United States District Court, E.D. New York
ALLYNE R. ROSS, District Judge.
Defendant Gregory John Schaffer ("Schaffer") is charged with four counts under 18 U.S.C. § 2422 (part of the "Mann Act, " 18 U.S.C. §§ 2421-2424) relating to his alleged enticement of a minor to engage in illicit sexual activity. On March 14, 2014, Schaffer filed a motion seeking the suppression of (1) pre-trial photo array identifications and (2) statements that he made to agents interviewing him at his office during the execution of a search warrant. DE #47. That same day, the government moved to admit at trial video evidence of Schaffer's prior sexual assaults on two minors under Federal Rule of Evidence ("FRE") 413 and his possession of child pornography under FRE 404(b). DE #46. On April 2, 2014, the court held a hearing regarding the issues raised in Schaffer's suppression motion. The court now addresses both motions together. For the reasons stated below, defendant's motion is denied, and the government's motion is granted as to the video evidence of his prior sexual assaults on minors. The court reserves decision until trial as to the admissibility of the child pornography.
I. The Charges against Schaffer
Schaffer is charged in a four-count indictment with (1) coercion and enticement to travel in interstate or foreign commerce to engage in illegal sexual activity under 18 U.S.C. § 2422(a); (2) coercion and enticement of a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b); (3) attempted coercion and enticement to travel in interstate or foreign commerce to engage in illegal sexual activity under 18 U.S.C. § 2422(a); and (4) attempted coercion and enticement of a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b). DE #5. The following allegations underlying the indictment are taken from the complaint. DE #1.
According to the complaint, a 15-year-old girl ("Jane Doe") from Brooklyn, New York, notified law enforcement in March 2012 that she had been sexually assaulted by a 30 to 35-yearold man named "John." Id . ¶ 3. In late February or early March, Jane Doe had placed an advertisement on Craigslist indicating that she was a "Teen in need of a afterschool & weekend job (NYC)." Id . ¶ 4.a. An individual using the name John Archambeault (subsequently identified as Schaffer) responded to the advertisement in an email stating that he was "looking for part time help in my store in Newport mall in jersey city." Id . ¶ 4.b. In subsequent emails, Jane Doe provided Schaffer with further information about herself, including that she was 15 years old, and they arranged to meet to discuss possible employment for Jane Doe. Id . ¶ 4.c. Schaffer told Jane Doe that he owned several stores in the Newport Mall, including a Victoria's Secret store where he needed help. Id . He asked her about whether she would be coming to New Jersey alone and requested that she provide a photo for security purposes. Id.
On or about March 17, 2012, Jane Doe traveled to Schaffer's office in Jersey City, New Jersey, accompanied by a male friend who was also a minor (the "Friend"). Id . ¶ 4.d. After they arrived, Schaffer took Jane Doe into a private office area and closed the door, while the Friend remained in the waiting area. Id . During the meeting, Schaffer told Jane Doe that she was probably going to work at the Victoria's Secret store, and he asked her whether she was sexually active or used drugs. Id . ¶ 4.e. He also gave her papers for her guardian, her great-grandmother, to sign. Id . That night, after Jane Doe informed Schaffer by email that her guardian had signed the paperwork, Schaffer asked Jane Doe to return the next day with the paperwork and told her to come alone because it might be her first day of work. Id . ¶ 4.f.
When Jane Doe returned to Schaffer's office on or about March 18, 2012, Schaffer had her sign a "confidentiality agreement" and an employment contract. Id . ¶ 4.g. After she signed the documents, Schaffer informed Jane Doe that she had agreed to have sex with him by signing the contract. Id . ¶ 4.h. Schaffer then asked Jane Doe to try on outfits, including a bathing suit, and took photos of her. Id . He told her that, if the job was important to her, she would try on the bathing suit. Id . At some point, Schaffer removed his own pants to reveal that he was wearing a men's Speedo bathing suit and told Jane Doe that he wanted to take photographs of them together. Id . Jane Doe told Schaffer that she did not feel comfortable. Id . He tried to place her hands on his genitals, and she asked if she could get out of the contract. Id . ¶ 4.i. Schaffer then asked her if she had a boyfriend and, when she told him that her boyfriend was 17 years old, threatened to "report" the boyfriend if she tried to get out of the contract. Id . He also threatened to sue her great-grandmother for breach of contract. Id . Schaffer then had sexual intercourse with Jane Doe on his desk and used a condom from his desk drawer. Id . ¶ 4.j. Jane Doe tried to reach for her phone several times, but Schaffer blocked her hand. Id . Afterwards, Schaffer told Jane Doe that he would remove the sex part of the contract. Id . ¶ 4.l. He shredded the contract that she had signed and gave her a new one, but he told her it would be a breach of her confidentiality agreement if she told anyone what happened between them. Id.
