United States v. Kidd

22-287-cr
United States v. Kidd
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
6th day of November, two thousand twenty-three.
Present:
PIERRE N. LEVAL,
SUSAN L. CARNEY,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 22-287-cr
LLOYD KIDD, AKA SEALED
DEFENDANT 1, AKA CHRIS KIDD, AKA
GERARD AGARD, AKA RED,
Defendant-Appellant.
_____________________________________
For Appellee: JACOB H. GUTWILLIG (Mary E. Bracewell, Elinor L.
Tarlow, David Abramowicz, on the brief), Assistant
United States Attorneys, for Damian Williams,
United States Attorney for the Southern District of
New York, New York, NY
For Defendant-Appellant: FLORIAN MIEDEL, Miedel & Mysliwiec LLP, New
York, NY
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Appeal from a judgment of the United States District Court for the Southern District of
New York (Victor Marrero, District Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Lloyd Kidd appeals from a judgment of the United States District
Court of the Southern District of New York (Victor Marrero, District Judge), entered on January
31, 2022, convicting him of one count of sex trafficking a minor, in violation of 18 U.S.C.
§ 1591(a), (b)(2), and one count of inducement of a minor to engage in sexually explicit conduct,
in violation of 18 U.S.C. § 2251(a), (e), following a jury trial. Kidd appeals his conviction, raising
seven issues on appeal. We assume the parties’ familiarity with the case.
I. Venue
Kidd first argues that the trial evidence was insufficient to establish venue for his
convictions in the Southern District of New York. A criminal trial must be held in the state and
district where the crimes were committed. U.S. Const. Art. III, § 2, cl. 3; U.S. Const. Amend. VI;
Fed. R. Crim. P. 18. Venue is proper in any district where the charged “offense was begun,
continued, or completed,” 18 U.S.C. § 3237(a), but only “where the acts constituting the offense—
the crime’s essential conduct elements—took place.” United States v. Purcell, 967 F.3d 159, 186
(2d Cir. 2020). 1 Venue is “not proper in a district in which the only acts performed by the
defendant were preparatory to the offense and not part of the offense.” Id. “The government has
the burden of proving proper venue . . . by a preponderance of the evidence,” United States v.
Chow, 993 F.3d 125, 143 (2d Cir. 2021), and “must satisfy venue with respect to each charge,”
1
Unless otherwise indicated, in quoting cases, all internal quotation marks, alteration marks, emphases,
footnotes, and citations are omitted.
2
United States v. Davis, 689 F.3d 179, 185 (2d Cir. 2012). We review de novo a district court’s
venue ruling. United States v. Lange, 834 F.3d 58, 69 (2d Cir. 2016).
The district court did not err in denying Kidd’s Rule 29 motion challenging the propriety
of venue for Count Five, which charged Kidd with production of child pornography. As the district
court properly instructed the jury, that offense requires proof that “the defendant used, employed,
persuaded, induced, enticed, [or] coerced [the victim] to take part in sexually explicit conduct for
the purpose of producing or transmitting a visual depiction of that conduct.” App’x at 1216. Here,
the government presented evidence that Kidd repeatedly communicated with the victim via text
message while she was in Manhattan. During these conversations, Kidd invited her to travel to
Brooklyn to engage in sexually explicit conduct, some of which led to the production of the child
pornography presented at trial. This inducement—which reached directly into Manhattan—
sufficed to establish venue in the Southern District of New York. Compare United States v.
Thompson, 896 F.3d 155, 172–74 (2d Cir. 2018) (concluding that venue was proper in the Eastern
District for offense of producing child pornography because the defendant “enticed and groomed”
the victim there), with Purcell, 967 F.3d at 187–88 (holding that venue was improper in the
Southern District because none of the unlawful sexual activity occurred there, and there was no
evidence that either the defendant or the victim were in the Southern District when the defendant
contacted her enticing her to engage in prostitution).
The district court likewise properly concluded that venue was proper as to Count One,
which charged Kidd with sex trafficking the victim as a minor. As the court instructed the jury,
the government had to prove that Kidd “knowingly recruited, enticed, harbored, transported,
provided, obtained, advertised, maintained, patronized or solicited” the victim to engage in
prostitution. App’x at 1199. Kidd’s repeated communications with the victim while she was in
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Manhattan, which prompted her to travel to Brooklyn to engage in prostitution, constitutes
solicitation that occurred in the Southern District.
II. Suppression of Evidence
Kidd next argues that the district court erred by denying his motion to suppress evidence
recovered from his electronic devices seized from his apartment. We disagree. The seizing agents
were conducting a lawful protective sweep of Kidd’s apartment incident to his arrest, United States
v. Lauter, 57 F.3d 212, 216 (2d Cir. 1995), when they saw the electronic devices in plain view 2
and seized them. “During a protective sweep, officers are entitled to seize items that are in plain
view if they have probable cause to suspect that the item is connected with criminal activity.”
