The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
On December 20, 2006, a jury found Timothy McDarrah ("McDarrah") guilty of using a computer, telephone and/or the internet to attempt to entice an individual he believed to be 13 years of age to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Since 18 U.S.C. § 2422(b) is defined as a crime of violence, the Government moved for McDarrah's immediate remand pursuant to 18 U.S.C. § 3143(a)(2). His counsel argued that McDarrah had a meritorious motion, pursuant to F. R. Crim. P. 33, to set aside the jury's verdict and for a new trial. McDarrah claims the Court erred in admitting opinion testimony by FBI Special Agent Austin Berglas ("Berglas") that allegedly addressed McDarrah's intent and belief; and in admitting documents prepared by Berglas that summarized his post-arrest interrogation of McDarrah: Government's Exhibit 3501-B, the official FD-302 report, (the "Report") and Government's Exhibit 3501-C, Berglas's handwritten notes, (the "Notes"). In these circumstances, defense counsel argued it would be unfair to incarcerate McDarrah before his motion was decided.
The Court stayed McDarrah's remand until January 23, 2007 to permit consideration of McDarrah's motion. The Court ruled on January 22, 2007 that a further extension of McDarrah's release on bail was not warranted under 18 U.S.C. § 3145(c) and he voluntarily surrendered on January 23, 2007. This opinion sets forth the Court's reasoning for denying McDarrah's Rule 33 motion.
This case arises from an undercover investigation of individuals who use the internet to solicit sex with minors conducted by Agent Berglas, in which he would pose online as a minor or as an adult either engaged in procurement of child prostitutes or child pornography or seeking such services.*fn1 Agent Berglas's interest in McDarrah stemmed from McDarrah's response to an advertisement posted by Berglas, acting as a pimp named "David Smith," in the "Erotic Services" section of the Craig's List classified website. In recorded telephone conversations with Special Agent Michael McAndrews ("McAndrews"), acting as Smith, McDarrah agreed to pay to have sex with a 14-year-old girl. A meeting was arranged, but McDarrah did not appear.
Subsequently, Smith remonstrated with McDarrah for not appearing and complained about McDarrah's wasting their time. In addition to his guise as "David Smith," Berglas had another identity: "Julie13nyc@aol.com," or "Julie." In this identity, he posed as a 13-year-old girl who had just graduated from 8th Grade and was going to high school in September.
Shortly after the "David Smith" incident, Julie instant messaged*fn2 McDarrah. Berglas testified that he sent the IM by accident while IMing with another target of his investigation and monitoring McDarrah's online status. For the next two months, from July to September, 2005, McDarrah and Berglas, acting as Julie, e-mailed and instant messaged one another. The correspondence grew increasingly explicit and described a proposed sexual relationship in graphic detail. The computer-based exchanges were punctuated by telephone calls with McDarrah in which Berglas used a female associate to be the voice of Julie. McDarrah was ultimately arrested on September 14, 2005 on the corner of Greenwich St. and Chambers St. in Manhattan, just around the corner from the Reade Street address Berglas had given as Julie's. After his arrest, McDarrah was interrogated by Berglas and Special Agents McAndrews and Sean Watson, and made a number of statements regarding his relationship with Julie.McDarrah subsequently moved to suppress his post-arrest statements as coerced in violation of his Fifth Amendment rights. After an evidentiary hearing, the Court found that the statements were made after the appropriate Miranda warnings and were voluntary. Accordingly, the Court denied the suppression motion. See United States v. McDarrah, No. 05 Civ. 1182, 2006 WL 2838276 (S.D.N.Y. September 28, 2006).
At trial, the Government presented transcripts of IM conversations and e-mails between Berglas as Julie and McDarrah. The jury also heard recordings of McDarrah's conversation with a female associate of Berglas, who posed as the voice of Julie. These transcripts and recordings showed that Berglas consistently held himself out to be a 13-year-old girl, and included numerous statements that Julie was 13 by McDarrah himself. The transcripts and recordings also showed McDarrah suggesting that he and Julie have sex and setting up times for them to meet. The Government also introduced, under F. R. Evid. 404(b), emails sent by McDarrah in response to other "Erotic Services" advertisements in which he suggested an interest in sexual interaction with minors. Finally, Berglas and McAndrews testified to McDarrah's post-arrest statements indicating that he believed Julie was a 13-year-old girl, and arguably implying that he intended to have sex with her.
McDarrah presented no evidence, but suggested an alternative theory during opening arguments, used the theory extensively in cross examination, and finally emphasized it in closing arguments. Defense counsel argued that McDarrah was fantasizing, role-playing, or engaging in "cybersex" in his conversations with Julie. In a similar vein, defense counsel argued that McDarrah did not believe Julie was actually a 13-year-old girl, speculating that he may have believed her to be a law enforcement official or another role-playing adult. Defense counsel pointed to questions asked by McDarrah in the IMs and emails and inconsistencies in Julie's statements, and suggested that McDarrah became obsessed with figuring out Julie's true identity. This obsession, according to defense counsel, led him to become ever more sexually explicit and obscene in an effort to shock Julie into breaking character.*fn3 Finally, defense counsel argued that Berglas and McAndrews were misrepresenting or misremembering McDarrah's post-arrest statements.
II. Agent Berglas's Notes and Report
On direct examination, Agent Berglas testified to his arrest and questioning of McDarrah, and to various statements made by McDarrah in response to that questioning. Trial Transcript ("Tr.") 348-355. The Government did not ask Berglas about his Notes or Report, nor were they offered in evidence.
