USA v. Brown

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA
Plaintiff,
vs.
ROSS ANDREW BROWN,
Defendant.
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Cr. No. 23-00090 SOM
ORDER DENYING MOTION TO
ENSURE EXTRAJUDICIAL
STATEMENTS DO NOT PREJUDICE
THESE PROCEEDINGS
ORDER DENYING MOTION TO ENSURE EXTRAJUDICIAL
STATEMENTS DO NOT PREJUDICE THESE PROCEEDINGS
I. INTRODUCTION.
Defendant Ross Andrew Brown seeks an order compelling
the Government to refrain from communicating with the media
about:
(1) the character, credibility, or reputation
of a party;
(2) the identity of a witness or expected
testimony of a party or a witness;
(3) the contents of any pretrial confession,
admission, or statement given by a defendant
or that person’s refusal or failure to make a
statement;
(4) the identity or nature of physical
evidence expected to be presented or the
absence of such physical evidence;
(5) the strengths or weaknesses of the case
of either party; and
(6) any other information the Government
lawyer knows or reasonably should know is
likely to be inadmissible as evidence and
would create a substantial risk of prejudice
if disclosed.
Brown also asks the court to compel the Government to
correct, via an official press release, factual inaccuracies and
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misrepresentations. However, Brown does not identify what those
are.
Brown’s motion is denied because he has failed to show
that such an order is necessary. The media coverage of this case
has not been by any means overwhelming. The Government did issue
a press release that merely summarized what was already in the
public record. On the present record, this court concludes that
voir dire of prospective jurors with respect to pretrial
publicity and each juror’s ability to remain fair and impartial
will adequately protect Brown’s right to a fair trial.
II. BACKGROUND.
On April 17, 2023, a Criminal Complaint was filed in
this court charging Brown with having violated 18 U.S.C.
§ 2422(b) by attempting to use a facility or means of interstate
or foreign commerce to knowingly persuade, induce, entice, or
coerce an individual under 18 years of age to engage in any
sexual activity for which a person could be charged with a
criminal offense. See ECF No. 1, PageID #s 2-3. The Criminal
Complaint is not sealed and is available for public viewing.
An affidavit by Robert S. Arcand, a Special Agent with
the United States Army Criminal Investigative Division, was
submitted in support of the Criminal Complaint. The affidavit is
viewable by the public. The affidavit attests that, on April 12,
2023, Arcand posed as a 14-year-old girl named Izzy on Whisper, a
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social media platform. Arcand says that, under the username
“Glacier_Cat,” Izzy wrote, “Tired of stupid HS drama.” Id.,
PageID # 3. Brown, a United States Air Force Colonel, allegedly
responded using the username “forever sun”: “Is it dumb social
stuff?” Id.
Izzy responded, “Yeah, my friend got pregnant by an
older guy and now all the girls in school are thinking she’s a
slut . . . like omg it’s not that big of a deal.” Id., PageID
# 4. Although Izzy’s Whisper profile said she was 18-20, she
disclosed to Brown that she was actually “almost 15.” Id.
According to Arcand, Brown then steered the
conversation to sex between older men and younger females,
telling Izzy that he had engaged in sexual acts with a 19-year-
old after he had turned 40. Brown allegedly asked Izzy whether
she liked older guys, inquiring, “What’s the oldest you’ve been
with, and what have you done?” Id. Izzy told Brown, “I have
done some stuff with my ex bf he was my age tho.” Brown
allegedly responded, “Yeah I bet haha. Did you play with your
ex’s dick? . . . Did you suck it?” Izzy responded, “Yes I did”
and then asked what Brown did for work. He allegedly responded
that he was “a lawyer, actually.” Then he asked, “Did you suck
him a lot or just a time or two?” Id., PageID #s 4-5.
Brown and Izzy then allegedly exchanged what purported
to be their photographs, and Brown told Izzy, “Lmao. Makes me
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want to grab those thighs!” Brown allegedly discussed
masturbation, asking Izzy whether she knew how to work her G-spot
and telling her that he could teach her how to rub it. Brown
allegedly told Izzy, “We can do it now if you want, or some other
time. Up to you.” Eventually, Izzy indicated that she was not
ready to meet someone she had just started talking with that
night. Brown then asked, “How soon?” Id.
The following day, April 13, 2023, Brown allegedly
again asked Izzy about her sexual history, inquiring whether she
was a virgin. Izzy responded that she and her ex had engaged in
sexual intercourse five or six times. Id., PageID # 6. Brown
allegedly told Izzy that it was probably not good with a younger
guy and said, “The youngest I’ve taught was 16.” He also
allegedly stated, “Some of the most fun sex I’ve had has actually
been teaching inexperienced girls. I like sort of expanding
things for them and helping them explore if it makes sense. . . .
If I taught you (not saying I will yet!) I’d probably want to
take it a little slow at first. Make sure you’re comfortable.”
Arcand says Brown discussed his teaching method, saying, “I
personally think it’s best to build up the ladder--start by
learning how to kiss well, then suck dick well, then fuck well.
It builds confidence along the way and is a natural progression.
But sometimes people just like to jump straight to sex haha.”
Id.
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On April 14, 2023, after a discussion of oral sex,
Brown allegedly asked Izzy whether she was available on Sunday,
April 16, 2023, and requested that they engage in a voice call
using the social media platform Telegram. Brown then called
Izzy. A female law enforcement officer posed as Izzy for the
call. Id., PageID # 7. During the call, Brown allegedly stated
that his vehicle was a good place to hang out and again asked
whether Izzy had played with her G-spot. He reportedly told Izzy
that he wanted to meet on Sunday, April 16, 2023, and that he
wanted them to kiss and possibly engage in oral sex or a hand
job. Brown allegedly told Izzy that he was a “dom” who enjoyed
pulling hair and wanted Izzy naked bent over his knees so that he
could spank her. He allegedly discussed making her “cum” and
said that he enjoyed “throat fucking.” In the written chat, he
allegedly asked her whether she was curious about trying anal
sex. Id., PageID #s 7-8.
Izzy’s Telegram bio stated that she was 16, which Brown
saw before the agent deleted it. On April 14, 2023, Brown
allegedly wrote, “Tell me you’re 16 haha” and “It sure if I’m
supposed to do anything with you if you’re younger than that.”
He then clarified that he meant to write, “Not sure,” rather than
“It sure.” Izzy told Brown that her Telegram bio stated that she
was 16 “to make it seem older than I am.” Brown allegedly
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responded, “Well this first time we’re not having sex anyway. So
let’s meet on Sunday and go from there.” Id., PageID # 8.
The Army CID identified Brown through the pictures he
sent to Izzy. Brown was 41 years old at the time, and his
military legal experience included prosecuting child sex
offenses. Id., PageID # 9.
On April 16, 2023, Brown asked Izzy to engage in a
video chat. The female decoy matched Brown’s face on the chat to
an official photograph. In a subsequent chat, Izzy asked Brown
to bring a blanket, a beach mat, and a specific kind of gum.
Id., PageID # 10.
A surveillance team saw Brown leave his residence with
a blanket and stop at the Shoppette on Schofield Barracks to
purchase gum. Brown was arrested at the “meet” location. Id.
Special Agent Arcand stated that, based on his
experience, if Brown had consummated sexual activity with a 14-
year-old, Brown could have been prosecuted for committing Sexual
Assault in the First Degree in violation of sections 707-700 and
707-730 of Hawaii Revised Statutes.
On April 21, 2023, the magistrate judge issued an Order
Setting Conditions of Release. See ECF No. 10. On November 17,
2023, Brown sought reconsideration of that order. See ECF No.
22. Among other things, Brown argued that during his video calls
he could clearly see that he was talking with an adult female
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(not a 14-year-old girl) and that he told Izzy multiple times
that he would not have sex. See id., PageID #s 74-75, 77-78.
The Government objected to the reconsideration motion,
arguing that Brown was a danger to the community. The Government
pointed to material that had recently been recovered from Brown’s
phone. According to the Government, the phone records showed
that Brown was a sexual predator who targeted girls younger than
18. See ECF No. 24, PageID #s 114, 119. The Government
summarized a number of sexually explicit communications between
Brown and girls supposedly under 18, which included the sending
of nude pictures and one alleged attempt to meet a 15-year-old
girl at a Minute Suites within an airport terminal for sexual
conduct. See id., PageID #s 120-28.
On November 29,2023, the magistrate judge denied
Brown’s motion for reconsideration. See ECF No. 25.
On November 30, 2023, a Grand Jury indicted Brown,
charging him with attempted sexual enticement of a minor in
violation of 18 U.S.C. § 2422(b). See ECF No. 275. The
Indictment was not sealed and remains available for public
viewing. It alleges that Brown, aka “forever sun,” used the
internet, a cellular phone, and a cellular communications network
to knowingly persuade, induce, entice, and coerce a minor to
engage in sexual activity prohibited by sections 707-730(1)(c)
and 707-732(1)(c) of Hawaii Revised Statutes. Id. The
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Indictment did not contain all of the detail in the affidavit
supporting the Criminal Complaint. Id.
On December 1, 2023, the U.S. Attorney’s Office for the
District of Hawaii released the following press release with the
heading of “Military Lawyer Indicted for Attempted Sexual
Enticement of a Minor”:
ECF No. 36-2.
On December 5, 2023, the Honolulu Star Advertiser ran a
story with the headline, “Air Force prosecutor accused of luring
underage girl for sex.” The story summarized the affidavit in
support of the Criminal Complaint. See ECF No. 36-5, PageID
#s 650-51.
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III. ANALYSIS.
The Sixth Amendment provides defendants with the right
to a trial by an impartial jury. Courts therefore have a duty to
insure the fairness of a criminal proceeding when faced with
excessive publicity. See Levine v. U.S. Dist. Ct. for Cent.
Dist. of Cal., 764 F.2d 590, 596 (9 Cir. 1985). The Ninth	th
Circuit notes that when the case is “a notorious one, that burden
on the court is heavy.” Id. at 601 (citation omitted). “[T]he
circus-like environment that surrounds highly publicized trials
threatens the integrity of the judicial system.” Id. at 598.
Courts may restrict the communications of trial
participants when necessary to ensure a fair trial for a criminal
defendant. See Gentile v. State Bar of Nevada, 501 U.S. 1030,
1073 (1991) (quotation marks and citations omitted). The speech
of lawyers representing clients in pending cases may be regulated
under a less demanding standard than regulating speech by the
press. Id. at 1074. Thus, the Supreme Court has noted that “the
‘substantial likelihood of material prejudice’ standard
constitutes a constitutionally permissible balance between the
First Amendment rights of attorneys in pending cases and the
State’s interest in fair trials.” Id. at 1075.
This district has noted that “‘[o]nly the occasional
case presents a danger of prejudice from pretrial publicity.’”
Doe v. Hawaii, 2011 WL 4954606, at *2 (D. Haw. Oct. 14, 2011)
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(quoting Gentile, 501 U.S. at 1064). In a civil case, the Ninth
Circuit noted that a prior restraint to ensure a fair trial is
permissible “only if its absence would prevent securing twelve
jurors who could, with proper judicial protection, render a
verdict based only on the evidence admitted during trial.” In re
Dan Farr Prods., 874 F.3d 590, 593 (9 Cir. 2017). Dan Farr	th
Productions also noted, “The well-established doctrines on jury
selection and the court’s inherent management powers provide an
alternative, less restrictive, means of ensuring a fair trial.”
Id. While Doe v. Hawaii was also a civil matter, it provides
guidance here.
Balancing the right to a fair trial with First
Amendment rights, the judge in the Doe case noted that matters of
public record that a party communicates to the media do not
support restraining speech unless they are so inflammatory that
the court concludes otherwise. 2011 WL 4954606, at *4.
Additionally, the judge concluded that a restraining order was
not justified because the case did not involve widespread
publicity. Id. at *5. Thus, there was no “substantial
likelihood of material prejudice.” Id. The judge also noted
that he had a variety of tools to ensure the jury pool would not
be tainted, including asking each potential juror about what the
juror had heard about the case and whether knowledge of the case
would color the potential juror’s opinion at trial. Id. at *6.
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In Zal v. Steppe, 968 F.2d 924, 928 (9 Cir. 1992),	th
the Ninth Circuit relied on Gentile in upholding a contempt
citation against an attorney, rejecting an argument that a “clear
and present danger” standard should be applied. In United States
v. Brown, 218 F.3d 415 (5 Cir. 2000), the Fifth Circuit relied	th
on Gentile to uphold a “gag order” on trial participants based on
the substantial likelihood that extrajudicial commentary would
undermine a fair trial. A district court within the Ninth
Circuit has since looked at whether there was a “substantial
likelihood that extrajudicial commentary” would undermine a fair
trial when examining a request for a “gag order.” See Bromgard
v. Montana, 2007 WL 9709964, at *2 (D. Mont. July 11, 2007).
Brown fails to show any likelihood that the
Government’s extrajudicial commentary will undermine a fair
trial, let alone a substantial likelihood of such prejudice. The
Government represents that its “long-standing general practice is
to issue a press release at the initiation of a case and at the
close of a case.” ECF No. 42, PageID #s 1003-04. Nothing in the
record indicates that the Government will continue to issue press
releases or other extrajudicial commentary before the close of
the case.
Moreover, the Government’s press release about this
case covered only matters already in the Criminal Complaint,
which the public has access to. Compare ECF No. 36-2 with ECF
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No. 1. The press release also stated that the charge in the
Indictment was only an accusation and that Brown was innocent
until proven guilty beyond a reasonable doubt in a court of law.
See ECF No. 36-2. There has been no showing that the press
release raises any likelihood that Brown will suffer an unfair
trial.
Notwithstanding the reference in Brown’s present motion
to extrajudicial statements, some of the statements Brown
complains about were not extrajudicial. In opposing Brown’s
reconsideration motion concerning the terms of his pretrial
release, the Government submitted numerous summaries of
conversations that Brown allegedly had with girls under 18. This
evidence was submitted in response to Brown’s claim that he knew
from the video with the Government agent that he was talking with
an adult, rather than a 14-year-old girl. The Government
represented that it had recently obtained evidence from Brown’s
phone showing that Brown had used Whisper to talk with underage
girls in sexually explicit ways and allegedly even tried to meet
one who was 15 for a sexual encounter. Thus, the Government
argued, Brown was a danger to the community and his pretrial
release conditions should not be relaxed. The Government is
certainly allowed to advocate in court proceedings in response to
Brown’s arguments. The Government’s statements made during
judicial proceedings provide no basis for restricting
extrajudicial statements.
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Finally, there has been no showing of what percentage
of the jury pool even reads any news outlet or other source
through which prospective jurors might be exposed to pretrial
publicity. While this might be the kind of case that the press
will cover in detail, the record does not establish that this a
highly publicized case at this point. Brown’s reply uses many
adjectives to accuse the Government of bad conduct, but Brown
fails to sufficiently establish any likelihood that the
Government has prejudiced or is likely to prejudice the jury
pool. There is no showing of a need for this court to restrict
the Government. While the facts of this case are salacious,
that, by itself, does not indicate that the jury pool has been or
will be tainted by the Government’s press release. Attached to
Brown’s motion is a single article from a local newspaper about
this case, along with reader’s comments about the news article.
Brown may object to statements in the article or the comments,
but he does not identify any particular statement or comment that
is inaccurate. Nor does he explain why the Government should be
restricted in response to any third-party impropriety Brown may
allege.
In any event, this court can ensure that Brown receives
a fair trial by asking potential jurors during voir dire whether
they have had any exposure to pretrial publicity with respect to
this case and then determining whether any potential juror who
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has had such exposure can still be fair and impartial. The court
routinely instructs jurors not to read reports about a case. On
the present record, Brown’s right to a fair trial is being
adequately preserved.
IV. CONCLUSION.
Because Brown does not sufficiently support his motion
to ensure that extrajudicial statements do not prejudice the jury
pool, that motion is denied.
It is so ordered.
DATED: Honolulu, Hawaii, January 16, 2024.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
United States v. Brown, Cr. No. 23-00090 SOM; ORDER DENYING MOTION TO ENSURE
EXTRAJUDICIAL STATEMENTS DO NOT PREJUDICE THESE PROCEEDINGS
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