March 16, 2015
UNITED STATES OF AMERICA, Plaintiff,
JASON JAYAVARMAN, Defendant.
ORDER RE PENDING MOTIONS
Sharon L. Gleason, United States District Judge
Currently pending before the Court are the following motions: (1) the United States’ First Motion in Limine at Docket 101; (2) the United States’ Motion in Limine and Notice Regarding Anticipated Introduction of Evidence Pursuant to Fed.R.Evid. 404(b) at Docket 102; and (3) the United States’ Supplemental Motion in Limine and Notice Regarding Anticipated Introduction of Evidence Pursuant to Fed.R.Evid. 404(b) at Docket 104. The motions have been fully briefed.
I. United States’ First Motion in Limine
The Court ruled on most of the issues raised by the Government’s First Motion in Limine on the record at the March 13 Final Pretrial Conference. Left unresolved at the hearing, and addressed in Order, is the Government’s request for an order (1) “prohibiting Defendant Jason Jayavarman, his counsel, and any defense witnesses from asking any question, introducing any evidence, or making any statement regarding [the age of consent in Cambodia or elsewhere that is contrary to existing United States law] while the jury is present.” Also unresolved from the First Motion in Limine is the Government’s request for an order “allowing the United States to admit a sampling of the child pornography found to have been in Defendant’s possession into evidence and to publish those images to the jury in a way that they are not viewable to members of the public who attend the trial.”
A. Age of Consent Evidence
The Government asserts that the “appropriate age considerations for this case . . . are identified by U.S. law.” Accordingly, the Government maintains that “[m]ention of any foreign or non-applicable age of consent-such as the age of consent in Cambodia or elsewhere-is wholly irrelevant, would be a misstatement of the applicable law, would be contrary to the anticipated jury instructions, and would serve no function but to mislead the jury, confuse the issues, and waste this Court’s time.”
In his Opposition, Jayavarman asserts that Cambodia “is a sovereign nation” and “has the right to prescribe rules of conduct for its citizens while they are in Cambodia.” Jayavarman asserts that he is a Cambodian citizen and the relevant conduct occurred in Cambodia.
In United States v. Clark, the Ninth Circuit considered an appeal from a defendant who argued, inter alia, that 18 U.S.C. § 2423(c) was beyond Congress’ authority under the commerce clause. The Ninth Circuit disagreed and held that “[w]here . . . the defendant [a United States citizen] travels in foreign commerce to a foreign country and offers to pay a child to engage in sex acts, his conduct falls under the broad umbrella of foreign commerce and consequently within congressional authority under the Foreign Commerce Clause.” The Western District of Texas has specifically considered the relevance of the age of consent in a foreign country under § 2423 and stated that it “fail[ed] to see how the target country’s law [in that case, Mexico’s age of consent] is relevant in the [reasonableness of extraterritorial jurisdiction] analysis, given the nationality of the parties and the fact that the statute specifically applies [U.S.] federal law to determining the legality of the predicate sexual conduct.”
Here, the Government has alleged that Jayavarman is a United States Citizen. Jayavarman has indicated he is also a citizen of Cambodia. With respect to the alleged violations of 18 U.S.C. § 2423(b), travel with intent to engage in illicit sexual conduct, and 18 U.S.C. § 2251, sexual exploitation of children, the fact that Jayavarman is a citizen of Cambodia, in addition to being a United States citizen, is not relevant to either charge. Moreover, both of the counts in the Superseding Indictment are based on statutes that define the relevant age of the victim. The Court agrees with the Government that the age of consent under Cambodian law or elsewhere is not relevant to the charges brought by the United States in this case. Accordingly, the Government’s motion to preclude evidence regarding the age of consent under Cambodian law or elsewhere is granted.
B. Admitting and Showing Child Pornography
The Government seeks to admit “a sampling of the child pornography relevant to the charges against Defendant into evidence and to publish those images to the jury in a manner that ensures that they are not viewable by the public.” The Government asserts that this sampling is highly probative to the charged activity but that, because the “child depicted in those images would be revictimized every time an image depicting her abuse is viewed, ” any courtroom spectators should not be able to view the images. At the March 13 status hearing, the Government indicated that the sampling is approximately 60 seconds long out of a total of approximately eight hours of child pornography videos that were found at Jayavarman’s residence.
