USA v. McCoy, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ISAIAH McCOY,
Defendant.
_____________________________
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CR. NO. 23-00085 SOM/KJM
ORDER DENYING WITHOUT
PREJUDICE THE GOVERNMENT’S
AMENDED MOTION IN LIMINE TO
ADMIT EVIDENCE INEXTRICABLY
INTERTWINED, OR
ALTERNATIVELY, PURSUANT TO
RULE 404(B), ECF NO. 63;
ORDER GRANTING THE
GOVERNMENT’S MOTION IN LIMINE
REGARDING VICTIM IDENTITY AT
TRIAL, ECF NO. 67;
ORDER DENYING WITHOUT
PREJUDICE THE GOVERNMENT’S
MOTION IN LIMINE TO ADMIT
AGENT OPINION TESTIMONY
REGARDING SEX TRAFFICKING,
ECF NO. 68;
ORDER DENYING WITHOUT
PREJUDICE THE GOVERNMENT’S
MOTION IN LIMINE TO ALLOW
CROSS-EXAMINATION OF THE
DEFENDANT REGARDING A PRIOR
CONVICTION, ECF NO. 69;
ORDER GRANTING THE
GOVERNMENT'S MOTION IN LIMINE
TO PRECLUDE REFERENCE TO
PENALTY, ECF NO. 70; AND
ORDER GRANTING THE
GOVERNMENT’S MOTION IN LIMINE
REGARDING FEDERAL RULE OF
EVIDENCE 412, ECF NO. 73
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ORDER DENYING WITHOUT PREJUDICE THE GOVERNMENT'S AMENDED MOTION
IN LIMINE TO ADMIT EVIDENCE INEXTRICABLY INTERTWINED, OR
ALTERNATIVELY, PURSUANT TO RULE 404(B), ECF NO. 63; ORDER
GRANTING THE GOVERNMENT'S MOTION IN LIMINE REGARDING VICTIM
IDENTITY AT TRIAL, ECF NO. 67; ORDER DENYING WITHOUT PREJUDICE
THE GOVERNMENT'S MOTION IN LIMINE TO ADMIT AGENT OPINION
TESTIMONY REGARDING SEX TRAFFICKING, ECF NO. 68; ORDER DENYING
WITHOUT PREJUDICE THE GOVERNMENT'S MOTION IN LIMINE TO ALLOW
CROSS-EXAMINATION OF THE DEFENDANT REGARDING A PRIOR CONVICTION,
ECF NO. 69; ORDER GRANTING THE GOVERNMENT'S MOTION IN LIMINE TO
PRECLUDE REFERENCE TO PENALTY, ECF NO. 70; AND ORDER
GRANTING THE GOVERNMENT’S MOTION IN LIMINE REGARDING
FEDERAL RULE OF EVIDENCE 412, ECF NO. 73
I. INTRODUCTION
In a 20-count Indictment filed October 26, 2023,
Defendant Isaiah McCoy (“McCoy”) was charged with sex trafficking
of a minor and sex trafficking by force, fraud, or coercion
(Count 1–Victim 1); sex trafficking by force, fraud, or coercion
(Counts 2-5-Victims 2 through 5); interstate and foreign travel
or transportation in aid of racketeering enterprises (Counts 6-9,
11-12, 14-16); obstruction (Counts 17-19); and transportation for
purposes of prostitution (Count 20-Victim 4).
Co-Defendant Anwar Al Rasul was charged with interstate
and foreign travel or transportation in aid of racketeering
enterprises in Counts 10, 11, and 13. Pursuant to a memorandum
of plea agreement, Al Rasul entered a guilty plea to Count 10.
In return, the Government agreed to dismiss Counts 11 and 13
against him at his upcoming sentencing. See ECF Nos. 58, 59.
The Government filed the following motions in limine:
(1) Amended Motion in Limine to Admit Evidence as Inextricably
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Intertwined, or Alternatively, Pursuant to Rule 404(B), ECF No.
63; (2) Motion in Limine Regarding Victim Identity at Trial, ECF
No. 67; (3) Motion in Limine to Admit Agent Lay Opinion Testimony
Regarding Sex Trafficking, ECF No. 68; (4) Motion in Limine to
Allow Cross-Examination of the Defendant Regarding a Prior
Conviction, ECF No. 69; (5) Motion in Limine to Preclude
Reference to Penalty, ECF No. 70; and (6) Motion in Limine
Regarding Federal Rule of Evidence 412, ECF No. 73. See ECF Nos.
63, 67, 68, 69, 70, and 73. Defendant Isaiah McCoy filed
responses to these motions, and the Government filed reply
memoranda in support of the motions. See ECF Nos. 183, 191, 205-
207, 217, and 218. A hearing on the motions was held on May 10,
2024, at which the parties were given an opportunity to present
arguments.
After the hearing, McCoy sought and was granted leave
to file a supplemental opposition regarding the Rule 412 motion,
and the Government filed a response to McCoy’s supplement. The
court, having considered all of the arguments by the parties,
rules as follows:
(1) The Government’s Amended Motion in Limine to Admit
Evidence as Inextricably Intertwined, or Alternatively, Pursuant
to Rule 404(B), ECF No. 63, is denied without prejudice;
(2) The Government’s Motion in Limine Regarding Victim
Identity at Trial, ECF No. 67, is granted;
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(3) The Government’s Motion in Limine to Admit Agent
Opinion Testimony Regarding Sex Trafficking, ECF No. 68, is
denied without prejudice;
(4) The Government’s Motion in Limine to Allow Cross-
Examination of the Defendant Regarding a Prior Conviction, ECF
No. 69, is denied without prejudice;
(5) The Government’s Motion in Limine to Preclude
Reference to Penalty, ECF No. 70, is granted; and
(6) The Government’s Motion in Limine Regarding Federal
Rule of Evidence 412, ECF No. 73, is granted.
In denying certain motions without prejudice, this
court is expressly indicating that trial evidence may end up
justifying the rulings sought by those motions even though the
record at this time does not support such rulings.
II. ANALYSIS.
A. The Government’s Amended Motion in Limine to Admit
Evidence as Inextricably Intertwined, or
Alternatively, Pursuant to Rule 404(B), ECF No.
63, is Denied Without Prejudice.
The Government has provided notice that it intends to
offer evidence of McCoy’s other bad acts during its case-in-
chief, including:
(1) evidence of McCoy’s incarceration for the
state robbery charge;
(2) evidence of McCoy’s violation of bail
conditions for state robbery charge;
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(3) evidence of McCoy’s prior legal proceedings;
(4) evidence that McCoy obtained and
transferred contraband through a prison
guard;
(5) evidence that McCoy obtained a stolen
credit card and directed Victim 2 to use it
to pay his bond;
(6) evidence that McCoy coerced Victim 4 to
perjure herself in his Hawaii state robbery
trial;
(7) evidence of McCoy’s sex acts with Minor
Victim 1;
(8) evidence of McCoy’s use of violence
against the alleged victims; and
(9) evidence of McCoy’s broader commercial
sex enterprise.
Rule 404(b) of the Federal Rules of Evidence generally
controls whether evidence of other crimes, wrongs, or acts is
admissible:
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any
other crime, wrong, or act is not admissible
to prove a person’s character in order to
show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted Uses. This evidence may
be admissible for another purpose, such as
proving motive, opportunity, intent,
preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.
(3) Notice in a Criminal Case. In a criminal
case, the prosecutor must:
(A) provide reasonable notice of
any such evidence that the prosecutor intends
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to offer at trial, so that the defendant has
a fair opportunity to meet it;
(B) articulate in the notice the
permitted purpose for which the prosecutor
intends to offer the evidence and the
reasoning that supports the purpose; and
(C) do so in writing before trial —
or in any form during trial if the court, for
good cause, excuses lack of pretrial notice.
A trial court will admit Rule 404(b) evidence when
“(1) the evidence tends to prove a material point; (2) the prior
act is not too remote in time; (3) the evidence is sufficient to
support a finding that the defendant committed the other act; and
(4) (in cases where knowledge and intent are at issue) the act is
similar to the offense charged.” United States v. Verduzco, 373
F.3d 1022, 1027 (9 Cir. 2004)	th
The Ninth Circuit does not consider certain evidence to
be “other crimes, wrongs, or acts” for purposes of Rule 404(b).
This includes evidence that the “other” act and the crime charged
in the instant indictment are “inextricably intertwined.” United
States v. Dorsey, 677 F.3d 944, 951 (9 Cir. 2012). The Ninth	th
Circuit has explained that two general categories of “other” acts
are generally considered to be intertwined with a charged crime:
“First, other act evidence may constitute a part of the
transaction that serves as the basis for the criminal charge.
Second, admission of other act evidence may be necessary to
permit the prosecutor to offer a coherent and comprehensible
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story regarding the commission of the crime.” Id. (quotation
marks, alterations, and citations omitted). Evidence in these
categories may be admitted without Rule 404(b) considerations.
The court deems the Government’s motion in limine to be
its notice pursuant to Rule 404(b)(3). To the extent the
Government seeks a pretrial ruling that such evidence is
admissible, the motion is denied at this time without prejudice
to being revisited during trial. Rather than ruling pretrial
that the Government may offer certain evidence of “other” bad
acts or that bad acts are inextricably intertwined with the
charged conduct, the court thinks the better course is to wait
until trial clarifies the context in which that evidence is
offered. That context can then inform any decision as to whether
to admit such evidence. The Government’s motion does not include
sufficient detail for the court to make an informed
determination. Accordingly, the court denies the Government’s
motion in limine to admit Rule 404(b) evidence or to rule that
the evidence is inextricably intertwined with the charged
conduct. The court expects that the issues raised by the motion
will be addressed during trial.
If at trial the Government seeks to introduce the
evidence in issue, it must first provide the court and McCoy with
notice of its intent to do so outside the presence of the jury.
The Government may then provide the court with an offer of proof
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outside the jury’s presence before going into any area involving
Rule 404(b) evidence or evidence of bad acts that are
inextricably intertwined with the charged conduct.
To assist the parties during upcoming trial
proceedings, this court address here each of the nine categories
identified in the motion.
1. Evidence of McCoy’s Incarceration Arising Out
of the State Robbery Charge.
The Government specifically seeks to introduce evidence
of McCoy’s incarceration relating to a state robbery charge (both
pretrial and upon sentencing), arguing that such evidence is
inextricably intertwined with proving that the victims in this
case engaged in commercial sex acts to avoid harm from McCoy. On
the present record, it is not clear what the evidence will show
or why specific reference to what crime McCoy was incarcerated
for is necessary.
For example, the Government says it has recorded jail
calls. Whether it is necessary for the Government to show where
McCoy was at the time the calls were recorded is not yet clear.
Similarly, the Government says that McCoy used the phone to
coerce, cajole, and threaten alleged victims, but the record is
unclear as to what precisely that involved.
The Indictment alleges that McCoy used “jailhouse
telephones” to facilitate interstate travel or transportation in
aid of racketeering enterprise. McCoy was allegedly incarcerated
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from October 7 through December 2, 2019. Count 11 alleges that
between October 17 and October 19, 2019, McCoy used a cellular
telephone to discuss the booking of and collection of payments
for commercial sex dates. The Indictment suggests that McCoy was
incarcerated when he made those calls. It may indeed be
necessary for the jury to hear where McCoy was when the calls
were made, but this court presently lacks a basis for so
concluding. Moreover, at the hearing on this motion in limine,
the Government conceded that, at least for purposes of its Rule
404(b) motion, it might not need to indicate what crime McCoy was
convicted of, even if it had to show that he was incarcerated.
This court also notes that it does not have sufficient material
to conduct an analysis balancing the prejudice to McCoy against
the probative value of the proffered evidence under Rule 403.
This court understands that the Government’s position
is that McCoy was making calls from prison to force victims to
put money into his prison account or to pay his bond. This
evidence may well end up being admitted. However, given the
dearth of information before this court as to exactly what the
Government intends to introduce, the court denies the request to
admit such evidence without prejudice to a future consideration
of this issue on a fuller record.
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2. Evidence of McCoy's Alleged Violation of Bail
Conditions With Respect to the State Robbery
Charge.
The Government represents that McCoy violated his bail
conditions with respect to the state robbery charge when he
attempted to fly from Honolulu to California to have his alleged
victims engage in commercial sex. The Government says that, on
October 7, 2019, McCoy went to the airport with Victims 2 and 3.
McCoy allegedly gave Victim 2 $1000 in cash to buy airline
tickets for the three of them. McCoy told them that he was
flying without a government-issued identification. After a TSA
interview, McCoy was allowed to go through security, but was
later arrested. McCoy was allegedly carrying all of Victim 2’s
and Victim 3’s money, except for the money Victim 2 had after
purchasing the tickets. When he was arrested, McCoy allegedly
told the women to “book a room,” which they understood to mean
that they should engage in commercial sex work.
The Government says evidence of the alleged violation
of bail conditions should be admitted to show the control McCoy
exercised over the alleged victims. Some of the evidence
surrounding the attempted travel is likely admissible, but this
court cannot on this record say the probative value of the
evidence outweighs the prejudicial effect of mentioning a bail
violation. Thus, for example, holding an alleged victim’s money
may indicate control, but whether the prejudice of mentioning a
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violation of bail conditions outweighs the value of that evidence
cannot now be determined. Possibly, the Government should offer
the evidence of control and of alleged sex trafficking and even
of McCoy’s arrest without referring to a “bail violation.”
Similarly, telling the women to “book a room” does seem
inextricably intertwined with Counts 2 and 3 (pertaining to sex
trafficking of Victims 2 and 3), as the alleged victims allegedly
immediately began to engage in commercial sex work, but it is not
clear that the Government needs to refer to a “bail violation.”
It may well be that it is necessary for the Government
to introduce evidence with respect to why McCoy was arrested at
the airport to give context to his “book a room” statement.
Indeed, a reference to a “bail violation” may be less prejudicial
than letting the jury speculate that the arrest was for something
much worse. However, the court cannot perform the necessary
analysis under either Rule 404(b) or Rule 403 given the sparse
record before it.
The Government also contends that McCoy used the fact
of his arrest to later intimidate Victim 2. This court requires
greater context to properly balance such Rule 404(b) and Rule 403
matters.
To the extent the Government seeks an order admitting
evidence that McCoy violated bail conditions, the request is
denied without prejudice to possible later consideration of
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admission at trial of such material.
3. Evidence of McCoy’s Prior Legal Proceedings.
The Government says that McCoy bragged to alleged
victims about having been on death row for a murder in Delaware
and about having gotten earlier sex trafficking charges
dismissed. The Government argues that in making such statements
McCoy hoped to show that he was “untouchable” and that victims
should therefore do whatever he wanted. There is allegedly a
recorded call in which McCoy tells an alleged victim to Google
his name to learn more about his prior criminal matters.
This may well be evidence that is inextricably
intertwined with the existing charges of sex trafficking by force
or coercion. However, the exact factual context of any such
statement is necessary for this court to decide whether, for
example, McCoy’s statements were threatening (e.g., an implicit
statement that victims should understand his vast ability to
obtain whatever he wanted).
The court therefore denies the Government’s request to
admit evidence of McCoy’s prior legal proceedings at this time,
although this denial is subject to review as trial proceeds.
4. Evidence That McCoy Obtained and Transferred
Contraband Through a Prison Guard.
The Government seeks to introduce evidence that McCoy
directed Victims 2 and 3 and Al Rasul (his brother) to deliver
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commercial sex proceeds to a prison guard (Jon Estabilio ) to	1
induce the guard to provide him with an illicit cellular phone.
McCoy allegedly sought to continue to direct his commercial sex
activities while in prison. A contraband cellular telephone
would not be monitored.
Such evidence is likely inextricably intertwined with
some of the charges (e.g., Counts 11 and 12). However, context
is needed for the court to make an informed decision as to
whether that evidence should be admitted. The Government’s
request is denied without prejudice.
5. Evidence That McCoy Obtained a Stolen Credit
Card and Directed Victim 2 to Use it to Pay
McCoy’s Bond.
The Government says that McCoy arranged to have a
prison guard (Estabilio) give Victim 2 a stolen credit card,
which she used to withdraw money to post McCoy’s bond. Victim 2
was later arrested and entered a guilty plea to the unauthorized
use of the card. McCoy allegedly attempted to control Victim 2’s
decision to plead guilty.
While this conduct seems inextricably intertwined with
the charge in Count 17, pertaining to obstruction with respect to
Victim 2, the court declines to admit the evidence at this time.
