EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, March 22, 2010

What Are Your Intentions?: Seventh Circuit Finds Expert Testimony Was Properly Precluded Under Rule 704(b) In Sexting Appeal

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

This Rule was originally "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," and it was passed in the wake of the shootings of Ronald Reagan and John Lennon. As the recent opinion of the Ninth Circuit in United States v. Hofus, 2010 WL 986799 (9th Cir. 2010), makes clear, however, this Rule also applies to testimony that a defendant engaged in "sexting" with a minor would never act on the intentions expressed in his texts.

In HofusTerrance Hofus was convicted of attempting to coerce and entice a minor to engage in sexual activity. The facts of the case were as follows:

In February 2008, several 12 to 16-year-old girls had a sleep over party....During the party, two of the young girls, M.M. and B.T., took nude photos of themselves and sent them by cell phone to a 15-year-old boy, T.H. Although unclear exactly how Hofus learned about the photos,...after the party B.T. began receiving text messages from a number she did not recognize. From that number, Hofus sent her various sexual messages and told her that unless she and M.M. met with him to do sexual things, he would send the nude photos to everyone they knew and post them on the Internet.

After the party, M.M. also exchanged text messages with Hofus, thinking that he was the 15-year-old boy. When these texts became very sexual, M.M. told her mother and older sister about them. M.M.'s sister called the number and told him to stop calling her 14-year-old sister....

Although it was later determined that Hofus's phone did not give him the ability to actually view the nude photos, he made the girls believe he had seen them and had them in his possession. For example, Hofus sent B.T. a text that he was at a Kinko's copy shop and had found a way to enlarge cell phone images to poster size: "think that if we printed up the 2 of u girls and hung them up at the high skol that it wud help u keep u r promise to me they look hot there a lot detail big."

B.T. eventually told a teacher about the problem, and, ultimately, the FBI took over the investigation. Special Agent Anna Brewer took M.M.'s cell phone and downloaded the voicemail messages from Hofus. Brewer also took B.T.'s cell phone and found several text messages from Hofus....

Agent Brewer posed as B.T. and began texting with Hofus. Brewer recorded all text messages and voicemails that were received on B.T.'s phone. Brewer asked for the pictures back; Hofus asked what she was willing to do to get them. Later, Hofus apparently became suspicious and asked her "Why are u talking 2 the police” and “some one knows a detective.” Hofus asked B.T. to promise that whatever they might do would stay between them-“no friends parents police." He insisted on talking to B.T. on the phone to arrange a meeting....

With her parents' permission, B.T. spoke to Hofus on a monitored phone and arranged to meet him at the Parklane movie theater to see the movie Juno. Following their conversation, he continued to send her sexually explicit texts asking about her sexual experiences.

On March 16, the FBI set up surveillance at the Parklane movie theater. At noon, Hofus sent a text asking, "Are u going to let me taste u naked." He also sent a message suggesting B.T. go to the McDonald's near the theater instead. When the agents went to the McDonalds, they noticed Hofus sitting on a bus stop bench across the street from the theater, using his cell phone, and arrested him.

At his trial, Hofus sought to have a Dr. McEllistrem testify, inter alia, that "it was unlikely Hofus would act on the intentions expressed in his texts." The district court, however, precluded this testimony, and the Seventh Circuit later agreed, finding that there is "a distinction between the intent to persuade or attempt to persuade a minor to engage in a sex act and the intent to actually commit the criminal sex act itself." In other words, because Hofus was charged with attempting to coerce and entice a minor to engage in sexual activity, the question of whether he was likely to act on his expressed intentions was irrelevant.

Moreover, the Seventh Circuit found that even if this likelihood was relevant, it would have violated Federal Rule of Evidence 704(b) because

To say that Hofus meant the texting only as fantasy is simply another way of saying he did not really intend to entice or persuade the young girls, which is precisely the question for the jury. If the jury accepted Dr. McEllistrem's testimony that Hofus engaged in texting B.T. “in fantasy alone,” it would necessarily follow that Hofus did not possess the requisite mens rea....Such an opinion would thus run afoul of Rule 704(b)'s prohibition on such testimony.



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