Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 1 of 9 PageID 393 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

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1 Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 1 of 9 PageID 393 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION UNITED STATES OF AMERICA, CASE NO. 6:18-cr-43-Orl-37DCI Plaintiff, v. RICHARD HOYT CRAWFORD, JR., Defendant. / MOTION IN LIMINE TO EXCLUDE LATE DISCOVERY, SPECIFICALLY A PICTURE OF AN ERECT PENIS, AND MEMORANDUM OF LAW Richard Hoyt Crawford, Jr., through undersigned counsel, respectfully moves this Honorable Court, pursuant to this Court s Criminal Scheduling Order, and Federal Rules of Evidence 404 and 403, to exclude from the trial of this matter a color picture of what purports to be Mr. Crawford s penis, which was disclosed to defense counsel on Monday, August 13, This case is not about Mr. Crawford sending pictures of his genitals via the internet and can only be used by the prosecution to prove that Mr. Crawford had the propensity to commit the offenses1 charged in the indictment. A. STATEMENT OF FACTS 1. The government timely disclosed s between a government agent and someone the government believes is Mr. Crawford. 2. The exchange was provided in discovery as Bates-stamped documents 0019 through The indictment alleges Mr. Crawford violated federal and state laws.

2 Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 2 of 9 PageID Bates-stamped document 0019 purports to be the first Mr. Crawford sent to a government agent on February 2, It is in response to an advertisement for sex on Craigslist and includes a redacted picture. A copy of Batesstamped document 0019, with the redacted picture, is attached as Exhibit A. 4. In response to the first allegedly sent from Mr. Crawford, the government agent referenced, for the first time, that he was offering a minor for sex. There was no mention of a minor in the Craigslist advertisement.2 There is no evidence that Mr. Crawford understood the taboo reference to mean sex with a minor. 5. On August 13, 2018, the government sent an to the undersigned and attached what the government called a reader-friendly version of the s. The reader-friendly version of Bates-stamped document 0019 included a large, color photograph of what purports to be Mr. Crawford s erect penis ( penis picture ). A copy of the government s disclosure is attached as Exhibit B, but the penis picture is not attached. The undersigned will submit the penis picture, as part of the public record or under seal as directed, if the Court deems it necessary to review it to resolve this motion. 6. The penis picture was first provided to the defense on August 13, Before August 13, 2018, defense counsel was never placed on notice that the government The government s advertisement mentions taboo. While the government has testified in other trials that taboo sex is a reference to sex with a minor, contemporary culture defines it as having sex with a person you believe is a woman only to later learn it is not a woman ( (last visited August 16, 2018). Taboo is also defined as something society does not view as normal ( (last visited August 16, 2018) or banned on grounds of morality or taste ( last visited August 16, 2018). 2 2

3 Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 3 of 9 PageID 395 intended to use the penis picture at trial. The penis picture is not contraband and there was no need to redact it in discovery.3 7. The reader-friendly versions were not disclosed to the defense until August 13, As with exhibit A, the s provided in discovery were easy to read. 8. On March 8, 2018, this Court entered the Criminal Scheduling Order, doc. 10, which provides: Rule 404(b) Evidence - Within fourteen (14) days the government shall disclose to the defendant in writing the general nature of evidence of other crimes, wrongs, or acts by the defendant that the government intends to introduce at trial pursuant to Fed. E. Evid. 404(b), as well as the general purpose of the evidence (e.g., proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). 9. On March 30, 2018, the government provided discovery to the undersigned. The government s discovery letter only stated, [p]lease be advised that we may seek to introduce evidence pursuant to Federal Rules of Evidence, Section 404(b), with regard to, inter alia, any prior actions by the defendant. 4 3 The government maintains there is no prejudice because the defense could have inspected the photograph before trial. That is not the point of this motion. It should be noted the cellular telephone cannot be copied, is held in the custody of the agents, and can only be reviewed during business hours at the FBI office after coordinating a date and time in advance with the prosecutor and agent. On August 10, 2018, the government provided the defense with notes from an agent. While the notes lack a meaningful explanation, a reader can conclude that the government intends to elicit testimony that Mr. Crawford sought to have sex with others using Craigslist between February 19, 2018, and February 28, During conversations with others, who are not identified in the notes, naked pictures were also exchanged. Defense counsel has arranged to view the messages referenced in the notes on August 17, Consistent with the response at docket 56, the defense cannot demonstrate that this evidence is clearly inadmissible on all potential grounds, making it appropriate to move to exclude the wholly unrelated conversations in a motion in limine. However, the 3

