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United States v. Lewis

United States District Court, S.D. Georgia

February 27, 2017

UNITED STATES OF AMERICA
v.
TIMOTHY DEQUON LEWIS, Defendant.

          ORDER

          WILLIAM T. MOORE, JR. JUDGE.

         Before the Court is Defendant's Motion for Specific Unanimity Instruction (Doc. 130), Defendant's Motion for Discovery Pursuant to Rule 16 (Doc. 131), the Government's Motion to Amend/Correct Count Fifteen in the Third Superseding Indictment (Doc. 132), and the Government's Motion in Limine (Doc. 134). For the following reasons, the Court RESERVES ruling on Defendant's Motion For Specific Unanimity Instruction (Doc. 130). Defendant's Motion for Discovery Pursuant to Rule 16 (Doc. 131) is GRANTED IN PART and DENIED IN PART. The Government's Motion to Amend/Correct (Doc. 132) is GRANTED. The Government's Motion in Limine (Doc. 134) is GRANTED IN PART and RESERVED IN PART.

         BACKGROUND

         On November 5, 2015, Defendant was charged in a single count indictment with sex trafficking by force, fraud, and coercion in violation of 18 U.S.C. § 1591. (Doc. 4.) On April 7, 2016, the Government filed a superseding indictment. (Doc. 59.) On August 8, 2016, the Court held a pretrial hearing and scheduled trial to begin on April 20, 2016. (Doc. 68.) On July 6, 2016, a second superseding indictment was filed in Defendant's case. (Doc. 82.) The Court granted Defendant's request for a continuance, finding that the interests of justice warranted allowing Defendant additional time to review evidence, file pretrial motions, and prepare an effective defense. (Doc. 87.) On August 15, 2016, the Court held a second pretrial conference. (Doc. 94.) During that pretrial conference, the Court directed the parties to notify the Court when discovery was complete so that this case could be scheduled for a jury trial. (Id.) On September 8, 2016, Defendant's counsel requested an additional continuance (Doc. 98), which the Court granted (Doc. 99). On October 24, 2016, the Court held a third pretrial conference and set this case for trial beginning on January 23, 2017. (Doc. 104.) However, on December 7, 2016, a third superseding indictment was filed against Defendant. (Doc. 113.) The Government and Defendant once again moved for a continuance of the trial. (Doc. 120.) On January 5, 2017, the Court granted their request and scheduled the case for a March 6, 2017 trial. (Doc. 126.)

         In the third superseding indictment, Defendant is charged with 1 count of sex trafficking by force, fraud, and coercion in violation of 18 U.S.C. § 1591, 8 counts of sex trafficking of a minor in violation of 18 U.S.C. § 1591, 8 counts of coercion and enticement of a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), 1 count of transportation with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a), 1 count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and 1 count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). (Doc. 113.) The parties filed pretrial motions in limine on February 19 and 21. Defendant requests that the Court include a specific unanimity instruction for the sex trafficking counts. (Doc. 130.) Defendant also requests that the Government disclose a list of all witnesses that the Government intends to produce at trial, 6 images recovered from two ZTE Cricket Z987 Cell Phones, and the path and source data associated with every image removed from a portable device that the Government intends to use at trial. (Doc. 131.) For its part, the Government requests an amendment of Count 15 in the third superseding indictment to correct a typographical error that mistakenly refers to Jane Doe #7 as Jane Doe #4. (Doc. 132.) The Government also requests that evidence that Defendant provided drugs to and engaged in sex with the alleged victims be admitted in this case, that the alleged victims be referred to only by their first names, and that Defendant be prevented from arguing that the alleged minor victims consented to being sexually exploited. (Doc. 134.)

         ANALYSIS

         I. DEFENDANT'S MOTION FOR UNANIMITY INSTRUCTION

         Defendant has requested that the Court give the jury a "unanimity instruction." (Doc. 130.) Specifically, Defendant argues that the jury must agree unanimously as to which of the following act or acts Defendant committed with respect to the alleged victims; recruiting, enticing, harboring, transporting, providing, obtaining, or maintaining any of the alleged victims. (Id.) The Sixth Amendment requires that "a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element [of the offense]." Richardson v. United States, 526 U.S. 813, 817 (1999). Nevertheless, it is clear that there is no requirement for jurors to "agree on the underlying facts that make up a particular element of the offense, such as which of several possible means a defendant used to commit that element, so long as they unanimously agree that the government has proven the element beyond a reasonable doubt." United States v. Weiss, 539 F.App'x 952, 956 (11th Cir. 2013) (citing Schad v. Arizona, 501 U.S. 624, 631-32 (1991)).

         The Government has yet to disclose its theory of the case. It may well be that Defendant's desire for a unanimity instruction is rendered moot by argument presented at trial. Moreover, it is not obvious to this Court that there is an obligation to give the jury such a unanimity instruction in cases involving child sex trafficking. See United States v. Felts, 579 F.3d 1341, 1344 (2009) ("[A] district court is not required to instruct the jury that it must unanimously agree as to which mens rea the defendant possessed at the time of the offense." (citing United States v. Meshack, 225 F.3d 556, 569 n.22 (5th Cir. 2000))). Accordingly, the Court RESERVES ruling on this issue pending a conference on the draft jury instructions.

         II. DEFENDANT'S MOTION FOR DISCOVERY

         Defendant has also filed a request for certain discovery. Defendant requests that the Government disclose a list of witnesses it intends to call at trial, certain images from cell phones, and the path and source data of all images involved in this case which the Government intends to use at trial. (Doc. 131.)

         A. Witness List

         Defendant has requested that the Government provide a witness list prior to trial. (Id.) Defendant has proffered no reason for such disclosure aside from the fact that "this information is necessary for the Defendant to prepare an effective defense." (Id. at 1.) Aside from capital cases, a defendant does not have a right to a list of government witnesses. United States v. Massell, 823 F.2d 1503, 1509 (11th Cir. 1987); United States v. Johnson, 713 F.2d 654, 659 (11th Cir. 1983); United States v. Colson, 662 F.2d 1389, 1391 (11th Cir. 1981). In fact, "[a] criminal defendant has no absolute right to a list of the government's witnesses in advance of the trial." United States v. Cerpas, 397 F.App'x 524, 528 (11th Cir. 2010) (quoting Johnson, 713 F.2d at 659). While the Court could-in its discretion-require the disclosure of such information, Defendant has not proffered any justification for a deviation from the standard rules.[1] Moreover, the Court understands the Government to have a liberal discovery policy and notes that the Government has an obligation pursuant to the Jencks Act and Brady v. Maryland, 373 U.S. 83 (1963), to disclose certain material to Defendant. Accordingly, Defendant's request for a witness list is DENIED.

         B. Images from Cell Phones and ...


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