United States District Court, Eastern District of New York
KIYO A. MATSUMOTO UNITED STATES DISTRICT JUDGE
In a letter dated April 24, 2015, Mr. Garrett objected to the admission of Government Exhibit 162 (“GX 162”), a photograph of the cover of a book titled Burned Alive by Kieran Crowley. (Garrett Letter Objs. to Gov’t Proposed Exh. List at 3, ECF No. 297, filed 4/24/15.) Mr. Garrett describes the book as “a salacious novel about a murder investigation.” (Id.) Mr. Garrett asserts that the defendants in this case were arrested in connection with the investigation described in Burned Alive but the defendants were later exonerated. (Id.) Mr. Garrett objects to the introduction of GX 162 on the grounds that the “relevance or probative value of a photo of the book is outweighed by its prejudice” and introduction of GX 162 is a “backdoor introduction of support of an uncharged bad act.” (Id.)
The government responded to Mr. Garrett’s objection to GX 162 in a letter dated April 29, 2015. (Gov’t Letter, ECF No. 315, filed 4/29/15.) The government anticipates that witness Ms. Kathryn Rivera will testify that Mr. Rivera told her that if Ms. Kathryn Rivera “tried to leave [Mr. Rivera], he would do to her what was done to the woman in the book, ” which she interpreted to be a threat, because the woman in Burned Alive was murdered. (Id.) According to the government, Ms. Kathryn Rivera is also expected to testify that Mr. Rivera’s threat was particularly frightening because Mr. Rivera gave her information that suggested to her that he might have been involved in the woman’s murder described in Burned Alive and was thus capable of murdering Ms. Kathryn Rivera. (Id.) The government also anticipates that witness Ms. Shelby Rivera will testify that Mr. Rivera showed her the book and that, consequently, Ms. Shelby Rivera came to believe that Mr. Rivera was capable of murdering her sister, Ms. Kathryn Rivera. (Id.) The government contends that GX 162 is direct evidence of and corroborative of Ms. Kathryn Rivera and Ms. Shelby Rivera’s anticipated testimony regarding the climate of fear that Mr. Rivera perpetuated with regard to the sex trafficking charges in the indictment. (Id.)
During the third week of the jury trial on May 19, 2015, Mr. Rivera, proceeding pro se,  attempted to cross-examine witness Jonathan Fontanes about the book Burned Alive in support of his theory that he is being “framed for a murder” in this case, because defendants were previously accused, and later exonerated, of the murder that is the subject of Burned Alive. (Tr. 3343-44.)
At a sidebar, Ms. Kelley Sharkey, counsel for Mr. Garrett, objected to the admission of GX 162 and any mention of the book Burned Alive and also renewed Mr. Garrett’s request for a severance. (See Tr. 3343-47.) Counsel for Mr. Garrett asserts that prejudice will inure to Mr. Garrett and that his trial should be severed, because a chapter of Burned Alive is titled “Who Framed Roger Rabbit?” and because Mr. Rivera had a copy of the book cover on his hard drive. (Tr. 3349, 3352.)
The court ruled that GX 162 was admissible as direct probative evidence of the threats by Mr. Rivera to Ms. Kathryn Rivera and Ms. Shelby Rivera and the circumstances under which they engaged in prostitution for TF, and that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. (Tr. 3350.) The court determined that because the contents of the book were not being offered, the cover of the book was admissible to corroborate the testimony of witnesses regarding their awareness of the existence of the book and the effect of Mr. Rivera’s purported references to the book to instill fear in the Rivera sisters. (Tr. 3349-50.)
The court also ruled that Mr. Garrett’s application to sever his trial based on the court’s decision to admit the book cover should be denied because, inter alia, Ms. Kathryn Rivera and Ms. Shelby Rivera are not anticipated to make any mention of Mr. Garrett in connection with the threats allegedly made by Mr. Rivera that reference the book. (Tr. 3349.)
The court issues this Order to further expound upon the bases for its rulings to admit GX 162, permit the government to elicit testimony referencing Burned Alive, and to again deny Mr. Garrett’s motion to sever.
Defendants face charges under 18 U.S.C. §§ 1591 (sex trafficking of children or by force, fraud, or coercion) and 2422 (coercion and enticement to travel interstate to engage in prostitution). Title 18 U.S.C. § 1591 provides in relevant part:
(a) Whoever knowingly-
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or
(2) benefits, financially or by receiving anything of value . . . knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished . . . .
The term “coercion” is defined in § 1591(e)(2) as:
(A) threats of serious harm to or physical restraint ...