Case: 23-1449 Document: 24 Filed: 12/14/2023 Pages: 56
`
`In the
`UNITED STATES COURT OF APPEALS
`for the Seventh Circuit
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`No. 23-1449
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`v.
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`Plaintiff-Appellee,
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`Defendant-Appellant.
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`On Appeal from the United States District Court
`for the Northern District of Illinois, Eastern Division.
`No. 19 CR 567 — Harry D. Leinenweber, Judge.
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`BRIEF OF THE UNITED STATES
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`MORRIS PASQUAL
`Acting United States Attorney
` for the Northern District of Illinois
`219 South Dearborn Street, 5th Floor
`Chicago, Illinois 60604
`(312) 353-5300
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`BRIAN J. KERWIN
`Assistant United States Attorney
`Deputy Chief of Appeals, Criminal Division
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`BRIAN WILLIAMSON
`Assistant United States Attorney
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`UNITED STATES OF AMERICA,
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`ROBERT KELLY,
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`Case: 23-1449 Document: 24 Filed: 12/14/2023 Pages: 56
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ............................................................................... iii
`JURISDICTIONAL STATEMENT ..................................................................... 1
`ISSUES PRESENTED FOR REVIEW ............................................................... 1
`STATEMENT OF THE CASE ............................................................................ 1
`I.
`Offense Conduct and Indictment ......................................................... 1
`II.
`Pretrial Rulings .................................................................................... 4
`III. Evidence at Trial ................................................................................... 5
`A.
`Jane .................................................................................................. 6
`B.
`Pauline .............................................................................................. 8
`C. Nia .................................................................................................. 10
`D.
`Tracy ............................................................................................... 11
`E.
`Testimony Regarding Brittany ..................................................... 12
`F.
`Evidence of Obstruction of Justice and Conspiracy to Receive
`Child Pornography ......................................................................... 13
`IV. Verdict ................................................................................................. 16
`V.
`Sentencing ........................................................................................... 16
`SUMMARY OF ARGUMENT ........................................................................... 21
`ARGUMENT ...................................................................................................... 23
`I.
`Defendant’s
`Indictment
`for Sexual Exploitation and
`Inducement of a Child Was Timely Brought Because Congress
`Extended the Statute of Limitations Period to the “Life of the
`Child” Before the Period Otherwise Elapsed as to Jane, Nia,
`and Pauline. ........................................................................................ 23
`Standard of Review ........................................................................ 23
`i
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`A.
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`Case: 23-1449 Document: 24 Filed: 12/14/2023 Pages: 56
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`B.
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`II.
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`Analysis .......................................................................................... 23
`The District Court Did Not Abuse Its Discretion in Denying
`Defendant’s Motion to Sever Counts Ten Through Thirteen
`from Counts One Through Three Where Defendant’s
`Arguments Were Premised on the “Evidentiary Spillover”
`Effect and He Otherwise Failed to Show Prejudice. ......................... 30
`Standard of Review ........................................................................ 30
`A.
`Analysis .......................................................................................... 30
`B.
`III. Defendant’s 240-Month Above-Guidelines Sentence Was
`Procedurally Sound and Substantively Reasonable. ........................ 37
`Standard of Review ........................................................................ 37
`A.
`Analysis .......................................................................................... 38
`B.