In his Opposition, Jayavarman asserts that “the Government will not be able to establish that the woman involved was a child at the time the image was produced, ” and that absent reliable evidence of the female’s age, “simply publishing the image invites the jury to speculate about the woman’s age.” Jayavarman also asserts that publishing the sampling would violate Evidence Rule 403 because the images, “absent reliable, non-speculative evidence of age, have no probative value” and because “[j]urors are likely to regard Jayavarman as a sexual pervert for permitting himself to be depicted sans clothing and engaged in sexual intercourse.”
The Court finds that there is sufficient evidence in the record to support the Government’s assertion that the female is under the age of 18, including Jayavarman’s statement to Alex Banks in which Jayavarman stated that he had made a movie with a girl in Cambodia who “was about 14 when I met her, ” that Jayavarman had with him in the United States as a “souvenir.” With respect to the Rule 403 objection, the Court has viewed the proposed images, and in light of the charges in this case, the Court finds that overall their probative value is not substantially outweighed by a danger of unfair prejudice. However, the Court finds that the length of time that close-up images of sexual intercourse are displayed in which no faces are visible, should not be as long as it is in the sampling. Accordingly, those portions of the sampling should be approximately 50% shorter than is presently proposed.
C. United States’ Motion in Limine and Notice Regarding Anticipated Introduction of Evidence Pursuant to Fed.R.Evid. 404(b)
The Government seeks to introduce evidence at trial in connection with two alleged other acts of Defendant: “(1) traveling to Cambodia/engaging in illicit sex with a minor in 2009, and (2) Defendant’s efforts at bribery, witness intimidation, and obstruction of justice.” The Government asserts that it seeks to introduce this evidence “for the limited and undisputedly relevant purposes of proving motive, opportunity, intent, preparation, knowledge, absence of mistake or lack of accident, and consciousness of guilt.”
A. 2009 Trip to Cambodia Evidence
The Government argues that Defendant admitted “having sex with a girl in 2009, when he believed the girl was 13 or 14 years old” and that she was “the same girl he is accused of later using to produce child pornography in Count 1.” The Government adds that Defendant admitted to “engaging in sex acts for another three years with the same girl.” The Government maintains that this evidence goes to Jayavarman’s knowledge of the female’s “youth, his recognition of an opportunity and motive to continue doing something illegally without being detected in subsequent trips, his planning and preparation, and his lack of mistake about her being underage.”
In his Opposition, Jayavarman argues that it is “extremely unlikely that motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident will be real issues in this case.” Rather, Jayavarman asserts that “[t]he only real issue concerning Count I is the age of the woman depicted in the video” and argues that the evidence the Government seeks to admit is inadmissible propensity evidence.In his Supplemental Opposition, Jayavarman asserts that his statement about “having sex with a 13 or 14 year old girl” is irrelevant because the Government “will not be able to establish the date of the alleged sex act, ” which, he maintains, could have occurred “when [Jayavarman] himself was 13 or 14” or “prior to becoming a citizen of the United States.” Jayavarman also asserts that even if the evidence was admissible under Rule 404(b), it should be excluded under Rule 403. Jayavarman adds that the Government fails to specify which non-propensity purpose is applicable to this proffered evidence.
First, it is not clear to the Court that the evidence the Government seeks to admit is really evidence of a separate bad act. Rather, it appears to be “inextricably intertwined” with the conduct charged in Count I. Even if the evidence does constitute other acts, however, the Court finds that it is admissible under Rule 404(b) because it “(1) tends to prove a material point in issue; (2) is not too remote in time; and (3) is proven with evidence sufficient to show that the act was committed.” Specifically, it tends to support the Government’s position that the female in the video is under age 18, it dates from 2009, and the Government has sufficient evidence in the form of Jayavarman’s own statements to show that the act was committed. The Court also finds that the evidence is not inadmissible based on Rule 403 because it is probative of the female’s age in the video and any prejudice does not substantially outweigh that probative value.
B. Consciousness-of-Guilt Evidence
The Government also seeks to introduce evidence that Jayavarman conspired to
(1) bribe the victim in advance of her potential participation in the investigation, (2) bribe the victim’s mother with the apparent intent to influence the victim’s participation in the investigation, (3) employ a confederate in Cambodia who “hired” Cambodian Police officers who might be able to “grab” the victim, and (4) bribe Cambodian officials to procure a birth certificate and national identification card for the victim showing that the victim was an adult at the time Defendant produced pornographic videos with her.
Specifically, the Government seeks to introduce recordings of Jayavarman’s jail calls, the female’s “authentic” Cambodian birth certificate and an attestation letter from a Cambodian official regarding the female’s age, both of which the Government asserts contain mistakes “indicative of the hasty and illegitimate manner in which [they] were created and, taken in the context of Defendant’s jail calls, . . . are corroborative of Defendant’s efforts to obstruct justice.”
