United States v. Roy

• Decision Date: 15 October 2013
• Docket Number: No. 4:13CR00010 JLH,4:13CR00010 JLH
• Parties: UNITED STATES OF AMERICA PLAINTIFF v. JERMAINE LAMON ROY DEFENDANT
• Court: U.S. District Court — Eastern District of Arkansas

UNITED STATES OF AMERICA PLAINTIFF v. JERMAINE LAMON ROY DEFENDANT

No. 4:13CR00010 JLH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

SO ORDERED: October 15, 2013

OPINION AND ORDER

Jermaine Lamon Roy was convicted of violating 18 U.S.C. § 1591(a)(1), which makes it a crime knowingly to recruit, entice, harbor, transport, provide, obtain, or maintain another person in knowing or reckless disregard of the fact that means of force, threats of force, fraud, or coercion would be used to cause that person to engage in a commercial sex act, provided that the offense was in or affecting interstate commerce. Roy's victim was Lakisha Smith. The timeframe charged in the superseding indictment was from in or about November 2011 to in or about December 2012. It was undisputed that Smith was working as a prostitute during this period of time, and the evidence was overwhelming that Roy was her pimp. There was also substantial evidence that Roy inflicted physical violence on Smith. Several witnesses, including Smith, testified regarding instances in which Roy inflicted physical violence on her. The theory of the defense was that Roy and Smith were in a romantic relationship, and that the altercations indicated that there were problems in their romantic relationship rather than that Roy was using force to cause Smith to engage in commercial sex acts. See Document #65 at 6; Tr. 54; Tr. 761-62.

Roy has now moved for a new trial pursuant to Federal Rule of Criminal Procedure 33. Rule 33(a) provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Roy does not contend that the evidence was insufficient toconvict him. Rather, he contends, first, that the Court erred in certain evidentiary rulings and, second, that the prosecutors engaged in misconduct.

I. EVIDENTIARY RULINGS

A. Rule 412

Before trial, the government moved in limine pursuant to Federal Rule of Evidence 412 to exclude evidence of Smith's sexual behavior. Rule 412(a) provides that evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct to prove that the victim engaged in other sexual behavior or to prove a victim's sexual predisposition. Fed. R. Evid. 412(a). Rule 412(b) provides the following exceptions:

(1) Criminal cases. The court may admit the following evidence in a criminal case:

(A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than defendant was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

(C) evidence whose exclusion would violate the defendant's constitutional rights.

Fed. R. Evid. 412(b)(1).¹ Rule 412 further provides that if a party intends to offer evidence under Rule 412(b), the party must file a motion that specifically describes the evidence and states the purpose for which it is offered, and the party must do so at least fourteen days before the trial unless the court, for good cause, sets a different time, and the party must serve the motion on all the partiesas well as the victim. Fed. R. Evid. 412(c)(1). In addition, "[b]efore admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed." Fed. R. Evid. 412(c)(2).

In response to the government's motion in limine, the defense agreed "that evidence offered to prove that Lakisha Smith engaged in prostitution before or after the time period charged in the Superseding Indictment is generally inadmissible pursuant to Rule 412." Document #61 at 1. The only argument made by Roy at that time concerning evidence encompassed by Rule 412 was that he should be permitted to offer evidence of Smith's sexual behavior, including acts of prostitution, during the time charged in the indictment. The government agreed with that argument, and Roy was not prohibited from introducing evidence pertaining to Smith's sexual behavior and acts of prostitution during the time encompassed by the indictment. In addition, Roy argued that Rule 412 did not apply to evidence offered solely to establish his state of mind or to show that Smith had a motive to cooperate with the government. Document #61 at 2-6.

The Court granted the motion in limine for two reasons. First, Roy had not filed a motion fourteen days before trial as required by Rule 412(c). Second, apart from timeliness, exclusion of evidence of Smith's sexual misconduct outside of the period of time alleged in the indictment did not violate Roy's constitutional rights. The Court further ruled that if the defense had some basis for believing that Smith had a motive to testify against Roy based on the prospect of leniency from the prosecution, then that testimony would be admitted without identifying the specific crimes for which Smith might receive leniency based on her testimony.

