United States District Court, D. New Jersey
McNULTY, United States District Judge
matter comes before the Court on the post-trial motion of the
defendant, Brandon Mclntyre, for a judgment of acquittal,
pursuant to Fed. R. Crim. P. 29(c), or in the alternative for
a new trial, pursuant to Fed. R. Crim. P. 33. (ECF nos. 118,
127) Mclntyre was convicted of two counts of production of
child pornography; online enticement of a minor to engage in
criminal sexual conduct; interstate extortionate threats; and
charges were based on online communications and text messages
with underage girls. Mr. Mclntyre argues, as he did at trial,
that the two victims could not identify him because they
never met him face-to-face. Ample independent evidence,
however, ties the defendant to the communications and the
Facebook accounts and phone that were used.
records establish that the accounts belonged to Mr. Mclntyre.
Internal evidence from the communications, including photos
of Mclntyre, further ties them to the defendant.
witness stand, Mr. Mclntyre admitted that the accounts were
his and that he communicated with the girls. He testified,
however, that a friend or friends had access to his phone and
that they must have been responsible for the particular
communications that were criminal in nature. The jury was not
required to credit Mclntyre's implausible testimony, and
obviously it did not.
Mclntyre's contention that his detailed, recorded
confession was coerced or inaccurate was placed before the
jury, which must be presumed to have rejected it. There was
no pretrial motion to suppress it, and none of the
surrounding circumstances suggest that suppression would have
the government produced Rule 404(b) evidence, consisting of
communications with adult women. This evidence corroborates
the identification of Mclntyre as the person who engaged in
the communications underlying die criminal charges.
reasons expressed herein, the motion will be
April 4, 2017, Mr. Mclntyre was charged in a Superseding
Indictment containing six counts. (ECF no. 38) Counts One and
Two charged him with production of child pornography, in
violation of 18 U.S.C. § 2251(a) & (e). Count Three
charged him with online enticement of a minor to engage in
criminal sexual conduct, in violation of 18 U.S.C. §
2422(b). Counts Four and Six charged him with making
interstate extortionate threats, in violation of 18 U.S.C.
§ 875(c). Count Five charged him with stalking, in
violation of 18 U.S.C. § 2262A(2)(B). Counts One through
Four involved communications with Victim A; Counts Five and
Six involved communications with Victim B.
selection began on February 20, 2018. The trial occupied
seven court days. The defendant made a motion for a judgment
of acquittal at the close of the government's case, which
was denied. (Tr. 943) The defendant waived his right to
remain silent and testified on his own behalf. (Tr. 945) On
February 28, 2018, the jury found the defendant guilty on all
six counts. (ECF no. 117)
March 2, 2018, Mr. Mclntyre filed a post-trial motion for
judgment of acquittal, under Fed. R. Crim. P. 29(c), or in
the alternative for a new trial, under Fed. R. Crim. P. 33.
(ECF no. 118) On April 2, 2018, in accordance with a briefing
schedule set by the Court, he filed a brief in support of
that motion. (ECF no. 127) The government has filed a brief
in opposition. (ECF no. 128)
Standards Under Rules 29 and 33
Rule 29, a defendant who asserts that there was insufficient
evidence to sustain a conviction shoulders "a very heavy
burden." United States v. Anderson, 108 F.3d
478, 481 (3d Cir. 1997) (quoting United States v.
Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)). The court
cannot substitute its judgment for that of the jury. Hence it
must view the evidence, and all reasonable inferences
therefrom, in the light most favorable to the prosecution,
resolving all credibility issues in the prosecution's
favor. United States v. Hart, 273 F.3d 363, 371 (3d
Cir. 2001); United States v. Scanzello, 832 F.2d 18,
21 (3d Cir. 1987). Having done so, the court must uphold the
conviction if "any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original). Accord
United States v. Caraballo-Rodriguez, 726 F.3d 418,
430-31 (3d Cir. 2013) (en banc) (reaffirming principle and
reversing a line of drug conspiracy cases that seemingly
undermined it); United States v. Silveus, 542 F.3d
993, 1002 (3d Cir. 2008) (issue for trial or appellate court
is "whether any rational trier of fact could have found
proof of guilt beyond a reasonable doubt based on the
available evidence"); United States v. Smith,
294 F.3d 473, 476 (3d Cir. 2002).
standard under Rule 33 is more general; a court "may
vacate any judgment and grant a new trial if the interest of
justice so requires." Fed. R. Crim. P. 33. When a
defendant seeks a new trial claiming that the verdict was
against the weight of the evidence, the court's review is
less restricted than it is under Rule 29. "However, even
if a district court believes that the jury verdict is
contrary to the weight of the evidence, it can order a new
trial 'only if it believes that there is a serious danger
that a miscarriage of justice has occurred-that is, that an
innocent person has been convicted."" United
States v. Silveus, 542 F.3d at 1004-05 (quoting
United States v. Johnson, 302 F.3d 139, 150 (3d Cir.
2002)). "Such motions are not favored and should be
'granted sparingly and only in exceptional cases.™
Id. at 1005 (quoting Gov't of Virgin Islands
v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citations
omitted)). A Rule 33 motion may also be based on an alleged
error or combination of errors at trial. Borrowing the
appellate concept of harmless error, district courts have
held that a new trial will be ordered when it is
"reasonably possible that such error, or combination of
errors, substantially influenced the jury's
decision." United States v. Crim, 561 F.Supp.2d
530, 533 (E.D. Pa. 2008) (citing U.S. v. Copple, 24
F.3d 535, 547 n. 17 (3d Cir. 1994)), affd, 451
Fed.Appx. 196 (3d Cir. 2011); accord United States v.
Bryant, Crim. No. 07-267, 2009 WL 1559796 at *6 (D.N.J.
May 28, 2009).
Communications with Victim A and Victim B
internet communications on which the charges were based were
well documented and placed in evidence in hard copy form.
(G2, G13) The evidence demonstrated that
someone-independently proven to be the defendant, see
infra-ma.decontact via Facebook with "Victim
A", aged 12, and "Victim B", aged 13 or
Both victims testified about the words and images contained
in the records and described the impact that these
communications had on them. (Tr. 703-725; Tr. 726-745)
August 2013 exchanges with Victim A were introduced in
evidence as G13. Victim A revealed very early that she was 12
years old. (G13 p. 15858-59) The defendant stated that his
father was a police commissioner and that he was in training
to be a trooper, (p. 15860) He sent clothed pictures of
himself (pp. 15906-16), and pictures of his penis (pp. 15869,
15917). He insistently pressured Victim A to send nude
pictures of herself and of her genitals in particular.
(E.g., pp. 15919-35) When she resisted, he
threatened to arrange for Victim A to fail her classes and
have detention every day, and stated that his father, the
police commissioner, would look up her father's name and
address. (p. 15935) When Victim A continued to resist, he
threatened that she would go to jail for five years and
receive a fine of $3500 for failing to comply with an
officer's order, (p. 15937) Her will overborne, Victim A
gave in and sent a picture, (pp. 15937-38) M Mclntyre
continued to press Victim A to send more, different, or more
explicit photos. In response, Victim A at one point blocked
Brandon from her account. Almost immediately, she began to
receive messages from "Katie Thompson, " an alter
ego account maintained by the defendant. (G3)
"Katie" threatened that Brandon was arranging the
"paperwork" for Victim A to go to jail for 10-15
years and be fined $3500. (G3 p.921) "Katie"
predicted that Victim A would never see her parents again and
might be killed in prison, unless she unblocked her account.
(G3 p. 922-23)
afterward, Victim A unblocked her account and the
communications with "Brandon" resumed. (See G13 p.
