Case Document 60 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA UNITED OF V. mt;me ALLEN MCCABE, Defendant. SAVANNAH DIVISION CASE NO. CR 406?182 Filed 10/30f2006 PLAINTIFF PRODUCTION 60 STICK INTENT EVIDEN CE OF CRIMES AND RAID ACTS PURSUANT T6 RULE 16,2} COMES NOW?the United States of America by Lisa Godbey Weed, United States Attcmey for the Seuthem District of and the undersigned AssistantUntted States Attorney, and noti?es the Defendant of its intention to introduce evidence of other crimes and bad acts involving" the Defendant as reqttircd under Local Rule 16.2. As discussed in more detail below, these acts are either admissit?e due to the feet that they are inextricably intertwined with the charged offenses er in order to prove motive, intent, preparation, plan, htowiecige, identity; or absence of mistake or aeeidcnt umier Fett.R.Evid. 404(k)). The speci?c acts which the Gavemment intends to intt'oduce'include the following: 1. Chat Conversations Between the Defendant and Minor Children Included in the (?scevery prcvided to the Defendant are hundreds of eages cf printed, chat conversations between the Defendant and individuals beiieved by the Defendant to be PLAINTIFF PRODUCTION 6] Case Document 60 Filed Page 2 of 9 minor children. These documents were seized from Defendant?s storage unit earlier tliis year. These conversations are relevant either to Show the identity of the Defendant (using various I screenmamee provided) or to Show his preparation and common plan for enticing young girls into engaging in sexual conduct, a plan that included false portrayals of his age and identiw and pretextual conVei'sat?ions about activities that he would then else as a. springboard to discuss sexual conduct. in addition, such evidence is probative of the Defendant?s motive and intent with respect to the offenses charged in Counts 5 and 6 of the hidictment (tretneporting 5: minor interstate commerce for the purpose of engaging in illegal semei activity and tiaveiing with a. minor in interstate commerce for the purpose of engaging in illicit sexoal activity}. g; United States Breitweisee 357 F.3d 1249, 1254 (11th Cir? 2004) (upholding district court?s admission of evidence under 404(1)) relating to defendant?s pt?ict? sexual conduct with ohildreit, noting that suchlevidence ?was relevant to Show [defendant?s] motive, intent, knowledge, plan and preparation, and lack of mistake when he touched [minor victim] Similat?iy} the Government intends to intioduoe wimess testimony from several individuals who were contacted by the Defendant oil-line. As with the foregoing conversations, the Defendant contacted these Witnesses using false identifies. These Witnesses moiude NM. and CO. A more speci?c sumniery of their expected testimony has been provided to the Defendant in discovery in the form of F3313 02 intewie?; reports. . 2. Sexual Abuse 01131.0. The Govemment also intends to ietroduce evidence of the abuse ofthem minor victim, K.C., the sister ofE.C. That abuse began in 1.999 mid continued for several years thereafter. Again, the expected testimony was provided to the Defendant in discovery in the form 2 PLAINTIFF PRODUCTION 62 Case Document 60 Filed 10/30/2006 Pages of 0 of FBI-3023 summarizing witness intewiews with. KC. This evidence is admissible independent of Rule 404(1)) as it is to complete the story of charged offenses, namely, explaining how the Defendant established a relationshio withEC. and came to clause lzcr. Unchergcd acts can be admittecl without resorting to Rule 40%(13) where the uncharged act is: an mohargcd offense which arose out of the some transaction or series of transactions co the offense, (2) neCessary'to complete the story of the crime, 01*(3) inextricably intertwioed with the evidence regarding the charged offense." United. States v. on. 6 F.3d 1483, l498 (11th Cir. 1993). Moreover, such evidence is relevant under Fed.R.Eyid. 40403) as evidence of a; common plan or scheme to entice under age students into engaging in sexual activity with the Defendant. And, as discussed gigolo, this evidence is also relevant under Rule 40403) to Show Defendant?s motive and intent with respect to Counts 5 and 6 of'the Indictment. United grams 3. Bra ml, No. 0341550112.,? F.3d 4, 2006 WL 2981524, at *15-16 (2d Cir: cm. 19, 2006) (holding that defendant?s sexual interest in children, as evidenced by his possession of child. pornography, was relevant under 404(b) to prove intent where defendant was charged with traveling in interstate commerce with the intent to engage in illicit sexual activity). Furthermore, because Defendant charged with violating Sections 2422(b), 2423(3), 2423(5), 2251, and 2252A of Title 18, crimes that constitute ?child. molestation? offenses under Fed.R.Evid. 414(c)(1) e11d414(d)(2). evidence that the defendant engaged in sexuel cctivitywith KC. prior to he: fourteenth l3i1thda$r is also admissible under FeanBvid. 414-01). That rule permits the introductico ot?prlor instances of child. molestation by a defendant to establish propensity. gee United States v. Bertajc, 460 F.3d 10593L 1063 (83? Cir. 2006) (noting that ?Rule 403 must be applied . in a manner that Rules 413 and 4'1 4 to have their 't WE PLAINTIFF PRODUCTION (3 Case Document 60 Filed 10/30/2006 Page 4- of 9 intended effect, namely, to permit the jury to consider a defendant's prior bad acts in the area of scxual abuse or child molestation for purp 036 of sltowing I 3. Unchanged Acts ofSexual Abuse Involving EC. The Government will introduce?evidenoc that the Defendant sexually abused EC. prior to her arrival in the Southern District of Georgia. As With the abuse ofK.C., this .cvidcucc is: inextricably intertwined with the charged offense as it is necessary to complete the story of the charged offenscs, i.e, exPlajning how the sexual relationship between the Defendant and RC. developed over time. In addition, such evidence is also relevant Loader chll?vid. 404(1)) as proof of the Defendant?s common plan to entice minors into engaging in sexual activity, as well as to Show his motive and latent with respect to the charges in Counts 5 and 6 of the Indictment. The details ofthosc sexual encounters arc provided in FEM 023 of EC. and 13.6,, all of which were provided to the Defendant in discovery. As with the evidence of sexual abuse involving KC, the evidence regarding Defendant?s abuse of EC. is also {eleven}; under FedRBvid. 414(3) to Show the Defendant?s pmpensity to . engage in child molestation . 4. Sexual Misconduct at. Ganas?ti cs World "The Govemment also plans to call witncescs to testify about an incident occurring at Gymnastics; World, a facility in Cape Coral, Florida. fl?here, the Defendant said. that he intended to have intercourse with a minor who was a student at the gymnastics facility, and the evidence indicates that Defendant attempted to hove intercourse with that When the facility?s owner, Dan Dickey, was noti?ed of the incident, he coc?'onted the Defendant, who tacitly admitted his; involvement. Defendant also made numerous sexually comments to . PRODUCTION Document so Filed?lOISO/2006 Pagc?ofg Dickey about some of the students while at the facility. Defendant was subsequently - seminal-ed by Dickey for his misconduct. This evidence is relevant under Fed.R.Evid. 40403) to show tl1c13el?candant.?s common plem for using his position as a gyxmastics coach to exploit minors for sex, as well as to Show Defendant?s motive and intent Will: to the charges in Counts and 6 of!~ the hidicim'cnt Defendant was provided an summary of an intewicw of Dan Dickey that describes tile subject incident in greater deis?. 5. Distribution of Child Pornograolw The Govermnent will introduce evidence that McCabe?disu'ibuted child pomegraphy in . addition to the U'zmsportation of child pomegraphy charges ah'esdy included in tl1e Indictment (Counts 1.0tl11?ough 19). Speci?cally, the Government will 'ixltroduce evidence to Show that the Defendant distributed pictures and videos of minors engaged in sexually explicit comical: to 13.6., K.R., 0.0., J.W., and .M. FEB-302s detailing witness interviews of 0.0., andIJM. were provided to the Defendant in discovery. I.W., a witness residing in Ohio who was recently interviewed, acknowledged receiving ?les from a screen-name sesociatcd with the Defendant that contalned sexually explicit images of CC. and 13.0., victims referenced in the imlicmicnc Those images were removed by federal agents and will be inh'oducsd at trial. An detailirig the witness interview of 1W. Wi ll be provided to the Defendant within a week oflhis 40403) notice, Evidence that Defendant transmitted sexually explicit images and Videos to the above referenced individuals is evidence that the Defendm? possessed the images diet are speci?cally referenced in the Indictment. Such conoborating evidence is not ?extrinsic? 64 I PLAINTIFF PRODUCTION Case Document 60 Filed 10/30/2006 Page 0 of 65 evidence ofrhe charged offenses; rather, such evidence constitutes inirinsic'proof of the underlyleg offenses. In any event, Such evidence is also relevant under Fed.R.Evid. 4040)) as proof of the Defendant?s {motive and intent with respect to ceclr of child exploitation charges in the Indictment. 6. Sexual Misconduct at Five-Star Gvnirrasties The Government also plans to introduce evidence tlrat'the Defendant engaged in excessive ?irting with a 15 or i. 6~year old student at Five-Star Gymnastics in. Brlarrger', Kentucky when he worked as a coach at thai facility in 19964 997. Speci?cally, Defendant was terminated or encouraged to leave that facility after an incident involving a student on s. irip to This evidence is Fed.R.Evi.?l. 404(1)) as proof of a common plan to use his access as a gymnastics coach to. sexually entice minor females as well as to show his intent and motive - with respect to the child. exploitation Offenses charged. in the Indictment. Information relating to this incident was described in an summarizing an intenriew with LA. That material. was provided to the Defendanl in discovery. 7. Exhibition of (he Defendant?s Genitals The G-ovemmen: also intends to introduce evidence that the Defendant frequently exposed his genitals to minors under his supervision at the gymnastics iacilities where he worked. More speci?cally, the l) efendant was reprimanded by the owner of Five~Stsr Gymnastics a?er two parents complained that he had exposed his genitals to students bysrol? wearing underwear beneath his athletic shorts. After the Defendant was discharged from Five? Star Gymnastics. he was subsequently employed by International Gold in Tallahassee, Florida. While employed at that facility, some oi?rlre girls complained. that the 6 302 summarizing an interview with the owner of loiemational Gold, 3 .G., during the discovery Case Dooument60 Fileo10/30/2006 Page7ofe 66 Defendant was not wearing underwear beneath his shorts, and that the befendant would fewethe gills to sit at hie feet when he sooke'to them, thereby exposing his genitals. Whonihe owner of International Gold. was noti?ed, she verbally reprimanded Defendaiit and. told him that he needed to wear uiiderwear. A The Defendant?s intentional and continued exhibition of his genital area to minor studenis is admissible under 4040;); both as evidence of a. common plan to use his access as a gymnastics ooeoh to sexually exploit minors and {is evidence of his motive and intent will: respect to the child exploitation crimes charged in the Indictment. The interview repo?s involving LG. and J.A. were provided to Defendant in discovery and describe these iooiclonto in considerable detail. 8. Misrepresentaiion ofl'ob mister: Final ly. the Government intends to intro duce evidenoo that The Defendant on?tted references to his job history in order to obtain coaching positions gymnastics facilities. Defendant, foi- inslaoce, failed to note that he had. worked at Five?Star Gymias?es when he applied for a position. at Inlemaiional Gold Gymnastics in Tallahassee, Florida. His material omissions are relevant under Fed.R.Evid. 40403) as proof of a common plan to obtain access to 3/0ng girls for the purpose of sexually exploiting them. Defendant was provided with an process. ?7 Case Document 60 Filed 10/30/2006 Page 8 of 9 67 .7 submitted this day of October, 2006. LISA GODBEY WOOD UNITED STATES 4/ ms.? Mars}; Assistant United Sta-lies Attorney Georgia Bar No. 471398 Federal Justice Center 600 James Brown Augusta, Georgia 30901 (706)826-4520 (70?724~7728 (facsimile) .5- ?mum