In February 2021, pursuant to a plea agreement, Estabilio	1
entered a guilty plea in Criminal No. 21-00005 LEK to having
possessed with intent to distribute 5 grams or more of
methamphetamine found during an administrative search at the Oahu
Community Correctional Center, among other things. See United
States v. Estabilio, Crim. No. 21-00005 LEK, ECF No. 30.
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Again, factual context that will allow the court to make a more
reasoned decision as to the admissibility of such evidence is
necessary.
6. Evidence That McCoy Coerced Victim 4 to
Perjure Herself in His Hawaii State Robbery
Trial.
The Government says that McCoy coerced Victim 4 to
perjure herself in McCoy’s robbery trial. Victim 4 will
supposedly testify that she lied because McCoy was still actively
trafficking her and controlling every aspect of her life.
These acts appear to be related to Count 4, which
pertains to the sex trafficking of Victim 4. McCoy’s alleged
coercion of Victim 4 to perjure herself may or may not be
inextricably intertwined with the sex trafficking charge. Under
Rule 404(b), such evidence may also serve “another purpose,”
tending to show the extent that McCoy was controlling Victim 4
and implementing his “plan,” and the “absence of a mistake” by
him. The uncertainty of how such evidence will be used gives the
court pause. Rather than admitting such evidence at this time,
the court denies the request without prejudice so that the court
can make a more informed decision based on a more detailed
factual context at trial.
7. Evidence of McCoy’s Sex Acts With a Minor
Victim.
The Government seeks to introduce evidence that, while
allegedly having sex with McCoy, Minor Victim 1 at first told him
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that she was 18 years old, but later followed up with a text
message saying that she was only 16. Even after she sent that
text message, McCoy allegedly continued to arrange commercial sex
acts for Minor Victim 1.
The Government has not shown on the present record why
it is necessary to show that McCoy was having sex with the minor
when she told him she was 18. With respect to the motion in
limine, at this point, all that appears to matter is that Minor
Victim 1 originally told McCoy that she was 18, but later told
him she was 16. If the Government offers those statements
without referencing any sex acts between McCoy and Minor
Victim 1, the court is at this time unaware of any reason the
Government could not then add evidence that, despite being told
she was 16, McCoy still arranged commercial sex dates for her and
collected all of the earnings from those dates.
The court recognizes that the Government has filed a
separate motion based on Rule 412, which includes allowances for
evidence “offered by the prosecutor.” However, with respect to
the Rule 404(b) motion, the court leaves the determination of
admissibility for trial, when the court will have a fuller
record.
8. Evidence of McCoy's Use of Violence Against
the Victims.
The Government seeks to introduce evidence that McCoy
used violence against the alleged victims (or directed others to
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do so) to get them to fear serious harm if they did not
participate in the alleged sex trafficking activities. It is not
clear that such evidence goes to “other crimes, wrongs, or acts,”
as contemplated by Rule 404(b). Instead, these acts may go
directly to the element of force or coercion in the counts
charging McCoy with sex trafficking by force, fraud, or coercion.
To the extent the Government seeks a pretrial ruling
admitting evidence of how a victim’s state of mind was affected
by what she heard or of how violence against any victim caused
fear of McCoy, the court denies the Government’s motion without
prejudice to the renewal of the request when a better record
gives context to specific evidence.
9. Evidence of McCoy's Broader Commercial Sex
Enterprise.
The Government seeks admission of evidence with respect
to McCoy’s efforts to recruit Victims 6, 7, and 8 (who are not
the subjects of substantive charges in the Indictment), as well
as to compel Victim 9 (who is not the subject of any substantive
charge in the Indictment) to engage in commercial sex work at the
same time as McCoy was directing Victims 2 and 4. This request
is denied without prejudice. Providing the court with more
detail will allow the court to determine whether this evidence is
admissible under Rule 404(b) and to weigh the evidence under Rule
403.
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B. The Government’s Motion in Limine Regarding Victim
Identity at Trial, ECF No. 67, is Granted.
The Government asks that the alleged victims be
referred to by their first names or initials only and that they
not be required to disclose their home addresses. Under the
Crime Victims Rights Act, 18 U.S.C. § 3771(a)(8), a “crime victim
has . . . (8) The right to be treated with fairness and with
respect for the victim’s dignity and privacy.” The Government
argues that sex trafficking victims should be protected from
public humiliation, embarrassment, potential harassment, and
other consequences with respect to testifying about commercial
sex acts and related activities of manipulation, mental abuse,
threats of harm, wrongful distribution of intimate visual victim
images, and physical violence.
