New and Noteworthy
Become a member of NCVLI’s membership association, the National Alliance of Victims’ Rights Attorneys (NAVRA), to receive timely email updates of New & Noteworthy court opinions and to access a comprehensive database of victims’ rights related case summaries. Visit www.navra.org to learn more.
United States v. Gardner, No. 16-CR-20135, 2016 WL 5404207 (E.D. Mich. Sept. 28, 2016)
Defendant was charged with sex trafficking of children and production of child pornography. Prior to trial the government filed a motion in limine to (1) allow one of the minor-victims to testify using her first name only and to withhold information disclosing where she lives, and (2) exclude evidence about the minor-victim’s sexual history under Federal Rule of Evidence 412—the federal rape shield statute—that the victim engaged in prior acts of prostitution that were unrelated to defendant. Defendant objected to the motion to exclude evidence about the minor-victim’s sexual history on three grounds: (1) that Rule 412 was inapplicable to the current case because it only applied to charges of sexual assault and not to trafficking; (2) that at the time of trial the victim was 18-years-old and no longer underage and therefore did not require the protection of Rule 412; and (3) that the prior sexual history evidence was necessary to impeach the victim’s credibility and to assert defendant’s Sixth Amendment Rights. The District Court rejected defendant’s arguments. The court found defendant’s first argument without merit because the Sixth Circuit Court of Appeals has previously held that Rule 412 does apply to charges of sex trafficking of minors. As to defendant’s second argument that the victim aged-out of the rule’s protection, the court reasoned that Rule 412 does not contain a provision requiring victims to be underage at the time of trial, and since the victim was 17-years-old at the time of the alleged offense, the victim in the case “qualifie[d] as an underage victim to whom Rule 412’s protections are especially important.” As to defendant’s final argument, the court relied on Sixth Circuit precedent that “uniformly favors excluding a victims’ [sic] prior history of prostitution because such acts have no bearing on whether the defendant in a current case forced a victim into prostitution.” The court continued, holding that the victim’s “prior sexual history has no bearing on defendant’s intent at the time of the offense[,]” and that introducing this evidence would solely be for the purpose of “reinforce[ing] a narrative that she acted consistent with past sexual behavior, a line of reasoning ‘deemed so extremely prejudicial as to warrant special treatment under the federal rules of evidence.’”
With respect to the government’s motion to allow the minor-victim to testify by her first name only and keep private where she lives, defendant argued in opposition on several grounds, including that: the minor-victim has not been harassed and does not suffer from emotional instability; defendant already knows the minor-victim’s identity; and the minor-victim is now 18 and no longer qualifies as a child under 18 U.S.C. § 3509(a)(2). The court granted the government’s motion in part, holding that the minor-victim would be permitted to testify using her first name and last initial and that she would not be required to disclose her home address or current place of residence. The court reasoned that: the government sought to prevent future harassment of the victim; the purpose of the privacy protections are to keep certain information from defendant, the media, and the general public; and any prejudice to defendant could be remedied by an instruction to the jury. The court also found persuasive the application of certain identity protections for victims of sex crimes who were minors at the time of crime but were over 18 at the time of their testimony, as “such reasoning is consistent with the Crime Victims’ Rights Act, which states that a crime victim has the ‘right to be treated with fairness and with respect for the victim’s dignity and privacy[,]’” and that “[u]se of [the minor-victim’s] full legal name would add nothing substantive to her in-court testimony that cannot be supplied by use of her first name and first initial of her last name.” The court then granted the government’s motion to preclude evidence regarding the victim’s prior sexual history and granted in part the government’s motion with respect to protecting the minor-victim’s identity as stated above.
United States v. Binkholder, — F.3d —, No. 15-2125, 2016 WL 4254938 (8th Cir. Aug. 12, 2016).
Defendant pled guilty to four counts of wire fraud and appealed his sentence, arguing, inter alia, that the trial court erred in finding that an individual known as M.U. was a victim for purposes of applying the federal Sentencing Guidelines. In the plea agreement, the government and defendant expressly disagreed regarding whether M.U. was a victim. Following the submission of the plea agreement, the district court held an evidentiary hearing and, after additional briefing, issued a written decision finding that M.U. was not a victim but was instead “a sophisticated businessperson who was complicit in [defendant’s] scheme, and the mere fact that he lost money as a result of his involvement with [defendant] was insufficient to make him a victim.” M.U. then filed a motion with the district court asking that he be recognized as a victim pursuant to the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. M.U.’s motion was denied by the trial court, and he sought a writ of mandamus asking the Eighth Circuit to order the district court to vacate its prior decision and recognize M.U. as a victim pursuant to the CVRA. M.U.’s petition for a writ of mandamus was granted, and the district court subsequently found that M.U. was a victim under the CVRA. On appeal, defendant argued that the district court inappropriately conflated M.U.’s victim status under the CVRA with his victim status under the Sentencing Guidelines, finding the former to be dispositive of the latter. The Eighth Circuit clarified that the CVRA and the Sentencing Guidelines serve different purposes and incorporate different definitions of victim and, although the two definitions are similar, they are “not necessarily coextensive.” The two inquiries are distinct and, consequently, the trial court is required to make two separate determinations regarding victim status. Because the district court did not conduct a separate inquiry regarding the victim status of M.U. under the Sentencing Guidelines, the Court of Appeals reversed and remanded “so that the district court may determine in the first instance whether M.U. was a victim under the Guidelines and, if necessary, proceed to resentencing.”