during any motion | (A) Caroleo expands on the propositionpreviewed earlier offensively in support of hisown pretrial motions, contending that ahearing is needed to determine whether thevictims are still minors, and opposes thegovernment's request in the event that theyare not, because they would no longer be |
| trial. See United States v. Thompson, 178 F.Supp. 3d 86, 96 (W.D.N.Y. 2016) (grantingmotion for protective order as to minorvictims 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); UnitedStates v. Paris, No. 3:06-CR-64 (CFD), 2007WL 1484974, at *2 & n.2 (D. Conn. May 18,2007) (granting motion for protective orderwhere sex crime victims were "no longerchildren" based on finding of "legitimate andsubstantial" government interest in protectingthem "from the likely adverse personal,professional and psychological consequences"of public identification).The government's proposed order—identifying victims by first name only duringtrial and ancillary proceedings, and referringto them as Jane Does in motion practice andtranscripts of proceedings—is narrowlytailored to serve a compelling governmentinterest, consistent with appellate case law.See Thompson, 178 F. Supp. 3d at 96 (citing |
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| Globe Newspaper Co. v. Superior Court forNorfolk Cty., 457 U.S. 596, 607, 102 S. Ct.2613, 73 L. Ed. 2d 248 (1982)); Paris, 2007WL 1484974, at *2. Since the governmentasserts that the screen name of Jane Doe #1contains "easily identifiable portions of [her]name," those conditions should extend to herscreen name, such that any identifyinginformation beyond her first name must beredacted. See Gov't Mot. at 5. The samerestriction is imposed as to the screen namesof the other Jane Does as well.Accordingly, the motion for protectiveorder is granted, as set forth above. | |
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| (B) Pursuant to Federal Rule of Evidence 412,the government seeks to preclude submissionof evidence and argument regarding the JaneDoes' other sexual behavior and purported | (B) Under Rule 412, in a proceeding"involving alleged sexual misconduct,"evidence offered "to prove that a victimengaged in other sexual behavior" or to |
| sexual predispositions. Gov't Mot. at 7-12. | "prove a victim's sexual predisposition" is notadmissible. Fed. R. Evid. 412(a).Caroleo seeks to invoke twoexceptions to this provision, which allow"evidence of specific instances of a victim'ssexual behavior with respect to the personaccused of the sexual misconduct, if offeredby the defendant to prove consent or ifoffered by the prosecutor;" and "evidencewhose exclusion would violate thedefendant's constitutional rights." Fed. R.Evid. 412(b)(1)(B),(C). He wants to question |
| Rule 412(b)(1)(B), the exception for"evidence of specific instances of a victim'ssexual behavior with respect to the personaccused of the sexual misconduct, if offeredby the defendant to prove consent." SeeDef.'s Opp'n at 13. Although Caroleo candefend against the charges by arguing theabsence of proof regarding enticement orcoercion, he cannot seek to admit evidence ofprior purported "consensual sexting" betweenhimself and the minors, who, as a matter oflaw, cannot consent to sexual conduct withadults, including involvement in childpornography. See United States v. Corley,679 F. App'x 1, 4 (2d Cir.), cert. denied, 138S. Ct. 205, 199 L. Ed. 2d 135 (2017). Ratherthan present an inroad under any Rule 412(b)exception, such testimony might actually |
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| present evidence of additional unchargedcrimes.Caroleo has failed to show that hisproposed questioning is permissible underRule 412. The government's motion,therefore, is granted to the extent set forthabove. | |
| (C) Pursuant to Federal Rule of Evidence405(a), the government moves to preclude theintroduction of evidence of Caroleo'sbackground, education, or health. Gov't Mot.at 12-13. | (C) Caroleo contends that resolution of thisissue is premature, because he has not yetdetermined whether he will testify at trial.Def.'s Opp'n at 16. What he overlooks in hisdash for the pause button is that suchevidence might also be presented through thetestimony of other witnesses, not just bydefendant himself. In other words, it is ripefor consideration.First, Rule 405(a) governs methods ofproving character, not the admissibility ofcharacter evidence. Admissibility isdetermined under Rule 404, which providesthat "[e]vidence of a person's character orcharacter trait is not admissible to prove thaton a particular occasion the person acted in |
| accordance with the character or trait." Fed.R. Evid. 404(a)(1). Thus, "[e]vidence that adefendant engaged in prior good acts, whenthe defendant has not been charged with'ceaseless' criminal conduct is generallyirrelevant and inadmissible [at trial]." UnitedStates v. Rivera, No. 13-CR-149 (KAM),2015 WL 1725991, at *2 (E.D.N.Y. Apr. 15,2015).Similarly, irrelevant testimony as tohealth or medical conditions is barred, as it"could well cause the jury to be influenced bysympathies having no bearing on the merits ofthe case." United States v. Watts, 934 F.Supp. 2d 451, 481 (E.D.N.Y. 2013) (citingUnited States v. Paccione, 949 F.2d 1183,1201 (2d Cir. 1991)).Evidence regarding Caroleo'sbackground, education or health, such aswhether he "is a dedicated father," Gov't Mot.at 13, is not relevant to the conduct chargedhere, and poses a substantial risk ofmisleading the jury and confusing the issues. |
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| See Fed R. Evid. 401, 403. Accordingly,other than with respect to ordinary pedigreeinformation elicited from him should Caroleotake the stand, the motion to preclude suchevidence is granted. | |
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| (D) Pursuant to Federal Rules of Evidence402 and 403, the government moves topreclude evidence and argument as topossible punishment and collateralconsequences of conviction. Gov't Mot. at13-15. | (D) "It is well-established precedent thatjurors should not be informed about thepossible consequences of their verdict due tothe likelihood that prejudice, unfairness, andconfusion that would result." United States v.Watts, 934 F. Supp. 2d 451, 464 (E.D.N.Y.2013). Indeed, jurors are routinely instructednot to consider the consequences of theirverdict. United States v. Blume, 967 F.2d 45,49 (2d Cir. 1992). Caroleo does not opposethis request. See generally Def.'s Opp'n.Accordingly, the motion, resting on thesegrounds, is granted. |
| (E) The government seeks to admit evidenceof Caroleo's February 2016 arrest for assaultof a bus driver, arguing that it is not barredunder Federal Rule of Evidence 404(b)because it is inextricably intertwined with the | (E) Caroleo contends that the arrest and still-pending assault charge are unrelated to theissues in this case and would be prejudicial ifadmitted in evidence. Def.'s Opp'n at 16-17.He notes that "[t]he obvious purpose of the |
| discovery of evidence on his cell phonegiving rise to the federal charges. Gov't Mot.at 16-18. | government's attempt to get evidence of thebus arrest before a jury is to show badcharacter or criminal propensity." Id. at 17.The Court agrees. Although the assault led tothe later discovery of the evidence at issue inthis case, it is irrelevant to the offensescharged here and has no probative value. It isnot background evidence of events leading upto the crimes charged here, nor does it fallwithin the "series of transactions as thecharged offense[s]" in this case. See Gov'tMot. at 17. Assuming for argument sake thatthe proffered evidence is relevant, under thebalancing test required by Rule 403, theprejudice flowing from its admission faroutweighs any probative value it might have.As a result, the motion is denied. |
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"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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.").
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.
So Ordered.
Dated: Brooklyn, New York
September 26, 2019
s/Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge