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United States v. McIntyre

United States District Court, D. New Jersey

May 24, 2018



          KEVIN McNULTY, United States District Judge

         This 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 stalking.

         The 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.

         Account records establish that the accounts belonged to Mr. Mclntyre. Internal evidence from the communications, including photos of Mclntyre, further ties them to the defendant.

         On the 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.

         Mr. 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 been appropriate.

         Finally, 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.

         For the reasons expressed herein, the motion will be denied.[1]

         I. Procedural Background

         On 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.

         Jury 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)

         On 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)

         II. Standards Under Rules 29 and 33

         Under 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).

         The 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).

         III. Communications with Victim A and Victim B

         The 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 14.[2] 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)

         A. Victim A

         The 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)

         Shortly 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 13a-13d)

         Mclntyre 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, 16016, 16020)

         In her trial testimony, Victim A corroborated the communications summarized above, and confirmed that they put her in fear. (SeeTr. 708-17.)

         B. Victim B

         In the 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)

         "Katie" 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)

         Threats 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)

         Later "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)

         Victim 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)

         IV. Discussion: Evidence Identifying Defendant

         The 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.

         I first 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)

         A. Counts 1-4 ("Victim A"): Documentary evidence of identification

         Counts 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.

         The 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 ...

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