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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:11-cr-20350-JAL-1.
For United States of America, Plaintiff - Appellee: Nicole D. Mariani, Kathleen Mary Salyer, John C. Shipley, Assistant U.S. Attorney, Wifredo A. Ferrer, Maria Kostantina Medetis, U.S. Attorney's Office, Miami, FL; Bonnie L. Kane, U.S. Department of Justice, Criminal Division, Washington, DC.
For Matthew Andrew Carter, a.k.a.: Bill Carter, a.k.a.: William Charles Harcourt, Defendant - Appellant: Stuart Adelstein, Law Offices of Adelstein & Matters, P.A., Miami, FL; Thomas John Butler, Thomas Butler, Esq., Miami Beach, FL; Philip Robert Horowitz, Law Office of Philip R. Horowitz, Esq., Miami, FL; Matthew Andrew Carter, USP Tucson - Legal Mail, Tucson, AZ.
Before HULL and JULIE CARNES, Circuit Judges, and ROTHSTEIN,[*] District Judge.
HULL, Circuit Judge.
After a jury trial, Matthew Andrew Carter, also known as William Charles Harcourt or Bill Carter, appeals his convictions for one count of travel in foreign commerce for the purpose of engaging in a " sexual act" with a minor, in violation of § 2423(b); four counts of travel in foreign commerce for the purpose of engaging in " illicit sexual conduct" with a minor, in violation of 18 U.S.C. § 2423(b) and (f); and one count of attempting to travel in foreign commerce for the same later purpose, in violation of 18 U.S.C. § 2423(e).
After review of the record and the briefs, and with the benefit of oral argument, we affirm.
A. The Six-Count Indictment
On January 12, 2012, a federal grand jury returned a six-count, second superseding indictment against Defendant Carter. While Counts One through Five each charged violations of 18 U.S.C. § 2423(b), Count One is described separately because the language of § 2423(b) was amended before the date of the conduct alleged in Counts Two through Five. Furthermore, as recounted later, Carter's defense counsel made arguments regarding Count One that he did not make regarding Counts Two through Five. See infra, Part I.E.
Count One alleged that Carter violated 18 U.S.C. § 2423(b) by traveling to Haiti on or about October 2, 2001, " for the purpose of engaging in any sexual act, as defined in [18 U.S.C. § 2246] with a person under 18 years of age that would be in violation of Title 18, United States Code, Chapter 109A, if the sexual act occurred in the special maritime and territorial jurisdiction of the United States." Count One tracked the language of the § 2423(b) statute in effect in 2001, which provided:
A . . . United States citizen . . . who travels in foreign commerce . . . for the purpose of engaging in any sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States shall be fined under this title, imprisoned not more than 15 years, or both.
18 U.S.C. § 2423(b) (2000).
In Counts Two through Five, the indictment alleged that Carter violated 18 U.S.C. § 2423(b) on occasions in 2003, 2004, 2006, and 2009 by traveling from the United States to Haiti for the purpose of engaging in " illicit sexual conduct," as defined in § 2423(f), with a minor. At the time of the conduct in Counts Two through Five, § § 2423(b) and (f) provided:
(b) Travel with intent to engage in illicit sexual conduct.--A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.
. . .
(f) Definition.--As used in this section, the term " illicit sexual conduct" means (1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age.
18 U.S.C. § 2423. Thus, while " any sexual act . . . with a person under 18 years of age" was changed to " illicit sexual conduct" in § 2423(b), the definition of " illicit sexual conduct" in § 2423(f) still included " sexual act[s] . . . with a person under 18 years of age" (as defined in section 2246).
Count Six charged an attempt offense, specifically that Carter violated 18 U.S.C. § 2423(e) in 2011 by attempting to travel from the United States to Haiti for the purpose of engaging in illicit sexual conduct with a minor.
B. The Evidence at Trial
The case proceeded to trial, which lasted for more than three weeks. The government introduced evidence that Carter, an American citizen, ran the Morning Star Center (the " Center" ), a residential facility in Haiti that provided shelter, food, schooling, and amenities to local youths whose families could not afford to care for them. From 1995 until 2011, Carter operated the Center at various locations near Port-au-Prince, Haiti. The Center included a health clinic for the people living in the surrounding neighborhood, which provided free services to local residents following the January 2010 earthquake in Haiti. Carter regularly traveled to the United States to raise charitable funds from churches and other donors to finance the Center's continued operation.
The Center and its clinic, however, were the faç ade Carter used to shield his abuse of young boys in Haiti for more than a decade and a half. Sixteen witnesses testified that Carter sexually abused them when they lived at, or frequented, the Center between 1995 and 2011. The abuse included Carter performing oral sex on children, requiring children to perform oral sex on him, touching the genitals of children, attempting to engage in anal sex with children, and requiring children to masturbate him. All of Carter's victims were male children. If the children complied with his sexual demands, Carter would provide them with gifts and treat them better than he would other children at the Center. But if a child refused to comply with his sexual demands, Carter would hit the male child with closed fists, spank him with sticks, and give him " the worst kind of chores." The victims did not report the abuse to others or leave the facility because they were ashamed or afraid of Carter. The abuse ended when Carter was arrested at Miami International Airport on May 8, 2011.
C. The Testimony of Witness G.S.
Among the witnesses to testify during the government's case in chief was G.S., who testified that he lived as a child at the Center in Haiti and that Carter repeatedly forced him to masturbate Carter. Carter also requested oral sex from G.S. and, on at least one occasion, made G.S. and other boys strip naked and touch their own genitals, ostensibly in an effort to locate five dollars that were missing. G.S. also testified that Carter sexually abused other boys and would beat or otherwise punish them if they refused to comply with Carter's sexual demands. On direct examination, G.S. admitted that he had not disclosed that Carter had forced him to masturbate Carter until two days before his testimony. G.S. testified that he had not previously disclosed that abuse " [b]ecause these are ugly things. For them to come out of me, they are very ugly things. And I have to tell the truth. I wanted to come and tell it to him in his face. I was waiting to see if I would be part of the trial so I could tell it to him in his face."
On cross-examination, Carter's defense counsel began to question G.S. about the contents of his initial interview with law
enforcement, which occurred on May 22, 2011, only two weeks after Carter's arrest in connection with this case. During this line of questioning, defense counsel eventually asked G.S. whether he had told government agents " that not only did he not touch you sexually" but also " that you saw nothing improper going on at the program."
The government objected on hearsay grounds, but Carter's defense counsel argued that the question was permissible impeachment based on prior inconsistent statements. Defense counsel referred to notes prepared by law enforcement from the May 22, 2011 interview with G.S., which indicate that G.S. told the interviewer that " [t]his guy never did anything to me because he never did anything to me." Defense counsel also proffered that G.S. told law enforcement on November 30, 2011, that he never saw Carter do anything to any children, although G.S. knew that Carter did " bad things to some of the boys at night." The government noted that those statements attributed to G.S. were " based on law enforcement [notes] . . . and not from any sworn statements taken under oath or any recorded statements." The government then summarized its objection as not objecting to this line of inquiry, but only to the form of the question as hearsay, stating:
The Government doesn't object to the line of inquiry that defense counsel seeks to make. The Government would only object to the form of the question as characterizing it as hearsay: On such-and-such date, didn't you tell law enforcement X, Y or Z?
The Government would also object to the theatrical use of the law enforcement reports, as [defense counsel] reads from them and waves them around to the jury. We think that's inappropriate.
It gives the impression that he's reading from some sort of official document. It gives the impression to the jury that the defense counsel is actually reading the witness's actual statements when that is not, in fact, the case.
The district court ruled that Carter's defense counsel could question G.S. about those subject matters but not in the type of question form being used.
Defense counsel then continued his cross-examination of G.S. G.S. admitted that, at his first meeting with law enforcement, G.S. denied being involved in any sexual activity with Carter. The district court then sustained the government's objection to other questions about this meeting, directing the defense counsel to rephrase his questions: something that counsel never successfully did.
Defense counsel then began asking questions of G.S. about a later meeting with law enforcement, held on November 30, 2011. Defense counsel asked G.S., " You, in fact, denied again participating in any sexual activity with [Carter]. Correct?" The government objected, but the district court overruled the objection. G.S. then testified that he had, in fact, made that denial. Defense counsel continued asking G.S. about his statements to law enforcement.
During this line of questioning, the district court repeatedly overruled government objections on hearsay grounds. Finally, given the numerous objections by the government as to counsel's good faith basis for asking particular questions, the district court ruled:
What I will allow you to do, [defense counsel], is detail with him how many meetings he had since he arrived in the country--how many meetings he had with the Government since he arrived in the country and up until two days ago he didn't reveal anything.
After this ruling, defense counsel elicited from the witness that the witness had first told agents about his sexual abuse only two days before trial and had not told agents before because he was embarrassed.
D. Mid-Trial Motions for Foreign Witness Depositions
On February 12, 2013, a week after the evidentiary portion of the trial began and during the government's case in chief, Carter moved to take four witness depositions in Haiti, pursuant to Federal Rule of Criminal Procedure 15. Carter's motion stated that his lawyers, who traveled to Haiti after the jury was selected but before the jury was impaneled, had found three " exculpatory witnesses" living near the Center in Haiti who did not have passports or visas and could not afford to secure those documents to travel to the United States to testify. Carter's counsel proffered that the witnesses would testify that Carter helped the residents who lived near the Center and that they saw no signs of sexual abuse. Specifically, the witnesses would
testify how the defendant was an asset to the neighborhood and how [Carter] and the other residents of the Morning Star Center helped the neighborhood both before and after the earthquake with donations of food, clothing and medical supplies. In addition, they will testify that due to the actions of Mr. Carter, many lives were saved both in the neighborhood and the nearby tent city after the earthquake.
They will also testify that during their time in the neighborhood they interacted with both Mr. Carter and the residents of the Morning Star Center. They will testify that the residents were well treated by the defendant and they saw absolutely no signs of the sexual abuse that has been alleged.
They will also testify how the residents interacted with those in the neighborhood and there were no signs of sexual abuse that support the allegations against the defendant.
Additionally, Carter's counsel sought to take a deposition of Pastor Alan Randall, a witness in Haiti who was " unable to travel to the United States because his wife recently suffered a massive heart attack and he cannot leave her for an extended period of time." Carter's counsel proffered that Pastor Randall would testify he visited the Center and saw no sign of sexual abuse:
Randall will testify that he has been to the Morning Star Center on many occasions. He had been invited to dinner many times. In addition, he visited the Morning Star Center with personnel from the United Nations. He will further state under oath that he saw ...