Friday, December 26, 2014

Enticing a Minor for Sexual Activity, Text Messages and "Testimony"

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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