NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 19-2743 _______________
UNITED STATES OF AMERICA
v.
FREDRICK BROWN, Appellant _______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:17-cr-00396-001) District Judge: Honorable Malachy E. Mannion _______________
Submitted Under Third Circuit L.A.R. 34.1(a) on April 24, 2020
Before: AMBRO, SHWARTZ, and BIBAS, Circuit Judges
(Filed: May 19, 2020) _______________
OPINION* _______________
BIBAS, Circuit Judge.
Fredrick Brown was a pimp who used lies to push women and an underage girl into
prostitution and violence to keep them in it. A federal jury convicted him of several crimes,
including sex trafficking a minor and sex trafficking through force, fraud, or coercion. His
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. defense at trial was that his victims were prostitutes by choice, not victims of abuse. The
District Court let Brown cross-examine his victims about their other prostitution during the
three years charged in the indictment. But it barred him from questioning them about their
earlier and later histories of prostitution, relying on Federal Rule of Evidence 412 (often
called the rape-shield law). Because the court did not abuse its discretion by excluding this
evidence, we will affirm.
I. BACKGROUND
A. Facts
From 2011 to 2014, Brown ran a prostitution ring out of a few hotels in northeastern
Pennsylvania. During that time, he met A.B., a 17-year-old homeless runaway from Russia.
He took her in and gave her drugs. Soon, he pushed her into prostitution to earn money,
but told her that she would be safe only if he was her pimp. She agreed. For more than a
year, he set her up with johns whom he knew from his drug dealing. Usually, this happened
in local hotels. But sometimes, he drove her to other hotels as far away as New York and
Virginia.
Brown enticed A.B. into prostitution by falsely promising her lots of money. Though
at first he proposed to split her earnings equally, he took most of her share to cover the
costs of hotel rooms, food, condoms, and a fee for his protection. To control her, he
punched, slapped, pistol-whipped, raped, and pointed his gun at her. One beating was so
severe that she had to go to the hospital. A.B. feared that if she disobeyed him, he would
kill her. Brown also controlled all her immigration paperwork, so as a noncitizen A.B.
worried that she could not leave him. Brown was violent toward his other prostitutes too.
2 Eventually, state and federal investigators learned of Brown’s prostitution ring. By
then, he had been sentenced to state prison on DUI and drug charges. A federal grand jury
charged him with several crimes, including sex trafficking “by means of . . . force, fraud, or
coercion” and trafficking a minor. 18 U.S.C. § 1591(a), (b)(1).
B. Procedural history
Before trial, the Government expected Brown to argue that his victims had prostituted
for him voluntarily as they had been prostitutes before. So the Government moved to ex-
clude the victims’ histories of prostitution under Rule 412. Brown argued that the evidence
was admissible under an exception to the rule, because excluding it would “violate [his]
constitutional rights” to confront witnesses and to present his defense. Fed. R. Evid.
412(b)(1)(C).
The District Court granted the motion in part. It let Brown ask the victims about their
prostitution histories, but only during the years when he allegedly ran the ring. Everything
else, the court ruled, would be “unduly prejudicial under [Rule] 403” and would undermine
one of Rule 412’s purposes: to “protect individuals who are victims of sex trafficking.”
App. 16.
At trial, several of Brown’s victims, including A.B., testified in detail about Brown’s
sex trafficking. The court let him cross-examine them on any prostitution between 2011
and 2014, even if Brown was not involved, because it went to whether their prostitution
for Brown was consensual or coerced. Brown used this latitude on cross-examination. And
in his closing, defense counsel argued: “These folks are in [the] business. So it isn’t like
no one can get away from this man. It’s just that some chose to stay longer than others
3 because the money was better.” Day 4 Trial Tr. 107:9–:12, United States v. Brown,
No. 3:17-cr-00396-001 (M.D. Pa. Mar. 15, 2019), ECF No. 119. That defense failed. The
jury convicted Brown on all counts.
Brown now appeals his conviction, challenging the District Court’s partial exclusion of
the witnesses’ histories of prostitution under Rule 412. The District Court had jurisdiction
under 18 U.S.C. § 3231 and we have jurisdiction under § 1291. We review the court’s read-
ing of the rules of evidence de novo and its application of them for abuse of discretion.
United States v. Tyson, 947 F.3d 139, 142 (3d Cir. 2020). A court does not abuse its dis-
cretion unless its evidentiary rulings are “arbitrary” or “irrational.” United States v. Bailey,
840 F.3d 99, 117 (3d Cir. 2016) (quoting United States v. Schneider, 801 F.3d 186, 198
(3d Cir. 2015)).
II. THE DISTRICT COURT PROPERLY EXCLUDED SOME EVIDENCE OF THE WITNESSES’ OTHER PROSTITUTION UNDER RULE 412
The District Court read Rule 412 correctly. And it applied that rule properly to exclude
evidence that had little (if any) probative value and was highly prejudicial, while still giving
Brown leeway to present his defense. So the court neither abused its discretion nor violated
his constitutional rights.
