United States v. Jackson

• Decision Date: 22 April 2021
• Docket Number: CAUSE NO. 3:20-CR-76 DRL-MGG
• Citation: 535 F.Supp.3d 809
• Parties: UNITED STATES of America, Plaintiff, v. Khalil M. JACKSON, Defendant.
• Court: U.S. District Court — Northern District of Indiana

535 F.Supp.3d 809

UNITED STATES of America, Plaintiff,

v.Khalil M. JACKSON, Defendant.

CAUSE NO. 3:20-CR-76 DRL-MGG

United States District Court, N.D. Indiana, South Bend Division.

Signed April 22, 2021

John M. Maciejczyk, & Government Attorney, Kimberly L. Schultz, Us Attorney's Office, South Bend, IN, for Plaintiff.

OPINION & ORDER

Damon R. Leichty, Judge

The government charged Khalil Jackson with sex trafficking of a minor, cyberstalking, and production, transportation, and possession of child pornography. Both sides filed motions for the trial beginning June 1, 2021. Khalil Jackson moved in limine on four issues: he seeks to exclude (1) all advertisements and photographs posted to the skipthegames.eu website, (2) all incoming text messages sent to his cellphones, (3) the proposed expert testimony of Kate Kimmer, and (4) records certified by Skip the Games, a Netherlands-based company hosting the skipthegames.eu website. The government filed a motion to permit the alleged victim in this case to be accompanied by a therapy dog while testifying. The court takes up these issues in sequence.

The court has broad discretion to rule on motions in limine. Jenkins v. Chrysler Motors Corp. , 316 F.3d 663, 664 (7th Cir. 2002) ; see also Luce v. United States , 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Evidentiary rulings ordinarily should not be made until trial when the court can resolve admissibility issues in their proper context. The court thus excludes evidence in limine only if it "is clearly inadmissible on all potential grounds." Dartey v. Ford Motor Co. , 104 F. Supp.2d 1017, 1020 (N.D. Ind. 2000) (citation omitted). If admissible on one ground or another, the court will defer ruling on admissibility until trial. See id. Even when the court grants a motion in limine , the order remains preliminary and subject to the court's revision at trial. See Farfaras v. Citizens Bank & Trust of Chi. , 433 F.3d 558, 565 (7th Cir. 2006).

A. The Court Denies Mr. Jackson's Request to Exclude a Representative Sample of the Skip the Games Advertisements and Photographs.

Mr. Jackson seeks to prevent the government from introducing all photographs and advertisements posted to skipthegames.eu—an adult escort or prostitution website. The photographs depict the alleged victim, some clothed (though often with sexual overtones) and some nude. Rule 403 says the "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." The court must weigh "the need for and probative value of the evidence against potential harm that its admission might cause." United States v. Miller , 688 F.3d 322, 327 (7th Cir. 2012) (citation omitted).

The parties don't dispute that the photographs are probative of the alleged crimes. The advertisements and photographs (nude and non-nude) are probative of Mr. Jackson's alleged sex trafficking of a minor as charged in count 1. See 18 U.S.C. § 1591(a)(1). Though certain images were apparently taken by the victim and provided to Mr. Jackson, the government says Mr. Jackson posted them to skipthegames.eu. The photographs thus bear on the interstate commerce element (use of the internet); whether Mr. Jackson knowingly recruited, enticed, advertised, or maintained the victim for the purpose of sex trafficking; and whether Mr. Jackson was aware of or recklessly disregarded the victim's age. See Seventh Circuit Comm. on Fed. Crim. Jury Instrs., 18 U.S.C. § 1591 Sex Trafficking of a Minor—Elements, The William J. Bauer Pattern Criminal Jury Instructions of the Seventh Circuit 646 (2020 ed.). The images, particularly one according to the government, likewise bear on the child pornography charges in counts 2, 3, and 4 because the victim was seventeen years old. See 18 U.S.C. §§ 2251(a), 2252(a)(1) and (a)(4)(B).

Mr. Jackson says the risk of unfair prejudice by introducing these images substantially outweighs their probative value under Rule 403. Unfair prejudice is "an undue tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403 advis. comm. note. The court cannot say at this preliminary stage, outside the context of trial, that these advertisements or photographs are inadmissible on all grounds under Rule 403.