`CONCLUSION ................................................................................................... 48
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`
`
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`
`ii
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`

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`Case: 23-1449 Document: 24 Filed: 12/14/2023 Pages: 56
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`TABLE OF AUTHORITIES
`
`CASES
`Gall v. United States, 552 U.S. 38 (2018) ............................................. 37, 38, 45
`Landgraf v. USI Film Products, 511 U.S. 244 (1994) ................................ 27, 28
`Pennsylvania Co. v. Roy, 102 U.S. 451 (1880) .................................................. 34
`Peugh v. United States, 569 U.S. 530 (2013) .............................................. 38, 47
`Rita v. United States, 551 U.S. 338 (2007) ....................................................... 37
`Samia v. United States, 599 U.S. 635 (2023) ................................................... 34
`Stogner v. California, 539 U.S. 607 (2003) ..................................... 25, 26, 28, 29
`United States v. Abdelhaq, 246 F.3d 990 (7th Cir. 2001) ................................ 32
`United States v. Alexander, 135 F.3d 470 (7th Cir. 1998) ......................... 33, 35
`United States v. Archer, 843 F.2d 1019 (7th Cir. 1988) ................................... 36
`United States v. Balzano, 916 F.2d 1273 (7th Cir. 1990) ................................ 33
`United States v. Boykins, 9 F.3d 1278 (7th Cir. 1993) ..................................... 33
`United States v. Burke, 148 F.3d 832 (7th Cir. 1998) ...................................... 39
`United States v. Calabrese, 572 F.3d 362 (7th Cir. 2009) ................................ 31
`United States v. Carter, 695 F.3d 690 (7th Cir. 2012) ..................................... 31
`United States v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005) ........................ 38
`United States v. Chief, 438 F.3d 920 (9th Cir. 2006) ................................. 24, 25
`United States v. Coe, 220 F.3d 573 (7th Cir. 2000) .................................... 46, 47
`United States v. Coleman, 22 F.3d 126 (7th Cir. 1994) ................................... 33
`United States v. Dickerson, 42 F.4th 799 (7th Cir. 2022) ................................ 38
`United States v. Diehl, 775 F.3d 714 (5th Cir. 2015) ....................................... 26
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`
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`iii
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`United States v. Ervin, 540 F.3d 623 (7th Cir. 2008) ................................ 32, 33
`United States v. Gibson, 490 F.3d 604 (7th Cir. 2007) ............................. passim
`United States v. Griffith, 913 F.3d 683 (7th Cir. 2019) ................................... 37
`United States v. Hayden, 775 F.3d 847 (7th Cir. 2014) ................................... 45
`United States v. Jackson, 547 F.3d 786 (7th Cir. 2008) .................................. 37
`United States v. Jeffries, 405 F.3d 682 (8th Cir. 2005) .................................... 25
`United States v. Linwood, 142 F.3d 418 (7th Cir. 1998).................................. 33
`United States v. Llanos, 62 F.4th 312 (7th Cir. 2023) ..................................... 38
`United States v. Maxwell, 534 F. Supp. 3d 299 (S.D.N.Y 2021) ............... passim
`United States v. McIntyre, 531 F.3d 481 (7th Cir. 2008) ................................. 38
`United States v. Morgan, 987 F.3d 627 (7th Cir. 2021) ............................. 37, 39
`United States v. Nettles, 476 F.3d 508 (7th Cir. 2007) .................................... 36
`United States v. Piette, 45 F.4th 1142 (10th Cir. 2022)…………………………26
`United States v. Pulido, 69 F.3d 192 (7th Cir. 1996) ....................................... 33
`United States v. Rivera, 6 F.3d 431 (7th Cir. 1993) ......................................... 34
`United States v. Salgado, 917 F.3d 966 (7th Cir. 2019) .................................. 37
`United States v. Shorter, 54 F.3d 1248 (7th Cir. 1995) ................................... 32
`United States v. Stillo, 57 F.3d 553 (7th Cir. 1995) ......................................... 33
`United States v. Stokes, 211 F.3d 1039 (7th Cir. 2000) ................................... 33
`United States v. Thompson, 286 F.3d 950 (7th Cir. 2002) ............................... 34
`United States v. Turner, 93 F.3d 276 (7th Cir. 1996) ...................................... 33
`United States v. Vasquez-Abarca, 946 F.3d 990 (7th Cir. 2020) ..................... 37
`United States v. Warner, 792 F.3d 847 (7th Cir. 2015) .................................... 45
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`iv
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`Case: 23-1449 Document: 24 Filed: 12/14/2023 Pages: 56
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`United States v. Watts, 519 U.S. 148 (1997) ..................................................... 43
`United States v. Williams, 553 F.3d 1073 (7th Cir. 2009) ............................... 30
`Weingarten v. United States, 865 F.3d 48 (2d Cir. 2017) ................................ 28
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`STATUTES
`18 U.S.C. § 1519 ................................................................................................... 3
`18 U.S.C. § 1962(c) ............................................................................................. 17
`18 U.S.C. § 1963 ................................................................................................. 17
`18 U.S.C. § 2251(a) .................................................................................. 3, 46, 47
`18 U.S.C. § 2252A(a)(2) ....................................................................................... 3
`18 U.S.C. § 2421(a) ............................................................................................ 17
`18 U.S.C. § 2422 ............................................................................................. 3, 17
`18 U.S.C. § 2423(a) ............................................................................................ 17
`18 U.S.C. § 3283 .......................................................................................... passim
`18 U.S.C. § 3509(k) ...................................................................................... 24, 26
`18 U.S.C. § 3553(a) ..................................................................................... passim
`18 U.S.C. § 3661 ................................................................................................. 43
`Pub. L. No. 108-21 ............................................................................................. 24
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`
`RULES
`Federal Rule of Criminal Procedure 8 .............................................................. 31
`Federal Rule of Criminal Procedure 14 ............................................................ 31
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`Case: 23-1449 Document: 24 Filed: 12/14/2023 Pages: 56
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`JURISDICTIONAL STATEMENT
`Defendant-Appellant’s jurisdictional statement is complete and correct.
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`ISSUES PRESENTED FOR REVIEW
`1. Whether the charges against defendant for sexual exploitation and
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`inducement of a child were timely brought where, prior to the expiration of the
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`statute of limitations, Congress extended the limitations period to the “life of
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`the child” victim, pursuant to 18 U.S.C. § 3283.
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`2. Whether the district court abused its discretion in denying
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`defendant’s motion to sever certain counts of sexually enticing a child from
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`counts of producing child pornography, where defendant’s claim of prejudice
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`was premised on an “evidentiary spillover” theory.
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`3. Whether defendant’s 240-month above-Guidelines sentence was
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`procedurally sound and substantively reasonable.
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`STATEMENT OF THE CASE
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`I.
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`Offense Conduct and Indictment
`Between 1996 and 2001, defendant Robert Kelly, at the time a famous
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`recording artist, repeatedly enticed and sexually abused young girls, including
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`“Jane,” “Pauline,” and “Nia.” See, e.g., Tr. 726-89, 2292-2306, 2588-2612.1
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`During many of these encounters, defendant memorialized his abuse of his
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`minor victims by making exploitative video recordings. See, e.g., Tr. 767-82,
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`2306. At the peak of his celebrity in 2001, one of these videos featuring
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`defendant’s graphic sexual abuse of minor Jane—referred to as Video 1 at
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`defendant’s eventual federal trial—was leaked and became widely circulated
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`in society. See, e.g., Tr. 795, 1059-60. Video 1 triggered a state law enforcement
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`investigation into defendant that culminated in a 2008 trial on child
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`pornography charges in Illinois state court, for which defendant was acquitted
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`after he and his associates made concerted efforts to conceal his crimes. See,
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`e.g., Tr. 825-30, 849. After the state trial, law enforcement agents became
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`aware of additional recordings of defendant’s sexual exploitation of Jane,
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`including those referred to as Video 2, Video 3, and Video 4 at trial. As in the
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`case of Video 1, Video 2 and Video 3 depicted defendant sexually abusing Jane;
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`Video 4 showed defendant having sex with Jane alongside an adult woman.
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`See, e.g., Tr. 982-84, 2129. Defendant and his associates expended substantial
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`1 Citations to the Original Electronic Record are designated as “R.” followed by the
`district court document number. Citations to defendant’s brief are designated as
`“Br.” followed by the page number, and citations to defendant’s appendix are cited as
`“App.” followed by the page number. The trial transcript is cited as “Tr.” followed by
`the page number, and the government’s trial exhibits, which it has requested be made
`part of the record on appeal for which a motion is pending, see R. 455, are cited as “G.
`Ex.,” followed by the exhibit number.
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`2
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`efforts in the years prior to the state trial attempting to reclaim these videos,
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`all of which had been taken from defendant’s possession. See, e.g., Tr. 1358-
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`1460.
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`In February 2020, a federal grand jury returned a superseding
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`indictment against defendant, charging him with four counts (Counts One
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`through Four) of inducement, enticement, or coercion of Jane—a minor—to
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`engage in sexually explicit conduct for the purpose of producing a visual
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`depiction of such conduct, namely Video 1, Video 2, Video 3, and Video 4, in
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`violation of 18 U.S.C. § 2251(a); and five counts (Counts Nine through
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`Thirteen) of enticement—of Jane, Nia, Pauline, Brittany and Tracy (all
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`minors)—to engage in unlawful sexual conduct, in violation of 18 U.S.C.
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`§ 2422(b). The superseding indictment also charged defendant with conspiracy
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`to obstruct justice, in violation of 18 U.S.C. § 1519 (Count Five), and conspiracy
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`to receive child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (Counts
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`Six, Seven, and Eight). The conspiracy counts—which also charged defendant’s
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`business manager, Derrel McDavid, and another associate, June Brown—
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`related to defendant’s efforts to reclaim the child pornography videos and
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`otherwise obstruct law enforcement investigations, including the 2008 state
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`criminal trial. See, e.g., Tr. 1358, 1410-1460, 1848-1858, 2226-2228.
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`3
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`II. Pretrial Rulings
`Prior to trial, defendant filed, as relevant here, motions to dismiss
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`Counts One through Four and Six through Thirteen (that is, all but the
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`conspiracy to obstruct justice charge) (R. 189) and to sever Counts Ten through
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`Thirteen from the remainder of the superseding indictment (R. 196). The
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`motion to dismiss argued that the charges relating to the sexual exploitation
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`of minors were barred by the statute of limitations, because—at the time of
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`defendant’s alleged misconduct—the limitations period expired when the child
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`victim turned 25 years old. Dkt. 189 at 3-11. The severance motion, in
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`pertinent part, argued that severing the counts related to Jane from those
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`related to other minor victims was necessary to avoid prejudice that, in
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`defendant’s view, would result from the jury hearing both strong evidence (as
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`to Jane) and comparatively weaker evidence (as to the other victims), and from
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`defendant’s need to refrain from testifying as to certain counts. Dkt. 196 at 8-
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`11.
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`The district court denied both motions. R. 222; App. 1-12. In doing so, the
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`court found that the limitations period never expired as to the child sexual
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`exploitation counts, because Congress extended the statute of limitations for
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`such conduct to the “life of the child” in 2003, which was before any of
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`defendant’s victims turned 25. See 18 U.S.C. § 3283. The court found
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`persuasive the Southern District of New York’s comprehensive analysis on this
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`4
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`precise issue, set forth in United States v. Maxwell, 534 F. Supp. 3d 299
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`(S.D.N.Y 2021). As in Maxwell, the district court found that, “[i]n light of the
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`lack of retroactivity provision, but steadily increasing statute of limitations . .
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`. [18 U.S.C. § 3283] does not prescribe its proper reach,” and that, accordingly,
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`the statute “does not impair any of the Defendant’s rights because the statute
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`was amended before the original limitations period expired.” Id. at 3-4. The
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`district court stressed that this Court, relying on Supreme Court precedent,
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`likewise has held that the ex post facto clause is not violated by an enlarged
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`limitations period, so long as the new law is passed before the original period
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`has expired. App. 4 (citing United States v. Gibson, 490 F.3d 604, 609 (7th Cir.
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`2007)).
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`As to the severance issues, the district court found that defendant had
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`not adequately explained his generic assertion that the evidence in support of
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`Counts One through Three was stronger than the evidence in support of
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`Counts Ten through Thirteen; nor had he substantiated his purported desire
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`to testify as to only some of the counts and as to certain victims. App. 11-12.
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`III. Evidence at Trial
`A jury trial was held over the course of four weeks in August and
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`September 2022. R. 278-328. As detailed below, victims Jane, Pauline, Nia,
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`and Tracy each testified as to their, along with victim Brittany’s, sexual
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`exploitation at the hands of the defendant while they were minors. See, e.g.,
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`5
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`Tr. 699-959; 2287-2370; 2583-2648; 2384-2524. The jury watched portions of
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`Video 1, Video 2, and Video 3, each of which depicted defendant engaged in sex
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`acts with Jane when she was 14 years old. Tr. 985-998. Finally, the government
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`presented further documentary and testimonial evidence as to all defendants’
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`conspiracy to obstruct justice, centering on their attempts to interfere with
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`defendant’s 2008 Illinois state trial and law enforcement investigations more
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`generally. See, e.g., G. Ex. 320, 323-27, 337, 340, 411, 414; Tr. 840-41. The
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`government further presented evidence of defendants’ related efforts to
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`retrieve the child pornography videos defendant had made of him and Jane,
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`which went missing after their recording. See e.g., Tr. 1358, 1410-60, 1848-58,
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`2226-29. A summary of the trial evidence relevant to the present appeal is
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`provided below.
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`A.
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`Jane
`Jane was born in September 1984 and grew up in Oak Park, Illinois. Tr.
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`699-700. During junior high and high school, Jane toured with a music group
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`and had a musical family, including her aunt Stephanie, who went by the stage
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`name “Sparkle.” Tr. 702-08. Sparkle had a romantic relationship with
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`defendant, and also collaborated with him professionally. Tr. 708-15. Jane first
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`met defendant when she was 12 or 13 years old, when defendant attended a
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`gospel concert at her church; a few months later, defendant attended another
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`musical performance by Jane. Tr. 709-13. From that point forward, when Jane
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`6
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`was 13 or 14, she, along with Sparkle, would frequently see defendant at
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`defendant’s studio and basketball gym, or out at restaurants. Tr. 714-15.
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`Sparkle instructed Jane to foster a closer relationship with defendant, telling
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`her “that I should ask him to be my godfather, and that I should sit on his lap,
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`and I should rub his head and ask him if he would play that role in my life.”
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`Tr. 726. Jane complied and Defendant accepted. Soon, however, the nature of
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`defendant’s conversations with Jane became sexual, including with defendant
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`asking Jane what color underwear she was wearing. Tr. 726-30. Defendant’s
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`discussions with Jane then escalated to phone sex, where “[h]e would start
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`asking me different questions sexually, and he would let me know that he was”
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`masturbating. Tr. 730.
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`When Jane was 14 years old, defendant initiated sexual contact with her,
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`including by rubbing her breasts and genitalia, and engaging her in oral sex.
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`Tr. 731-32, 734. These encounters occurred frequently at defendant’s home,
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`tour bus, and studio (Tr. 733, 739), and after Jane turned 15, defendant started
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`having penetrative sexual intercourse with her (Tr. 736). Prior to each of these
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`sexual encounters, Jane and defendant would communicate over the phone (Tr.
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`737), and some of the encounters occurred at hotels, including in Florida, New
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`York, and other states (Tr. 740).
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`Defendant provided Jane with alcohol and projected pornography while
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`they were engaged in sex acts. Tr. 742-43. Defendant also encouraged Jane to
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`7
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`invite her friends to join them in sexual activity, Jane’s friend Pauline (also a
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`minor) among them. Tr. 744-45. Jane had multiple sexual encounters with
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`defendant and Pauline while Jane was between 14 and 16 years old, until she
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`discovered that Pauline was separately seeing defendant, which damaged their
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`friendship. Tr. 746-47. Jane testified that during this period she engaged in
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`sex acts with defendant “out of intimidation,” because “he was an authoritative
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`figure, so I didn’t know how to respond . . . so I just kind of went along with
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`things and then it somewhat became normal.” Tr. 754.
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`Defendant, starting when Jane was 14, also video-recorded their sexual
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`encounters. Defendant let Jane know that he wanted to videotape her and
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`would set up lighting and camcorders: he “[p]ut the tape in, position[ed] the
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`camera a certain way, just [to] get certain, like, angles with lighting.” Tr. 767.
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`Jane identified Video 1, Video 2, and Video 3—all three of which were entered
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`into evidence and viewed by the jury—as video recordings portraying distinct
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`sessions of defendant’s abuse. Tr. 768-82. Jane was 14 years old when each
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`video was filmed. Tr. 771, 778.
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`B. Pauline
`Pauline was born in 1984 and grew up in Oak Park, Illinois. Tr. 2288.
