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United States v. Delay

United States District Court, W.D. Washington, Seattle

October 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID D. DELAY, Defendant.

          ORDER ON MOTIONS IN LIMINE

          ROBERT S. LASNIK UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on various evidentiary motions by both parties. The government's relevant motions are: “Motion to Exclude Evidence of Victims' Other Sexual Behavior and Sexual Predisposition, ” Dkt. # 398; “Motion In Limine to Preclude Introduction of Irrelevant Information, ” Dkt. # 421; and “Motion to Exclude Unsubstantiated and Irrelevant Allegations of Sexual Misconduct, ” Dkt. # 431.

         Defendant's relevant motions are: “Defendant's FER 412 Motion, ” Dkt. # 442; “Motion In Limine to Exclude Testimony from S.R., ” Dkt. # 454; and “Motion In Limine to Exclude Testimony about Certain Sexual Conduct, ” Dkt. # 455.

         Having reviewed the filings submitted by the parties, the Court finds as follows.

         I. BACKGROUND

         Defendant David Delay is in trial on charges of sex trafficking and child pornography. Some of the government's witnesses, including some alleged victims, have criminal histories and other past difficulties that the government anticipates the defense might introduce as evidence or raise as impeachment material on cross-examination. To that end, the government filed several motions seeking to preclude that evidence. The defense also anticipates the government will introduce evidence involving Delay's sex life or other behavior, which the defense seeks to exclude.

         The parties agree on the admissibility of several pieces of evidence, but some disagreements remain. First, the parties disagree over whether the defense may cross-examine two alleged victims, S.W. and J.S., about various convictions and past difficulties as evidence of those witnesses' truthfulness, bias, or capacity to recall relevant events. Second, the parties disagree over whether the defense may inquire into certain aspects of the sexual behavior of M.K., a named victim. Third, the parties disagree over the admissibility of testimony from S.R., who is a witness but not a named victim. Fourth, the parties disagree whether the government may introduce evidence of Delay's sexual encounters with H.N., a named victim. Finally, though not squarely addressed in Delay's filings, the government's motions also cover the admissibility of the alleged victims' past involvement with prostitution.

         II. DISCUSSION

         A. Witness Credibility Evidence

         The defense seeks to cross-examine S.W. and J.S., two witnesses who are also named victims, regarding convictions and other difficulties in their pasts. In particular, the defense seeks to cross-examine S.W., who is now an adult, about multiple convictions and probation violations that occurred when she was a juvenile. For J.S., the defense seeks to cross-examine her about previous arrests in which she admittedly lied to police officers, and about a dependency petition by state authorities to determine whether J.S.'s daughter should be removed from her custody.

         Under Federal Evidence Rule 608, extrinsic evidence of specific conduct is inadmissible to prove a witness's character for truthfulness or untruthfulness, but the court may allow inquiry into those specific instances on cross-examination if the instances are probative of the witness's truthful or untruthful character. Fed.R.Evid. 608(b).

         For past criminal convictions, Rule 609 provides that evidence of a conviction is admissible to prove a witness's character for truthfulness or untruthfulness if the conviction is either for a felony or for a crime that involves “a dishonest act or false statement.” Fed.R.Evid. 609(a)(1), (2). The latter category “means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.” United States v. Brackeen, 969 F.2d 827, 830 (9th Cir. 1992) (quoting Fed.R.Evid. 609 advisory committee's note). Additionally, if the conviction stemmed from a juvenile adjudication, it is only admissible if, among other things, “admitting the evidence [of the conviction] is necessary to fairly determine guilt or innocence.” Fed. R. Evid 609(d)(4).

         1. S.W.

         The defense seeks to cross-examine S.W. on her probation violations, and on juvenile convictions for forging a driver's license, drug possession, and grand theft. S.W. was arrested several times for violating a term or condition of probation. The defense asserts that those violations go to S.W.'s credibility, because she presumably made in-court promises to abide by the probation conditions she later violated and “[s]omeone who continuously breaks trust with the court in regard to probation is unlikely to have much regard for the oath to tell the truth.” Dkt. # 439 at 8. Offenders on probation may violate its terms for any number of reasons, including substance abuse, personal weakness, or plain bad judgment, but breaking a promise is ...


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