Monday, December 09, 2013

Boyahoy, the Password and Google

After a jury convicted him of “attempting to entice a minor to engage in sexual activity, in violation of 18 U.S. Code § 2422(b),” Gary Schatz appealed.  U.S. v. Schatz, 2013 WL 6153248 (U.S.Court of Appeals for the 11th Circuit 2013). Following his conviction, the U.S. District Court Judge who had the case sentenced Schatz to “264 months’ imprisonment.”  U.S. v. Schatz, supra.  The news release you can find here provides a little more information about the case, as does this blog post.

This, according to the Court of Appeals’ opinion, is how the prosecution came about:

At Schatz's trial, the government called Detective Charles Ramos of the Special Victims Unit of the Boykin Beach, Florida, Police Department. Ramos testified that, during his investigation, he posed as a 15–year–old boy on a mobile phone social-networking application called Boyahoy. The program allows users to locate other users nearby, view those users' online profiles, and send and receive instant messages.

Ramos established an account using the name `Rick,’ uploading a photograph of another officer, who was 15 years old in the photo, as Rick's profile picture. Boyahoy's application restricts users to those over 18, so Ramos entered a birthday indicating Rick was of age. In Rick's profile, however, Ramos entered, `I'm 18 years old minus three years. Get it? Hee-hee.’

Ramos testified that he soon received an instant message from an individual named Gary (later identified as Schatz). Schatz's profile stated that he `would like to find a nice boy to chill with.’  Detective Ramos, playing the role of Rick, exchanged messages with Schatz. In one, Schatz asked whether Rick was in college. Rick answered that he was in high school and was planning on attending college `[i]n a couple of years.’

Soon, Schatz sent Rick his telephone number, and the two exchanged text messages. In three of those exchanges, Rick made reference to being only 15 years old. Schatz asked Rick if they could meet, suggesting they have sex. Ramos apprehended Schatz at the location where Schatz had agreed to meet Rick.

At trial, the government also called Richard Klein, who testified that, beginning when he was 12, he had sexual interactions with Schatz. He testified that his mother found out when he was 14 and called police. Initially, Klein told police what happened but recanted his testimony days later. Klein testified that, when he recanted, he was still under Schatz's persuasion. He continued to see Schatz until he was about 15 years old.

Schatz also testified, denying he knew `Rick’ was 15 years old. He said he believed Rick to be at least 18 because he was on Boyahoy, which banned underage users, and because he looked 18 in his photograph. Schatz said he never looked at Rick's profile statement about being underage and that he was distracted when Rick told him he was 15.

U.S. v. Schatz, supra. 

On appeal, Schatz made a number of arguments as to why his conviction should be reversed, but this post only examines three of them, beginning with his argument that

the district court erred by failing to state on the record the specific reasons for admitting Klein's testimony, which the government introduced under Federal Rule of Evidence 404(b), before admitting it (rather than, as the court did, afterwards).

U.S. v. Schatz, supra. 

As I have explained in prior posts, Rule 404(b) of the Federal Rules of Evidence enunciates an exception to the general rule articulated in Rule 404(a), i.e., that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” 

As I explained in an earlier post, the premise of Rule 404(a) is that one party in a case ne side should not be able to show you did some bad things in that past and then use the evidence of those “bad acts” to claim you’re a bad person who continues to do bad things. As the U.S. Court of Appeals for the 5th Circuit noted, Rule 404(b) is intended “to `guard against the inherent danger that the admission of “other acts” evidence might lead a jury to convict a defendant not of the charged offense, but instead of an extrinsic offense.’” U.S. v. Stephens, 2009 WL 1608845 (2009).

Under Rule 404(b), a party, such as the prosecutor in Schatz’s case, cannot introduce evidence of a “crime, wrong, or other act to prove a person’s character in order to show that on a particular occasion the person acted in accordance with” that character, but may be able to have the evidence introduced “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”  Here, while Schatz’s attorney “objected to the introduction of Klein's testimony, he did not object to the timing of the court's enunciation of its reasons for doing so”, i.e., he did not explain why he was admitting it before he did so. U.S. v. Schatz, supra. 

Since Schatz did not object to this at trial, the Court of Appeals explained that it reviews

the court's failure to give specific reasons for admitting the testimony beforehand only for plain errorSee U.S. v. Madruga, 810 F.2d 1010 (U.S. Court of Appeals for the 11th Circuit 1987) (`[T]o preserve objections to admissibility of evidence, [the] objection must state specific grounds; otherwise, review is only for plain error.’). To reverse, we must find `(1) error, (2), that is plain, . . . (3) that affects [the defendant's] substantial rights,’ and `(4) [that] seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ U.S. v. Baker, 432 F.3d 1189 (U.S. Court of Appeals for the 11th Circuit 2005).

U.S. v. Schatz, supra. 

It then addressed Schatz’s argument on this issue, noting that he relied on

U.S. v. Youts, 229 F.3d 1312 (U.S. Court of Appeals for the 10th Circuit 2000), in which the Tenth Circuit stated `that the court's Rule 404(b) articulation must occur prior to its decision whether to admit the evidence.’ This is “to ensure that the decision to admit or exclude be made only after issues and reasons are exposed and clearly stated.’ U.S. v. Youts, supra (internal quotation marks omitted).