The existence of a Report was first raised by defense counsel on cross examination. Tr. 634. Having previously elicited testimony from Berglas regarding a number of explanations McDarrah had given for his alleged doubts as to Julie's age, Tr. 633-634, defense counsel questioned Berglas about his failure to include McDarrah's explanations in the Report. Tr. 635. Defense counsel then quoted from the Report that "McDarrah was downtown to meet a 13-year-old girl named 'Julie,' that he met while on the Internet," Tr. 635-636, and established at length that these were not McDarrah's exact words but, as counsel repeatedly phrased it, "your [i.e. Berglas's] words." Tr. 636-638. Defense counsel also elicited the existence of the Notes. Tr. 639.
Cross examination continued into the next trial day. Defense counsel again returned to the Report, and questioned Berglas as to the statements he had "omitted." Tr. 698. He also established that McAndrews had been present during the interview of McDarrah, but had not suggested that Berglas add those statements to the Report. Tr. 696-697. In responding to questions about the Report on cross-examination, Berglas explained the omissions and his characterization of McDarrah's words by stating three times that the Report was a "summary" of the interview. Tr. 638, 698.
On redirect examination, the Government briefly questioned Berglas about the statements made by McDarrah, and then introduced both the Notes and the Report into evidence over defense objection. Tr. 736-739. Berglas testified twice more that the Report and the Notes were summaries of the entire interview, and that he had included McDarrah's statements that he had believed Julie was a law enforcement official. Id.
On recross examination, defense counsel established again that the Report was in Berglas's words rather than McDarrah's and that McDarrah had made a number of statements giving reasons why he did not believe Julie to be a child. Tr. 755-757. Defense counsel finished his examination by asking whether these statements were included in the Report or the Notes, at which point the Court sustained an objection to the question, stating "the documents speak for themselves." Tr. 757-758.
During a recess immediately following redirect examination, defense counsel restated his objection to the introduction of the Notes and the Report. Berglas testified on direct concerning McDarrah's admissions pursuant to F. R. Evid. 801(d)(2). After defense counsel's cross examination, which suggested that Berglas recorded only what he wanted to hear and ignored other important statements, the Government argued the Notes and Report were admissible under F. R. Evid. 801(d)(1), as consistent with the declarant's testimony. Defense counsel objected on the grounds that the motive to fabricate the Report pre-existed its creation. Tr. 745-746. The Court confirmed its ruling admitting the Report, stating that "I think it's necessary for the jury to have a complete understanding." Tr. 746.
The Government did not refer to either the Report or the Notes during closing argument and rebuttal.*fn4 Instead, it emphasized McDarrah's post-arrest statements. During his closing, defense counsel argued at length that the omission of certain of McDarrah's statements from the Notes and the Report indicated that the jury could not rely on Berglas's testimony, and showed that he "fabricate[d] a confession" and "misl[ed] or lie[d] to a federal jury about the Defendant having confessed."*fn5 Tr. 927-934. Defense counsel also argued that McAndrews's failure to correct the Report similarly undermined his credibility as a witness. Tr. 937.
D. Contents of the Notes and Report
The Notes and Report, each two pages in length, contain various statements purportedly made by McDarrah that are essentially identical to Berglas's testimony. The sole portion of the Report that was arguably not included in Berglas's testimony*fn6 is that McDarrah "was not able to explain why he continued to communicate with 'Julie' if he believed she was an undercover police officer." Report at 2. During direct examination, Berglas testified that "When [McDarrah] said he initially thought it was law enforcement, I asked him why did you continue to communicate and why did you show up at the location if you thought it was law enforcement.." Tr. 352-353. Berglas did not state whether Defendant answered his question, and moved on immediately to statements by McDarrah on other subjects, implying unmistakably that McDarrah had no answer for his question and thus presenting the same fact to the jury as was contained in the Report.
III. Berglas's Opinion Testimony
Berglas made five statements on direct examination which the Defendant suggests were inadmissible opinion testimony as to McDarrah's belief and intent. First, when asked why he contacted McDarrah on July 21, 2005, Berglas stated that it was because ".he had made clear that he was interested in having sex with a 13- or 14-year-old girl..And as an FBI agent investigating these types of crimes.I wanted to make sure he was no longer interested in doing it." Tr. 138-139. Second, when asked what it had meant to him when Defendant wrote "meeting your boyfriend or something," Berglas stated, "It meant he was asking me if I had a boyfriend." Tr. 148.
The final three statements involve Berglas's characterizing aspects of McDarrah's IM conversations with Julie as part of a "grooming" process. Following his reading of a portion of the IM conversation transcript in which McDarrah offered to buy Julie lunch when she felt lonely, the Government asked Berglas, "What do you believe the Defendant is doing here?" Tr. 152. Berglas replied that McDarrah was "starting a process we call grooming. He's attempting to befriend this 13-year-old girl, make her feel comfortable with him that he's there for her as a friend." Id. When asked what he "did understand" McDarrah to be doing in a conversation regarding whether to tell Julie's mother about them having lunch, Berglas stated:
Again, the continuation of the grooming process. He doesn't want to come right out and say that my name is Tim and I'm 32 years old and I want to have sex with you. He wants to make sure she trusts him, and by taking her out to lunch.he can make sure that there's some trust, they can meet each other face to face, and another way is it ...