Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. BRAND

January 12, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
MATTHEW ADAM BRAND, Defendant.



The opinion of the court was delivered by: PETER LEISURE, District Judge

OPINION AND ORDER

Defendant Matthew Adam Brand is charged with violating sections of the United States Code relating to the transport of minors for illegal sexual activity. Specifically, the Superseding Indictment ("Indictment") alleges that (1) on or about February 12, 2004, Brand traveled from New Jersey to New York for the purpose of engaging in sexual conduct with an individual he believed was 13-years-old, in violation of 18 U.S.C. § 2423(b), and (2) from on or about January 23, 2004 through on or about February 12, 2004, Brand used a computer, the internet and a telephone to attempt to entice the same individual to engage in sexual conduct, in violation of 18 U.S.C. § 2422(b).*fn1 Defendant's trial is scheduled to begin January 18, 2005.

  BACKGROUND

  The Government alleges that from approximately January 23, 2004, through approximately February 12, 2004, Brand, by way of his America On-Line ("AOL")*fn2 account and the screen name "Tempoteech,"*fn3 used a computer in his home in New Jersey to engage in instant message ("i-chat") and email communications with an individual he believed to be a 13-year-old girl named "Julie" residing in New York. See Government in limine motion ("Gov. Mot.") at 1-2. In fact, "Julie" was a special agent of the Federal Bureau of Investigation ("FBI") acting in an undercover capacity. Id. at 2. The Government plans to show that, over the course of their internet communications, "Julie" informed Brand that she was 13-years-old and emailed Brand a photograph purportedly of herself that depicted a young teenage girl. Id. In addition, Brand allegedly expressed an interest in engaging in sexual acts with "Julie" and arranged to meet "Julie" at the Port Authority bus terminal in New York. Moreover, the Government intends to present recordings of telephone conversations between Brand and an individual he believed to be "Julie" in which he (1) discussed certain sexual acts that they would engage in after they met, (2) reassured "Julie" that she would not get pregnant because he would use a condom, and (3) told "Julie" that he would be holding a sign bearing her name at the bus terminal. Id. at 3. On February 12, 2004, FBI agents arrested Brand outside the Port Authority bus terminal holding a sign bearing the name "Julie." Id.

  At a pre-trial conference held on December 15, 2004, the Government indicated that it would seek to introduce certain images found on a computer in Brand's home. Defense counsel noted its objection to the admissibility of the images, and the Court directed the parties to submit papers in support of their positions. On January 11, 2005, the parties appeared before the Court for oral argument.

  In the present in limine motion, the Government seeks a ruling that (1) images of child erotica and child pornography from a computer in Brand's residence are admissible as direct evidence of the crimes charged in the Indictment; (2) alternatively, the images are admissible pursuant to Federal Rule of Evidence 404(b) to prove motive, intent, plan, knowledge, and absence of mistake or accident; and (3) two transcripts of AOL internet communications between Brand and two other undercover agents posing as 13-year-old girls are similarly admissible pursuant to Rule 404(b). One transcript purportedly memorializes an i-chat between Brand and "JennySFV13" while the other involves Brand and "Mizbonnie 13." See Gov. Mot., Exs. A-B.

  The Government argues that defendant's intent to commit the charged crimes will be the primary dispute at trial because he cannot effectively challenge the facts that he used the internet and telephone to communicate with an individual he believed was 13-years-old and that he traveled from New Jersey to New York to meet the same individual. Accordingly, the images should be admitted as direct evidence, the Government maintains, because they reveal Brand's sexual interest in young children and confirm his use of the computer and the internet to further that interest. In the alternative, the Government contends that the images, along with the two transcripts of AOL i-chat communications, should be admitted pursuant to Rule 404(b) to prove Brand's motive, intent, plan, knowledge, and the absence of mistake or accident.

  Defendant objects to the admission of the images and the transcripts on the grounds that they are irrelevant, unfairly prejudicial, and potentially confusing to the jury. Defendant asserts, inter alia, that the material is irrelevant because there is no established causal link between viewing child pornography or conducting non-sexual internet conversations with minors and future attempts to engage in sexual conduct with minors. Furthermore, the transcripts of defendant's internet conversations with two other allegedly 13-year-old girls should not be admitted under Rule 404(b) because there are fundamental differences between those two conversations and defendant's communications with the alleged victim, most notably the fact that the transcripts do not contain any solicitation of sexual contact. Finally, defendant argues that the unfair prejudice resulting from the admission of this highly inflammatory material would substantially outweigh any probative value it may contain.

  DISCUSSION

  I. Motions in Limine

  The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 41 n. 4 (1984) (noting that although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the District Court's inherent authority to manage the course of trials); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); Nat'l. Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 283 (S.D.N.Y. 1996). Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Noble v. Sheehan, 116 F. Supp. 2d 966, 969 (N.D. Ill. 2000); see also Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94 Civ. 5520, 1998 WL 665138, at * 3 (S.D.N.Y. Sept. 25, 1998) (denying a motion in limine to preclude presentation of evidence regarding a potential punitive damages claim because the motion was too sweeping in scope to be considered prior to trial). Indeed, courts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context. See Nat'l. Union Fire Ins. Co., 937 F. Supp. at 287 (citing Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993)). Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the [movant's] proffer." Luce, 469 U.S. at 41. II. Admissibility of the Images as Direct Proof of the Crimes Charged in the Indictment

  "It is well established in the Second Circuit that `evidence of uncharged criminal activity is not considered other crimes evidence under Fed.R. Evid. 404(b) if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial.'" United States v. Nektalov, 325 F. Supp. 2d 367, 370 (S.D.N.Y. 2004) (Leisure, J.) (citing United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000)). If evidence is deemed admissible as direct proof of the charged crimes, as distinguished from "others acts" under Rule 404(b), the Government need not fulfill Rule 404(b)'s notice requirement and the Court is not required to instruct the jury against making an improper inference of criminal propensity. Id. at 372. Moreover, "where it is not manifestly clear that the evidence in question is intrinsic proof of the charged crime, the proper course is to proceed under Rule 404(b)." Id.

  The Government describes the images in question as "child erotica (nude minor girls)" and "child pornography (nude minor girls and boys engaged in sex acts and in lewd and lascivious poses)." Gov. Mot. at 3. It argues that the pornographic images are admissible as direct evidence on two independent grounds: (1) they reveal Brand's sexual interest in young girls, and thus tend to demonstrate that he planned to engage in sexual acts with "Julie;" and (2) they confirm that he used the computer and the internet to satisfy that interest. The Court is unwilling to make the significant inferential leap required by the Government's argument. The mere presence of erotic or pornographic images of children on a computer used by defendant is not "intrinsic proof" that defendant intended to engage in sexual conduct with a particular child or that he used a computer or a telephone to entice a particular child to engage in sexual conduct. Furthermore, given the general nature of the images and the fact that they do not specifically relate to the crimes at issue, the Court is reluctant to conclude that the possession of the images*fn4 arises out of the same transaction or series of transactions referenced in the Indictment. Similarly, these non-specific images cannot be considered "inextricably intertwined" with evidence regarding the charged offenses or "necessary to complete the story of the crime on trial." Nektalov, 325 F. Supp. 2d at 370.

  Accordingly, the Court finds the images are not admissible as direct proof of either of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.