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`She first met Jane when she was 13 or 14 years old, describing their
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`relationship as “like best friends” in middle school. Tr. 2289. Jane introduced
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`Pauline to defendant after which Pauline began spending time with defendant
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`(along with Jane) in defendant’s music studio, home, tour bus, restaurants,
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`and other locations. Tr. 2289-91. When Pauline was 14 or 15 years old, she
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`encountered Jane and defendant in the “cabin room” of defendant’s house; Jane
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`was naked, and defendant sat in front of her. Tr. 2292-93. Pauline ran from
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`the room, but defendant later assured her he was just looking for bruises on
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`Jane. Tr. 2293. When Pauline questioned Kelly’s explanation, he responded:
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`“[w]e all have secrets,” “[l]ike the little boy you’ve been kissing on.” Id.
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`Defendant then asked “[y]our mama don’t know about that, do she?” before
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`stating “[s]he don’t have to know about this,” which Pauline interpreted as
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`defendant conveying that “what he was doing [to Jane] was fine, and it was
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`our secret.” Tr. 2293-94. After placating Pauline, defendant directed her and
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`Jane to kiss and touch each other’s breasts; then he sexually abused both girls.
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`Id.
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`Pauline also testified about her subsequent sexual contact with
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`defendant. She explained that, when she was 14 or 15 years old, defendant
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`“taught me how to give oral sex on him and Jane, and we would do stuff like
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`that.” Tr. 2296. She first had sexual intercourse with defendant when she was
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`15 years old, and she had oral and sexual intercourse with defendant numerous
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`other times. Tr. 2297-98. Defendant initiated these sexual encounters with
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`phone calls between himself, Jane and Pauline, many of which occurred at
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`defendant’s music studio. Tr. 2301-02. Other sexual encounters occurred on
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`defendant’s tour bus, including when it was located out of the state. Tr. 2302-
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`04. The friendship between Pauline and Jane faltered when Jane discovered
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`that Pauline was seeing defendant privately without Jane. Tr. 2305. Both girls
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`were 16 at the time. During Pauline’s individual sexual encounters with
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`defendant, as well as during the encounters that took place among her, Jane,
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`and defendant, defendant had tripods and cameras in the room to make video
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`recordings. Tr. 2306.
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`C. Nia
`Nia was born in 1980 and first met defendant in Atlanta, Georgia when
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`she was 15 years old. Tr. 2583-84. Nia approached defendant to ask for his
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`autograph, and defendant responded by asking whether she was coming to his
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`concert that evening. Tr. 2585. He signed his autograph and also wrote down
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`his phone number; defendant later placed Nia and a friend’s name on a list for
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`special access to the concert. Id. Although Nia could not attend, she called
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`defendant’s number, and spoke to defendant in the following days. Tr. 2586.
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`During these calls, Nia mentioned her age to defendant, Tr. 2588-89, and
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`defendant eventually made plans for her to visit him while he was on tour in
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`Minnesota. Tr. 2589-2590. Defendant arranged for Nia to travel from her
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`parents’ home in Atlanta to his concert in Minneapolis, with a limousine
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`picking her up from her mother’s apartment and transporting her to the
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`airport. Tr. 2593. When she arrived in Minnesota, she was greeted at the
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`10
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`airport and taken to a hotel. Tr. 2594. Nia called defendant once she checked
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`in. Tr. 2595. At the concert, Nia was led backstage. Tr. 2597-98. The next
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`morning, defendant visited Nia’s hotel room, where, Nia explained, “he sat
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`down on the bed and he asked me to undress and to walk toward him and to
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`turn around.” Tr. 2601. After Nia undressed, defendant kissed her, touched
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`and kissed her breasts, and began to masturbate, during which he mentioned
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`that he wanted her to come see him in Chicago. Tr. 2602. He then left. Id.
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`Nia further testified that during the summer of 1996, while she was still
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`15, she traveled to Chicago to see defendant. Tr. 2605. At his studio, defendant
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`directed Nia out into the hallway where they could be alone, kissed her neck,
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`held her waist, “[a]nd then he motioned his hands into my pants . . . [a]nd he
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`fondled my chest.” Tr. 2611-2612. Defendant then “motioned his hand into my
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`pants. He touched my vagina and he caressed my bottom, my behind.” Tr. 2612.
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`D. Tracy
`Tracy was born in 1982 and grew up in Chicago; she first met defendant
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`in 1999, when she was 16. Tr. 2385-86. Tracy was interning with Sony Epic
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`Records at the time and was introduced to defendant by her supervisor. Id.
