Opinion
(DLC) 96671.
October 21, 2008
For the United States of America: Howard Master, Daniel Stein, Assistant United States Attorneys, United States Attorney's Office, Southern District of New York, New York, NY.
For Defendant: Julia L. Gatto, Sabrina P. Shroff, Federal Defenders of New York, New York, NY.
OPINION AND ORDER
This Opinion and Order was filed under seal on October 5, 2008. It is now being publicly released in redacted form.
This Opinion addresses the admissibility of evidence of alleged sexual abuse that a witness ("Victim") at a criminal trial suffered at the hands of a relative when a child. The defendant alluded to that abuse in written communications that he sent to the Victim and her aunt ("Aunt") and seeks to examine the Victim and Aunt about the abuse in defending against charges that he threatened both of them and sought wrongfully to discourage them from testifying in his prosecution. For the following reasons, the defendant will be precluded from inquiring of the Aunt as to her knowledge of any sexual abuse of the Victim. But, he will be permitted to inquire of the Victim and to testify himself as to the alleged admission by the Victim to the defendant that she had been sexually abused by her relative.
Defendant is charged in a twelve-count superseding indictment ("Indictment"). Trial on five of the counts, the counts related to witness tampering and transmitting threatening communications, is due to begin [shortly].
By letter dated September 29, 2008, the Government moved to preclude the defendant from raising, either in cross-examination of the Government's witnesses or in his case-in-chief, evidence concerning the alleged prior sexual abuse of the Victim, who was once the defendant's girlfriend. On October 1, the defendant submitted a letter opposing the Government's motion, and the Government replied by letter dated October 2. At a conference with the parties on October 2, the Court focused the parties' attention on the elements of the counts that will be tried, and heard oral argument on this issue. It ruled preliminarily that it would grant the Government's motion, but permitted the parties to provide additional legal or factual arguments addressed to the admissibility of this evidence.
The defendant has now submitted an additional letter dated October 3 to supplement its prior arguments. The Government has replied by a letter dated October 4. Having reviewed the parties' letter submissions, as well as the arguments made at the October 2 conference, the Court upholds its preliminary ruling granting the Government's motion to preclude inquiry from the Aunt as to her knowledge of any sexual abuse of the Victim, but denies the Government's motion to preclude inquiry from the Victim and testimony from the defendant himself as to the Victim's alleged admission to the defendant that she had been sexually abused by her uncle.
BACKGROUND
The five counts that are the subject of the trial due to begin on October 6 grow out of the defendant's relationship with the Victim and address conduct in which the defendant is alleged to have engaged at different points of time between December 2007 and June 2008. The defendant and the Victim were in a consensual relationship, but the Government expects the evidence at trial to show that the Victim eventually fled from the defendant to her sister's home in Virginia and, ultimately, to the official residence of her Aunt in the United Kingdom.
The first three counts address the period from December 2007 through January 11, 2008. Count One charges that the defendant knowingly transmitted by email, fax, and through telephone calls threats to kidnap or injure Victim or members of her family; Count Two charges that he knowingly threatened to assault and kidnap the Aunt, who at that time was an ambassador to the United Kingdom and thus an "internationally protected person" as that term is defined under the law; and Count Three charges that he knowingly and with intent to harass the Victim and place her in reasonable fear of serious bodily injury made telephone calls, and sent faxes and email messages that caused the Victim emotional distress and placed her in reasonable fear of serious bodily injury.
The last two charges, which will be tried at the upcoming trial as Counts Four and Five of a redacted Indictment, concern the period from February through June 2008. They are that the defendant knowingly used intimidation and threats with the intent of preventing the Victim and her Aunt, respectively, from testifying in this criminal prosecution.
Some of the communications underlying these charges contain references or allegations that the Victim had suffered sexual abuse at the hands of her uncle — the Aunt's spouse — and that she had spoken of the abuse to others. The defendant, thus, seeks to elicit through cross-examination of the Victim and her Aunt and in his case-in-chief (1) that the Victim had told him she was molested as a child by an uncle; and (2) that, at the time she received the allegedly threatening communications from the defendant, the Aunt was aware that an uncle of the Victim had previously sexually abused the Victim. The defendant argues that this information is relevant to Counts One, Two, Three, and Five of the redacted Indictment.
In its motion to preclude any such evidence, the Government argues inter alia that the evidence is barred by Rule 412, Fed.R.Evid. It emphasizes that the defendant's motives are irrelevant to the jury's determination of whether the defendant engaged in illegal conduct.