McCoy states that he does not wish to share the
victims’ addresses or places of employment, see ECF No. 183,
PageID # 1378. However, he argues that names might be pertinent
if the alleged victims were in a conspiracy with him.
The court grants the Government’s motion. While the
full names of the victims must be disclosed to McCoy so that he
can prepare his defense, the public need not know the names and
addresses of the victims, who can be referred to by their first
names and last initials or by first and last initials. This
preserves McCoy’s right of confrontation. Whether an alleged
victim was in a conspiracy with him does not change the analysis.
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McCoy can still argue that a particular alleged victim,
identified by first name and last initial or by first and last
initials, was in a conspiracy with him and that he therefore did
not force or otherwise compel her to perform sex acts.
The court suggests that for purposes of voir dire, the
alleged victims’ full names be included on a written list of
potential witnesses that can be provided to prospective jurors
without referencing that they are alleged victims. The witnesses
can all be numbered so that jurors can refer to them by numbers.
This court also rules that, in addition to barring the public
disclosure at trial of any alleged victim’s full name, court
filings referring to victims should also use first names and last
initials or initials only.
C. The Court Denies Without Prejudice the
Government’s Motion in Limine to Admit Agent
Opinion Testimony Regarding Sex Trafficking, ECF
No. 68.
The Government seeks an order allowing Special Agent
Chantel Custer to testify both as a percipient witness and as an
expert witness who will offer opinion testimony based on her
training and experience with respect to sex trafficking methods
and practices. The motion is denied without prejudice.
While the court recognizes that an agent may testify
both as a percipient witness and an expert witness, this court
does not have before it Custer’s proposed opinions or her
qualifications to give those opinions. Before Custer may offer
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any opinion testimony, she must be qualified as an expert based
on her training and experience pursuant to Rule 702. If expert
testimony is allowed, the Government must make clear when she is
testifying as a lay witness and when she is testifying as an
expert. The Government may consider using two separate
testimonies (which can be back-to-back), one as an expert and one
as a lay witness. In the event Custer is allowed to testify both
as a lay and expert witness, the court will consider proposals
regarding a jury instruction with respect to those dual roles.
D. The Court Denies Without Prejudice The
Government’s Motion in Limine to Allow Cross-
Examination of the Defendant Regarding a Prior
Conviction, ECF No. 69.
If McCoy testifies, the Government seeks to introduce
his Hawaii state court felony conviction for robbery. The
robbery included a physical attack on a Japanese tourist, whose
watch was taken. On May 3, 2021, a jury convicted McCoy of
violating section 708-841(1)(A) of Hawaii Revised Statutes (“A
person commits the offense of robbery in the second degree if, in
the course of committing theft . . . : (a) The person uses force
against the person of anyone present with the intent to overcome
that person’s physical resistance or physical power of
resistance”). On January 24, 2024, the Intermediate Court of
Appeals for the State of Hawaii affirmed McCoy’s conviction. See
State v. Pulliam, et al., No. CAAP-21-0000678, 153 Haw. 445, 541
P.3d 665 (Ct. App. Jan. 26, 2024) (unpublished). As of May 24,
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2024, judgment has not been entered in that case such that the
time for seeking certiorari with the Hawaii Supreme Court has
begun to run under Rule 40.1 of the Hawaii Rules of Appellate
Procedure. According to the docket in that case, McCoy has not
yet sought certiorari with respect to the ICA ruling.2
The Government seeks to introduce the robbery
conviction under Rule 609, arguing that, under United States v.
Alexander, 48 F.3d 1477 (9 Cir. 1995), robbery convictions are	th
probative of veracity.
Under Rule 609(a)(1) of the Federal Rules of Evidence,
a criminal defendant’s character for truthfulness may be attacked
through evidence of a criminal conviction if the defendant was
convicted of a felony and “the probative value of the evidence
outweighs its prejudicial effect.” It is not clear from the
record that McCoy’s robbery conviction involved any factor
affecting his truthfulness.