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`Tracy worked for Sony Epic Records for approximately a year and half while
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`in high school and college and was paid in cash for her internship. Tr. 2387-88.
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`Tracy saw defendant at a music expo held at McCormick Place
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`convention center, where defendant signed an autograph for her and included
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`his phone number. Tr. 2397. Tracy called defendant later that night, and he
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`invited Tracy and a friend to visit him at his studio. Tr. 2397-99. At the studio,
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`defendant isolated Tracy in his office, where the two began kissing and
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`defendant exposed himself and asked Tracy to perform oral sex on him.
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`Tr. 2399-2401. Tracy did not comply with this request, but defendant
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`continued pleasuring himself. Tr. 2401. After this encounter, Tracy continued
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`communicating with and seeing defendant throughout 1999, including at the
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`Westin Hotel some weeks after the encounter at the studio. Tr. 2401-2404.
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`Tracy went to the Westin at defendant’s request, and after defendant arrived,
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`he took off his pants and directed Tracy to strip and “walk to the bed like I was
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`on a runway.” Tr. 2405. Tracy and defendant kissed, and he performed oral sex
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`on her, after which “he pushed my head onto his penis and told me how to give
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`him oral sex.” Tr. 2406. According to Tracy, she told defendant she did not want
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`to have sex, but “he [] forced his self in me. But then when I asked him to stop,
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`he did stop.” Tr. 2406. Tracy estimated that between the summer of 1999, and
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`August 2000, Tracy and defendant had sex “over 50 times,” including in a
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`video-recorded encounter with Jane. Tr. 2412-2418.
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`E.
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`Testimony Regarding Brittany
`Brittany did not testify at trial, but other victim witnesses described
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`
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`their observations of her interactions with defendant. Jane testified that
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`Brittany was one of the friends, along with Pauline, to whom Jane “pitched”
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`the idea of engaging in sexual activity at defendant’s behest. Tr. 745. Jane
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`explained that, when she was 15 and Brittany was 16, defendant engaged in
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`sexual encounters with the two girls simultaneously between five and 10 times
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`and that those encounters included vaginal and oral sex. Tr. 746-750, 757. The
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`first such instance involved defendant directing Jane and Brittany to kiss,
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`touch each other’s breasts, and dance together. Tr. 758. As with Pauline, Jane
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`described how these encounters—and her relationship with Brittany—stopped
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`because Brittany started seeing defendant separately from Jane. Tr. 750.
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`Pauline testified that Brittany was one of her best friends from high
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`school, and they often spent time together with the defendant at his studio.
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`Tr. 2302-03. The three frequently had sexual encounters (Tr. 2303), which
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`defendant would videotape. Tr. 2306.
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`F. Evidence of Obstruction of Justice and Conspiracy to
`Receive Child Pornography
`At trial, the government introduced evidence that, from 2000 to 2015,
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`defendant and co-defendant McDavid attempted to obstruct justice by
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`concealing defendant’s abuse of minors by, among other means, attempting to
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`recover visual depictions of his exploitation and coercing the non-cooperation
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`of percipient witnesses with law enforcement. “Susan,” the mother of Jane,
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`testified that after Video 1 first leaked, she and her husband confronted
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`defendant and McDavid about defendant’s sexual contact with their daughter
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`Case: 23-1449 Document: 24 Filed: 12/14/2023 Pages: 56
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`only to be told they had to leave town immediately to avoid media and law
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`enforcement scrutiny and warned “Are you with us or you’re not?” which she
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`interpreted as a threat. Tr. 1250-52. As part of these efforts, defendant’s
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`production company issued checks, some of which read “loan” in the memo line,
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`to Jane’s father “Brandon” in the months leading up to and after defendant’s
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`2008 state child pornography trial. G. Ex. 411. Financial records showed that
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`another of defendant’s companies sent monthly payments to Jane in 2014 and
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`2015, including checks reading “Settlement” in the memo line. G. Ex. 414. Jane
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`testified that she received these payments after contacting defendant, but
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`never had a settlement agreement with him. Tr. 840-41. Jane also testified
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`that, setting aside the investigation and trial in the instant case, she never
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`before told law enforcement about her sexual contact with defendant. Tr. 841.
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`The government also presented evidence that defendant