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 error. See 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 discretion. U.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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