Opinion
Case No. 4:19-cr-00076-SMR-CFB-3
2020-08-10
UNITED STATES of America, Plaintiff, v. Kendall Andrew STREB, Defendant.
Kristin M. Herrera, Virginia M. Bruner, Craig P. Gaumer, United States Attorney's Office, Des Moines, IA, for Plaintiff. Alfredo G. Parrish, Gina Messamer, Jessica Donels, Brown & Bergmann, L.L.P., Des Moines, IA, for Defendant.
Kristin M. Herrera, Virginia M. Bruner, Craig P. Gaumer, United States Attorney's Office, Des Moines, IA, for Plaintiff.
Alfredo G. Parrish, Gina Messamer, Jessica Donels, Brown & Bergmann, L.L.P., Des Moines, IA, for Defendant.
ORDER DEFENDANT'S MOTION FOR NEW TRIAL
STEPHANIE M. ROSE, JUDGE
A jury convicted Defendant Kendall Andrew Streb of trading money and drugs for sex with underage girls, distributing controlled substances to minors, and unlawfully possessing drugs and guns in connection with his other crimes. Streb timely moved for a new trial under Federal Rule of Criminal Procedure 33, contending a number of discovery disputes, evidentiary rulings, and trial management decisions produced cumulative error in the proceedings. [ECF Nos. 383; 400]. The matter is fully submitted, and the Court finds a hearing to be unnecessary. See LR 7(c). Because the interest of justice does not require a new trial, Streb's Motion for New Trial is DENIED.
I. BACKGROUND
Streb was initially charged by criminal complaint on April 18, 2019, with one count of Sex Trafficking of a Minor, in violation of 18 U.S.C. § 1591(a)(1) and (b)(2). [ECF No. 1]. He was later indicted by grand jury as part of a larger, multi-party investigation on May 15, 2019, of the following charges:
• Sex Trafficking of Children as to Minor Victim A ("MVA"), in violation of
18 U.S.C. § 1591(a)(1), (b)(2) (Count 12);
• Distribution of a Controlled Substance to a Person Under Age Twenty-One as to MVA, in violation of 21 U.S.C. §§ 841(a)(1) and 859 (Count 13);
• Sex Trafficking of Children as to Minor Victim B ("MVB"), in violation of 18 U.S.C. § 1591(a)(1), (b)(2) (Count 14);
• Coercion and Enticement of a Minor as to MVB, in violation of 18 U.S.C. § 2422(b) (Count 15);
• Distribution of a Controlled Substance to a Person Under Age Twenty-One as to MVB, in violation of 21 U.S.C. §§ 841(a)(1) and 859 (Count 16);
• Possession with Intent to Distribute Methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 17);
• Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 18); and
• Unlawful User in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) (Count 19).
[ECF No. 35 at 7–10] (sealed). Second and Third Superseding Indictments were later filed in the case, charging Streb with additional counts of sex and drug trafficking offenses:
• Sex Trafficking of Children as to Minor Victim E ("MVE"), in violation of 18 U.S.C. § 1591(a)(1), (b)(2) (Count 26); and
• Distribution of a Controlled Substance to a Person Under Age Twenty-One as to MVE, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 859 (Count 32).
[ECF Nos. 95 at 14; 163 at 17] (sealed). Streb's trial was severed from those of his co-defendants and set to commence on January 21, 2020.
On the morning of trial, Streb brought to the Court's attention a recent disclosure by the Government informing defense counsel of expenditures made for or on behalf of the minor victims in the course of pre-trial meetings and preparation sessions ("Disclosure No. 1"). See generally Trial Tr. ("Tr.") 2–82, 116–23; 250–51. The disclosure, appearing in the form of a letter dated January 19, 2020, provided:
The trial transcript is consecutively paginated and docketed at ECF Nos. 405 (Vol. I) (1-111) (sealed); 406 (Vol. II) (112–418) (sealed); 407 (Vol. III) (419–724) (sealed); 408 (Vol. IV) (415–1017) (sealed); 409 (Vol. V) (1018–1279) (sealed); and 410 (Vol. VI) (1280–1440) (sealed).
Throughout the pendency of the case, meetings and/or prep sessions were individually held with Minor Victims A, B, and E. During these meetings and/or prep sessions, lunch was sometimes provided by staff with the U.S. Attorney's Office, the Iowa City Police Department, the Federal Bureau of Investigation, or other non-profit or law enforcement agencies. Additionally, sometimes Minor Victims A, B, and/or E were provided items to help them care for their basic needs, such as shampoo, body wash, soap, and basic items of clothing. Minor Victim A was once given a gift card to assist her with purchasing school supplies. All of these items were provided by either members of the U.S. Attorney's Office, the Iowa City Police Department, the Federal Bureau of Investigation, and/or other non-profit or law enforcement agencies.
[ECF No. 353 at 3] (sealed); see also Tr. 3. Noting the seriousness of the disclosure's timing two days before trial and the vagueness of the letter's contents, the Court recessed and ordered the Government to produce a more detailed accounting of the specific benefits given to each of the minor victims. Tr. 8–14. When the Court reconvened, the Government produced a bullet-point list detailing the expenditures alluded to in its original letter and noted supplemental information about benefits that had not been previously disclosed; the list also disclosed additional benefits the minor victims might have received in the course of the Government's investigation and trial preparation that were not included in its January 19, 2020 letter ("Disclosure No. 2"). Tr. 14–22, 41; see [ECF No. 353 at 7–8, 10]. The majority of the instances disclosed by the Government involved paying for meals and transportation costs for the minor victims related to their grand jury testimony and trial preparation, while others related to the purchase of necessities (such as clothes and toiletries) for their benefit. See [ECF No. 353 at 7-8]. These expenditures ranged from $3 snacks to, in one instance, $150 worth of clothes. See id. On at least one occasion, one of the minor victims (MVA) had been given a total of $50 in gift cards to purchase school supplies. Id. at 7.
The Court declined to exclude testimony from the minor victims or postpone jury selection, but instead offered to continue the proceedings as a sanction for the Government's late disclosures. Tr. 20, 24–25. After consulting with counsel, Streb declined a continuance and elected to proceed with trial. Tr. 24–29.
That afternoon, after voir dire , the Court held a hearing outside the presence of the jury where the Government produced a report authored by Detective David Gonzalez, the lead detective on the case. The report described the expenditures made for or on behalf of the minor victims and the dates on which they were made in even greater detail, while disclosing still more expenditures that were not included in either of the Government's first two notices ("Disclosure No. 3"). [ECF No. 353 at 12–14]; see generally Tr. 40–110. Most of the funds, the Government represented, came from non-profit organizations dedicated to helping victims of crime and the Iowa City Police Department Association ("ICPDA"), while some of the money came from the victim coordinator for the Federal Bureau of Investigation. [ECF No. 353 at 9, 15]. Additionally, the prosecutors and lead detective informed the Court that they would, on occasion, pay for small items out of their own pocket. Tr. 65–66, 68, 69–71. In a professional statement to the Court, counsel for the Government represented that the timing of its disclosures concerning these benefits conferred on the minor victims was unintentional, an inadvertent oversight due to the scope and complexity of this multi-defendant, multi-victim investigation. Tr. 73–76. Streb again moved to dismiss the case as a sanction for the Government's conduct or, in the alternative, bar witness testimony from the minor victims and law enforcement officers who participated in the expenditures. Tr. 44–59; see [ECF No. 324].
The Government made a fourth disclosure later that night, disclosing one additional benefit discovered to have been conferred on MVA when a different detective gave her between $40 to $50 for gas money and food after travelling to testify before the grand jury in April 2019 ("Disclosure No. 4"). [ECF No. 353 at 17–19].
Recognizing the problem with the Government's disclosure was not the benefits themselves, but the timing and manner of their disclosure, the Court found there to be no bad faith in the Government's reporting of the minor-victim benefits, deliberate attempt to suppress the information, or intent to misrepresent the investigation. Tr. 41–43, 52–53. The Court denied Streb's motion to dismiss, finding dismissal or exclusion of witness testimony to be too extreme of a sanction; but other approaches were appropriate to remedy the Government's untimely disclosures. See Tr. 77–79. First, the Court promised to allow the defense "very liberal" and "wide open" cross-examination related to the witness benefits, of both the minor victims and the investigating officers. Tr. 78, 109. And the Court promised to consider some kind of curative or limiting instruction to the jury about the timing of the disclosures if provided by the defense at the close of evidence. Tr. 78. Finally, the Court agreed to forgive the defense's untimely and insufficient expert witness disclosures and allowed Streb to present the expert testimony, subject to the rules of evidence. Tr. 79, 103–04 ("[W]hat's sort of good for the goose is good for the gander."); cf. [ECF Nos. 291; 314]. After taking up other evidentiary issues and pretrial matters, Tr. 82–110, the case proceeded to trial.
The defense submitted proposed jury instructions on January 14, 2020, and did not propose any such instruction. See generally [ECF No. 307].
The evidence and testimony presented to the jury established that Streb paid money and traded drugs for sex from three underage girls between the ages of fifteen and seventeen years old from late 2018 to early 2019. All three minor victims testified against Streb. MVB testified that from at least as early as November 2018, and continuing through February 2019, Streb contacted her to pay for sex on numerous occasions. Tr. 871–73, 876–80. Each time, MVB testified, Streb paid her money or gave her methamphetamine, sometimes both, in exchange for engaging in sexual intercourse with him. Tr. 876–77. MVB testified that Streb smoked methamphetamine every time they met, and she would occasionally join in smoking methamphetamine with him. Tr. 882–83. Text messages between MVB and Streb extracted from MVB's phone records, along with phone location data, corroborated MVB's account of exchanges occurring on November 3, 2018; December 22, 2018; December 29, 2018; January 27, 2019; February 4, 2019; February 13, 2019; and February 27, 2019. See Tr. 961-991, 1031–1099; [ECF Nos. 381-33; 381-61; 381-62; 381-63; 381-64; 381-65; 381-66] (sealed).
According to the testimony of MVB, Streb first solicited her in early 2018, but she did not again meet with him until October of that year. Tr. 871–73; see also Tr. 895–96.
MVB turned sixteen years old in December 2018. Tr. 236.
MVE was introduced to Streb by MVB after she asked MVB about a way to make money. Tr. 777–78. On December 26, 2018, MVB arranged for MVE to meet up with Streb to exchange sex for money and methamphetamine while MVB waited in the bathroom of the hotel room. Tr. 778–83, 787, 885–88. MVE testified she told Streb she was seventeen years old prior to engaging in sexual intercourse with him. Tr. 780–87. MVB arranged for MVE to meet up with Streb again on January 19, 2019, and Streb again paid MVE in cash and methamphetamine for sex while MVB waited outside the hotel. Tr. 789–795, 888–90. Streb solicited MVE a third time on January 20, 2019. After picking her up from a gas station and driving to a nearby hotel, Streb paid MVE, who performed commercial sex acts again in exchange for money and methamphetamine. Tr. 798–804. MVE testified Streb smoked methamphetamine each time they met and that she smoked from his pipe on the second and third occasions. Tr. 783–85, 795, 802. Text messages between MVB, MVE, and Streb, along with phone location data, corroborated MVE's account of her interactions with Streb on those dates. See Tr. 667–99, 740-56; [ECF Nos. 381-23; 381-59; 381-60] (sealed).
MVE was seventeen years old at the time of the events at issue. Tr. 673–74.
MVB also testified she had told Streb that either MVE or MVA was seventeen years old. Tr. 885, 888.
MVA also met Streb through MVB. MVB, she said, encouraged MVA to communicate with Streb about making money by setting up a time and place to meet up with him for sex. Tr. 436–40; cf. [ECF No. 381-18] (sealed). MVA testified that on December 29, 2018, Streb picked her up from Hills, Iowa, and drove to a hotel in Iowa City, where he had rented a room. Tr. 440–47. On the way to the hotel, Streb stopped at a gas station to pay MVB a "finder's fee"—payment for setting up Streb with MVA. Tr. 447; see also Tr. 884–85. MVA also testified she told Streb she was seventeen and in high school as they talked in his truck on the way to the hotel. Tr. 445–446. When they arrived at the hotel room, Streb smoked methamphetamine and assisted MVA in trying it. Tr. 448–54. Streb then gave MVA money and engaged in oral and vaginal sex acts. Tr. 454–63. Text messages between MVB, MVA, and Streb, along with phone location data, corroborated MVA's account of her interactions with Streb on December 29, 2018. See Tr. 293-330; [ECF Nos. 381-15; 381-58] (sealed).
Detective Gonzalez testified the message displayed by the cell phone records between MVA and Streb—"sms – no content available "—was indicative of the contents of the record being erased or deleted. Tr. 398–402.
MVA was fifteen years old at the time of the events at issue. Tr. 292, 431.
The jury also received evidence seized during a March 26, 2019 search of Streb's home and truck demonstrating Streb had possessed firearms and controlled substances in a manner consistent with drug distribution. The search revealed two loaded handguns in Streb's bedroom closet, and ammunition was found on Streb's nightstand and in his truck. Tr. 634–51. A total of 4.5 grams of actual methamphetamine was also found in Streb's possession. Tr. 998–99. The search revealed a digital scale, razor blade, mirror, empty baggies, envelopes, and methamphetamine in Streb's bedroom—all items indicative of drug trafficking. Tr. 626–33; see also Tr. 884. A pipe and eleven individually-packaged baggies of methamphetamine were found in his truck. Tr. 626-33. Streb's live-in girlfriend, Nicole Lara, confirmed the firearms were Streb's. Tr. 1230–31. Lara further testified Streb gave her methamphetamine and they would smoke it together. Tr. 1230–31; see also Tr. 661–64. Streb himself admitted to owning the firearms and being a methamphetamine user in two post-Miranda interviews with police after the search of his home. See Tr. 926–34; [ECF Nos. 382-10; 382-12].
The jury deliberated for less than three hours before finding Streb guilty of Counts 12, 14, 16, 17, 18, 19, 26, and 32; he was acquitted on Count 13. See generally [ECF Nos. 342; 344 (sealed) ]. The jury found Streb to have recklessly disregarded the fact that MVA was under the age of eighteen; recklessly disregarded the fact that MVB was under the age of eighteen and had a reasonable opportunity observe MVB; and knew MVE was under the age of eighteen, recklessly disregarded that fact, and had a reasonable opportunity to observe MVE. [ECF No. 344 at 3, 7, 11] (sealed).
With leave of the Court, the Government voluntarily dismissed Count 15 prior to trial. [ECF Nos. 249; 250].
Presently, Streb urges the Court to grant him a new trial. [ECF No. 383]. He claims a number of errors in the proceedings, individually or cumulatively, demand that he receive a new trial in the interest of justice.
II. STANDARD OF REVIEW
Federal Rule of Criminal Procedure 33 allows the district court to grant a new trial upon the defendant's motion "if the interest of justice so requires." Fed. R. Crim. P. 33(a). When evaluating the proceedings for procedural defect, the "interest of justice" standard "requires the district court to balance the alleged errors against the record as a whole and evaluate the fairness of the trial." United States v. McBride , 862 F.2d 1316, 1319 (8th Cir. 1988). "Under Rule 33, the district court is permitted to ‘weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict.’ " United States v. McClellon , 578 F.3d 846, 857 (8th Cir. 2009), cert. denied , 558 U.S. 1132, 130 S.Ct. 1106, 175 L.Ed.2d 920 (2010) (quoting United States v. Starr , 533 F.3d 985, 999 (8th Cir. 2008) ). But a defendant is entitled to a fair trial, not a perfect one, McBride , 862 F.2d at 1320 ; except in extraordinary instances, relief is limited where the alleged error is harmless and the substantial rights of the defendant were not affected. Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."); see United States v. Arrington , 215 F.3d 855, 857 (8th Cir. 2000) ; 3 Charles Alan Wright, Federal Practice & Procedure § 581 & n.5 (4th ed.). The decision whether to grant a new trial, or not, lies within the sound discretion of the district court. United States v. Van Kirk , 935 F.2d 932, 935 (8th Cir. 1991) ; McBride , 862 F.2d at 1320.
Though "[m]otions for new trials based on the weight of the evidence are generally disfavored," United States v. Bertling , 510 F.3d 804, 808 (8th Cir. 2007) (citation omitted), Streb does not challenge the sufficiency of the evidence to sustain his conviction in this motion under Rule 33. But see Tr. 1193–1201 (motion for directed verdict).
III. DISCUSSION
Streb raises thirteen discrete complaints about the proceedings against him that can be broken down into three categories: discovery disputes, evidentiary rulings, and trial management decisions. Viewed cumulatively or in isolation, he argues the circumstances surrounding his prosecution deprived him of a fair trial and provide grounds to receive a new one in the interest of justice.
A. Discovery Disputes
It is important to note at the outset that "[c]riminal defendants do not have a general constitutional right to discovery." United States v. Johnson , 228 F.3d 920, 924 (8th Cir. 2000) (citing Weatherford v. Bursey , 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ). Nor does the Constitution "require the prosecutor to share all useful information with the defendant." United States v. Ruiz , 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). "That being said, due process and notions of fair play require the government to disclose all evidence that is ‘favorable to an accused’ and ‘material either to guilt or to punishment.’ " United States v. Sandoval-Rodriguez , 452 F.3d 984, 990 (8th Cir. 2006) (quoting Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ). A defendant must otherwise point to a statute, rule of criminal procedure, or negotiated discovery agreement to obtain material from the government. Johnson , 228 F.3d at 924. And where discovery violations exist, district courts have broad discretion in imposing sanctions on the Government to right the wrong done to a defendant. United States v. Polk , 715 F.3d 238, 250 (8th Cir. 2013) ; United States v. Davis , 244 F.3d 666, 670 (8th Cir. 2001) ; see generally Fed. R. Crim. P. 16(d)(2).
With these principles in mind, the Court examines each of Streb's discovery complaints: (1) the Government's disclosure of benefits given to the minor victim witnesses two day before trial; (2) the timing of the Government's disclosure of its Rule 1006 cell phone location data summary exhibits; (3) the defense's access to records pertaining to MVB; and (4) the number of the Government's discovery disclosures and their manner of production.
1. Benefits to minor victim witnesses
The Court first turns to the Government's disclosure of expenditures made for or on behalf of the minor victims set to testify against Streb during the course of its investigation and preparation for trial. Streb takes issue with the timing of the Government's initial production of this information, as well as its series of incomplete disclosures after the issue was raised the morning of trial.
"[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87, 83 S.Ct. 1194. Exculpatory evidence also includes "evidence affecting" witness "credibility," where the witness's "reliability" is likely to be "determinative of guilt or innocence." Giglio v. United States , 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; see also United States v. Bagley , 473 U.S. 667, 677, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ("When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within th[e] general rule [of Brady ]." (alterations in original) (quoting Giglio , 405 U.S. at 154, 92 S.Ct. 763 )). "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome." Bagley , 473 U.S. at 682, 105 S.Ct. 3375 ; see also Kyles v. Whitley , 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ("The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."). "The government has suppressed evidence when it was otherwise unavailable to the defendant, and the prosecution failed to disclose the evidence in time for the defendant to use it." United States v. Santisteban , 501 F.3d 873, 877 (8th Cir. 2007) (citing United States v. Barraza Cazares , 465 F.3d 327, 334 (8th Cir. 2006) ).
As the Court recognized prior to trial, the problem with the Government's production of information surrounding the benefits conferred on the minor victims was threefold: the information was not revealed to the defense in a timely manner; the Government's early disclosures contained material omissions, and its final production was ultimately inconsistent with its initial January 19, 2020 letter; and the extent to which the U.S. Attorney's Office was involved in the charitable donations raised problematic ethical concerns. See Tr. 41–43. As evidence impeaching the influence and motivation of testimony by his accusers, the Government's expenditures related to the minor victims was clearly material to the defense, and Streb was certainly entitled to this information. See Giglio , 405 U.S. at 154, 92 S.Ct. 763. But in this circuit, " Brady does not require pretrial disclosure, and due process is satisfied if the information is furnished before it is too late for the defendant to use it at trial." United States v. Almendares , 397 F.3d 653, 664 (8th Cir. 2005) ; accord United States v. Farley , 2 F.3d 645, 654 (6th Cir. 1993) ("[D]ue process requires only that disclosure of exculpatory material be made in sufficient time to permit the defendant to make effective use of that material at trial. The government will fulfill its constitutional obligation by disclosure at trial unless the defendant can establish that presentation of his defense was so prejudiced that he was prevented from receiving his constitutionally guaranteed fair trial." (citation omitted)). Nevertheless, the Court commanded the Government to gather and present paperwork related to these expenditures in order to fully procure the material to the defense. Tr. 24. And despite the Government's piecemeal disclosures throughout the first day of the proceedings, Streb ultimately learned of the benefits and their details prior to the presentation of evidence to the jury. Thus, to establish a due process violation, Streb "must prove that the government's delay in disclosing the information at issue deprived that information of its usefulness and that this deprivation materially affected the outcome of his trial." United States v. Spencer , 753 F.3d 746, 748 (8th Cir. 2014).
Streb fails to meet this burden. He argues the timing of the disclosures, some of which occurred after the jury was seated, prejudiced his preparation for voir dire and unfairly burdened his ability to incorporate the information into his defense. Tr. 7, 55–59; [ECF No. 383-1 at 11]. As a sanction for the eleventh-hour nature of the Government's disclosure, however, the Court permitted the defense "very liberal" and "wide open" cross-examination pertaining to the expenditures, and counsel deftly questioned MVA and Detective Gonzalez about the benefits conferred upon the minor victims throughout the duration of the case. Tr. 78; see, e.g. , Tr. 481-90, 1152–72. Streb did not question MVB or MVE on the subject. See Tr. 1025. And while it is true that the Court found the Government's first disclosure to be inconsistent with what was ultimately revealed by its second and third disclosures, and these later productions did not come from the Government until after jury selection, the fact of the expenditures themselves was available to the defense prior to jury selection and was not of such a nature as to drastically alter the course of voir dire. Cf. Barraza Cazares , 465 F.3d at 335 ("[I]n general, the question of ‘availability’ under the Brady test should not depend on counsel's ability to conduct an ongoing investigation after a trial starts."). Moreover, Streb was given the opportunity to more fully determine how the minor victim benefits played into his defense when the Court offered him a continuance of the trial as an additional remedy for the Government's late and deficient disclosures. He declined. Tr. 12, 20, 24–28. Streb cannot now say the Government's disclosures affected his substantial rights. See United States v. Porchay , 651 F.3d 930, 941–42 (8th Cir. 2011) ("We agree that the government should have produced this information before trial, but its inadvertent failure to do so did not require the district court to dismiss [the defendant's] indictment with prejudice."); United States v. Boykin , 986 F.2d 270, 277 (8th Cir. 1993) (holding the defendant "suffered little prejudice from the delay[ed]" disclosure of impeachment material because he was able to effectively cross-examine the witness about the witness's perjury). Still, Streb argues these sanctions were insufficient. According to Streb, he was prejudiced in the presentation of his defense because he was limited in his questioning of Detective Gonzalez about the details of the expenditures and the sources of their financing, and was denied an evidentiary hearing in lieu of the Court's own inquiry into the matter. See Tr. 12, 1152–79; [ECF No. 383-1 at 8–9]; see also [ECF Nos. 324 at 3–7; 337 at 3–7]. Streb contends the minor victims’ testimony should have been excluded entirely. As the United States Court of Appeals for the Eighth Circuit has explained:
In determining a suitable and effective sanction [for a discovery violation], a court must weigh the reasons for the government's delay and whether it acted intentionally or in bad faith; the degree of prejudice, if any, suffered by the defendant; and whether any less severe sanction will remedy the prejudice and the wrongdoing of the government.
Davis , 244 F.3d at 670. Fashioning sanctions and remedies for discovery violations falls within the Court's discretion when applying these factors. United States v. White Horse , 316 F.3d 769, 773–74 (8th Cir. 2003).
Exclusion of the witness testimony is an extreme remedy and would not have been an appropriate sanction in this case. The Government had not acted in bad faith in disclosing the expenditures to the defense and, as discussed above, any prejudice suffered by Streb after accounting for the other sanctions provided by the Court was ultimately minimal. See United States v. Amaya , 750 F.3d 721, 727–28 (8th Cir. 2014) ; Polk , 715 F.3d at 249–50 ; cf. United States v. Sims , 776 F.3d 583, 586 (8th Cir. 2015) (affirming exclusion of incriminating DNA evidence not disclosed by prosecution where lesser sanctions would not remedy prejudice to the defendant or secure future compliance by the Government). Contrary to the defense's arguments, this case is not like United States v. Librach , 520 F.2d 550, 553 (8th Cir. 1975), where the court ordered a new trial based on the Government's failure to disclose that its witness was in protective custody and had received almost $10,000 in federal payments, or Davis , 244 F.3d at 670–71, where the court affirmed the exclusion of "very convincing" inculpatory DNA evidence that was disclosed mere days prior to trial. In contrast to this case, Librach involved an "egregious case of prosecutorial suppression of evidence" where the Government granted immunity and paid an enormous sum to a witness even more culpable than the defendant for his testimony; the minimal value of expenditures for food and necessities made to crime victims in disparate situations here pales in comparison. 520 F.2d at 553 ; see also White v. Steele , 853 F.3d 486, 492 (8th Cir. 2017) (distinguishing Librach for its sizeable cash payments as an incentive for testimony with financial assistance for temporary housing and relocation of eyewitness). And unlike Davis , the disclosure here was not highly inculpatory evidence that was "scientific and highly technical in nature" making it "virtually impossible" to conduct an effective defense after its last-minute production. 244 F.3d at 671-72. In both cases cited by the defense, exclusion of evidence was the least severe sanction capable of remedying the harm done to the defendant's ability to prepare his defense. Cf. id. at 672 ("As a general rule, a defendant who does not request a continuance will not be heard to complain on appeal that he [or she] suffered prejudice as a result of late-arriving discovery." (alteration in original) (quoting United States v. Sepulveda , 15 F.3d 1161, 1178 (1st Cir. 1993), cert. denied , 512 U.S. 1223, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994) )). The remedies provided by the Court, by contrast, were tailored to address the specific harm suffered by Streb from the Government's disclosures. See Amaya , 750 F.3d at 727. Given the above, the Court is confident its admonition and order of remedial actions in this case will ensure future compliance by the Government with discovery obligations and foster greater respect for defendants’ Brady rights in later criminal prosecutions brought within this district.
Nor would the further inquiry sought by Streb have been proper, let alone consequential to his defense. The questioning sought by the defense from Detective Gonzalez about specific line-item transactions on officers’ credit card statements or checks issued by the source of the funding would have offered no more relevant information about the meals and supplies purchased on behalf of the minor victims to which Streb was entitled, and it would not have revealed such additional detail capable of meaningfully enhancing its impeachment value. Tr. 1179–80. Dwelling further on this matter would have unnecessarily delayed trial without the return of any substantive reward. And the ultimate inquiry desired by Streb—the questioning of the United States Attorney, under oath, about the Government's Brady disclosure policy and its practice in this particular case—is improper and not a legitimate area of inquiry. The deliberative process of executive branch officials manifested through expressions of opinion, advice, or recommendation in intragovernmental communications is protected from disclosure by executive privilege. See In re Sealed Case , 121 F.3d 729, 737–38 (D.C. Cir. 1997) (the "Espy " case); In re Franklin Nat'l Bank Sec. Litig. , 478 F. Supp. 577, 581 (E.D.N.Y. 1979). Streb fails to advance any authority showing he is entitled to put the United States Attorney on trial.
Streb also takes issue with the benefits themselves. He argues the sanction imposed on the Government should have been greater because 18 U.S.C. § 201(c)(2) prohibits giving anything of value, directly or indirectly, in exchange for testimony and thus the expenditures made on behalf of the minor victims were manifestly improper. See [ECF No. 381-1 at 11]. This argument, however, is foreclosed by United States v. Albanese , 195 F.3d 389, 395 (8th Cir. 1999). Joining the Tenth Circuit, the United States Court of Appeals for the Eighth Circuit expressly rejected the argument that the federal bribery statute itself prohibits the giving of benefit or compensation to witnesses testifying in criminal trials:
The federal bribery statute provides that anyone who
directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person's absence therefrom ... shall be fined under this title or imprisoned for not more than two years, or both.
18 U.S.C. § 201(c)(2).
This Court has consistently rejected the argument that the government violates § 201(c)(2) when it grants a prosecution witness leniency for testifying. We also have a long history of allowing the government to compensate witnesses for their participation in criminal investigations.
Id. at 394 (citations omitted). Even the initial panel decision by the Tenth Circuit originally expressing the contrary view espoused by Streb was quickly vacated and rejected en banc. See United States v. Singleton , 144 F.3d 1343, 1344–52 (10th Cir. 1998), vacated and rev'd on rehearing , 165 F.3d 1297, 1298 (10th Cir. 1999) (en banc) (holding " 18 U.S.C. § 201(c)(2) does not apply to the United States or an Assistant United States Attorney functioning within the official scope of the office"), cert. denied , 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). Other circuit courts of appeals have unanimously rejected the reasoning of Singleton ’s original panel decision. See, e.g., United States v. Franky-Ortiz , 230 F.3d 405, 407 (1st Cir. 2000) (rejecting such a "specious argument"); United States v. Stephenson , 183 F.3d 110, 118 (2d Cir. 1999) ; United States v. Hunte , 193 F.3d 173, 174–76 (3d Cir. 1999) ; United States v. Feurtado , 191 F.3d 420, 425 (4th Cir. 1999) ; United States v. Condon , 170 F.3d 687, 688–91 (7th Cir. 1999) ; United States v. Smith , 196 F.3d 1034, 1038–40 (9th Cir. 1999) ; United States v. Lowery , 166 F.3d 1119, 1123–24 (11th Cir. 1999) ; United States v. Ramsey , 165 F.3d 980, 988–91 (D.C. Cir. 1999) ; United States v. Haese , 162 F.3d 359, 368–68 (5th Cir. 1998) ; United States v. Ware , 161 F.3d 414, 418–24 (6th Cir. 1998). Moreover, as noted by the Albanese Court, at least one federal statute "authorize[s] the federal government to pay witnesses." 195 F.3d at 395 ; see 18 U.S.C. § 3521(b) (permitting the Government to provide services, including payments to meet living expenses, to individuals who testify for the federal or state governments in criminal trials). As the Court explained on the record, and discussed above, the problem in this case was not the fact that the minor victims were provided with benefits—"sandwiches or ice cream or given gift cards or allowed to purchase school supplies"—but simply that the Government did not adequately disclose their details to the defense until the morning of trial after being ordered to do so by the Court. See Tr. 41–43.
On the other hand, the evidence against Streb was formidable. The testimony of MVA, MVB, and MVE about their encounters with Streb was corroborated by one another, as well as by cell phone communications between Streb and the minor victims and their corresponding cell phone location data sufficient to establish that he had reasonable opportunity to observe them. Streb's interactions with MVA, MVB, and MVE led the jury to conclude that, at the least, he recklessly disregarded their age. Besides clear evidence of drug distribution recovered from his home, Streb admitted to using methamphetamine and possessing firearms, and Lara, Streb's girlfriend, confirmed that he distributed the drugs to her and others. In light of all of the evidence demonstrating Streb's guilt on the crimes for which he was convicted, Streb has not shown "the government's delay in disclosing the information at issue deprived that information of its usefulness and that this deprivation materially affected the outcome of his trial." Spencer , 753 F.3d at 748 ; see also Almendares , 397 F.3d at 664 ; cf. Smith v. Cain , 565 U.S. 73, 76, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012) ("[E]vidence impeaching an eyewitness may not be material if the State's other evidence is strong enough to sustain confidence in the verdict." (citing United States v. Agurs , 427 U.S. 97, 112–13, 112 n.21, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) )).
2. Rule 1006 phone location data summaries
Next, Streb complains that the Government's disclosure of a video exhibit compiling raw cell tower information for the phone locations of Streb and the three minor victims two weeks before trial on January 6, 2020 gave the Government an undue trial advantage that prejudiced the defense's ability to adequately respond to the digital evidence. See [ECF No. 383-1 at 3–5]. Government Exhibits 500 through 509 converted this raw cell tower data into a video of a map displaying approximated locations for each individual and was used in conjunction with text message communications between Streb and each of the minor victims to corroborate the girls’ testimony of the dates they met up with him to exchange sex acts for money and methamphetamine. [ECF Nos. 381-58; 381-59; 381-60; 381-61; 381-62; 381-63; 381-64; 381-65; 381-66] (sealed); see also Tr. 562, 742, 963. Streb argues he should have received the exhibit sooner in the discovery process in order to independently investigate its consistency with the underlying data with a forensic expert.
Federal Rule of Evidence 1006 permits a proponent of evidence "to use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court." Rule 1006 is an evidentiary rule, not one of discovery, and "provides that only the underlying documents, not the summaries themselves, must be produced to the opposing party." Colón–Fontánez v. Municipality of San Juan , 660 F.3d 17, 30 (1st Cir. 2011) ; accord United States v. Mazkouri , 945 F.3d 293, 301 (5th Cir. 2019) (rejecting defendant's argument that the Government "should have disclosed the summary charts earlier" because it "has no basis in Rule 1006"); United States v. Lewis , 594 F.3d 1270, 1281–82 (10th Cir. 2010) (holding defendant was not entitled to review Government's financial database because the "underlying documents" Rule 1006 entitled him to "[were] not the database but the bank records themselves; the database "served only as an aid in preparing the summary"); Fidelity Nat'l Title Ins. Co. of N.Y. v. Intercounty Nat'l Title Ins. Co. , 412 F.3d 745, 753 (7th Cir. 2005) (" Rule 1006 requires only that the summarized documents be made available to the opposing party at a ‘reasonable time’; it does not say when the summaries must be made available to the party—for that matter, it nowhere states that the summaries must be made available to the opposing party."); Coates v. Johnson & Johnson , 756 F.2d 524, 550 (7th Cir. 1985) (holding "only the underlying documents, and not the summaries, must be made available to the opposing party" under Rule 1006 ); United States v. Foley , 598 F.2d 1323, 1338 (4th Cir. 1979) (rejecting argument that summary charts "should have been made available longer in advance of trial" under Rule 1006 because the rule "refers to making available the original documents, not the charts themselves"). Rather, Rule 16(a) sets out the discovery to which a defendant is entitled and provides, in pertinent part:
Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control, and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
Fed. R. Crim. P. 16(a)(1)(E). Except in instances not applicable here, the defense is not entitled to disclosure of "reports, memoranda, or other internal government documents made ... for the government ... in connection with investigating or prosecuting the case." Fed. R. Crim. P. 16(a)(2) ; see also United States v. Armstrong , 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (holding a defendant "may not examine Government work product in connection with his case"). The cell phone location data summaries in Exhibits 500 through 509 clearly constitute Government work product made by federal agents using cell phone data that had been previously disclosed to the defense. The material is therefore sheltered by Rule 16(a)(2) and not subject to general pre-trial discovery. See United States v. Meadows , No. 14-cr-251 (SRN/JSM), 2014 WL 6684977, at *4 (D. Minn. Nov. 25, 2014) ; United States v. Acarino , 270 F. Supp. 526, 527 (E.D.N.Y. 1967) ; cf. Lewis , 594 F.3d at 1281–82 (holding notice requirement of Rule 1006 was satisfied where the Government made the records underlying the summary available for review well before trial and all documents used to create it were admitted into evidence).
Rule 1006 itself requires only that original or duplicate records underlying a summary exhibit be made "available ... at a reasonable time and place." "A reasonable time and place ‘has been understood to be such that the opposing party has adequate time to examine the records to check the accuracy of the summary.’ " United States v. Isaacs , 593 F.3d 517, 527 (7th Cir. 2010) (citation omitted); accord White Indus., Inc. v. Cessna Aircraft Co. , 611 F. Supp. 1049, 1070 n.10 (W.D. Mo. 1985) ("Ordinarily that ‘reasonable time’ [of Rule 1006 ] will be at some point before trial, since the object is to give opposing counsel a meaningful opportunity to prepare challenges to the materials; although it would be within the trial court's discretion to permit the matter to be dealt with during trial."). Here, counsel represent that the Government produced the records of the raw cell phone location data to the defense on May 24, 2019 (phone records of Streb and phone extraction of MVB), June 21, 2019 (phone records of MVE), and December 12, 2019 (phone records for MVA and MVB). See [ECF Nos. 391 at 3; 400 at 2]. The Government first notified the defense of its intent to use Rule 1006 location mapping summaries of this data in its December 31, 2019 disclosure of Detective Michael Smithey as an expert witness to introduce them. [ECF No. 253 at 2–3]. The Government even produced drafts of the summary exhibits to the defense on January 6, 2020, see [ECF No. 294 ¶ 11], and listed the drafts in its initial exhibit list on January 13, 2020, [ECF No. 296 at 12–13]. After reviewing the nature and timing of the disclosures, the Court finds Streb was afforded a reasonable time to review the Government's summary exhibits in relation to the underlying data. See, e.g., United States v. Mitchell , No. 1:15-cr-00040-JAW, 2016 WL 3406427, at *3 (D. Me. June 17, 2016) (ruling disclosure of summaries one week before trial sufficient where defendant had cell phone records for over one year); United States v. Pickel , No. 2:07-cr-21, 2007 WL 1452908, at *2 (E.D. Tenn. May 17, 2007) (ordering disclosure of Rule 1006 summaries two weeks before trial where the defense already had a copy of the underlying documents); cf. E.E.O.C. v. HBE Corp. , 135 F.3d 543, 553 (8th Cir. 1998) (ruling disclosure of Rule 1006 summary three weeks prior to trial was reasonable). The data concerned a finite number of relevant dates for each minor victim, of which the defense had ample notice from the indictment and other evidence disclosed in discovery.
Without any explanation Streb contends the video summaries altered the character of the cell tower data disclosed to him, creating new data which he was denied an adequate opportunity to review. [ECF No. 381-1 at 3]. He offers no proof of such an allegation or concrete examples of how the summaries are inaccurate or erroneous. Streb had sufficient time to provide the underlying phone location records to an expert in order to evaluate the summary's accuracy prior to trial. See [ECF No. 391-1 at 1]. The defense extensively cross-examined Detective Smithey on the summaries on three separate occasions, Tr. 580–611, 756–73, 991-97, and the record does not indicate their accuracy is questionable.
In pre-trial conference, the Court denied Streb's Motion to Dismiss, [ECF No. 315], noting that there was nothing to indicate the Government was withholding cell phone data from the defense. Tr. 82; see also [ECF No. 316] (representing materials sought by the defense were either disclosed or not in the Government's possession).
3. Access to school records of MVB
Streb also contends he was wrongfully denied access to MVB's "juvenile records, applications to travel, counseling records, [and] school records relevant to dates[,] times and places that could establish if the victims were in another location at a particular time" for purposes of cross-examination. See [ECF No. 383-1 at 13]; see also [ECF No. 261 at 1–2]. Streb was never so prohibited. Discussed above, Rule 16 entitles a defendant to certain records "within the government's possession, custody, or control." Fed. R. Crim. P. 16(a)(1)(E), (a)(1)(F)(i). The Government represented prior to trial that it did not have any of the requested information in its possession and had disclosed everything else to Streb's attorneys. See [ECF No. 268 at 1]. Streb offers nothing to indicate that is not the case. To the extent Streb complains he should have received information that would have allowed the defense to serve subpoenas to obtain such information, Streb did not move to subpoena records of a crime victim from a third party under Federal Rule of Criminal Procedure 17 and made no effort to make the requisite showing of what specific records he sought or why such records were material to the defense. See Fed. R. Crim. P. 17(c)(3) (requiring court order to compel production of "personal or confidential information about a victim" from a third party); United States v. Hardy , 224 F.3d 752, 755–56 (8th Cir. 2000) ("[T]he moving party must show that the subpoenaed document (1) is relevant, (2) is admissible, and (3) has been requested with adequate specificity.").
4. Timing and manner of discovery disclosures
More broadly, Streb contends the issues discussed above are indicative of a larger pattern of discovery violations by the Government in both the number and timing of its disclosures as well as the manner in which they were made that undermined his defense—what Streb refers to as the Government's "manipulation" of the discovery process. See [ECF No. 383-1 at 12–13]. He complains that he was not able to access video and audio recordings of the minor victims until December 9, 2019, and the Government only allowed him to view "certain key materials" at the United States Attorney's Office. Though he does not contend the Government violated any discovery deadlines, he takes issue with the number and volume of discovery production by the Government, complaining that the Government's twenty-three disclosures "presented a constantly shifting target" that unjustly hampered Streb's ability to prepare his defense. Id. at 12-13.
But Streb does not claim the Government produced any evidence in violation of the parties’ Stipulated Discovery and Protective Order, [ECF No. 87]. And aside from the Government's disclosure of expenditures made for or on behalf of the minor victims, addressed above, he has not identified any particular instance where material was improperly or untimely disclosed. Limitations on the access of certain materials is not an uncommon practice due to the sensitive nature of records and need to protect victims, informants, and ongoing investigations from their public dissemination—but the defense was never denied the material. Even assuming a discovery violation occurred, Streb was not prejudiced by the timing and manner of the Government's discovery disclosures. United States v. Thompson , 365 F. App'x 42, 44 (8th Cir. 2010) (per curiam) (finding no abuse of discretion and affirming district court ruling declining to sanction Government for unspecified discovery violation). That Streb complains about the volume of discovery speaks to the complexity of the case and the magnitude of the many charges against him.
B. Evidentiary Rulings
District courts likewise have broad discretion in ruling on evidentiary matters. United States v. Omar , 786 F.3d 1104, 1112 (8th Cir. 2015) ; see United States v. Anderson , 783 F.3d 727, 745 (8th Cir. 2015) ("We review evidentiary rulings for clear abuse of discretion, ‘reversing only when an improper evidentiary ruling affected the defendant's substantial rights or had more than a slight influence on the verdict.’ " (citation omitted)). Turning to the evidence presented at trial, Streb raises numerous evidentiary issues he claims were in error, prejudicing his right to a fair trial: (1) exclusion of evidence of the minor victims’ engagement in sex trafficking; (2) denial of the defense's motion for mistrial and restriction on cross-examination concerning MVE's pregnancy; (3) limitations on the defense's cross-examination of MVB concerning her dismissed juvenile delinquency petition; (4) exclusion of the defense's cosmetologist expert witness; (5) admission of cell phone extraction reports over Streb's objection; and (6) rejection of the defense's requests to admit records under Rule 106, the "rule of completeness."
1. Evidence of minor victims’ engagement in sex trafficking
The Court will first address Streb's argument that the Court erred in issuing a "blanket prohibition" against questioning related to MVA, MVB, and MVE's prior participation in sex trafficking and excluding photographs demonstrating the minors’ prior engagement in such activities. See [ECF No. 383-1 at 15–17]. Streb sought to introduce pictures of the minor victims at trial, some of which were posted as online advertisements promoting their availability for commercial sex acts or sent in private communications, and to elicit testimony about how they presented themselves as being older than they were in prior solicitations. Tr. 82–103; see generally [ECF Nos. 318; 319; 323] (sealed).
Rule 412 of the Federal Rules of Evidence prohibits evidence of a victim's sexual history to prove the victim engaged in "other sexual behavior" or to prove the victim's "sexual predisposition." Fed. R. Evid. 412(a). There are three exceptions in criminal cases:
(A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant's constitutional rights.
Fed. R. Evid. 412(b)(1). The limitations of Rule 412 shield victims of sexual misconduct from "invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process," and "encourages victims of sexual misconduct to institute and to participate in legal proceedings" against their offenders or abusers. 1994 Advisory Committee Notes to Fed. R. Evid. 412 ; see United States v. Elbert , 561 F.3d 771, 776 (8th Cir. 2009) ("[T]he limitations created by Fed. R. Evid. 412 on a defendant's ability to present evidence ‘is not arbitrary or disproportionate to the purpose it is designed to serve,’ because the exclusion serves an important interest—the prevention of ‘potential embarrassment or harassment of alleged victims of sexual abuse.’ " (quoting United States v. Bordeaux , 400 F.3d 548, 558 (8th Cir. 2005) )). The protections put in place by Rule 412 apply with particular force in cases involving minor victims. See United States v. Ogden , 685 F.3d 600, 606 (6th Cir. 2012) ; Clardy v. McKune , 89 F. App'x 665, 673–74 (10th Cir. 2004) ; cf. Maryland v. Craig , 497 U.S. 836, 852, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) ("[A] State's interest in ‘the protection of minor victims of sex crimes from further trauma and embarrassment’ is a ‘compelling’ one." (citation omitted)).
Despite falling within the ambit of Rule 412, Streb failed to disclose his intent to introduce the images into evidence and pursue that line of questioning until the day before trial. A party wishing to introduce evidence under an exception to Rule 412 must serve notice on the Government, interested parties, and the victims through a motion filed with the Court that "specifically describes the evidence and states the purpose for which it is to be offered" at least fourteen days prior to trial. Fed. R. Evid. 412(c)(1). Streb's disclosures, [ECF Nos. 318; 323] (sealed), satisfy none of these requirements. His failure to disclose his intent to pursue this subject matter violates the notice provision of Rule 412 as well as the minor victims’ right to be present at the hearing concerning their admissibility. Fed. R. Evid. 412(c)(2) ("Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim[s] and parties a right to attend and be heard."); cf. Crime Victims’ Rights Act § 102, 18 U.S.C. § 3771(a)(8) (as amended 2015). And the failure to follow these procedural safeguards, alone, "constitutes ‘sufficient grounds ...’ to exclude the evidence." United States v. Betts , 911 F.3d 523, 529 (8th Cir. 2018) (citing United States v. Roy , 781 F.3d 416, 421 (8th Cir. 2015) ).
Streb is mistaken to suggest that evidence of online advertisements posted by minors on a sex trafficking website do not implicate the aims of Rule 412 of safeguarding victims against the invasion of privacy, embarrassment, and sexual stereotyping. "[S]ex trafficking cases involve ‘alleged sexual misconduct,’ and evidence of a trafficking victim's pre- or post-indictment involvement in prostitution implicates her ‘other sexual behavior’ or ‘sexual predisposition.’ " United States v. Haines , 918 F.3d 694, 697 (9th Cir. 2019) (citations omitted); accord United States v. Lockhart , 844 F.3d 501, 509 (5th Cir. 2016). The images sought by Streb includes semi-nude pictures of the minor victims and online advertisements listing extremely sensitive personal information. See Tr. 92-99. Any questions on the subject of these images, or their purpose in prior commercial sex acts, undoubtedly implicates the privacy interests guarding against the disclosure of intimate details and sexual innuendo of the minor victims. Their admission would place a strong deterrent factor on minor victims of sexual misconduct from testifying.
Streb argues his untimely disclosures should be excused because the Court's exclusion of the images and prohibition against questioning directed at the minor victims’ prior engagement in sex trafficking violated his rights under the Fifth and Sixth Amendments to the United States Constitution to present an effective defense. The Fifth Amendment's Due Process Clause guarantees a defendant's right "to present evidence favorable to himself on an element that must be proven to convict him." Clark v. Arizona , 548 U.S. 735, 769, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006). The Sixth Amendment "guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him,’ " Davis v. Alaska , 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (citation omitted), which is primarily secured by "the right of cross-examination," Douglas v. Alabama , 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Neither fundamental right is unlimited, however, and both bend to rules of evidence serving legitimate purposes so long as they are not disproportionate to the ends they aim to promote. E.g. Clark , 548 U.S. at 770, 126 S.Ct. 2709 ; United States v. Scheffer , 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).
Streb was charged with three counts of sex trafficking of minors under 18 U.S.C. § 1591(a)(1) and (b)(2), which required the Government to prove Streb recruited, enticed, harbored, transported, provided, obtained, advertised, maintained, patronized, or solicited each of the minor victims, knowing or recklessly disregarding the fact that the minor victim was under the age of eighteen years old and would be caused to engage in a commercial sex act. But "[i]n a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the [trafficked individual], the Government need not prove the fact the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of [eighteen] years." Id. § 1591(c). In other words, "[s]ection 1591(c) unambiguously creates an independent basis of liability when the government proves a defendant had a reasonable opportunity to observe the victim." United States v. Whyte , 928 F.3d 1317, 1330 (11th Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 875, 205 L.Ed.2d 497 (2020) ; accord United States v. Duong , 848 F.3d 928, 931 (10th Cir. 2017) ; United States v. Copeland , 820 F.3d 809, 813 (5th Cir. 2016) ; United States v. Robinson , 702 F.3d 22, 31–32 (2d Cir. 2012). And "[w]hen the government proceeds on the theory that a defendant had a reasonable opportunity to observe the victim, his mistake about the victim's age is no defense." Whyte , 928 F.3d at 1330. The result is "strict liability with regard to the defendant's awareness of the victim's age." Robinson , 702 F.3d 22, 26 (2d Cir. 2012). Streb was charged with all three theories with regards to MVA and MVE; he was charged with recklessly disregarding MVB's age or, alternatively, having had a reasonable opportunity to observe MVB. See [ECF No. 163 at 7–8, 14] (sealed).
Section 1591(a)(1) provides, in pertinent part:
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, ... recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or ... in reckless disregard of the fact, ... that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).
Though criminal statutes are generally construed to include mens rea requirements, see Staples v. United States , 511 U.S. 600, 605–06, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) ; United States v. U.S. Gypsum Co. , 438 U.S. 422, 437–38, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), "[s]ection 1591 ‘does not actually impose "strict liability" because the statute, throughout its revisions, has retained a traditional scienter requirement’ of knowledge that the victim ‘will be caused to engage in a commercial sex act.’ " Whyte , 928 F.3d at 1330 (quoting Copeland , 820 F.3d at 812 n.6 ); see also Robinson , 702 F.3d at 32 (noting the presumption of mens rea requirements "does not apply to sex crimes against minors, at least when ‘the perpetrator confronts the underage victim personally’ " (citations omitted)).
Simply put, these photographs and lines of questioning were irrelevant. Though the Court agrees the images could have had some degree of probative value if Streb were to testify that he viewed the images in question or agreed to patronize the minor victims as a result of seeing them, Tr. 92, 99, 102–03, nothing in the record suggests, let alone establishes, that was the case. Having elected not to testify in his own defense, Streb presented no connection between his encounters with the minor victims and evidence of their prior sex trafficking activity. How the minor victims represented themselves to Streb is all that was relevant to the question of whether Streb knew or recklessly disregarded the age of the minor victims when paying them to perform commercial sex acts, or whether he had a reasonable opportunity to observe them; what the minor victims looked like, and how they represented themselves on other occasions, was not. See, e.g., Roy , 781 F.3d at 420 ("The victim's participation in prostitution either before or after the time period in the indictment has no relevance to whether [the defendant] beat her, threatened her, and took the money she made from prostitution in order to cause her to engage in commercial sex."); Elbert , 561 F.3d at 777 ("Whether the children engaged in acts of prostitution before or after their encounters with [the defendant] is irrelevant, and would only prove other people may be guilty of similar offenses of recruiting, enticing, or causing these victims to engage in a commercial sex act.").
Still, Rule 403 allows a court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice." Contrasted with whatever minimal probative value of the evidence might have had was its highly prejudicial effect on the privacy and protection of the minor victims. See Roy , 781 F.3d at 419 (affording "substantial deference to a trial court's exclusion of evidence under Federal Rule of Evidence 403 so long as the trial court's exercise of discretion [does] not unfairly prevent a party from proving [its] case" (alterations and emphasis in original) (citation omitted)). "Assuming any impeachment relevance of the minors engaging in other acts of prostitution" here, "any probative value the evidence may have ‘[was] substantially outweighed by the danger of unfair prejudice.’ " Elbert , 561 F.3d at 777 (citing Fed. R. Evid. 403 ). Exclusion of the images and text messages showing the minor victims’ past participation in sex trafficking activities, and prohibiting the defense from questioning the minor victims on this subject, did not violate Streb's rights under the Fifth or Sixth Amendments. See id. (concluding evidence of alleged prior acts of prostitution "has no impeachment value here because evidence the children previously engaged in prostitution does not contradict evidence the children engaged in the acts of prostitution for which [the defendant] has been charged"); see also, e.g., Haines , 918 F.3d at 697–99 ("That [the minor victim] may have prostituted on other occasions on her own does not change the result" of the defendant's guilt under § 1591(a) ); United States v. Carson , 870 F.3d 584, 593 (7th Cir. 2017) (holding "whether the victims had previously worked as prostitutes was irrelevant to the required mens rea " under § 1591(a) ); Lockhart , 844 F.3d at 510 ("[E]vidence of the victims’ pre- and post-indictment acts of prostitution would be irrelevant to this case as it does not ‘make ... more or less probable’ the fact that [the defendants] caused their victims to engage in a commercial sex act during the time period alleged in the indictment." (quoting Fed. R. Evid. 401 )); United States v. Gemma , 818 F.3d 23, 34-35 (1st Cir. 2016) (holding evidence of alleged prior prostitution was "either entirely irrelevant or of such slight probative value in comparison to its prejudicial effect that a decision to exclude it would not violate [defendant's] constitutional rights").
The exclusion of evidence of the minor victims’ prior acts of sex trafficking and sexual activity does not establish a violation of Streb's rights under the Fifth or Sixth Amendments.
2. Inquiry into MVE's pregnancy
Relatedly, Streb claims the Court's rulings with respect to MVE's unexpected disclosure of her pregnancy during cross-examination prejudiced his defense. The Court had previously prohibited evidence and argument regarding the minor victims’ prior sexual history, Tr. 414–17, 736-37, and both parties agreed that subject could not be inquired into under Rule 412, [ECF Nos. 254 at 4–10; 277 at 2]. As often occurs in trial practice, however, the anticipated testimony did not go as according to plan. On cross-examination, defense counsel had inquired into MVE's past drug use and its effect on her memory and perception of events concerning Streb as relayed through her several interviews with law enforcement. Defense counsel asked MVE whether she continued using drugs after her first interview with investigators in February 2019, and she responded "no" by stating she was pregnant at that time. Tr. 829.
Streb now argues the Court should have granted a mistrial or, alternatively, issued a curative instruction informing the jury that the fact of MVE's pregnancy should not have been disclosed, all while permitting the defense to explore the issue beyond ensuring the pregnancy was not associated with Streb. See [ECF No. 383-1 at 14–15]. "As a general rule, it is within the discretion of the district court to decide whether a trial has been so tainted by prejudicial testimony that a mistrial should be declared ...." United States v. Urick , 431 F.3d 300, 304 (8th Cir. 2005) (citation omitted). Less extreme remedies are usually adequate to cure the admission of a prejudicial statement in most cases, however. United States v. Coleman , 349 F.3d 1077, 1087 (8th Cir. 2003) (citing United States v. Muza , 788 F.2d 1309, 1312 (8th Cir. 1986) ). Whether the verdict was "substantially swayed" by the prejudicial comment, thus requiring a mistrial, depends on whether the alternative remedy "was sufficient in the context of the entire trial, [weighing] the prejudice against the strength of the government's evidence." Urick , 431 F.3d at 304.
Following MVE's unsolicited disclosing of her pregnancy to the jury, defense counsel smoothly continued with cross-examination and ably transitioned away from the issue. Just prior to ending cross-examination, the Court permitted defense counsel to ask MVE to confirm that her child was not related to her interactions with Streb, and the witness was excused. See Tr. 863 ("Q. Is the baby you had Mr. Streb's baby? A. No."); see also Tr. 864. Allowing the defense to pursue a very circumscribed line of questioning in order to demonstrate to the jury that the pregnancy was unconnected to Streb both ameliorated the concern that the jury would infer the child was associated with MVE's interactions with Streb while protecting MVE from unfair prejudice and embarrassment. See Tr. 866. There was no confusion about the fact that the child was not Streb's. The evidence against Streb was strong, and the Court finds the jury's decision to convict him of Count 26, sex trafficking of a minor in relation to MVE, was not "substantially swayed" by her disclosure.
Streb argues he should have been allowed to question MVE about a text message indicating the race of her baby (being of a different race than Streb) and Streb's use of a condom, but this inquiry would have run afoul of the general prohibition against evidence of a victim's sexual history contained in Rule 412 of the Federal Rules of Evidence and unnecessarily delved into collateral matters. The proposed line of questioning fit into none of the exceptions. It would have elicited testimony about MVE's sexual history unrelated to her interactions with Streb, and the defense's pointed question asking MVE to confirm that Streb was not the father of her child worked to confirm that another was the source of her pregnancy. Cf. Fed. R. Evid. 412(b)(1)(A) (permitting introduction of evidence "to prove that someone other than the defendant was the source of semen, injury, or other physical evidence"). Furthermore, consent is not a defense to sexual contact with a minor. Elbert , 561 F.3d at 776 ; see Fed. R. Evid. 412(b)(1)(B). Streb does not argue the exclusion of his desired testimony violated his constitutional rights, and the Court finds any possible prejudice was harmless. See United States v. Santisteban , 501 F.3d 873, 879 (8th Cir. 2007) ("To determine whether a Confrontation Clause error was harmless, we look to ‘whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.’ " (quoting Delaware v. Van Arsdall , 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) )).
In the end, "there is no reasonable basis to believe that these references could have improperly tainted the jury's deliberation." Urick , 431 F.3d at 305 ; cf. United States v. Arias , 936 F.3d 793, 798 (8th Cir. 2019) ("Considering the nature of the charged offenses [sexual abuse of a child] and the evidence against [the defendant], a blurted comment that [the defendant] had previously committed a parole violation was not the sort of evidence that would create ‘an overwhelming probability’ that the jury would be unable to follow the court's curative instruction." (citation omitted)). MVE's statement revealing her pregnancy was inadvertent and the fault of neither party. In light of the proposed question's limited probative value and considerable prejudice to MVE compared to the substantial evidence of Streb's guilt, Streb is not entitled to a new trial on this basis.
3. Impeachment of MVB
Streb also complains the Court erred in prohibiting the defense from questioning MVB about the details of the state juvenile charges filed against her for conduct related to this case, which were later dismissed. See [ECF No. 383-1 at 13]; see also [ECF No. 287]. Although Streb agreed in pre-trial filings that such evidence would not be admissible, [ECF No. 277 at 5], the defense nonetheless sought to elicit detailed information from MVB related to her arrest and detention at trial. Tr. 901–04. Sustaining the Government's objection, the Court ruled Streb could not question MVB about the offenses she was charged with or inquire into the details of her dismissed delinquency petition. Tr. 904; [ECF No. 350 at 2] (sealed). Now, Streb argues he should have been allowed to fully impeach the testimony of MVB with the details of her dismissed charges because she was "treated as a coconspirator during trial for purposes of admitting her hearsay testimony under the coconspirator exception to the hearsay rule."
Rule 608(b) of the Federal Rules of Evidence provides:
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
Fed. R. Evid. 608(b) (emphasis added). Generally, a conviction must be a felony or one involving a dishonest act or false statement to be admissible to attack a witness's character for truthfulness. See Fed. R. Evid. 609(a). Evidence of a witness's juvenile adjudication are admissible only if (1) it is offered against a witness in a criminal case; (2) the witness is not the defendant; (3) an adult's conviction for the same offense would be admissible to attack the adult's credibility; and (4) admission of the evidence is "necessary to fairly determine guilt or innocence." Fed. R. Evid. 609(d).
The evidence and testimony the defense sought to use to impeach MVB satisfies none of these requirements because the alleged acts did not involve dishonesty and no admission or finding of guilt was made; the public record of the accusation would have been inflammatory and highly prejudicial to MVB; and any inquiry into such matters would have confused the issues before the jury, substituting MVB's conduct for Streb's. See United States v. Alston , 626 F.3d 397, 404 (8th Cir. 2010) ("The Rule 403 balancing of probative value versus prejudicial effect is an integral step toward a determination of admissibility under ... Rule 608(b)." (citation omitted)), cert. denied , 563 U.S. 929, 131 S.Ct. 1842, 179 L.Ed.2d 793 (2011). Although not permitted to solicit information about the delinquency charges in the level of detail originally sought, the defense was permitted to inquire into the existence of charges, the fact of their dismissal, and the impact on the truthfulness of MVB's testimony. See United States v. Frederick , 683 F.3d 913, 919 (8th Cir. 2012) (affirming exclusion of prior victims’ accusations because evidence of prior acts was disputed; allowing inquiry would have been highly prejudicial; and risked "confusion of the issues" or "misleading the jury" (citations omitted)).
During a pre-trial conference held January 15, 2020, the Court ordered MVB's dismissed delinquency petition remain sealed and not be publicly disclosed or disseminated. [ECF No. 350 at 2] (sealed). The Court noted MVB was taken into custody pursuant to the delinquency petition until The Iowa Department of Human Services filed a Child In Need of Assistance ("CINA") petition on her behalf, and that there was no agreement by the county attorney to dismiss the delinquency petition for MVB's cooperation in the federal investigation. The alleged delinquent acts were outlined in the Government's discovery file and made available to the defense in May of 2019. Id.
4. Defense cosmetologist expert
Turning to the defense's case-in-chief, Streb contends he should have been permitted to present the testimony of a cosmetologist expert who, he claims, would have testified as to how the application of makeup could impact one's perception of age. [ECF No. 383-1 at 18–19]. The defense sought to introduce the testimony of Kim Cox, Director of the Iowa School of Beauty, to speak to the jury about makeup techniques capable of making an individual appear older than her actual age. The Court waived Streb's untimely and insufficient Rule 16 expert witness disclosures as a sanction for the Government's last-minute production of benefits conferred on the minor victims, but the proposed expert testimony was still required to be relevant to the proceedings as probative of Streb's guilt or innocence for the crimes with which he was charged. Tr. 79–80, 103–04.
Expert witness testimony is governed by Rule 702 of the Federal Rules of Evidence :
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. The key requirement is that the expert testimony "help the trier of fact to understand the evidence or to determine a fact in issue," Fed. R. Evid. 702(a), which "goes primarily to relevance," Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The gatekeeping function of Rule 702 requires the trial court to ensure all expert testimony is both reliable and relevant. Smith v. Bubak , 643 F.3d 1137, 1140 (8th Cir. 2011) ; Khoury v. Philips Med. Sys. , 614 F.3d 888, 892 (8th Cir. 2010) ; see also Fireman's Fund Ins. Co. v. Canon USA, Inc. , 394 F.3d 1054, 1057 (8th Cir. 2005) ("A trial court must be given wide latitude in determining whether an expert's testimony is reliable." (citing Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) )). Of course, expert testimony may still be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, or wasting time, even if it is otherwise admissible. Fed. R. Evid. 403.
None of the testimony proffered by the defense was relevant as "scientific, technical, other specialized knowledge" capable of assisting the jury to understand the facts of the case to qualify as expert testimony; the application of makeup, and its superficial effects on an individual's appearance, is well within jurors’ ability to understand in their common and everyday lives. Cf. Jespersen v. Harrah's Operating Co., Inc. , 444 F.3d 1104, 1117 (9th Cir. 2006) (Kozinski, J., dissenting) (arguing practical effects of applying makeup is common knowledge and should be acknowledged by judicial notice). Streb argues that Ms. Cox's testimony would have illuminated the effects of makeup on the perception of age because MVB testified she enjoyed wearing makeup because it allowed her to be "a whole nother [sic] person" and used makeup to represent herself to be older than her actual age, and MVE had dyed her hair and appeared to be wearing lip chap or rouge in one of the pictures of her. See Tr. 912-16, 832-35. But the record is devoid of any specific testimony from the minor victims about whether they wore makeup in such a way when they were with Streb. And because Streb did not testify, he was unable to show how he might have perceived the girls. Because Streb could not provide a basis for the testimony of Ms. Cox as an expert, and she had no personal knowledge of the minor victims or their makeup habits when interacting with Streb, there was no relevant testimony she could have offered. See Tr. 1004–07. Admitting her testimony would have been unhelpful at best, and would have improperly invaded the fact-finding role of the jury.
5. Cell phone extraction reports
Streb also complains that the Court allowed inadmissible hearsay evidence to be presented to the jury when it admitted records from cellphone extractions taken from the minor victims’ and Streb's phones because neither of the detectives testifying as to the records prepared the underlying extraction reports. See [ECF No. 383-1 at 14]; Tr. 582. Because he did not have an opportunity to cross-examine the individual who prepared the exhibits, he argues, the records should have been excluded.
Rule 803(6) provides that "[a] record of an act, event, condition, opinion, or diagnosis" is excluded from the hearsay rule if:
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6). Rule 902(11) provides that the records produced by a regularly-conducted activity are self-authenticating when certified by the custodian of the records or "another qualified person" who complies with federal law. Records generated by an electronic process or system that produces an accurate result and data copied from an electronic device also satisfy this requirement if certified in accordance with Rule 902(11). See Fed. R. Evid. 902(13), (14).
The cell phone extraction reports at issue here were introduced under Rules 902(13) and (14). The Government presented testimony that the records were made at the time by someone with knowledge of their contents; that they were kept in the ordinary course of a regularly-conducted activity; and that the making of the reports was a regular practice of that activity. See Tr. 278–81, 289–90, 318–19, 687–79. The records were certified by a qualified custodian. [ECF No. 242-11]; see Tr. 582–84. And the Government made these records available to the defense, [ECF No. 242], with ample time prior to trial to present "a fair opportunity to challenge them," Fed. R. Evid. 902(11). The defense never sought their exclusion by arguing "the source of information or method or circumstances of preparation indicate a lack of trustworthiness." Fed. R. Evid. 803(6)(E). As such, the records were properly admitted under this exception to the hearsay rule.
6. Rule 106 motions
Next, Streb argues the Court misapplied Federal Rule of Evidence 106 to exclude relevant segments of records that he claims were necessary to clarify and contextualize portions of those documents admitted through Government exhibits. See [ECF No. 383-1 at 19–22]. The "rule of completeness," as it is known, provides:
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that
in fairness ought to be considered at the same time.
Fed. R. Evid. 106. The rule permits an adverse party to admit the complete writing or recording advanced by the other party if "necessary to ‘(1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.’ " McCoy v. Augusta Fiberglass Coatings, Inc. , 593 F.3d 737, 747 (8th Cir. 2010) (quoting United States v. Flentge , 151 F. App'x 490, 491–92 (8th Cir. 2005) (per curiam)). The rule requires specificity from the moving party: "To sustain a Rule 106 objection, ‘the party urging admission of an excluded conversation must specify the portion of the testimony that is relevant to the issue at trial and that qualifies or explains portions already admitted.’ " Id. (citation omitted). But "the rule does not come into play when ‘a few inconsistencies between out-of-court and in-court statements are revealed through cross-examination; rather, it operates to ensure fairness where a misunderstanding or distortion created by the other party can only be averted by the introduction of the full text of the out-of-court statement.’ " United States v. Ramos–Caraballo , 375 F.3d 797, 803 (8th Cir. 2004) (citation omitted).
During the prosecution's case-in-chief, the Government introduced a portion of the video recording and transcript from detectives’ March 26, 2019 interview with Streb after his arrest. Tr. 928–34; see [ECF Nos. 382-10; 382-12]. These excerpts were used by the Government to show that Streb had admitted to possessing the methamphetamine and firearms found during the execution of the search warrant of his house. See Fed. R. Evid. 801(d)(2)(A) (excluding statements of an opposing party from the definition of hearsay). Streb argues the Court misapplied Rule 106 when it denied his requests to present additional segments of dialogue from that interview that were omitted from the Government's exhibit. At first Streb was unable to identify a specific part of the Government's exhibit that was in need of explanation, clarification, or contextualization and sought to admit the entire record of his interview. When pressed, Streb identified on two portions of the written transcript he claimed were in need of clarification. The first entails the following exchange:
[Detective Ryan Wood]: When was the last time you used meth?
[Kendall Streb]: [unintelligible]
RW: Um. You smoke it or?
KS: Yeah.
RW: Do you use anything else?
KS: No.
[ECF No. 382-10 at 1]; see also Tr. 951–52. The second includes the detective's question to Streb: "RW: So those [firearms confiscated from Streb's house] aren't going to come back stolen? KS: No." [ECF No. 382-12 at 1]; see also Tr. 952–53. He claimed the following dialogue spoken by Detective Ryan Wood should have been admitted:
So obviously we work on the Johnson County Drug Task Force; okay? By all indications it looks like you have user quantities of meth and marijuana in the residence. And there's not gonna be any indication that you're selling, or anything?
Tr. 937–36, 947–48. Streb contends this segment of his interview implies law enforcement officers believed Streb to be merely a drug user , not a drug dealer , while the partial record admitted in the Government's exhibits gave the jury the opposite (incriminating) impression.
The portions of the interview admitted in the Government's exhibits were not misleading or in want of clarification, nor did they distort the meaning of the statements contained therein. Nothing in the language quoted by Streb actually indicates the detective expressed the opinion that Streb was not a drug dealer, and its admission was not necessary under the rule of completeness to qualify, explain, or place into context any of the admitted portions for the jury. Streb's efforts to admit these portions of the full interview transcript amount to nothing more than an attempt to admit his own self-serving exculpatory statements made at the time of the interview into evidence. See Tr. 954. Being hearsay, testimony about the statements was properly excluded.
Streb also sought to admit a number of other miscellaneous statements he believed to be exculpatory—some made by officers, some by him—that he likewise fails to explain how they are necessary to explain or clarify the Government's exhibit and consist of inadmissible hearsay. See Tr. 952–53.
Streb claims Rule 106 allows an exception to hearsay but fails to point to any authority for such a proposition. It does not. The rule of completeness does not independently allow for the admission of inadmissible hearsay solely for the sake of completeness, and numerous authorities already recognize this. See Ramos–Caraballo , 375 F.3d at 803 (" ‘Rule 106, the rule of completeness, ...’ does not ‘empower[ ] a court to admit unrelated hearsay in the interest of fairness and completeness when that hearsay does not come within a defined hearsay exception.’ " (alteration in original) (quoting United States v. Woolbright , 831 F.2d 1390, 1395 (8th Cir. 1987), abrogated on other grounds by Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) )); accord United States v. Collicott , 92 F.3d 973, 983 (9th Cir. 1996) (" Rule 106 ‘does not compel admission of otherwise inadmissible hearsay evidence.’ " (quoting Phoenix Assocs. III v. Stone , 60 F.3d 95, 103 (2d Cir. 1995) )); United States v. Wilkerson , 84 F.3d 692, 696 (4th Cir. 1996) (" Rule 106 ... would not render admissible the evidence which is otherwise inadmissible under the hearsay rules."). Still, Streb claims in a one-sentence retort that the exclusion of those hearsay statements forced him to forgo his privilege against self-incrimination, violating his rights under the Fifth Amendment. Streb cites no authority for the proposition that the Due Process Clause of the Fifth Amendment entitles a criminal defendant to introduce under Rule 106 his own or others’ hearsay statements that do not fall within any exception. Nor did Streb actually testify and forgo that privilege to remain silent. Without more detailed briefing the Court is unable to analyze such a claim further.
But see United States v. Sutton , 801 F.2d 1346, 1368–69 (D.C. Cir. 1986) ("Rule 106 can adequately fulfill its function only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously.").
Streb also argues the Court erred in applying Rule 106 when it precluded the defense from presenting additional text messages between MVE and MVB, and communications concerning MVE's pregnancy and plan to purchase contraception that were excluded from the Government's summary exhibit of their exchange. See Tr. 281–97, 406–08; 955–57; see also [ECF No. 381-24] (sealed). Streb also sought to admit a portion of an early interview of MVE, stating:
Minor Victim E told the affiant she was aware that Minor Victim B engaged in prostitution. Minor Victim E admitted that she also engaged in prostitution on at least two occasions. She explained that on or about the beginning of January 2019, she needed money to purchase
a Plan B pill so she decided to prostitute herself.
Tr. 738–39. Streb asserts these exchanges and statements by MVE were relevant to show MVE's motivation for soliciting Streb and call into question her prior statements regarding his condom use and other details divulged to law enforcement throughout the course of the investigation. But the minor victims’ reason for engaging in commercial acts with Streb are irrelevant to the question of whether Streb solicited or patronized the underage girls for commercial sex acts knowing, or in reckless disregard of, the fact of their age or after having had a reasonable opportunity to observe them. Streb never identified specific portions of the Government's evidence that required the admission of these additional records, and this alone is fatal to his claim. E.g. McCoy , 593 F.3d at 747 (rejecting Rule 106 objection where counsel failed to explain why the entire report should be admitted or point to which portions would be relevant to the issues at trial); Flentge , 151 F. App'x at 492 (rejecting Rule 106 objection where the defendant "never identified which portions of the record would be relevant to the trial and how the additional excerpts would place the government's evidence in context"). And admission of information regarding MVE's pregnancy and purchase of contraception would have violated Rule 412 ’s prohibition of "other sexual behavior" evidence.
Finally, Streb complains he was not allowed to introduce his own exhibit of written summary telephone records for MVB—proposed Defense Exhibit NN—when a similar electronic exhibit was already introduced as Government's Exhibit 16. See Tr. 1174–92; [ECF No. 360]. Streb wished to introduce the proposed exhibit in his cross-examination of Detective Gonzalez to establish MVB had contact with other individuals at or around the time the records showed she was in contact with Streb. But again, the defense offers no particular portion of Exhibit 16 that distorted or misled the jury for which the inclusion of the additional records were necessary under Rule 106. Moreover, any record of MVB's communications with other individuals has no bearing on Streb's communications with her and is irrelevant to the question for which Streb was on trial: whether or not he paid her for sex.
More practical problems existed with Streb's proposed Exhibit NN, however. Streb sought to admit the exhibit during the cross-examination of Detective Gonzalez without any prior notice or disclosure to the Government or the Court. The proposed exhibit added three pages that were not a part of the original document, and was missing two-thirds of the actual data from the records. Tr. 1182–84. Detective Gonzalez was asked to examine the document, with approximately 2,000 lines of data, over a lunch recess. Tr. 1185. The end result was that the only testimony offered in support of the proposed exhibit was that it was not accurate, was not complete, and itself misrepresented the data of the original records. Tr. 1187–88. And even as a summary of Government Exhibit 16, Streb did not comply with the notice requirements of Rule 1006. At the very least, Streb suffered no prejudice from being denied the opportunity to present an exhibit that was cumulative of the Government's.
C. Trial Management
Trial management falls well within the discretion of the trial court. United States v. Williams , 720 F.3d 674, 692 (8th Cir. 2013). Indeed, the Federal Rules of Evidence expressly permit—in fact, instruct—the trial court to "exercise reasonable control over the mode and order of examining witnesses and presenting evidence" for the purposes of determining the truth, avoiding wasted time, and protecting witnesses from harassment or undue embarrassment. Fed. R. Evid. 611(a). Streb raises a number of complaints related to the conduct of the trial, finding it to have been unfair.
Streb generally complains that the Court allowed the Government to employ leading questions when conducting direct examinations of the minor victims. See [ECF No. 383-1 at 17-18]. Typically, "[l]eading questions should not be used on direct examination except as necessary to develop the witness's testimony." Fed. R. Evid. 611(c). But "[t]he child witness is a long-recognized exception to this rule." United States v. Butler , 56 F.3d 941, 943 (8th Cir. 1995) (citing United States v. Nabors , 762 F.2d 642, 650 (8th Cir. 1985) ). The Eighth Circuit has long endorsed trial courts’ discretion in permitting the use of leading questions with victims of sexual offenses. See, e.g., United States v. Rossbach , 701 F.2d 713, 718 (8th Cir. 1983). In its review of the trial transcript, the Court finds the prosecution's use of leading questions was neither excessive nor inappropriate.
Streb also complains the Court restricted his cross-examination in a way that was "flawed and favored the Government" because it would not allow impeachment "unless the exact same question had been answered out of court by the witness and a different answer given by the witness." [ECF No. 383-1 at 22–26]. He asserts these limitations violated his Fifth and Sixth Amendment rights to present evidence in his defense and confront witnesses. See Davis v. Alaska , 415 U.S. 308, 94 S. Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). It did not. Though not technically required under the federal rules, see 1972 Advisory Committee Note to Fed. R. Evid. 613 ; see Rush v. Ill. Cent. R.R. Co. , 399 F.3d 705, 720 (6th Cir. 2005), it is well within a trial court's discretion to impose traditional common law procedural safeguards for the impeachment of minor witnesses with prior inconsistent statements, Fed. R. Evid. 611(a) ("The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to ... make those procedures effective for determining the truth ... avoid wasting time ... and ... protect witnesses from harassment or undue embarrassment."); see 28 Victor J. Gold, Federal Practice & Procedure § 6202 (noting the common law approach is "better suited to saving time and preventing unfair treatment of witnesses," and it "mitigates the danger that prior inconsistent statements will be used improperly for substantive purposes"); cf. United States v. Moore , 149 F.3d 773, 781 (8th Cir. 1998) ("Traditionally, courts have insisted that a witness be directed to a prior inconsistent statement during cross-examination, before the statement is admitted."). This is particularly true when questioning minor victim witnesses accusing a defendant of sex trafficking-related crimes. The effect of the defense's failure to properly impeach witnesses resulted in the insertion of misleading, out-of-context hearsay or statements prohibited by Rule 412 that would only have served to harass the minor victim witnesses and confuse the facts before the jury. See, e.g. , Tr. 491–93; 899–907; 911. Indeed, "[c]ourts must be watchful that impeachment is not used as a subterfuge to place otherwise inadmissible hearsay before the jury." United States v. Logan , 121 F.3d 1172, 1175 (8th Cir. 1997) (citing United States v. Rogers , 549 F.2d 490, 497 (8th Cir. 1976), cert. denied , 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1977) ). Streb was not prevented from fully exploring the minor victims’ prior statements to law enforcement and their consistency with trial testimony—any harm suffered by Streb as a result of the Court insisting on this impeachment procedure was harmless. See United States v. Bordeaux , 570 F.3d 1041, 1051 (8th Cir. 2009) (rulings on prior inconsistent statements are "subject to harmless error analysis" (citing United States v. Buffalo , 358 F.3d 519, 521–22 (8th Cir. 2004) )). The impeachment procedural requirement imposed by the Court to protect the minor victims and prevent confusion did not violate Streb's constitutional rights and does not require a new trial.
Finally, Streb complains the Court, in general, was hostile to the defense and favored the prosecution, unduly influencing the jury and tainting its verdict. "[T]he balance [between a judge's comments and the overall fairness of trial] is adversely tipped against the defendant in a criminal trial where the judge's role loses its color of neutrality and tends to accentuate and emphasize the prosecution's case." United States v. Williams , 720 F.3d 674, 694 (8th Cir. 2013) (alterations in original) (citation omitted). A new trial is warranted on these grounds only "where ‘the court's comments throughout a trial are one-sided and interfere with a defendant's case to such an extent that the defendant is deprived of the right to a fair trial.’ " Id. (citation omitted). After carefully reviewing the trial record, the Court concludes Streb's arguments of favoring the prosecution to be without merit.
D. Cumulative Effect
Streb last contends the Court should grant him a new trial based on the cumulative effect of errors in the proceedings, even if any one is insufficient, alone, to affect his substantial rights. A new trial may be granted to a criminal defendant "where the case as a whole presents an image of unfairness that has resulted in the deprivation of a defendant's constitutional rights, even though none of the claimed errors is itself sufficient to require reversal." United States v. Riddle , 193 F.3d 995, 998 (8th Cir. 1999) ; see also McBride , 862 F.2d at 1319–20 (finding cumulative errors of prosecutorial misconduct "seriously infected the fairness of the trial," warranting a new trial). But a new trial is not warranted based on the cumulative effect of trial errors "unless there is substantial prejudice to the defendant." United States v. Anwar , 428 F.3d 1102, 1115 (8th Cir. 2005) (denying new trial involving alleged Brady violations and prosecutorial misconduct because "[t]he cumulative effect, if any, of the claimed errors was not such as to deny [the defendant] a fair trial"); see also United States v. Steffen , 641 F.2d 591 (8th Cir. 1981) (same). Moreover, the doctrine does not apply to evidentiary rulings committed to the Court's discretion. United States v. Gladfelter , 168 F.3d 1078, 1083 (8th Cir. 1999). Here, the evidence weighed heavily against Streb and clearly established his guilt. Viewing the record as a whole, the cumulative effect of the claimed errors did not deny Streb a fair trial or result in a miscarriage of justice.
IV. CONCLUSION
Defendant Streb's Motion to For New Trial, [ECF No. 383], is DENIED.