Judge Richard Arcara
Graham was convicted of sex trafficking. Victim 1 was an adult. Victim 2 was a minor, but recently turned 18. Victim 3 remains a minor. Graham was barred from introducing or eliciting evidence about the Victims’ sexual behavior before or after times charged in the superseding indictment. Although both sides could introduce evidence and elicit testimony of sexual behavior and prostitution by the Victims during the periods charged, such evidence would not open door to Victim questioning about sexual behavior or prostitution before or after the times charged. Discussing United States v. Elbert and United States v. Shamsud-Din, the court rejected Graham’s claim that exclusion of evidence violates his Fifth Amendment right to present a defense, and his Sixth Amendment confrontation right. Evidence that Victims 1 and 3 engaged in prior and subsequent acts of prostitution was the type of propensity or character evidence barred by Federal Rule of Evidence 412. Evidence of other possible acts of prostitution did not contradict their testimony that Graham transported, maintained or recruited them on the occasions charged in the superseding indictment. Questions about a witness’s sexual morals is not a proper basis for impeachment.
