United States v. Kidd

385 F. Supp. 3d 250
Procedural entryThis page is a short order in United States v. Kidd. Read the opinion of the Court — 386 F. Supp. 3d 364
District Court, S.D. Illinois·Decided July 1, 2019·No. 18 CR 872 (VM)·Published

Opinion

VICTOR MARRERO, United States District Judge.

*252Defendant Lloyd Kidd ("Kidd") is charged with four counts of commercial sex act exploitation and one count of producing child pornography. (See "Second Superseding Indictment," Dkt. No. 53.) The trial of Kidd is scheduled to begin before the Court on July 8, 2019. In connection with the upcoming trial, the Government filed motions in limine seeking both to preclude the introduction of certain evidence or arguments and to admit certain other evidence. (See "Government Motion," Dkt. No. 35.) Specifically, the Government seeks to preclude the admission of: (1) evidence of victims' other sexual behavior; (2) any defense predicated on the minor victims' consent to be sexually trafficked; and (3) any reference to the consequences Kidd faces if convicted. Separately, the Government seeks to allow the admission of (1) Kidd's alleged trafficking of other individuals and drugs; and (2) reconstructed summary charts of advertisements Kidd allegedly posted on the website Backpage.com. Finally, the Government requests that the minor victims be permitted to testify under pseudonyms.

Kidd opposes some of these motions as premature and claims that much of the evidence the Government seeks to introduce is inadmissible. (See "Opposition," Dkt. No. 47.) Specifically, Kidd argues that it would be premature to constrain his defense before trial. Similarly, Kidd "reserve[s] the right to cross examine" the minor witnesses in ways that might elicit their real names, consistent with the Sixth Amendment. Kidd objects to the admission of any reconstructed summary of the Backpage.com advertisements if the testifying law enforcement witness introducing the advertisements did not see them as they originally appeared on the website. Separately, although the Government did not ask for a pretrial ruling on the admissibility of the firearm found in Kidd's safe during a search of his apartment on the day of his arrest, Kidd seeks to preclude the admission of the firearm.

For the following reasons, the Government Motion is GRANTED in part.

I. DISCUSSION

A. EVIDENCE OF VICTIMS' OTHER SEXUAL BEHAVIOR

Federal Rule of Evidence 412 (" Rule 412") provides that in "cases involving sexual misconduct," the following evidence is inadmissible: (1) "evidence offered to prove that a victim engaged in other sexual behavior;" and (2) "evidence offered to prove a victim's sexual predisposition." Fed. R. Evid. 412(a).

Rule 412 provides certain exceptions to this general prohibition in criminal cases. First, "evidence of specific instances of a victim's sexual behavior" may be offered to prove that someone other than the defendant was the source of "physical injury." Fed. R. Evid. 412(b)(1)(A). Second, "evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct" may be offered to prove consent. Fed. R. Evid. 412(b)(1)(B). And third, evidence may be offered if its "exclusion would violate the defendant's constitutional rights." Fed. R. Evid. 412(b)(1)(C).

The Government argues that none of the three exceptions apply to Kidd's case. (See Government Motion at 10-13.) First, the Government correctly notes that the first exception is inapplicable in this case based on the charges and type of proof the *253Government intends to present. Second, the Government argues that the consent exception is inapplicable for two reasons. Regarding the minor victims, the Government presents case law consistently holding that as a matter of law minors cannot consent to sexual abuse or exploitation. (See id. at 12 (citing United States v. Corley, 679 F. App'x 1, 4 (2d Cir. 2017) ; United States v. Abad, 350 F.3d 793, 797 (8th Cir. 2003) ).) Regarding the non-minor victims, the Government argues that consent is "factually irrelevant" when the defendant is alleged to have used any form of "force, threats of force, fraud, and coercion." (Id. ) Finally, the Government argues that the exception for constitutional rights is inapplicable because evidence of the victims' other sexual conduct has "no or vanishingly little probative value." (Id. at 13.)

Kidd concedes that several of these exceptions are inapplicable. For example, Kidd is "not aware ... of any of the sexual history of any of the witnesses." (Opposition at 2.) Further, Kidd "agrees that there is no 'consent' defense to a crime of sexual exploitation of minors." (Id. ) Ultimately, Kidd contends that the defense strategy will "scrupulously avoid violating" Rule 412, but cautions that it would be premature to issue a ruling precluding certain defenses. (Id. at 2.)

Courts commonly extend the application of Rule 412 to sex trafficking cases. See, e.g., United States v. Graham, No. 14 Cr. 500, 2015 WL 6161292, at *10 (S.D.N.Y. Oct. 20, 2015). Kidd does not object to the application of Rule 412 in this case, and the Court is persuaded that this extension is proper and will apply Rule 412 accordingly.

In applying Rule 412 in this case, the Court will strictly enforce its edicts during the trial and agrees with the Government that the exceptions are unlikely to arise. Nevertheless, and in light of Kidd's representations and concessions, the Court reserves ruling on the Government's request until trial. Some of the Government's arguments are based upon factual predicates that need to be developed at trial before the Court can issue a ruling. For example, while perhaps unlikely, if it appears that none of the victims are minors, and there is no testimony of force or coercion, then a consent defense may become viable, and evidence may be offered in support of that defense.

Therefore, the Court reserves ruling on the Government Motion regarding the preclusion of the victims' other sexual behavior until trial.

B. DEFENSE PREDICATED ON THE MINOR VICTIMS' CONSENT

The Government seeks to prevent Kidd from offering any defense or argument that the minor victims "consented to being trafficked or sexually exploited." (Government Motion at 16.) Because, as mentioned above, Kidd agrees that there is no consent defense regarding minor victims, the Court grants the Government Motion as to this request. The Court may revisit the ruling if at trial the Government does not establish the necessary factual predicates for its objection.

C.

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