Rule 412’s reach is broad. In “criminal proceeding[s] involving alleged sexual miscon-
duct,” it bars evidence of “a victim’s sexual predisposition,” including evidence “that a
victim engaged in other sexual behavior.” Fed. R. Evid. 412(a)(1)–(2). The Rule seeks to
encourage victims to bring and take part in prosecutions by shielding them from harassing,
invasive, and minimally probative inquiries into their sexual histories. See id. r. 412
4 advisory committee’s note to 1994 amendment. But it does not pursue that goal at all costs.
It has several exceptions, including one when otherwise forbidden evidence is needed to
protect a defendant’s constitutional rights. Id. r. 412(b)(1)(C).
The testimony that Brown tried to elicit was inadmissible under Rule 412. He sought to
argue that his victims’ prostitution histories predisposed them to consensual prostitution
with him as their pimp. So the only question is whether the Constitution required admitting
the evidence. Brown argues that by preventing cross-examination on earlier and later pros-
titution, the court “effectively barred” him from contesting the mens rea required for the
crimes charged.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 19-2743 _______________
UNITED STATES OF AMERICA
v.
FREDRICK BROWN, Appellant _______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:17-cr-00396-001) District Judge: Honorable Malachy E. Mannion _______________
Submitted Under Third Circuit L.A.R. 34.1(a) on April 24, 2020
Before: AMBRO, SHWARTZ, and BIBAS, Circuit Judges
(Filed: May 19, 2020) _______________
OPINION* _______________
BIBAS, Circuit Judge.
Fredrick Brown was a pimp who used lies to push women and an underage girl into
prostitution and violence to keep them in it. A federal jury convicted him of several crimes,
including sex trafficking a minor and sex trafficking through force, fraud, or coercion. His
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. defense at trial was that his victims were prostitutes by choice, not victims of abuse. The
District Court let Brown cross-examine his victims about their other prostitution during the
three years charged in the indictment. But it barred him from questioning them about their
earlier and later histories of prostitution, relying on Federal Rule of Evidence 412 (often
called the rape-shield law). Because the court did not abuse its discretion by excluding this
evidence, we will affirm.
I. BACKGROUND
A. Facts
From 2011 to 2014, Brown ran a prostitution ring out of a few hotels in northeastern
Pennsylvania. During that time, he met A.B., a 17-year-old homeless runaway from Russia.
He took her in and gave her drugs. Soon, he pushed her into prostitution to earn money,
but told her that she would be safe only if he was her pimp. She agreed. For more than a
year, he set her up with johns whom he knew from his drug dealing. Usually, this happened
in local hotels. But sometimes, he drove her to other hotels as far away as New York and
Virginia.
Brown enticed A.B. into prostitution by falsely promising her lots of money. Though
at first he proposed to split her earnings equally, he took most of her share to cover the
costs of hotel rooms, food, condoms, and a fee for his protection. To control her, he
punched, slapped, pistol-whipped, raped, and pointed his gun at her. One beating was so
severe that she had to go to the hospital. A.B. feared that if she disobeyed him, he would
kill her. Brown also controlled all her immigration paperwork, so as a noncitizen A.B.
worried that she could not leave him. Brown was violent toward his other prostitutes too.
2 Eventually, state and federal investigators learned of Brown’s prostitution ring. By
then, he had been sentenced to state prison on DUI and drug charges. A federal grand jury
charged him with several crimes, including sex trafficking “by means of . . . force, fraud, or
coercion” and trafficking a minor. 18 U.S.C. § 1591(a), (b)(1).
B. Procedural history
Before trial, the Government expected Brown to argue that his victims had prostituted
for him voluntarily as they had been prostitutes before. So the Government moved to ex-
clude the victims’ histories of prostitution under Rule 412. Brown argued that the evidence
was admissible under an exception to the rule, because excluding it would “violate [his]
constitutional rights” to confront witnesses and to present his defense. Fed. R. Evid.
412(b)(1)(C).
The District Court granted the motion in part. It let Brown ask the victims about their
prostitution histories, but only during the years when he allegedly ran the ring. Everything
else, the court ruled, would be “unduly prejudicial under [Rule] 403” and would undermine
one of Rule 412’s purposes: to “protect individuals who are victims of sex trafficking.”
App. 16.
At trial, several of Brown’s victims, including A.B., testified in detail about Brown’s
sex trafficking. The court let him cross-examine them on any prostitution between 2011
and 2014, even if Brown was not involved, because it went to whether their prostitution
for Brown was consensual or coerced. Brown used this latitude on cross-examination. And
in his closing, defense counsel argued: “These folks are in [the] business. So it isn’t like
no one can get away from this man. It’s just that some chose to stay longer than others
3 because the money was better.” Day 4 Trial Tr. 107:9–:12, United States v. Brown,
No. 3:17-cr-00396-001 (M.D. Pa. Mar. 15, 2019), ECF No. 119. That defense failed. The
jury convicted Brown on all counts.