While Jane Doe was in Schaffer's office, there was a black camera on a tripod in the office. Id . ¶ 4.n. The black camera was in the room while she changed into the bathing suit, and then Schaffer replaced it with a red camera once she was wearing the bathing suit. Id.
II. The Photo Array
At the hearing on April 2, 2014, Detective Rose Muckenthaler of the New York City Police Department ("NYPD") testified about her role in conducting the photo arrays in which Jane Doe and her Friend identified Schaffer. After Jane Doe reported what had happened with "John Archambeault" to authorities, Detective Muckenthaler spoke with Jane Doe approximately twice and took notes of the physical description of "John Archambeault" described by Jane Doe. Tr. of April 2, 2014 Hearing ("Tr.") 70. The notes include the description "light skin, white, " "thin hair, " what appears to be "Blackish/grey, " "glasses, " "brown" (possibly referring to eye color), "teeth crooked/teeth rotten, " and "skinny, beer belly." DE #55, Ex. 1.
Detective Muckenthaler used the email address from which "John Archambault" communicated with Jane Doe and traced the account to Schaffer's name and address in New Jersey. Tr. 70-71. Once she had identified him, Detective Muckenthaler unsuccessfully attempted to find a photograph of Schaffer using an NYPD database. Id. at 71. Her partner, Detective Walter Hawkins, ran a search and obtained a photograph of Schaffer from the New York/New Jersey High Intensity Drug Trafficking Area ("HIDTA") database. Id . At Detective Muckenthaler's request, Detective Hawkins then retrieved five additional photos from the HIDTA database and prepared a photo array of the six photos, including the photo of Schaffer. Id. at 70-71.
On the evening of March 22, 2012, Detective Muckenthaler and another NYPD detective met with Jane Doe outside of Jane Doe's great-grandmother's house in Brooklyn. Id. at 72-73. Jane Doe sat in the back seat of the detectives' vehicle while Detective Muckenthaler at first made small talk with her, and then Detective Muckenthaler showed her the photo array that included Schaffer's photo. Id. at 73. Although Detective Muckenthaler did not think that Jane Doe took time to read the admonition at the bottom of the photo array, she instructed Jane Doe that "the person may or may not be in the photo array" and that she should take her time. Id. at 73-75, 91. After approximately one minute, Jane Doe identified photograph Number 2, which was the photo of Schaffer. Id. at 75. Jane Doe circled photograph Number 2 and signed and dated the array. Id. at 76.
Immediately after showing Jane Doe the photo array, Detective Muckenthaler met with the Friend in a park in Brooklyn. Id. at 77. Prior to Muckenthaler's going to the park to meet the Friend, Jane Doe called the Friend to let him know that NYPD officers were on their way to meet him. Id. at 94. Detective Muckenthaler showed the Friend the photo array and instructed him that "the person may not or may be in this photo." Id. at 79. The Friend picked out photo Number 2, which was the photo of Schaffer, in less than one minute. Id . He also marked the photo and signed and dated the array. Id.
Schaffer has moved to suppress the photo identification as unduly suggestive. Neither Schaffer nor his counsel was present during the presentation of the photo arrays. The government has provided the photo arrays to Schaffer and the court. The government indicates that it does not intend to introduce the pre-trial identifications at trial but rather that it will rely solely on in-court identifications.
III. Execution of the Search Warrant
On March 19, Schaffer again contacted Jane Doe about possible employment, and law enforcement personnel, consensually impersonating Jane Doe, responded from her email account and arranged a meeting at Schaffer's office in New Jersey. Special agents with the Department of Homeland Security, Homeland Security Investigations ("HSI") obtained a search warrant for the defendant's office, which they executed on June 3, 2012, ...