The reasoning in Youts is persuasive, but, unfortunately for Schatz, Youts could not make the error he identifies plain. `It is the law of this circuit that, at least where the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it.’ U.S. v. Lejarde–Rada, 319 F.3d 1288 (U.S. Court of Appeals for the 11th Circuit 2003). As a result, we cannot reverse Schatz's conviction on this basis.

U.S. v. Schatz, supra. 

Next, Schatz argued that “the district court [judge] limited his cross-examination of Klein in violation of his rights under the 6th Amendment's Confrontation Clause.”  U.S. v. Schatz, supra. The Court of Appeals noted that it reviews

a district court's limitation of cross-examination for an abuse of discretion. U.S.  v. Diaz, 26 F.3d 1533 (U.S. Court ofAppeals for the 11th Circuit 1994). The district court abuses its discretion if the jury would have had a `significantly different impression of the witness' credibility had counsel pursued the proposed line of cross-examination.’ U.S. v. Diaz, supra (internal quotation marks omitted).

U.S. v. Schatz, supra. 

The court then took up the merits of the argument, noting that at his trial, Schatz’s lawyer

cross-examined Klein, attempting to establish that Klein had a strong motive to lie, including a financial interest (a potential civil suit against Schatz) and a retributive interest. Schatz argues the district court limited counsel's lines of questioning, and, as a result, he was unable to expose Klein's credibility problems. We do not agree.

Schatz's counsel asked Klein four times about a potential civil suit, but Klein responded that he had not contemplated a civil suit against Schatz and that no one in his family had pressured him to do so. The government even asked Klein whether he was seeking civil damages against Schatz when he finally gave a sworn statement against Schatz in 2009, and Klein replied that he was not.

Schatz's counsel also elicited testimony about Klein's potential retributive interests in testifying against Schatz. On cross-examination, Klein admitted he eventually sought criminal charges against Schatz three years after he originally recanted his story to police but no prosecution followed. 

He admitted he wanted to testify against Schatz in this case and his mother wanted him to testify as well. Defense counsel clearly had the opportunity to, and did, pursue the lines of cross-examination Schatz now says he was denied.

That Klein did not answer in the way Schatz wanted is of no moment. Schatz identifies nothing further he could have presented that may have changed the jury's view of Klein's credibility.

U.S. v. Schatz, supra (emphasis in the original).

Finally, Schatz claimed the district court judge

erroneously declined to declare a mistrial during Detective Ramos's testimony. Ramos described his investigation after Schatz's arrest and told the jury he obtained a search warrant for Schatz's mobile phone. Counsel for the government asked `how that works,’ and Ramos responded: `As most phones do . . . this phone had a pass code lock. . . . Since we did not know the password for the phone and the defendant did not give it to us[,] we enlisted the help of Google.’ 

Schatz objected, arguing Ramos was improperly commenting on his right to remain silent and moved for a mistrial.

The court denied the motion but gave the following curative instruction to which counsel did not object:

`The last answer by Officer Ramos did implicate Mr. Schatz's right to remain silent. I instruct you that this was entirely improper under the United States Constitution where a defendant has the right to remain silent. The court orders that answer stricken from the record.’

`I further instruct you to disregard the answer and you are not to consider the answer in deciding this case for or against the government or for or against Mr. Schatz.’

U.S. v. Schatz, supra. 

The Court of Appeals explained that it reviews a district court judge’s refusal to declare

a mistrial based on a comment regarding a defendant's right to remain silent for an abuse of discretionU.S. v. Dodd, 111 F.3d 867 (U.S. Court of Appeals for the 11th Circuit 1997). `A comment is deemed to be a reference to a defendant's silence if it was the prosecutor's manifest intention to refer to the defendant's silence or if it was of such a character that the jury would naturally and necessarily understand it to be a comment on the defendant's silence.’ U.S. v. Dodd, supra.

Schatz contends Ramos must have intended to comment on Schatz's silence. And he argues the jury necessarily would have understood Ramos's statement as a comment on his silence. Finally, Schatz asserts the court's curative instruction did more harm than good by drawing attention to Ramos's impermissible comment.

U.S. v. Schatz, supra. 

The Court of Appeals did not agree with Schatz’s argument that

Ramos's one-off comment, combined with the court's curative instruction, demanded a mistrial. Ramos made the comment to preface his technical discussion of how he went about extracting incriminating information from Schatz's mobile phone. And there is no manifestintention to comment on a defendant's silence `if some other explanation for [the] remark is equally plausible.’ U.S. v. Swindall, 971 F.2d 1531 (U.S. Court of Appeals for the 11th Circuit 1992).

There is also no indication the jury necessarily would have understood the statement to be a comment on Schatz's silence. Ramos did not say Schatz refused to give his password, and he did not discuss Schatz's failure to do so at length. 

This is especially so in light of the court's curative instruction, which Schatz cannot show was plainly erroneous.  See U.S. v. Dodd, supra (`Where the district court gives a curative instruction, the district court's refusal to declare a mistrial will not be overturned unless the evidence is so highly prejudicial as to be incurable.’).

The court struck Ramos's entire answer from the record and asked the jury not to consider it at all in deciding Schatz's guilt or innocence. `We presume that juries follow the instructions given to them. U.S. v. Townsend, 630 F.3d 1003 (U.S. Court of Appeals for the 11th Circuit 2011). The district court accordingly did not abuse its discretion in declining to declare a mistrial.

U.S. v. Schatz, supra. 

For these and other reasons, the Court of Appeals affirmed Schatz’s conviction and sentence. U.S. v. Schatz, supra. 

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