After a jury convicted
Arnold Maurice Mathis “of several child exploitation offenses and the district court sentenced him to a 480-month total term of imprisonment”, he
appealed. U.S. v. Mathis, 767 F.3d 1264 (U.S. Court of Appeals for the 11th Circuit 2014). He appealed, raising
several issues; this post examines one of them.
The Court of Appeals
began its opinion by explaining that in 2004, Mathis,
who
was approximately 34 years old, approached Jarvis J. after a high school basketball
game. Jarvis was 14 years old. . . . Mathis introduced himself as Pastor Maurice
and gave Jarvis approximately $20 to purchase items at the concession stand.
Mathis also told Jarvis he was willing to act as a father figure or mentor and
he could assist Jarvis financially by helping him purchase shoes and clothes.
Mathis gave Jarvis his cell phone number and told Jarvis to call him the next
day.
At
some point the following week, Jarvis met Mathis and Mathis gave him a pair of
shoes, a shirt, and $100 to purchase a prepaid cell phone. Jarvis subsequently
purchased a cell phone, phone card, and minutes for the phone. Jarvis used the
phone to talk to Mathis, and the two met a few days after Jarvis bought the
phone.
On
that occasion, after going to a fast food restaurant, Mathis took Jarvis to
Mathis's house where Mathis eventually goaded Jarvis into showing him his
penis. Mathis then performed oral sex on Jarvis. Mathis told Jarvis not to tell
anyone about the encounter and promised that he would give Jarvis money and
take care of him. Mathis took Jarvis to an ATM and gave him money.
Following
the incident at Mathis's house, Jarvis used his cell phone to talk to Mathis on
a daily basis. During his conversations with Jarvis, Mathis became more
explicit and told Jarvis that he wanted to engage in sexual conduct with him.
Mathis eventually met Jarvis again and, after having a meal, Mathis took Jarvis
to Mathis's house. Mathis performed oral sex on Jarvis and instructed him to
perform anal sex on Mathis. Jarvis complied with Mathis's instructions.
Sometime
thereafter, Mathis talked to Jarvis on the phone about traveling to Orlando to
go bowling. When Mathis arrived to pick up Jarvis, Jarvis observed another
man in the car with Mathis as well as a boy around Jarvis's own age. The group
drove to Orlando, but instead of going bowling, they went to a diner and then a
hotel. At the hotel, Mathis performed oral sex on Jarvis and had Jarvis perform
anal sex on him while the other boy performed anal sex on the other man.
Subsequently,
Mathis took Jarvis to a townhouse in Lakeland and tried to perform oral sex on
him, but Jarvis resisted. Jarvis did not tell anyone about his experiences with
Mathis until December 2011, nearly seven years later. At that time, Jarvis ran
into the other man who had gone with him and Mathis to Orlando.
After
arguing with the man in a store, Jarvis talked to his pastor and then went to
the Polk County Sheriff's Office. At the sheriff's office, Jarvis told Sergeant
James Evans and Detective Zoe Vizcarrondo about his experiences with Mathis.
Detective Vizcarrondo asked Jarvis to make a recorded phone call to Mathis.
During the call, Mathis acknowledged that he had engaged in sexual conduct with
Jarvis.
A
few hours after Jarvis's recorded call with Mathis, law enforcement officers
arrested Mathis. During the arrest, officers seized Mathis's cell phone, which
was a Sprint smartphone.
U.S. v. Mathis, supra.
A number of witnesses
testified at Mathis’ trial, one of whom was Michelle Gonzalez, a special agent
with the Federal Bureau of Investigation.
U.S. v. Mathis, supra. In her
first appearance as a witness, she testified that “Jarvis J. was 14 years old
in 2004.” U.S. v. Mathis, supra. She was recalled to the stand after
Gary
Scevola, a senior investigator with the U.S. Marshal Service, testified that he
obtained certified copies of Mathis's sex offender registration forms from the
Florida Department of Law Enforcement, and the Government introduced the forms
into evidence.
U.S. v. Mathis, supra.
In her second
appearance as a witness, Gonzalez testified that
as
part of her investigation she reviewed text messages between Mathis and Jerel
A. After Mathis objected to the introduction of Jerel's text messages as
impermissible hearsay, the district court instructed the jurors that they could
not consider Jerel's text messages for the truth of the matter asserted. The
court further instructed the jurors that they could nevertheless consider
Mathis's text messages for the truth of the matter asserted.
Mathis
also objected to the introduction of the text messages on Confrontation Clause
grounds. Over Mathis's objections, Agent Gonzalez testified that on May 2, 2011, Jerel sent a text
message to Mathis stating `[h]ey this jerel . . . this my number,’ to which Mathis replied,
`[o]k did you have enough money’ and `[o]k well you will get some more. Also
text me tonite when you by yourself want to talk to you, and know I care about
you.’
Mathis
then sent Jerel text messages expressing affection and promising to provide for
him, as well as messages asking Jerel to send him pictures. Jerel complied and
sent Mathis several pictures of himself.
Mathis
also repeatedly sent Jerel text messages discussing the size of Jerel's
genitalia and Jerel's sexual activity. Mathis sent Jerel text messages asking
Jerel to trust him, such as the following message on May 8, 2011: `Jerel you
got it real good and don't realize it. You need to let your guards down and let
me be close to you.’ Eventually,
Mathis sent Jerel text messages asking him for pictures of his genitalia.
On
June 29, 2011, Jerel sent Mathis a text message containing a picture of his
genitalia. Mathis responded by sending Jerel text messages asking to touch
Jerel's genitalia.
On
September 11, 2011, Mathis again sent text messages to Jerel asking for pictures
of Jerel's genitalia. In response, Jerel sent Mathis a text message containing
a picture of his genitalia. On cross-examination, Agent Gonzalez acknowledged that Jerel
had been present in the courthouse the previous day.
U.S. v. Mathis, supra.
One of the issues
Mathis raised in appealing his conviction concerned the admission of Jerel’s
text messages into evidence at his trial.
U.S. v. Mathis, supra. He
claimed that the admission of the text messages violated his rights under the
Confrontation Clause of the 6th Amendment to the U.S.Constitution. U.S. v. Mathis, supra.
As Wikipedia explains,
the Confrontation Clause of the 6th Amendment to the
United
States Constitution provides that `in all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him.’ Generally, the right is to have a face-to-face confrontation with
witnesses who are offering testimonial evidence against the accused in the form
of cross-examination during a trial.
The
Fourteenth Amendment makes the right to confrontation applicable to the states
and not just the federal government. The right only applies to
criminal prosecutions, not civil cases or other proceedings.
As Wikipedia also
notes,
[g]enerally,
having the opportunity to cross-examine a witness at trial will satisfy the
Confrontation Clause's guarantee. And trial courts are given `broad discretion
. . . to preclude repetitive and unduly harassing interrogation.’ The Supreme
Court has emphasized that the `Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is in whatever way, and
to whatever extent, the defendant might wish.’
Nonetheless,
a trial court cannot preclude cross-examination on some subjects. Besides the
subject matter of the case, the crime for which a defendant is charged, a
defendant has the right to attack the credibility or impeach the testimony of
the witness.
Wikipedia, supra (emphasis in the original). As
Wikipedia explains, “impeaching” a witness “in the law of evidence of the
United States, is the process of calling into question the credibility of an
individual who is testifying in a trial.”
In his appeal, Mathis
argued that the admission into evidence of Jerel A's text messages
at trial violated his rights under the Confrontation Clause.
Mathis contends he was prohibited from cross-examining and impeaching Jerel's
testimony, while the Government was allowed to introduce favorable evidence in
the form of Jerel's text messages.
`We
review a preserved Confrontation Clause claim de novo,’ U.S.
v. Curbelo, 726 F.3d 1260 (U.S. Court of Appeals for the 11th Circuit 2013),
and also review de novo `the question of whether hearsay
statements are testimonial for purposes of the Confrontation Clause,’ U.S.
v. Caraballo, 595 F.3d 1214 (U.S.
Court of Appeals for the 11th Circuit 2010). . . .
U.S. v. Mathis, supra.
The Court of Appeals
did not buy Mathis’ Confrontation Clause argument. U.S. v.
Mathis, supra. It found that it “lack[ed] merit”. U.S. v. Mathis, supra.
The
Confrontation Clause bars the admission of a witness's testimonial statements
when the witness did not appear at trial unless the witness was unavailable and
the defendant had a prior opportunity to examine him. U.S. v. Caraballo, 595
F.3d 1214 (U.S. Court of Appeals for the 11th Circuit 2010); see
also Crawford v. Washington, 541 U.S. 36 (2004).
Mathis
does not argue on appeal that Jerel's text messages were testimonial and he has
`therefore abandoned an issue on which he had to prevail in order to obtain
reversal.’ U.S. v. King, 751 F.3d 1268 (U.S. Court of Appeals for
the 11th Circuit 2014).
Regardless,
any argument that Jerel's text messages were testimonial would be unavailing.
We have explained that:
`[F]ormal
statements to government officers are generally testimonial as are affidavits,
custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially. Similarly, extrajudicial
statements contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions, and statements that were made
under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial, fall within the
core class of testimony.’
U.S.
v. Caraballo, supra (brackets and
alterations omitted).
The Court of Appeals
then went on to explain that Jerel’s text messages were
not
formal statements to government officers, they were not made during a custodial
examination, and they did not constitute an affidavit, prior testimony, or
pretrial statements that he would reasonably expect to be used prosecutorially.
Jerel's
text messages were not formalized testimonial materials, and they were not made
under circumstances that would lead an objective witness reasonably to believe
that they would be available for use at a later trial. See U.S. v. Caraballo,
supra. Far from amounting to `the functional equivalent of in-court
testimony,’ U.S. v. Curbelo, 726
F.3d 1260 (U.S. Court of Appeals for the 11th Circuit 2013). . .
Jerel's
text messages were informal, haphazard communications sent at all hours and
from locations such as his house, the bus stop, and his school. Jerel's text
messages were not testimonial statements and Mathis's right of confrontation
was not violated by their admission at trial.
U.S. v. Mathis, supra.
For these and other
reasons, the Court of Appeals affirmed Mathis’ convictions and sentence. U.S. v.
Mathis, supra.
(If you are
interested, about a month ago I did a post that dealt with another issue Mathis
raised on appeal.)
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