United States v. Kirk Tang Yuk, 885 F.3d 57, 79 (2d Cir. 2018). “[T]he evidentiary significance
of an item viewed must be assessed from the perspective of a law enforcement officer. Near
certainty of the article’s criminal character is not necessary. The matrix of facts and circumstances,
including the experience and judgment of the police officer, must be weighed in determining
whether the item is contraband.” United States v. Barrios-Moriera, 872 F.2d 12, 17 (2d Cir. 1989),
abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990)). Here, the seizing
officers had probable cause to suspect that the electronic devices contained incriminating evidence
and/or contraband given both that their investigation had uncovered that Kidd’s trafficking
activities regularly involved taking photos, posting online prostitution advertisements, and
communicating with a victim via phone, and their general knowledge based on training and
To the extent Kidd argues that the electronic devices were not plainly visible, we reject that argument. The
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district court’s finding that the seized items were in plain view was based on testimony from agents and another
witness, as well as photographs of Kidd’s apartment taken during the search. The district court credited the testimony
of both agents and was persuaded by the testimony and the photos that the seized devices were in plain sight. We
discern no clear error in this finding, especially given that “[w]hen, as here, credibility determinations are at issue, we
give particularly strong deference to a district court finding,” United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008).
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experience “that electronic devices are used to post and store photographs and other materials
online.” United States v. Kidd, 386 F. Supp. 3d 364, 372–73 (S.D.N.Y. 2019).
III. Backpage.com Data
Kidd also challenges the district court’s admission of advertisement reconstructions created
using data drawn from two servers that were seized from Backpage.com (a now-defunct website
once frequently used to advertise prostitution). He argues that the government failed to establish
a sufficient foundation for the reconstructions because the agent who testified about creating them
was not personally involved in the seizure of the Backpage servers. To authenticate an item of
evidence, “the proponent must produce evidence sufficient to support a finding that the item is
what the proponent claims it is,” which can take the form of (1) testimony from a knowledgeable
witness “that an item is what it is claimed to be,” or (2) evidence of the “appearance, contents,
substance, internal patterns, or other distinctive characteristics” of the item, which “taken together
with all the circumstances” demonstrate the authenticity of the evidence. Fed. R. Evid. 901(a),
(b)(1), (b)(4). The test for admissibility is lenient: whether “it is more likely than not that the
[evidence] offered at trial was the same as that recovered [during the original seizure].” United
States v. Gelzer, 50 F.3d 1133, 1141 (2d Cir. 1995); cf. United States v. Vayner, 769 F.3d 125, 130
(2d Cir. 2014).
Here, the government’s foundation surpassed this low threshold. An agent testified that:
(1) he worked at the FBI’s Pocatello, Idaho office; (2) his job responsibilities included identifying,
analyzing, and preserving data obtained from servers; (3) servers from Backpage.com that were
seized by the FBI are located in Pocatello, Idaho; (4) the data on the servers has been preserved by
the FBI since their seizure; (5) the agent regularly responded to law enforcement requests for data
from Backpage servers to reconstruct ads that appeared on the site; and (6) the agent had
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familiarized himself with the content of the servers and had searched them in connection with this
case. From this, and in the absence of any countervailing evidence, the court reached the sound
conclusion that the agent “would have familiarity with the data that was extracted from these
servers,” App’x at 533–34. This conclusion was bolstered by the “contents, substance, [and]
distinctive characteristics” of the data in question, Fed. R. Evid. 901(b)(4); namely, that it
contained advertisements for prostitution, including text and images that Kidd admitted to posting
on Backpage.com. Accordingly, the district court properly admitted the data and corresponding
reconstructions.
IV. Rule 33 Motion
Kidd next challenges the district court’s denial of his motion for a new trial under Federal
Rule of Criminal Procedure 33. The district court did not abuse its discretion by denying the
motion as untimely. The motion was filed nearly two years late, see Fed. R. Crim. P. 33(b)(2),
and defense counsel did not make the required showing of “excusable neglect,” see Fed. R. Crim.
P. 45(b)(1)(B). “[W]hether the neglect was excusable is . . . an equitable [consideration] that
should be made by considering the danger of prejudice to the [non-movant], the length of the delay
and its potential impact upon judicial proceedings, the reason for the delay, including whether it
was in the reasonable control of the movant, and whether the movant acted in good faith.” United
States v. Hooper, 9 F.3d 257, 259 (2d Cir. 1993) (quoting Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)) (interpreting “excusable neglect” in the context of
Fed. R. App. 4(b)). The district court noted that the length of delay was significant; that, because
of the delay, granting the motion would result in risk of prejudice to the government due to
unavailability of trial witnesses at a hypothetical retrial, a risk the court considered especially great
“in this case, considering the youth of the trial witnesses and the sensitive nature of their
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testimony,” United States v. Kidd, No. 18 CR 872(VM), 2021 WL 2935971, at *3 (S.D.N.Y. July
13, 2021); and that the interests in finality of the verdict and in proceeding with sentencing
counseled against permitting the late-filed motion. It permissibly found that defense counsel did
not provide a “justifiable reason for the delay,” id.: any COVID-related excuse was undermined
by the fact that nine months had elapsed after the conviction before the onset of the pandemic. The
court was also justifiably unpersuaded by counsel’s explanation that it was not aware of the
evidence underlying the Rule 33 motion because it was focused only on the Rule 29 venue motion
after being appointed CJA counsel.