Roy contends that the Court's ruling on the government's motion in limine was in error, but Roy is mistaken.

First, Roy never gave the kind of notice required by Rule 412(c). He never filed a motion specifically describing the evidence that he intended to offer, and he never gave notice to Smith of that evidence. Rule 412(c)(2) provides that before admitting evidence under the rule, the court must conduct an in camera hearing and give the victim, as well as the parties, a right to attend and be heard. Fed. R. Evid. 412(c)(2). Because Roy never gave notice to Smith, the Court could not give her an opportunity to attend a Rule 412 hearing and be heard. Cf. United States v. Rouse, 111 F.3d 561, 569 (8th Cir. 1997); United States v. Eagle, 137 F.3d 1011, 1015 (8th Cir. 1998); United States v. Eagle Thunder, 893 F.2d 950, 954 (8th Cir. 1990); United States v. Provost, 875 F.2d 172, 177 (8th Cir. 1989).

Nor did Roy establish good cause for failing to meet the fourteen-day requirement. Roy argues that the government identified Smith as the victim only seventeen days before trial while continuing to produce discovery thereafter. In response to the motion in limine Roy argued that the evidence should be admitted to show his state of mind, i.e., that, based on his knowledge of Smith's prior sexual activity, he did not know or act in reckless disregard of the fact that force, fraud, or coercion would be used to cause her to engage in commercial sex acts. Document #61 at 2-5. That argument presupposed that Roy was aware of Smith's prior sexual activity before the time encompassed by the indictment; but if he was aware of that evidence, there was no reason to delay filing the motion and giving the appropriate notice. Cf. Tr. 407. Notably, Roy did not request a continuance to enable him to comply with the fourteen-day requirement.

In his post-trial motions, Roy appears to have abandoned his argument that such evidence should have been admitted to show his state of mind. Indeed, he never proffered any evidence to show that he knew or believed that Smith had engaged in sexual misconduct before the time encompassed by the indictment. Roy now argues that such evidence was "relevant to [Smith's] state of mind in order for jurors to determine whether, in fact, she was a victim[.]" Document #88 at 7-8. Thus, Roy has gone from arguing that the evidence was relevant to show his state of mind to arguing that the evidence was relevant to show Smith's state of mind. Roy's present argument essentially is that he was entitled to introduce evidence of Smith's sexual behavior to show that she had a predisposition to engage in prostitution-which is precisely the kind of evidence that Rule 412 excludes.

Apart from Roy's failure to meet Rule 412(c)(1)'s fourteen-day requirement, the evidence was inadmissible. As the Court indicated during the trial, a case directly on point is United States v. Cephus, 684 F.3d 703 (7th Cir. 2012). Tr. 408. There, the Seventh Circuit explained:

Rule 412(a)(1) of the federal evidence rules provides that in a case involving allegations of sexual misconduct, "evidence offered to prove that a victim engaged in other sexual behavior" is inadmissible. (The prostitutes working for Cephus were engaged in criminal activity, but they were also his victims.) If admissible, such evidence would deter many victims of sexual abuse from testifying, as mentioned in the Committee Note to 1994 Amendments to Rule 412. There are exceptions to the exclusion, but the only one argued by the defendants is "evidence whose exclusion would violate the defendant's constitutional rights," Fed. R. Evid. 412(b)(1)(C), namely a defendant's right to confront the witnesses against him. Specifically the defendants wanted to cross-examine one of the adult call girls in Cephus's stable (Cassandra by name) about her having worked as a prostitute before he recruited her. They wanted to suggest that having already been a prostitute she would not have been deceived by Cephus and therefore her testimony that she was coerced into working for him—an element of one of the charged offenses when the prostitute is not a minor, 18 U.S.C. § 1591(a)—should be disbelieved. But the testimony sought to be elicited by the cross-examination would have been irrelevant. Even if no promises were made to Cassandra, this would not be evidence that she consented to be beatenand to receive no share of the fees paid by the johns she serviced. And even if she knew going in, from her prior experience, that Cephus probably would beat her, it was still a crime for him to do so. And finally the fact that she'd been a prostitute before does not suggest that he didn't beat and threaten her—that was his modus operandi and there's no evidence that he would have

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