In his Opposition, Jayavarman asserts that Evidence Rule 106 requires the “contemporary introduction of other portions of [Jayavarman’s] statement which ought, in fairness, be heard with the portions that the Government introduces.” This issue was addressed at the March 13 hearing. The Government has now identified the statements it intends to use and Jayavarman may identify any additional material that he maintains “ought in fairness to be considered contemporaneously with it, ” pursuant to Evidence Rule 106. However, Jayavarman also asserts that the calls should be excluded pursuant to Evidence Rule 403. Jayavarman argues that, even if admissible under Evidence Rule 404(b), the calls “are consistent with a search for legitimate evidence, which shows consciousness of innocence” and that the evidentiary value is therefore “very slight, if not altogether nonexistent.” Jayavarman adds that the calls are unfairly prejudicial and might lead the jurors to “conclude that not only is Jayavarman a sexual pervert and a cad who brags about his conquests, but also that he is a manipulator and is attempting to deceive them.” Jayavarman also asserts that introduction of the calls would cause undue delay in the trial, requiring several days to address Jayavarman’s “intent in making the statements.” Jayavarman does not object to the admission of the birth certificate and attestation letter.
The Court has now read every word of the transcripts that the Government seeks to admit from the telephone calls dated September 20, 2013 through May 4, 2014, inclusive. The Court concludes that the evidence is admissible under Rule 404(b) as evidence of consciousness of guilt. Further, the Court finds that the recordings are probative as to the female’s age, and that probative value is not substantially outweighed by any of the considerations listed in Evidence Rule 403. Accordingly, the Government’s motion in limine at Docket 102 will be granted.
D. United States’ Supplemental Motion in Limine and Notice Regarding Anticipated Introduction of Evidence Pursuant to Fed.R.Evid. 404(b)
The Government seeks to introduce testimony from a witness, identified as Markus Fries, regarding Jayavarman’s conversations with Mr. Fries between 2007 and 2010 as to Jayavarman’s interest in and sexual experiences with minors in Cambodia and Mr. Fries’ contact with Crime Stoppers “to report Defendant’s child-molestation activities.” The Government asserts that this testimony is admissible under Evidence Rule 404(b) because it is probative of “(1) Defendant’s knowledge and intent in producing child pornography in Cambodia and (2) his motive, opportunity, preparation, and plan in attempting to travel to Cambodia with the United States’ undercover agent to arrange and engage in commercial sex acts with Cambodia-based children.” The Government asserts that “these statements make clear that Defendant has knowingly sought to engage in-and, at times, did in fact engage in-a highly specific course of child-molestation activities in Cambodia that are strikingly similar to the facts underlying both of his present charges.”
In his Opposition, Jayavarman first asserts that the Government “has known of Mr. Fries since at least August 16, 2013” but did not provide Jayavarman with the Government’s investigative report concerning Mr. Fries until March 6, 2015, 10 days before trial. Second, Jayavarman asserts that the investigative report “is manifestly incongruent with the Government’s proffer of testimony” in that, “[a]ccording to Fries, Jayavarman spoke of ‘young girls’ and ‘virgins’, ” neither of which, according to Jayavarman, fairly indicate that a female is under 18 years of age. Third, Jayavarman asserts that the investigative report states that Mr. Fries contacted Crime Stoppers to report his concerns about Jayavarman’s sexual contact with children, rather than to report child molestation activities.
Jayavarman again maintains that “the age of the woman depicted in the video is the principal issue” and that the proposed testimony is impermissible propensity evidence. Jayavarman also maintains that any probative value of the testimony is substantially outweighed by the danger of unfair prejudice and should be excluded under Evidence rule 403.
The Court denies the motion without prejudice to renew after the Court has been provided with a copy of the investigative report and/or a proffer of the testimony from Mr. Fries himself outside the presence of the jury.
Based on the foregoing, IT IS ORDERED as follows:
1. The motion at Docket 101 is GRANTED in part as to age of consent evidence and the Government will be permitted to publish a modified sampling of the relevant child pornography to the jury in a manner that ensures that the images are not viewable by the public, and is otherwise resolved as per the Court’s determinations placed on record at the Final Pretrial Conference on March 13, 2015; and
2. The motion at Docket 102 is GRANTED; and
3. The motion at Docket 104 is DENIED, without prejudice to renew at trial outside the presence of the jury.