DISCUSSION
Rule 412 of the Federal Rules of Evidence provides that "[e]vidence offered to prove that any alleged victim engaged in other sexual behavior" is inadmissible, with limited exceptions, "in any civil or criminal proceeding involving alleged sexual misconduct." Fed.R.Evid. 412. "The Rule's expanded protection 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."Wolak v. Spucci, 217 F.3d 157, 160 (2d Cir. 2000) (citation omitted) (applying Rule 412 in the context of a sexual harassment lawsuit). In a criminal case, however, the Rule expressly excepts from its directive "evidence the exclusion of which would violate the constitutional rights of the defendant." Fed.R.Evid. 412(b)(1)(C).
"The strong social policy of protecting a victim's privacy and encouraging victims to come forward to report criminal acts is not confined to cases that involve a charge of sexual assault." Fed.R.Evid. 412 advisory committee notes to the 1994 Amendments. For instance, "[t]he need to protect the victim is equally great when a defendant is charged with kidnapping, and evidence is offered, either to prove motive or as background, that the defendant sexually assaulted the victim." Id. Thus, Rule 412 may apply, as it does here, even where a defendant is not charged with sexual misconduct.
Irrespective of whether it may be subject to Rule 412, however, evidence is only admissible if it satisfies the relevancy requirement of Rule 401, Fed.R.Evid. See Fed.R.Evid. 402. Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Under Rule 403, moreover, even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403. A district court is accorded "great deference . . . in ruling as to the relevancy and unfair prejudice of proffered evidence." United States v. Paulino, 445 F.3d 211, 217 (2d Cir. 2006).
Count One
Count One charges that the defendant violated 18 U.S.C. § 875(c), which reads in pertinent part: "Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another" shall be guilty of a crime. Thus, the crime, as charged in the Indictment, consists of the following three elements: first, that in the period between December 2007 and up to and including January 11, 2008, the defendant communicated (1) a threat to kidnap the Victim or (2) a threat to inflict bodily harm on the Victim, or other members of her immediate family including her Aunt; second, that the threat was transmitted in interstate or foreign commerce; and third, that the defendant knowingly and intentionally transmitted the threat.
With respect to the first element, a communication is a threat if it is made under such circumstances that an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a "true threat," as distinguished from idle or careless talk, exaggeration, or something said in a joking manner. Thus, to be a crime, the threat on its face and in the circumstances in which it is made must be so unequivocal, unconditional, immediate and specific as to the person threatened as to convey a gravity of purpose and an imminent prospect of execution. United States v. Francis, 164 F.3d 120, 123 (2d Cir. 1999); United States v. Sovie, 122 F.3d 122, 125 (2d Cir. 1997); United States v. Malik, 16 F.3d 45, 51 (2d Cir. 1994). To establish the third element, the Government must prove that the defendant knowingly and intentionally transmitted the communication that contained the threat. Francis, 164 F.3d at 123. The Government is not required to prove that the defendant intended the communication to be threatening. Id.
The defendant contends that the Victim's knowledge and state of mind at the time she received the threats to kidnap and injure are relevant to establish the context in which the threats were heard, and thus he must be permitted to elicit the evidence regarding the prior sexual abuse. To constitute a true threat, the Government must prove that the Victim understood that the defendant spoke with a gravity of purpose to kidnap or injure her or her family members, and to do it in the immediate future. The defendant's utterances on which the Government bases this count include references to the defendant's knowledge of the Victim's alleged history of sexual abuse and his purported concern for her welfare while residing with her Aunt and uncle. As a result, the Victim's knowledge that the defendant was aware of the alleged abuse, or on the other hand, her belief that he had no basis for including such allegations in his communications to her, is necessarily a component of her evaluation of whether the threat to kidnap or injure was a serious one or not.
The probative value of this component of the Victim's knowledge is, however, extremely limited or non-existent. The critical issue is whether the Victim understood that the threat to kidnap and injure was seriously intended. Establishing the Victim's understanding of the defendant's knowledge of the alleged abuse is of little help to the jury on this point. The natural inference either way is that the threat was seriously intended. If the Victim had told the defendant of the alleged abuse, then the inference is strong that the defendant would act on his wrongful threats. If the Victim had not told the defendant of any abuse, then the inference is also strong that the defendant was uttering a true threat.