Under Rule 403, this court must balance the probative
value of evidence of McCoy’s robbery conviction against its
prejudicial effect. Alexander, which the Government cites,
states that prior convictions for robbery are probative of
veracity. 48 F.3d at 1489. However, the Ninth Circuit’s
pronouncement in Alexander was made in the context of citing
Rule 609(e) of the Federal Rules of Evidence provides, “A	2
conviction that satisfies this rule is admissible even if an
appeal is pending. Evidence of the pendency is also admissible.”
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United States v. Givens, 767 F.2d 574 (9 Cir. 1985). Givens	th
recognized the possibility that a crime might be committed by
fraudulent or deceitful means, but noted that crimes of violence,
theft crimes, and crimes of stealth do not generally involve
dishonesty or a false statement for purposes of Rule 609(a)(2)
(which allows evidence of any crime if the court can readily
determine that establishing the elements of a crime requires
proving a dishonest act or false statement). Givens also stated
that robbery convictions are probative of veracity, citing as
authority United States v. Oaxaca, 569 F.2d 518, 527 (9 Cir.	th
1978). Oaxaca involved prior convictions for theft and bank
robbery in a case involving armed bank robbery. The Ninth
Circuit noted in Oaxaca that a conviction for theft is more
indicative of credibility than a conviction for a crime of
violence. Id., 569 F.3d at 527. McCoy’s state court conviction
involved taking a tourist’s watch by force. The Government does
not explain how that implicates McCoy’s credibility.
At the hearing, the Government argued that stealing a
watch demonstrates dishonesty. Under Rule 609(a)(1)(B), a
criminal conviction may be used to attack a defendant’s character
for truthfulness and “must be admitted in a criminal case in
which the witness is a defendant, if the probative value of the
evidence outweighs its prejudicial effect to that defendant.” At
this point, it is unclear whether the probative value of McCoy’s
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violent taking of a watch from a tourist is outweighed by the
prejudice to McCoy.
E. The Court Grants the Government’s Motion in Limine
to Preclude Reference to Penalty, ECF No. 70.
The Government seeks to preclude evidence of what
penalty McCoy faces if convicted. The motion is granted. See
United States v. Lynch, 903 F.3d 1061, 1080 (9 Cir. 2018)	th
(“when a jury has no sentencing function, it should be admonished
to ‘reach its verdict without regard to what sentence might be
imposed.’” (quoting Shannon v. United States, 512 U.S. 573, 579
(1994)).
F. The Court Grants the Government’s Motion in Limine
Regarding Federal Rule of Evidence 412, ECF No.
73.
The Government seeks an order precluding all details of
the alleged victims’ other commercial sex acts and all evidence
of the alleged victims’ sexual behavior or sexual predisposition
unrelated to a relationship with McCoy during the time periods
alleged in the Indictment. This motion is governed by Rule 412
of the Federal Rules of Evidence, which states:
(a) Prohibited Uses. The following evidence
is not admissible in a civil or criminal
proceeding involving alleged sexual
misconduct:
(1) evidence offered to prove that a
victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s
sexual predisposition.
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(b) Exceptions.
(1) Criminal Cases. The court may admit
the following evidence in a criminal case:
(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.
. . . .
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer
evidence under Rule 412(b), the party must:
(A) file a motion that specifically
describes the evidence and states the purpose
for which it is to be offered;
(B) do so at least 14 days before
trial unless the court, for good cause, sets
a different time;
(C) serve the motion on all
parties; and
(D) notify the victim or, when
appropriate, the victim’s guardian or
representative.
(2) Hearing. Before admitting evidence
under this rule, the court must conduct an in
camera hearing and give the victim and
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parties a right to attend and be heard.
Unless the court orders otherwise, the
motion, related materials, and the record of
the hearing must be and remain sealed.
(d) Definition of “Victim.” In this rule,
“victim” includes an alleged victim.
Under the circumstances presented, the court grants the
Government’s motion to preclude evidence under Rule 412(a).
“Evidence of other acts of prostitution is irrelevant to whether
[the defendant] used force, fraud, or coercion to cause [the
victim] to engage in commercial sex acts.” United States v.
Jackson, 806 F. App'x 533, 535 (9 Cir. 2020); see also United	th
States v. Haines, 918 F.3d 694, 697 (9 Cir. 2019) (noting that	th
courts routinely bar evidence of a sex trafficking victim’s other
prostitution activities; further noting that evidence of other
prostitution activities has little or no relevance to whether a
victim is forced or coerced into prostitution). “Courts have
reasoned that just because a victim agreed to engage in sex for
money on other occasions does not mean she consented to, e.g.,
being beaten or having her earnings confiscated by the
defendant.” Haines, 918 F.3d at 697–98.
The court is not persuaded by McCoy’s reliance on a
North Carolina state court rule and cases interpreting that rule.
See ECF No. 217. That authority is inapposite, as the rule
applied in the cases McCoy cites differs from Rule 412 of the
Federal Rules of Evidence.
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Notwithstanding this ruling, McCoy may ask the court
for permission to introduce specific instances of Rule 412
evidence. Thus, for example, to the extent McCoy wants to
introduce evidence that an alleged victim was actually his
willing coconspirator, McCoy may follow the procedure set forth
in Rule 412(c). In other words, after reviewing applicable
discovery, McCoy may file a motion in limine under Rule 412(c)
that seeks to admit specifically described evidence for an
identified purpose. Any such motion in limine must be filed by
the motion in limine deadline. See ECF No. 140.
III. CONCLUSION.
As set forth above, the court rules on the motions in
limine as follows:
(1) The Government’s Amended Motion in Limine to Admit
Evidence as Inextricably Intertwined, or Alternatively, Pursuant
to Rule 404(B), ECF No. 63, is DENIED without prejudice;
(2) The Government’s Motion in Limine Regarding Victim
Identity at Trial, ECF No. 67, is GRANTED;
(3) The Government’s Motion in Limine to Admit Agent
Opinion Testimony Regarding Sex Trafficking, ECF No. 68, is
DENIED without prejudice;
(4) The Government’s Motion in Limine to Allow Cross-
Examination of the Defendant Regarding a Prior Conviction, ECF
No. 69, is DENIED without prejudice;
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(5) The Government’s Motion in Limine to Preclude
Reference to Penalty, ECF No. 70, is GRANTED; and
(6) The Government’s Motion in Limine Regarding Federal
Rule of Evidence 412, ECF No. 73, is GRANTED, with the caveat
that this ruling is not a bar to McCoy’s filing of a timely
motion seeking permission to admit specific evidence under Rule
412(c).
To summarize, the court DENIES three of the
Government’s six motions in limine without prejudice to the
revisiting at trial of the matters raised by those motions. At
trial, the court may, on a fuller record, continue to decline to
admit the evidence in issue or determine that the evidence should
be admitted. The court GRANTS three motions in limine, stressing
that not only are witnesses barred from testifying about the
matters raised by those motions, but in addition the Government
and Mr. McCoy may not refer to such matters in the jury’s hearing
during jury selection, opening statements, or closing arguments.
It is the responsibility of any party calling any witness to
advise that witness that the witness may not refer to any matter
with respect to which the court has granted a motion in limine.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 28, 2024.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
United States of America v. Isaiah McCoy, Cr. No. 23-00085 SOM/KJM; ORDER
DENYING WITHOUT PREJUDICE THE GOVERNMENT'S AMENDED MOTION IN LIMINE TO ADMIT
EVIDENCE INEXTRICABLY INTERTWINED, OR ALTERNATIVELY, PURSUANT TO RULE 404(B),
ECF NO. 63; ORDER GRANTING THE GOVERNMENT'S MOTION IN LIMINE REGARDING VICTIM
IDENTITY AT TRIAL, ECF NO. 67; ORDER DENYING WITHOUT PREJUDICE THE
GOVERNMENT’S MOTION IN LIMINE TO ADMIT AGENT OPINION TESTIMONY REGARDING SEX
TRAFFICKING, ECF NO. 68; ORDER DENYING WITHOUT PREJUDICE THE GOVERNMENT’S
MOTION IN LIMINE TO ALLOW CROSS-EXAMINATION OF THE DEFENDANT REGARDING A PRIOR
CONVICTION, ECF NO. 69; ORDER GRANTING THE GOVERNMENT'S MOTION IN LIMINE TO
PRECLUDE REFERENCE TO PENALTY, ECF NO. 70; AND ORDER GRANTING THE GOVERNMENT'S
MOTION IN LIMINE REGARDING FEDERAL RULE OF EVIDENCE 412, ECF NO. 73.
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