United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER ON MOTIONS IN LIMINE
J. Schwab United States District Judge
is charged in a four-count Indictment with two counts of
travel with intent to engage in illicit sexual conduct in
violation of 18 U.S.C. § § 2423(b) and (e) relating
to Minor A, from or about June 28, 2015 to July 1, 2015 and
February 13, 2016 to February 15, 2016 (Counts 1 and 3), and
two counts of transportation with intent to engage in
criminal sexual activity in violation of 18 U.S.C.
§§ 2423(a) and (e) (Counts 2 and 4) for alleged
illegal conduct relating to Minors A and B, from on or about
June 28, 2015 to July 1, 2015, and February 13, 2016 to
February 15, 2016. Pending before this Court are several
Motions in Limine (docket nos. 32, 33, 34, 35, 36, 37 and
45), and responses/replies thereto.
careful consideration, the Court HEREBY ORDERS as follows:
Government's Motion in Limine to Exclude Evidence
Regarding the (Alleged) Victims' Sexual History or Sexual
Predisposition (docket no. 32) is GRANTED. Fed.R.Evid. 412
bars introduction of this type of evidence and none of the
three exceptions are applicable here. Additionally, the
prejudicial effect of said evidence outweighs its probative
value under Fed.R.Evid. 403.
Government's Motion in Limine to Preclude Impermissible
Character evidence (docket no. 33) including
non-pertinent reputation or opinion character evidence and
evidence and evidence of specific instances of
defendant's alleged “good” conduct, is
GRANTED. Fed.R.Evid. 404(a)(2) dictates that a defendant may
only introduce character traits that are pertinent to the
crime charged. Moreover, unless and until defendant
testifies, his character trait for truthfulness is not
relevant and is therefore inadmissible. Fed.R.Evid. 608(a).
Furthermore, evidence of being a “good guy” is
inadmissible to prove character. Fed.R.Evid. 405(a). Finally,
upon balancing the probative value of any such evidence
against the prejudicial effect, the Court finds said evidence
to be inadmissible under Fed.R.Evid. 403.
Government's Motion in Limine to Preclude Impermissible
Hearsay (docket no. 34), specifically out of court
statements made by Defendant if offered to prove the truth of
the matter asserted, in the form of non-self-inculpatory
statements, is GRANTED. Such statements are not admissible.
“Self-inculpatory statements, when offered by the
government, are admissions by a party opponent and are
therefore not hearsay, see Fed.R.Evid. 801(d)(2), but the
non-self-inculpatory statements are inadmissible
hearsay.” United States v. Ortega, 203 F.3d
675, 682 (9th Cir. 2000).
Government's Motion in Limine Regarding Penalties and
Mandatory Minimums (docket no. 35) is GRANTED.
Neither party may reference, either directly or indirectly,
potential penalties, statutory minimums or maximums or
sentencing ranges upon conviction, in the presence of the
Government's Motion in Limine for An Order to Protect the
Identification of Minor Victims and Witnesses (docket no.
36) is GRANTED. A more detailed Protective Order will be
Defendant's Motion in Limine to Exclude the Term
“Victim” from the proceedings (docket no.
37) is GRANTED in part. Any reference to said alleged
victims shall be in the form set forth in the forthcoming
Protective Order, or by the term “alleged
Defendant's Motion in Limine to Exclude Expert Testimony
of Dr. Veronique Nicole Valliere (docket no. 45)
under Daubert and Federal Rule of Evidence 702 is
DENIED. “An expert witness may be permitted to testify
regarding ‘scientific, technical, or other specialized
knowledge' if it ‘will assist the trier of fact to
understand the evidence or to determine a fact in
issue.'” United States v. Walker, 657 F.3d
160, 175 (3d Cir. 2011); United States v. Mornan,
413 F.3d 372, 380 (3d Cir. 2005) (quoting Fed.R.Evid. 702).
well accepted that “Daubert's tests for
the admissibility of expert scientific testimony do not
require exclusion of expert testimony that involves
specialized knowledge rather than scientific theory.”
United States v. Bighead, 128 F.3d at 1329, 1330. In
its response, the Government has set forth a plethora of case
law from both within and outside of this Circuit, supporting
the use of an expert in cases such as this: to inform the
jury's determination of characteristics of sexually
abused children, including dynamics of long-term sexual
abuse, psychological traits of abuse victims and delayed
disclosure; United States v. Johns, 15 F.3d 740, 743
(8th Cir. 1993); and to establish grooming
techniques of child abusers and explanations of the modus
operandi of sexual predators. See, e.g. United States v.