Moreover, the Government is correct that the defendant's belief that the abuse had occurred and that the Victim was now residing with her former abuser, should the defendant establish such a belief, does not constitute a defense. A motive "to protect" the Victim does not excuse a threat to kidnap or injure. Thus, exploration of whether the abuse occurred or whether the defendant was told of any abuse runs a very serious risk of confusing and misleading the jury.
The defendant may also be arguing that the evidence that the Victim had told the defendant of her history of sexual abuse is relevant for a second purpose. He may be arguing that, in context, the Victim would have understood the threat, while real and immediate, to be a threat to rescue as opposed to a threat to kidnap or physically injure her. In this context, he may be arguing that it is highly probative that the Victim had told the defendant of the abuse. To kidnap requires a person to be "taken, held and transported against . . . her will." United States v. Macklin, 671 F.2d 69, 64 (2d Cir. 1982).
The evidence that the Victim had told the defendant of prior abuse does make it somewhat more likely than it would be without the evidence that she would interpret the threat as an offer of an opportunity of escape rather than a threat of abduction. In the context of undisputed evidence that the Victim had chosen to go to London to live with her Aunt and uncle, however, this inference is exceedingly weak. And, as already explained, there is a great risk that the jury will use this evidence improperly as motive evidence.
Having been charged with a crime premised on communications that refer to alleged sexual abuse, the defendant is entitled to establish whether or not the Victim told the defendant that she had been sexually abused by her uncle. Given the concerns expressed by Rule 412 and the risk that the jury will be invited to use the evidence for an improper purpose, however, the inquiry of the Victim on her conversations with the defendant on the topic of any prior sexual abuse will be circumscribed. It bears mention that defense counsel has already promised to limit its questioning on this topic. Moreover, should the parties desire, the jury will be given a limiting instruction to point it to the proper and improper use of this evidence.
Count Two
Count Two charges the defendant with a violation of 18 U.S.C. §§ 878, 112(a), and 1201(a)(4). Section 878 reads in pertinent part: "Whoever knowingly and willfully threatens to violate sections 112 . . . or 1201" is guilty of a crime. Section 112(a) reads in pertinent part: "Whoever assaults, strikes, wounds, imprisons, or offers violence to [an] internationally protected person or makes any other violent attack upon the person . . . of such person, or . . . makes a violent attack upon his . . . private accommodation" is guilty of a crime. Section 1201(a)(4) reads in pertinent part: "Whoever unlawfully seizes [or] confines . . . an internationally protected person" is guilty of a crime.
As charged in the Indictment, the crime at issue in Count Two consists of three elements. These are, first, that in the period between December 2007 and up to and including January 11, 2008, the defendant threatened to (1) assault, wound, imprison, offer violence to, violently attack the person of, or make a violent attack on the private accommodation of the Aunt, or (2) seize or confine the Aunt; second, that at that time the Aunt was an internationally protected person; and third, that the defendant did so knowingly and willfully.
As with Count One, Count Two requires the Government to prove that the defendant made a true threat, that is, a threat which the recipient understood to be made with a gravity of purpose and with an imminent prospect of execution. United States v. Cooper, 865 F.2d 83, 85 (4th Cir. 1989); see United States v. Compton, 428 F.2d 18, 21 (2d Cir. 1970) (requiring true threat in the substantially similar context of 18 U.S.C. § 871). Again, the communications which underlie this charge contain explicit references to the alleged abuse of the Victim by her uncle.
For the reasons explained in connection with the discussion of Count One, whether the sexual abuse occurred and whether the Victim told the defendant that it occurred have little or no probative value for the jury's determination of whether the threats at issue were "true" threats. Moreover, the defendant has not identified any theory under which the threats to assault, strike, wound, imprison, or violently attack the Aunt could be understood by the recipient as anything other than threats to do those acts. Even if the Aunt understood that the Victim had told the defendant of the alleged abuse, or if she understood independently that the abuse had occurred, that does not make it less likely that a threat to, for instance, assault the Aunt would be understood by either the Victim or the Aunt as anything other than a threat to make an assault upon the Aunt.
Unlike the situation with Count One, where the defendant apparently seeks to argue that the threat to kidnap the Victim should be understood as a threat to rescue her with her consent, the threat to assault or otherwise harm the Aunt has no alternative meaning. Thus, pursuant to Rules 412, 401, and 403, the Government's motion to preclude examination of the Aunt on her understanding of whether or not any uncle of the Victim actually abused the Victim is granted.