Brown now appeals his conviction, challenging the District Court’s partial exclusion of
the witnesses’ histories of prostitution under Rule 412. The District Court had jurisdiction
under 18 U.S.C. § 3231 and we have jurisdiction under § 1291. We review the court’s read-
ing of the rules of evidence de novo and its application of them for abuse of discretion.
United States v. Tyson, 947 F.3d 139, 142 (3d Cir. 2020). A court does not abuse its dis-
cretion unless its evidentiary rulings are “arbitrary” or “irrational.” United States v. Bailey,
840 F.3d 99, 117 (3d Cir. 2016) (quoting United States v. Schneider, 801 F.3d 186, 198
(3d Cir. 2015)).
II. THE DISTRICT COURT PROPERLY EXCLUDED SOME EVIDENCE OF THE WITNESSES’ OTHER PROSTITUTION UNDER RULE 412
The District Court read Rule 412 correctly. And it applied that rule properly to exclude
evidence that had little (if any) probative value and was highly prejudicial, while still giving
Brown leeway to present his defense. So the court neither abused its discretion nor violated
his constitutional rights.
Rule 412’s reach is broad. In “criminal proceeding[s] involving alleged sexual miscon-
duct,” it bars evidence of “a victim’s sexual predisposition,” including evidence “that a
victim engaged in other sexual behavior.” Fed. R. Evid. 412(a)(1)–(2). The Rule seeks to
encourage victims to bring and take part in prosecutions by shielding them from harassing,
invasive, and minimally probative inquiries into their sexual histories. See id. r. 412
4 advisory committee’s note to 1994 amendment. But it does not pursue that goal at all costs.
It has several exceptions, including one when otherwise forbidden evidence is needed to
protect a defendant’s constitutional rights. Id. r. 412(b)(1)(C).
The testimony that Brown tried to elicit was inadmissible under Rule 412. He sought to
argue that his victims’ prostitution histories predisposed them to consensual prostitution
with him as their pimp. So the only question is whether the Constitution required admitting
the evidence. Brown argues that by preventing cross-examination on earlier and later pros-
titution, the court “effectively barred” him from contesting the mens rea required for the
crimes charged. Appellant’s Br. 13–14. Barring that evidence, he argues, violated the Due
Process and Confrontation Clauses. See U.S. Const. amends. V, VI.
We disagree. A defendant’s right to cross-examine witnesses is “not unlimited.” United
States v. Fattah, 914 F.3d 112, 180 (3d Cir. 2019). Nor is his right to present the defense
of his choice against an essential element of a crime. Clark v. Arizona, 548 U.S. 735, 769–
70 (2006). Both are subject to reasonable restrictions, including the Federal Rules of Evi-
dence. Id. at 770; Fattah, 914 F.3d at 180. Evidentiary restrictions are unconstitutional only
if their application is “arbitrary” or “disproportionate to the purposes that they are designed
to serve.” United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas,
483 U.S. 44, 56 (1987)).
The limitations that the District Court imposed here were neither arbitrary nor dispro-
portionate. On the contrary, they focused the trial on the relevant time while still giving
Brown substantial freedom to put on his defense. The court let him cross-examine the vic-
tims about any prostitution during the three-year period charged in the indictment, even if
5 Brown was not involved. That was more than enough to preserve his constitutional rights.
See United States v. Lockhart, 844 F.3d 501, 509–10 (5th Cir. 2016).
In any event, whether Brown’s victims engaged in prostitution before 2011 or after
2014 would have had little if any probative value. That is precisely why our sister circuits
have repeatedly upheld excluding similar predisposition evidence. See, e.g., United
States v. Roy, 781 F.3d 416, 420 (8th Cir. 2015) (“The victim’s participation in prostitution
either before or after the time period in the indictment has no relevance to whether [the
defendant] beat her, threatened her, and took the money she made from prostitution in order
to cause her to engage in commercial sex.”); United States v. Cephus, 684 F.3d 703, 708
(7th Cir. 2012) (holding that a victim’s prior prostitution “does not suggest” that she vol-
untarily prostituted for the defendant or consented to beatings and threats). And even if this
evidence were probative, it would have been substantially outweighed by the danger of
unfair prejudice. See Bailey, 840 F.3d at 122 (citing Old Chief v. United States, 519 U.S.
172, 184 (1997)). Thus, Rule 403 more than justified the court’s temporal limitation. Fed.
R. Evid. 403.
* * * * *
District courts have wide discretion to apply the Federal Rules of Evidence, even when
they restrict a defendant’s cross-examination of witnesses and his ability to put on the de-
fense of his choice. Here, the District Court properly applied Rule 412, limiting evidence
of the victims’ prostitution histories to the timeframe charged in the indictment. Because
the court did not abuse its discretion, we will affirm.