Maurizio, 2015 WL 5228031 at *7 (W.D. Pa. 2015)(finding
that expert was qualified to offer opinion regarding child
sexual abuse issues regarding victims and perpetrators);
United States v. Hayward, 359 F.3d 631, 636-37 (3d
Cir. 2004)(upholding admission of expert opinion regarding
groom techniques of child molesters); United States v.
Hitt, 473 F.3d 146, 158 (5th Cir. 2006). The Court finds
that the testimony of Dr. Valliere will assist the jury
because many jurors are at a disadvantage when dealing with
sexual abuse of children. United States v. St.
Pierre, 812 F.2d 417, 4190420 (8th Cir.
1987). Dr. Valliere's proposed testimony is permissible
under Rule 702, and the Court can see nothing in her proposed
testimony that would be unduly prejudicial to Defendant and
the probative value outweighs the prejudicial effect under
Though not styled as a Motion in Limine, the Government
provided notice of its intent to Introduce Evidence under
Fed.R.Evid. 414 (docket no. 38); Defendant has filed
his opposition (doc. no. 47); and the Government has replied
thereto (doc. no. 58). The Government seeks to introduce
testimony of two alleged prior victims who were not alleged
victims in the Indictment. Fed.R.Evid. 414 establishes an
exception to the usual prohibition of character evidence
(similar to Fed.R.Evid. 404(b)). Rule 414 states that where
the defendant is accused of an offense of child molestation,
“evidence of the defendant's commission of another
offense or offenses of child molestation is admissible, and
may be considered for its bearing on any matter to which it
is relevant.” However, when admitting evidence of this
sort, the Court is required to conduct a balancing pursuant
to Fed.R.Evid. 403. Johnson v. Elk Lake School
District, 283 F.3d 138, 155-56 (3d Cir. 2002). As noted
by the Defendant, several factors bear on the question of
whether Rule 414 evidence should be admitted, including
“the closeness in time of the prior acts to the charged
acts, the frequency of the prior acts, the presence or lack
of intervening events, and the need for evidence beyond the
testimony of the defendant and alleged victim.”
United States v. Maurizio, 2015 5177821, at * 4
(W.D. Pa. Sept. 4, 2015)(internal citations omitted),
quoting Elk Lake, at 156. Without having the benefit
of knowing the substance of the defense, it is difficult to
determine both the relevance and the probative value vs.
prejudicial impact under Rule 403. Depending upon the defense
put forth, this evidence may become relevant, and the Court
will hold in abeyance this ruling upon Motion by the
Government at the appropriate time during trial. In other
words, the defense, either by its line of cross-examination,
or by direct evidence submitted on his behalf, may
“open the door” to the introduction of this
Finally, although not styled as a Motion in Limine, the
Government set forth Its Notice of Intention to Introduce
Evidence under Fed.R.Evid. 404(b)(docket no. 39),
Defendant has filed his opposition (docket no. 46),
and the Government has replied thereto (docket no.
58). The Government contends that alleged Victim 1, now
19 years of age, who is also the subject of the proposed
testimony under Fed. R. of Evid. 414 as discussed immediately
hereinabove, and was also allegedly sexually victimized by
defendant as a child,  and has worked for Defendant and his
associate, Brandon Fusaro Podobensky. Victim 1 allegedly was
paid $1, 000.00 to produce cell phone and digital camera
video of Minor A using illegal drugs, and according to Victim
1, Defendant sought these videos so that Minor A would not be
believed for disclosing sexual crimes by the Defendant.
Defendant questions the relevance of these videos.
under Rule 404(b) requires: (1) a proper non-propensity,
evidentiary purpose; (2) relevance under Rule 402 to that
identified purpose; (3) sufficient probative value that is
not outweighed by its prejudicial effect under [Rule] 403;
and (4) a limiting instruction concerning the purpose for
which the evidence may be used. United States v.
Caldwell, 760 F.3d at 276, 277-78 (citing Huddleston
v. United States, 485 U.S. 681, 691-92 (1988)).
“Rule 403 does not require the government to sanitize
its case, to deflate its witnesses' testimony, or to tell
its story in a monotone.” United States v.
Cross, 308 F.3d 308, 320-21 (3d Cir. 2002). Proffered
404(b) evidence must also be evaluated pursuant to Rule 403
to determine whether the evidence is sufficiently probative,
“i.e., not be substantially more prejudicial than
probative.” Cross, 308 F.3d at 320. The trial
court must exercise great care in its analysis and assure
that it is “detailed and on the record; a mere
recitation of the purposes of Rule 404(b)(2) is
insufficient.” Davis, 726 F.3d at 442. The
relevancy of extrinsic evidence does not turn upon the
defense's theory of the case. According to the United
States Court ...