4 Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 4 of 9 PageID On August 15, 2018, the undersigned inquired whether the government would agree to exclude the penis picture from the trial. The government replied that it opposes the relief sought herein. B. MEMORANDUM OF LAW Rule 404(b) provides that evidence of a crime, wrong, or other act, is admissible only for purposes other than showing character. The Rule has been construed to require a three-part test for admissibility. First, the evidence must be relevant to an issue other than the defendant s character. Second, there must be sufficient proof that the defendant committed the extrinsic act. Third, the evidence must survive the balancing test prescribed by Federal Rule of Evidence 403. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc). There are three reasons to exclude the penis picture. First, the government failed to provide a meaningful notice as required by Rule 404(b) and this Court s order. Second, the government s intended use of the evidence is inadmissible under Rule 404(b), because it is being offered solely to establish that Mr. Crawford sent a picture of his erect penis and that makes him prone to having committed the offenses charged in the indictment. Third, even if the government were offering the evidence for a purpose other than propensity, it is unfairly prejudicial under Rule The Government Failed to Provide Proper Notice First, the government failed to provide the notice required by Rule 404(b) and this Court s order. A similarly vague notice was held improper in United States v. Singleton, defense will object during trial if the government offers these conversations and pictures into evidence. 4

5 Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 5 of 9 PageID F. Supp. 1522, 1533 (D. Kan. 1996). Overbroad and confusing declarations also fail to satisfy the notice requirement. See United States v. Tuesta-Toro, 29 F.3d 771, 774 (1st Cir. 1994). Admittedly, as noted infra, the notice could not be more specific because the evidence can only be used to establish propensity. Accordingly, the penis picture should be excluded. 2. The Evidence Can Only be Used to Show Propensity Rule 404(b) provides: (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident To be admissible under Rule 404(b), the evidence must be relevant to an issue other than the defendant s character. As part of the relevance analysis, there must be sufficient proof that a jury could find that the defendant committed the act. Finally, the evidence must possess probative value that is not substantially outweighed by its undue prejudice, and must otherwise meet the requirements of Rule 403. United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992). Rule 403 permits the court to exclude relevant evidence if its probative value is substantially outweighed by, inter alia, unfair prejudice, confusing the issues, or misleading the jury. The evidence is going to be used by the prosecution to prove bad character and, therefore, Mr. Crawford must be guilty of attempting to have sex with a minor. This evidence cannot be appropriately used to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Taking a picture of a 5

6 Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 6 of 9 PageID 398 one s own penis or sending a picture of any penis over the internet is not an element of the offense and cannot be used for a permissible purpose in Rule 404(b) in this case. Accordingly, the Court should prohibit the government from using the penis picture during the trial. Proper use of other crimes, wrongs, or acts evidence to establish motive is predicated on the fact that the prior misconduct itself provides the motive for committing the charged crime. See, e.g., United States v. Menzer, 29 F.3d 1223, (7th Cir. 1994); United States v. LaFlam, 396 F.3d 153 (2d Cir. 2004). In United States v. Young, 39 F.3d 1561, (11th Cir. 1994), the trial court improperly admitted evidence that the defendants illegally manufactured alcohol as character evidence to prove the defendants intended to conspire to manufacture and distribute marijuana. Alcohol is not a controlled substance, and the illegality of its production is distinct in both fact and law from that involved in growing and selling marijuana. Evidence that the Youngs made alcohol thus was not probative of their intent to engage in a conspiracy to possess and distribute marijuana, and any inference that could be drawn from the introduction of this evidence was precisely that which Rule 404(b) was designed to prohibit. Id. at 1573; see also United States v. Powell, 652 F.3d 702, 707 (11th Cir. 2011) (finding 404(b) evidence improper to prove intent where defendant was charged with a general intent crime). Here, the government wants to use proof that Mr. Crawford sent the penis picture as proof that he intended to commit and committed the crime charged in the indictment. Sending a picture of a penis in the first message to the agent, before Mr. Crawford was aware the agent was offering a minor for sex, is neither similar to the crime charged nor intertwined with it, just as the crimes in Young were neither similar nor intertwined. 6