Count Three
Count Three charges the defendant with a violation of Section 2261A(2) of Title 18 of the United States Code. Section 2261A(2) provides in relevant part that:
Whoever with the intent,
(A) to . . . injure, harass, . . . intimidate, or cause substantial emotional distress to a person in another State; or
(B) to place a person in another State in reasonable fear of the death of, or serious bodily injury to —
(i) that person; or
(ii) a member of the immediate family of that person, uses . . . any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons
just described shall be guilty of a crime.
This crime, as charged in the Indictment, consists of three elements. These are, first, that in the period between December 5 and up to and including December 17, 2007, the defendant used an interactive computer service or a facility of interstate or foreign commerce to engage in a course of conduct that caused substantial emotional distress to the Victim or placed her in reasonable fear of death or serious bodily injury either for herself or a member of her immediate family; second, that in doing so, the defendant acted knowingly and with the intent to injure, harass, intimidate, or cause substantial emotional distress to the Victim, or with the intent to place Victim in reasonable fear of her death or serious bodily injury or the death or serious bodily injury of a member of her immediate family; and third, that at the time the defendant so acted, he and the Victim were in different states.
This crime requires the defendant and Victim to be in separate States at the time of the communication. See 18 U.S.C. § 2266(8) (defining State to "include a State of the United States, the District of Columbia, and a commonwealth, territory, or possession of the United States"). Thus, the communications sent to the Victim while she was in Great Britain, while relevant, are not the predicate communications for the count. As a result, the Government has agreed that Count Three should charge the defendant with his conduct from December 5 through December 17, and not the longer period set forth in the Indictment.
Count Three thus requires the Government to prove that the defendant acted with the wrongful intent identified in the charge. The defendant urges that he is entitled to prove that the Victim had told him of her prior abuse and that, as a result, he was acting with the intent to rescue her and not to injure her. But, this charge concerns communications sent to the Victim before she traveled to Great Britain. Thus, the defendant has failed to identify any relevance that his alleged discussions of abuse with the Victim might have to the communications on which the charge is premised.
To the extent that the jury is invited to look to the defendant's communications while the Victim was in Great Britain as relevant to its assessment of the defendant's intent in making the communications that underlie Count Three, as already explained, the jury will have evidence either from the Victim or the defendant, or from both of them, as to what the Victim told the defendant regarding prior sexual abuse. Thus, the jury will have, subject to the limitations already described, the evidence regarding the discussion of abuse that might help it assess the defendant's intent.
The defendant's motion in its October 3 submission to sever the trial on Count Three is denied.
Count Five
The final charge for which the defendant contends that he is entitled to elicit evidence of the Victim's disclosure of prior sexual abuse to him is Count Five. Count Five charges a violation of 18 U.S.C. § 1512(b), which reads in pertinent part:
The defendant did not argue that that evidence was relevant to Count Five during oral argument on October 2, but did add this argument to its October 3 submission.
Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to —
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to withhold testimony . . . from an official proceeding
is guilty of a crime. This crime, as charged under Count Five of the Indictment, requires the Government to prove the following two elements: first, that from May 2008 through June 2008, the defendant knowingly used intimidation, threatened, or corruptly persuaded the Aunt, or attempted to do so, or engaged in misleading conduct toward a person; and second, that in doing so, the defendant acted with the intent (1) to influence, delay, or prevent the testimony in an official proceeding of the Aunt, or (2) to cause her to withhold testimony from an official proceeding.
Count Five charges the defendant, in essence, with seeking to interfere with the Aunt's testimony in this criminal prosecution. While this crime has many terms, it is only necessary to mention one of them in ruling on this motion to preclude. The term "misleading conduct" includes "knowingly making a false statement." 18 U.S.C. § 1515(a)(3). Among the statements at issue in the communications upon which the Government is relying to support this charge are communications which describe the Victim as having been sexually abused. The defendant is entitled to prove that, based on his conversations with the Victim, that statement was not knowingly false. For this additional reason, therefore, the defendant will be entitled to elicit from the Victim whether she told him that she had been sexually abused by an uncle, and to present his own version of that conversation.
CONCLUSION
The Government's motion to preclude inquiry of the Aunt as to her knowledge of any sexual abuse of the Victim is granted. The Government's motion to preclude inquiry of the Victim and testimony from the defendant himself as to the alleged admission by the Victim to the defendant that she had been sexually abused by her uncle is denied.
SO ORDERED: