United States v. Streb

• Decision Date: 10 August 2020
• Docket Number: Case No. 4:19-cr-00076-SMR-CFB-3
• Citation: 477 F.Supp.3d 835
• Parties: UNITED STATES of America, Plaintiff, v. Kendall Andrew STREB, Defendant.
• Court: U.S. District Court — Southern District of Iowa

477 F.Supp.3d 835

UNITED STATES of America, Plaintiff,

v.Kendall Andrew STREB, Defendant.

Case No. 4:19-cr-00076-SMR-CFB-3

United States District Court, S.D. Iowa, Central Division.

Signed August 10, 2020

Kristin M. Herrera, Virginia M. Bruner, Craig P. Gaumer, United States Attorney's Office, Des Moines, IA, for Plaintiff.

Alfredo G. Parrish, Gina Messamer, Jessica Donels, Brown & Bergmann, L.L.P., Des Moines, IA, for Defendant.

ORDER DEFENDANT'S MOTION FOR NEW TRIAL

STEPHANIE M. ROSE, JUDGE

A jury convicted Defendant Kendall Andrew Streb of trading money and drugs for sex with underage girls, distributing controlled substances to minors, and unlawfully possessing drugs and guns in connection with his other crimes. Streb timely moved for a new trial under Federal Rule of Criminal Procedure 33, contending a number of discovery disputes, evidentiary rulings, and trial management decisions produced cumulative error in the proceedings. [ECF Nos. 383; 400]. The matter is fully submitted, and the Court finds a hearing to be unnecessary. See LR 7(c). Because the interest of justice does not require a new trial, Streb's Motion for New Trial is DENIED.

I. BACKGROUND

Streb was initially charged by criminal complaint on April 18, 2019, with one count of Sex Trafficking of a Minor, in violation of 18 U.S.C. § 1591(a)(1) and (b)(2). [ECF No. 1]. He was later indicted by grand jury as part of a larger, multi-party investigation on May 15, 2019, of the following charges:

• Sex Trafficking of Children as to Minor Victim A ("MVA"), in violation of 18 U.S.C. § 1591(a)(1), (b)(2) (Count 12);

• Distribution of a Controlled Substance to a Person Under Age Twenty-One as to MVA, in violation of 21 U.S.C. §§ 841(a)(1) and 859 (Count 13);

• Sex Trafficking of Children as to Minor Victim B ("MVB"), in violation of 18 U.S.C. § 1591(a)(1), (b)(2) (Count 14);

• Coercion and Enticement of a Minor as to MVB, in violation of 18 U.S.C. § 2422(b) (Count 15);

• Distribution of a Controlled Substance to a Person Under Age Twenty-One as to MVB, in violation of 21 U.S.C. §§ 841(a)(1) and 859 (Count 16);

• Possession with Intent to Distribute Methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 17);

• Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 18); and

• Unlawful User in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (Count 19).

[ECF No. 35 at 7–10] (sealed). Second and Third Superseding Indictments were later filed in the case, charging Streb with additional counts of sex and drug trafficking offenses:

• Sex Trafficking of Children as to Minor Victim E ("MVE"), in violation of 18 U.S.C. § 1591(a)(1), (b)(2) (Count 26); and

• Distribution of a Controlled Substance to a Person Under Age Twenty-One as to MVE, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 859 (Count 32).

[ECF Nos. 95 at 14; 163 at 17] (sealed). Streb's trial was severed from those of his co-defendants and set to commence on January 21, 2020.

On the morning of trial, Streb brought to the Court's attention a recent disclosure by the Government informing defense counsel of expenditures made for or on behalf of the minor victims in the course of pre-trial meetings and preparation sessions ("Disclosure No. 1"). See generally Trial Tr. ("Tr.") 2–82, 116–23; 250–51.¹ The disclosure, appearing in the form of a letter dated January 19, 2020, provided:

Throughout the pendency of the case, meetings and/or prep sessions were individually held with Minor Victims A, B, and E. During these meetings and/or prep sessions, lunch was sometimes provided by staff with the U.S. Attorney's Office, the Iowa City Police Department, the Federal Bureau of Investigation, or other non-profit or law enforcement agencies. Additionally, sometimes Minor Victims A, B, and/or E were provided items to help them care for their basic needs, such as shampoo, body wash, soap, and basic items of clothing. Minor Victim A was once given a gift card to assist her with purchasing school supplies. All of these items were provided by either members of the U.S. Attorney's Office, the Iowa City Police Department, the Federal Bureau of Investigation, and/or other non-profit or law enforcement agencies.

[ECF No. 353 at 3] (sealed); see also Tr. 3. Noting the seriousness of the disclosure's timing two days before trial and the vagueness of the letter's contents, the Court recessed and ordered the Government to produce a more detailed accounting of the specific benefits given to each of the minor victims. Tr. 8–14. When the Court reconvened, the Government produced a bullet-point list detailing the expenditures alluded to in its original letter and noted supplemental information about benefits that had not been previously disclosed; the list also disclosed additional benefits the minor victims might have received in the course of the Government's investigation and trial preparation that were not included in its January 19, 2020 letter ("Disclosure No. 2"). Tr. 14–22, 41; see [ECF No. 353 at 7–8, 10]. The majority of the instances disclosed by the Government involved paying for meals and transportation costs for the minor victims related to their grand jury testimony and trial preparation, while others related to the purchase of necessities (such as clothes and toiletries) for their benefit. See [ECF No. 353 at 7-8]. These expenditures ranged from $3 snacks to, in one instance, $150 worth of clothes. See id. On at least one occasion, one of the minor victims (MVA) had been given a total of $50 in gift cards to purchase school supplies. Id. at 7.

The Court declined to exclude testimony from the minor victims or postpone jury selection, but instead offered to continue the proceedings as a sanction for the Government's late disclosures. Tr. 20, 24–25. After consulting with counsel, Streb declined a continuance and elected to proceed with trial. Tr. 24–29.

That afternoon, after voir dire , the Court held a hearing outside the presence of the jury where the Government produced a report authored by Detective David Gonzalez, the lead detective on the case. The report described the expenditures made for or on behalf of the minor victims and the dates on which they were made in even greater detail, while disclosing still more expenditures that were not included in either of the Government's first two notices ("Disclosure No. 3"). [ECF No. 353 at 12–14]; see generally Tr. 40–110. Most of the funds, the Government represented, came from non-profit organizations dedicated to helping victims of crime and the Iowa City Police Department Association ("ICPDA"), while some of the money came from the victim coordinator for the Federal Bureau of Investigation. [ECF No. 353 at 9, 15]. Additionally, the prosecutors and lead detective informed the Court that they would, on occasion, pay for small items out of their own pocket. Tr. 65–66, 68, 69–71. In a professional statement to the Court, counsel for the Government represented that the timing of its disclosures concerning these benefits conferred on the minor victims was unintentional, an inadvertent oversight due to the scope and complexity of this multi-defendant, multi-victim investigation. Tr. 73–76.² Streb again moved to dismiss the case as a sanction for the Government's conduct or, in the alternative, bar witness testimony from the minor victims and law enforcement officers who participated in the expenditures. Tr. 44–59; see [ECF No. 324].

Recognizing the problem with the Government's disclosure was not the benefits themselves, but the timing and manner of their disclosure, the Court found there to be no bad faith in the Government's reporting of the minor-victim benefits, deliberate attempt to suppress the information, or intent to misrepresent the investigation. Tr. 41–43, 52–53. The Court denied Streb's motion to dismiss, finding dismissal or exclusion of witness testimony to be too extreme of a sanction; but other approaches were appropriate to remedy the Government's untimely disclosures. See Tr. 77–79. First, the Court promised to allow the defense "very liberal" and "wide open" cross-examination related to the witness benefits, of both the minor victims and the investigating officers. Tr. 78, 109. And the Court promised to consider some kind of curative or limiting instruction to the jury about the timing of the disclosures if provided by the defense at the close of evidence. Tr. 78.³ Finally, the Court agreed to forgive the defense's untimely and insufficient expert witness disclosures and allowed Streb to present the expert testimony, subject to the rules of evidence. Tr. 79, 103–04 ("[W]hat's sort of good for the goose is good for the gander."); cf. [ECF Nos. 291; 314]. After taking up other evidentiary issues and pretrial matters, Tr. 82–110, the case proceeded to trial.

The evidence and testimony presented to the jury established that Streb paid money and traded drugs for sex from three underage girls between the ages of fifteen and seventeen years old from late 2018 to early 2019. All three minor victims testified against Streb. MVB testified that from at least as early as November 2018,⁴ and continuing through February 2019, Streb contacted her to pay for sex on numerous occasions. Tr. 871–73, 876–80. Each time, MVB testified, Streb paid her money or gave her methamphetamine, sometimes both, in exchange for engaging in sexual intercourse with him.⁵ Tr. 876–77. MVB testified that Streb smoked methamphetamine every time they met, and she would occasionally join in smoking methamphetamine with him. Tr. 882–83. Text messages between MVB and Streb extracted from MVB's phone records, along with phone location data, corroborated MVB's account of exchanges occurring on November 3, 2018; December 22, 2018; December 29, 2018; January 27, 2019; February 4, 2019; February 13, 2019; and February 27, 2019. See Tr. 961-991, 1031–1099; [ECF Nos. 381-33; 381-61; 381-62; 381-63; 381-64;...