7 Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 7 of 9 PageID 399 Other crimes, wrongs, or acts evidence is admissible to prove a defendant formed the intent to commit the instant offense. The danger, of course, is that the jury may improperly infer that the defendant possesses a dishonest character, and so acted in conformity with that dishonest character in committing the instant offense. Propensity is different from intent. United States v. Jones, 389 F.3d 753 (7th Cir. 2004), vacated on other grounds, 545 U.S (2005). To secure admission of such evidence, the prosecution must show why a particular prior act tends to show "the more forwardlooking fact of purpose, design, or volition to commit the new crime, id. at 757, as distinct from a general propensity to commit acts of a similar nature. In a criminal case, allowing introduction of evidence of other wrongs poses the danger that the jury will view it as reflecting on Mr. Crawford s character, and that it will reach a verdict because it has concluded that Mr. Crawford is a bad person who deserves punishment. United States v. Linares, 367 F.3d 941, (D.C. Cir. 2004). Prior misconduct may also be admitted to show that the prior misconduct was part of a common scheme or plan involving the instant offense. For example, evidence of a defendant's robbery of a garage was admissible in a prosecution for robbing a post office, when the defendant robbed the garage to obtain the tools he needed to rob the post office. Lewis v. United States, 771 F.2d 454 (10th Cir. 1985). Here it cannot be argued that the penis picture is evidence of the crimes charged in the indictment. In sum, the government cannot properly use penis picture and it should be excluded. 7

8 Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 8 of 9 PageID Rule 403 Prohibits Admission of the Evidence The evidence is inadmissible under Rule 403. Even if the evidence could be introduced pursuant to Rule 404(b), it is still inadmissible under the balancing test in Rule 403. The term unfair prejudice speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged, Old Chief v. United States, 519 U.S. 172, 180 (1997). Such improper grounds certainly include... generalizing a defendant s earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged (or, worse, as calling for preventive conviction even if he should happen to be innocent momentarily). Id. at Sending a picture of a penis over the internet is generally not socially acceptable, and is offensive to a large part of the population. The probative value, if any, of this evidence is minuscule, and outweighed by the potential for unfair prejudice. Admitting the penis picture invites the jurors to conclude that Mr. Crawford is someone with bad character who should be convicted of whatever crimes are charged in the indictment, even if only to prevent a future crime. Any reference to the penis picture during the trial should be prohibited. C. CERTIFICATE OF CONFERRING WITH OPPOSING COUNSEL The undersigned contacted Assistant United States Attorney Rivera Miranda, who opposes the relief requested herein. 8

9 Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 9 of 9 PageID 401 D. CONCLUSION WHEREFORE, Mr. Crawford requests this Court exclude from the trial of this matter the penis picture. Respectfully submitted, LAW OFFICES OF HORWITZ & CITRO, P.A. By: s/ Vincent A. Citro VINCENT A. CITRO Florida Bar No East Pine Street Orlando, Florida Telephone: (407) Facsimile: (407) vince@horwitzcitrolaw.com Attorney for Richard Hoyt Crawford, Jr. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 16, 2018, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to Ilianys Rivera Miranda, Assistant United States Attorney, Office of the United States Attorney, 400 West Washington Street, Suite 3100, Orlando, Florida at ilianys.rivera@usdoj.gov. s/ Vincent A. Citro VINCENT A. CITRO Florida Bar No