DOJ-OGR-00003117.jpg

Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 183 of 239

regarding how the defendant is alleged to have committed the crimes charged in Counts One through Four. See Indictment ¶¶ 1-11. Indeed, “by providing Defendant with a narrative of the manner in which Defendant is alleged to have committed the charged offenses, the Indictment provides Defendant with more detail than is strictly necessary” under the governing law. United States v. Kozel, No. 19 Cr. 460 (KMW), 2020 WL 4751498, at *2 (S.D.N.Y. Aug. 17, 2020).

Although the defendant complains that some of the terms used in the speaking portions of the Indictment are somehow vague, she cites no authority to suggest that her difficulty comprehending basic language in portions of a charging instrument that do not speak to the elements of the offense requires dismissal.55 Counts One and Three, charging the defendant with violations of 18 U.S.C § 371, “clearly contain[] the elements of the offense charged, fairly inform[] [her] of the charge[s] against [her], and enable[] [her] to plead an acquittal or conviction in bar of future prosecution for the same offense.” United States v. Bunn, 154 F. App’x 227, 229 (2d Cir. 2005). Counts Two and Four, charging violations of 18 U.S.C §2422 and § 2243, respectively, similarly contain the elements of those offenses and adequately inform the defendant of the charges

55 Alternatively, the defendant claims that the acts listed throughout the Indictment do not constitute illegal behavior. In this vein, the defendant makes specific reference to “grooming” as conduct that is not illegal. (Def. Mot. 12 at 4). The defendant cites no authority for this argument, which is contrary to Second Circuit law. In particular, the Second Circuit has for many years found grooming behavior to be a means to “persuade, induce, or entice” minors to engage in illegal sexual activity. See, e.g., United States v. Thompson, 896 F.3d 155, 173 (2d Cir. 2018) (“Our precedent, however, supports applying a broad definition of enticement in this context: that definition would reasonably include Thompson’s grooming of the minor victims to act as he desired with regard to many matters over the months before he made the video.”); United States v. Dorvee, 616 F.3d 174, 180 (2d Cir. 2010) (“We do not believe that the district court was clearly erroneous in finding, as a matter of fact, that these images were sent as part of a grooming process to persuade the agent to engage in the type of sexual conduct depicted in the images.”) (internal quotation marks and citation omitted)); United States v. Brand, 467 F.3d 179, 203 (2d Cir. 2006) (“Brand’s sexual advances and grooming behavior provide additional evidence in support of the jury’s finding that Brand attempted to entice a minor.”). In any event, whether grooming alone constitutes a crime is immaterial to the instant motion, and it will be for the jury to decide whether the evidence at trial, as a whole, establishes the elements of the crime beyond a reasonable doubt.

156
DOJ-OGR-00003117