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United States v. Sexton

United States District Court, S.D. West Virginia, Bluefield

December 17, 2019



          David A. Faber Senior United States District Judge

         Defendant, Jeffrey William Sexton, Jr., is charged in a single count indictment alleging he violated 18 U.S.C. §2423(b) and (e), which criminalizes the act of traveling in interstate commerce for the purpose of engaging in any illicit sexual conduct with another person, in this case, a minor, or attempting to do so.

         I. Background [1]

         On or about May 28, 2019, an undercover task force officer (TFO) with the FBI's Violent Crimes Against Children Task Force was posing as a minor female on Skout, a mobile device social networking application that allows users to locate and communicate with other individuals located in their general vicinity. While the TFO's profile indicated that she was over 18 years old, the TFO would inform users that she was 13 years old.

         The TFO was contacted by a user named “Jeff” who was later identified as defendant. The TFO and defendant communicated with each other on May 28 and 29, 2019, until the TFO's profile was shut down by Skout (presumably after being reported as a minor). On May 30, 2019, the TFO created a new profile using the same persona and defendant again initiated communications with the undercover TFO. When the minor stated that she believed she had previously chatted with defendant using a different account, defendant seemingly remembered her and stated, “Your 13.”

         On May 31, 2019, defendant contacted the TFO and asked where she lived. The TFO indicated that she was currently in Beckley but would be returning to Bluefield the next day. Late that evening, defendant contacted the TFO's online persona via a different account, stating that he had accounts with both Skout and MeetMe, a sister company providing a similar chat application where users could communicate across both applications. Ultimately, after a lot of back and forth, defendant and the TFO made plans to meet that night at a church parking lot off College Avenue, in Bluefield, West Virginia. Just before 1:00 a.m., on June 1, 2019, defendant drove past the meeting location twice and told the TFO to stand under a light so he could see her. At that time, defendant was stopped by law enforcement and placed under arrest.

         Following his arrest, defendant was advised of and waived his Miranda rights and gave a recorded statement. That statement is approximately one hour and 19 minutes long. In the course of that statement, Sexton acknowledged that he understood he was speaking to a 13-year-old girl and that he was the “Jeff” involved in the conversations. He recounted traveling from Virginia to the meeting location in West Virginia. Defendant stated that he had used the Skout/MeetMe applications to find sexual or romantic partners. As for his communications with the TFO regarding oral sex, defendant stated that question was designed to find out if the TFO had intentions that were sexual in nature because, if she did, he would have stopped talking to her. He insisted that he only intended to meet the undercover TFO to listen to music in his car.

         A search warrant was later served on The Meet Group, the parent company of MeetMe and Skout, requesting defendant's chats from one of his profiles during the time period of May 28 to June 1, 2019. In response to the search warrant, the government has identified three conversations with individuals other than the TFO that it seeks to offer as evidence in this case. On May 31, 2019, defendant was chatting with two other individuals purporting to be minors (“Unknown User 1" and “Unknown User 2").[2]Also, on the evening of May 31 and into the early morning hours of June 1, defendant was seemingly making plans with an adult female (“Kelley”) to travel to her location in Princeton to engage in sexual intercourse.

         Pending before the court are defendant's motions to “exclude any messages the defendant allegedly sent to or received from any other person other than the undercover law enforcement officer portraying himself as a minor female” and asking the court to require the government to play defendant's entire statement given to law enforcement should the government elect to utilize the statement. (ECF No. 29). The government filed a response in opposition to defendant's motion, see ECF No. 40, and a hearing on defendant's motions was held on November 5, 2019. At that hearing, the government stated that it intended to play four excerpts of defendant's statement but that defense counsel had been unable to review those statements. Defendant was provided additional time to respond in writing to the identified excerpts and the government was directed to provide a copy of defendant's entire statement to the court.

         On November 15, 2019, defendant filed a supplemental response to his motion regarding the government's use of defendant's statement at trial. See ECF No. 46. A week later, on November 22, 2019, the government filed a reply. See ECF No. 47. On December 3, 2019, in response to defendant's proposed jury instruction on entrapment, the government filed a supplemental response to defendant's pretrial motions. See ECF No. 52. The motions are ripe for decision.

         II. Analysis

         A district court's evidentiary ruling are reviewed for abuse of discretion. See United States v. Taylor, 754 F.3d 217, 226 n.* (4th Cir. 2014). An abuse of discretion occurs only when a district court “act[s] arbitrarily or irrationally in admitting evidence.” United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006).

         A. Chats with Unknown User 1, Unknown User 2, and Kelley

         Federal Rule of Evidence 404(b) prohibits the admission of “[e]vidence of a crime, wrong, or other act . . . to prove a person's character in order to show that on a particular occasion the person acted in accord with the character.” Fed.R.Evid. 404(b). Such “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. To be admissible, the evidence must be “(1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged offense; and (3) reliable.” United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004) (citing United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997)). “Additionally, the probative value of the evidence must not be substantially outweighed by the danger it will cause unfair prejudice.” Id.

         Evidence of other bad acts also “may be introduced if it concerns acts `intrinsic to the alleged crime' because evidence of such acts do[es] not fall under Rule 404(b)'s limitations' to begin with.” United States v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013) (quoting United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996)). Evidence is intrinsic “if it arose out of the same . . . series of transactions as the charged offense, . . . or if it is necessary to complete the story of the crime (on) trial.” United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (citations omitted). “Evidence is [also] ...

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