The non-nude images don't pose much risk of prejudice: the victim is clothed, though some photographs are more suggestive than others. The sexualized or pornographic images, albeit more inflammatory, aren't unfairly prejudicial on this preliminary record. The images are central to the charges here. All probative evidence is to some extent prejudicial, but that isn't the question; the question is whether the photographs are unfairly prejudicial. See United States v. McKibbins , 656 F.3d 707, 712 (7th Cir. 2011). To introduce the photographs that Mr. Jackson allegedly posted, at least a representative sample, is by no means unfair. See, e.g., United States v. Hatfield , 358 F. Appx. 692, 696 (7th Cir. 2009) (allowing 12 child pornography videos into trial when they "were central to the charged conduct," even while acknowledging they were prejudicial); United States v. Sewell , 457 F.3d 841, 844 (8th Cir. 2006) (district court erred by refusing to permit government to publish representative sample of child pornography images found on defendant's computers).

Our law's longstanding tradition also supports using photographs at trial. The "prosecution is entitled to prove its case by evidence of its own choice," and "a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." Old Chief v. United States , 519 U.S. 172, 186-87, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). There are sound reasons for this tradition. It not only permits the government to meet the formal definition of an offense, but also enables the government to tell a "colorful story" of the offense with "descriptive richness." Id. at 187, 117 S.Ct. 644. As here, evidence may probe multiple elements of a crime or even multiple crimes. Id. A full record of the evidence signifies the law's moral underpinnings and emphasizes to the jury its obligation to sit in judgment. Id. at 187-88, 117 S.Ct. 644. A fuller record reinforces that the alleged offense is more than mere black letter law; it involves real people and real events. See, e.g., Hatfield , 358 F. Appx. at 696 (permitting child pornography videos to be shown to the jury even when defendant wanted to stipulate because "stipulations generally cannot substitute for the government's chosen evidence"). Mr. Jackson's proposed alternative—having witnesses describe the photographs—isn't sufficient for these reasons.

Mr. Jackson next says the images will confuse the jury and will prove needlessly cumulative. He says an array of images will improperly suggest to the jury that Mr. Jackson took the photographs when many were taken and provided by the alleged victim. That issue can be explored during direct and crossexamination to the extent that the parties deem it material, not least to the child pornography production charge in count 2. Any risk of confusion is slight at best, without outweighing the probative value of these images.

Evidence is needlessly cumulative "when it adds very little to the probative force of the other evidence in the case, so that if it were admitted its contribution to the determination of truth would be outweighed by its contribution to the length of the trial, with all the potential for confusion, as well as prejudice to other litigants, who must wait longer for their trial, that a long trial creates." United States v. Gardner , 211 F.3d 1049, 1055 (7th Cir. 2000) (citation omitted). The court cannot say at this preliminary stage that the photographs—at least those intended to be used by the government—are so needlessly cumulative to outweigh their probative value substantially.

The government says Mr. Jackson posted 400 advertisements to the website with the alleged victim's images, but the government stops short of saying it intends to introduce them all and refers the court to a representative redacted sample. Only the context of trial will tell. If the government seeks to introduce more than a representative sample of photographs, particularly noting that the photographs are often replicated among advertisements, their probative value may decrease, and the risk that the jury will infer guilt improperly on the sheer number of photographs may grow. Permitting the government to publish a representative sample is one thing; publishing them all is quite another. See Sewell , 457 F.3d at 844. At the same time, prohibiting them all outside the context of trial is improper when they aren't inadmissible on all grounds. See Dartey , 104 F. Supp.2d at 1020. The court denies Mr. Jackson's request to exclude a representative sample of photographs in limine before trial.

B. The Court Denies Mr. Jackson's Request to Exclude the Incoming Texts.

Mr. Jackson next seeks to exclude all incoming text messages received on two cellphones as hearsay. The government says Mr. Jackson texted customers while impersonating the victim. The government wants to use his texts as evidence that he was sex trafficking a minor. Mr. Jackson doesn't contest that his outgoing texts aren't hearsay, and rightly so. See Fed. R. Evid. 801(d)(2)(A) (opposing party's statement); United States v. Lewisbey , 843 F.3d 653, 658 (7th Cir. 2016). The only issue is whether the texts he received from prospective customers are inadmissible hearsay.

Hearsay is generally inadmissible at trial. Fed. R. Evid. 802. Hearsay is "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth...