Examining Defense Witness Testimony in Child Pornography Cases

United States v. Cumbie, 21-1186

Defendant argued that the hearsay statement contains sufficient circumstantial guarantees of trustworthiness to be admissible under Chambers v. Mississippi, 410 U.S. 284 (1973), which recognized a due process right to provide “a meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation omitted). Counsel argued the circumstances that “make this trustworthy . . would allow it under the residual hearsay exception [and under] Chambers and Holmes.” On the eve of trial, the government further requested that the court prohibit Defendant from impeaching the witness, who was listed as a defense witness, with the text message either by questioning or with extrinsic evidence. As the district court put it, “that [Sasi] said it happened doesn’t necessarily give you a good-faith reason to ask the question.” Therefore, this extrinsic evidence lacked “probative value” and was therefore not “relevant” under Rule 401.

At both trials, the government introduced evidence that Cumbie created a fake Facebook account in September 2018 impersonating Chink Capone, an internet celebrity and comedian. They included this December 7 text message purporting to be from Primeaux to Sasi:

I wanna be honest with you and no secrets between us I’m the reason devion got charged with child porn I was using his phone and a fake account to get pictures and sell them but since he’s getting charged we can be together and work on us.

On February 10, 2020, the government filed a motion in limine to preclude Sasi from offering this testimony because it is inadmissible hearsay. The government argued:

On January 31, 2020, [FBI Special Agent Aaron] Hurst interviewed Mr. Primeaux [who] vehemently denied sending the text message.

Cumbie’s Response argued that the hearsay statement contains sufficient circumstantial guarantees of trustworthiness to be admissible under Chambers v. Mississippi, 410 U.S. 284 (1973), which recognized a due process right to provide “a meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation omitted). counsel argued the circumstances that “make this trustworthy .  . . would allow it under the residual hearsay exception [and under] Chambers and Holmes.” On the eve of trial, the government further requested that the court prohibit Cumbie from impeaching Primeaux, who was listed as a defense witness, with the text message either by questioning or with extrinsic evidence.

But all three theories are relevant to our conclusion that the district court did not abuse its discretion by limiting Cumbie’s cross-examination of government witness Primeaux in the second trial.

Based on the proffered direct and cross-examination testimony of Sasi and Primeaux, the district court concluded that Cumbie had not met his burden on this issue. The government’s cross-exam of Sasi brought out that she had helped a witness write an exonerating affidavit on behalf of Cumbie in a prior criminal case, and had helped another roommate of Cumbie and Primeaux write an affidavit stating he had seen Primeaux use Cumbie’s phone.

However, Rule 804(b)(3)(B) expressly provides that the statement against interest must be “supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.” Likewise, to be admissible under the residual hearsay exception in Rule 807, a statement must be “supported by sufficient guarantees of trustworthiness.” The district court’s conclusion that the text message confession was overwhelmingly unreliable defeats these claims.

So Cumbie is left to complain that the court barred him from asking Primeaux that question on cross-examination and then impeaching him with the text message confession received by Sasi one year later. As the district court put it, “that [Sasi] said it happened doesn’t necessarily give you a good-faith reason to ask the question.” Therefore, this extrinsic evidence lacked “probative value” and was therefore not “relevant” under Rule 401.

“Ordinarily a prior inconsistent statement is admissible [under Rule 613(b)] only for the purpose of impeachment and not as substantive evidence.” United States v. Feliciano, 761 F.3d 1202, 1210 (11th Cir. 2014).  Being thus limited to the issue of Primeaux’s credibility, admission of the text message confession would add almost nothing of probative value to Cumbie’s “he did it” defense, especially in light of the other evidence of Cumbie’s guilt, and it would likely trigger a distracting, confusing mini-trial between Primeaux and Sasi regarding who authored a text message confession written long after the illegal communications at issue.

For the reasons stated, the district court did not abuse its discretion in limiting Cumbie’s use of Rule 613(b) in a manner that did not prevent his assertion of the defense “that someone else committed the crime.” Holmes, 547 U.S. at 327.

“The government violates the equal protection clause if it uses a peremptory strike to remove a potential juror solely because of his or her race.” United States v. Lewis, 593 F.3d 765, 770 (8th Cir. 2010), citing Batson v. Kentucky, 476 U.S. 89 (1986). Cumbie argues that other prospective jurors who had encounters with law enforcement or had close friends or family members convicted of crimes were not struck.

The government initially moved to strike P J 5 for cause because she was equivocal when asked whether she would consider the upbringing and maturity of the victim in deciding the child pornography counts. Cumbie argues other prospective jurors were similarly equivocal regarding their ability to follow the law as to a victim’s age or maturity but were not struck by the government. The district court did not clearly err in finding that PJ 5’s equivocation and indecisiveness regarding whether she could follow the law was a nondiscriminatory race-neutral reason for the strike.

To protect a defendant’s right to a fair trial, “a jury must refrain from premature deliberations in a criminal case.” United States v. Gianakos, 415 F.3d 912, 921 (8th Cir. 2005).