15988) Mclntyre then threatened to tell Victim A's
parents about their contacts; threatened that her parents
would go to jail; and threatened that Victim A, too, would go
to jail, where she would be raped, (pp. 15990, 15994-96)
Victim A gave in and sent Mclntyre additional sexually
explicit pictures of herself (pp. 15998, 15999, 16001; G
also sent angry messages seemingly intended to eliminate a
rival, a person he identified as Victim A's boyfriend. He
threatened to have the boyfriend sent to jail, where he would
be raped, and would also face the death penalty, (pp. 16015,
trial testimony, Victim A corroborated the communications
summarized above, and confirmed that they put her in fear.
March 2014 exchanges with Victim B, contact was initially
made by "Katie Thompson, " who handed off
communication to her friend "Brandon."
"Katie" approached Victim B as a confidante and
vouched for Brandon, who then communicated directly in his
own name. Early on, it was established that Victim B was 13
years old, and would soon turn 14. (G2 p. 481) Brandon sent
clothed photographs of himself, recognizable to the jury as
such. (pp. 486-90)
gave Victim B Brandon's phone number, (908) 514-0219, and
the two began to text each other. (G2 p. 496; Tr. 736-37) In
text messages, Victim B testified, Brandon pressured Victim B
to meet him for a date in New Jersey or at a cabin in Lake
Placid, New York. (Tr. 738) She refused, saying she already
had a boyfriend. (Tr. 738-39)
followed-not via the "Brandon" texts, but via the
"Katie" Facebook account. "Katie"
messaged Victim B that she had angered Brandon, who was
talking about getting the Mafia to "go after the
dude" (Victim B's boyfriend). (G2 p. 528; Tr. 740)
Victim B expressed fear and reluctance, to which
"Katie" replied that she should "just do one
of the things out of state." (G2p. 531; Tr. 742-43)
"Katie" said that she would report Victim B's
parents for abuse, and that they would be imprisoned and
never permitted to see her again. She added that Victim
B's boyfriend, too, would never see her again. (G2 p.
539) Escalating, "Katie" then said she could have
Victim B's family killed, tie her up and make her watch.
(G2 p. 557-58) When Victim B referred to going to her
guidance counselor, "Katie" threatened to have her
parents "tortured and killed." (G2 p. 563; Tr. 743)
Katie told Victim B to "just go on the f-ing
trip!!!!" and asked if Victim B would "like [her
parents] to be butchered right in front of [her]." (G2
p. 564) Shifting her ground, "Katie" then wrote
that Victim B's parents, for "mistreat[ing]"
her, were looking at "a 3 yr state prison term for one
and 25, 000 fine and permanent loss of kids and the other is
child neglect which is up to 5 yrs in prison permanent loss
of children and a 20, 000 fine." (G2 p. 566)
B, in direct testimony, corroborated the above account, and
testified credibly to having been placed in fear. (SeeTr.
726-45.) The contacts ceased, however, after she reported the
messages to her school guidance counselor. (Tr. 745)
Discussion: Evidence Identifying Defendant
defendant's motion focuses on his contentions that (a)
the evidence did not establish that he was the person
responsible for the communications underlying the charges;
and (b) his lengthy, recorded confession to FBI agents on the
date of his arrest was coerced and inaccurate.
discuss the documentary evidence tying Mr. Mclnryre to the
communications with Victim A and Victim B. (Sections IV.A and
B) I then discuss Mclntyre's recorded confession (IV.C)
and his trial testimony (IV.D). Finally, I discuss the 404(b)
evidence further establishing identification. (IV.E)
Counts 1-4 ("Victim A"): Documentary evidence of
1, 2, 3, and 4 of the Superseding indictment charge that the
defendant, via Facebook, threatened and coerced a 12-year-old
girl, Victim A, to create and send him sexually explicit
images of herself. Mclntyre denies that he was the person who
sent or received these communications, or at least the subset
of these communications that was criminal in nature.
independent documentary evidence of guilt was strong. To
begin with, of course, the government introduced copies of
the internet communications themselves, including the
photographs that Victim A took of herself. Realistically,
there can be no dispute that these communications occurred,
that they ...