The district court’s second independent ground for denying the motion—that the motion
failed on the merits in any event—was also not erroneous. The motion argued that trial counsel
rendered constitutionally ineffective assistance in violation of the Sixth Amendment by failing to
highlight that the victim identified herself in a set of photos featuring a female subject who clearly
did not have a tattoo on the front of her right thigh, and in a second set of photos taken a few
months later featuring a female subject pictured with a large tattoo on the front of her right thigh.
The argument raised before the district court faulted counsel for not focusing on the unexplained
presence of the tattoo in the second set of photos.
To succeed on an ineffective assistance claim, the defendant must show both “that
counsel’s performance was deficient” and that “counsel’s errors were so serious as to deprive the
defendant of a fair trial.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Our review of trial
counsel’s performance is highly deferential, and “matters of trial strategy and tactics . . . are
virtually unchallengeable absent exceptional grounds.” United States v. Cohen, 427 F.3d 164, 170
(2d Cir. 2005). To establish prejudice, “[t]he defendant must show that there is a reasonable
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probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
The district court correctly concluded that Kidd failed to meet this standard because
(1) Kidd and the victim both identified the victim as the person with the tattoo in the second set of
photos; (2) “Kidd had previously proposed concealing victim identities with fake tattoos,” Kidd,
2021 WL 2935971, at *4; and (3) “the appearance of a tattoo in one set of photos and not another
does not categorically establish that the photos were not of the same person,” id. Moreover, Kidd
never came forward with any evidence tending to suggest that the victim did not get a tattoo in the
intervening period, much less that his trial counsel had reason to believe that was the case. It was
therefore not unreasonable for trial counsel to decline to highlight the tattoo discrepancy on
summation, given that it was vulnerable to easy refutation by the government. At bottom, trial
counsel’s decision not to highlight the tattoo discrepancy was a tactical one, not subject to later
second-guessing, and there is no reasonable likelihood that taking a different tack would have
resulted in acquittal on either count given the strength of the other evidence, especially given that
Kidd has not adduced any evidence indicating that the victim did not get a tattoo in the interim.
Kidd also argues that his trial counsel should have focused on the computer metadata for
the first set of photos (which indicated that they were created in February 2017) to attack the
credibility of the victim when she testified that those photos had been taken in the spring of 2015.
Had counsel followed this strategy, he argues, the victim’s credibility would have crumbled, Kidd
would not have taken the stand, and he accordingly would not have given incriminating testimony
tending to show that he knew she was a minor. Kidd’s new argument is unpersuasive because it
is based on a wholly speculative reconstruction of how trial might have unfolded. This alternate
strategy might have yielded a Pyrrhic victory. Even if counsel had convinced the jury that the
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photos had not been taken in early 2015 but instead in February 2017, the victim was still underage
then. In other words, a defense focus on the metadata would have shifted the jury’s attention away
from the victim’s testimony to credible evidence that the defendant was trafficking the victim and
using her to create child pornography while she was a minor (albeit while she was only one month
shy of eighteen versus two years shy of eighteen). Moreover, we cannot conclude that this line of
questioning would have changed the landscape of trial so dramatically that Kidd would likely have
chosen not to testify—especially given that he was charged with several other counts and that his
counsel’s strategy with respect to those counts was seemingly effective, as Kidd was acquitted of
them.
In short, Kidd makes no showing that this speculative chain of events would have been
likely to occur, much less that a reasonable lawyer would have regarded such an approach as an
unquestionably superior strategy; or that it is reasonably probable that such a strategy would have
produced a better result for Kidd, both of which are required to meet the extremely high burden of
showing that counsel was constitutionally ineffective. In short, we detect no error, plain or
otherwise, arising from trial counsel’s performance. 3
V. Prosecutorial Misconduct and District Court Bias
We find Kidd’s final arguments—that the government committed prosecutorial
misconduct and that the district court was biased against him—to be without merit.
“Where, as here, the defendant did not object at trial to the statements forming the basis of
his [prosecutorial misconduct claim], the plain error standard applies.” United States v. Williams,
690 F.3d 70, 75 (2d Cir. 2012). On plain error review, a new trial is not warranted absent “flagrant
3
Kidd also argues in his pro se brief that his trial counsel was ineffective for failing to cross-examine the
victim about issues related to venue. But that claim is belied by the trial record, which shows that counsel questioned
the victim about her first meeting with Kidd in Brooklyn. In any event, trial counsel’s strategy and tactics are “virtually
unchallengeable absent exceptional grounds” that are not present here. Cohen, 427 F.3d at 170.
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abuse which seriously affects the fairness, integrity, or public reputation of judicial proceedings,
and causes substantial prejudice to the defendant.” Id. None of the issues Kidd raises, even if we
were to credit them, rise to the level of affecting the fairness or integrity of the trial.
As relevant here, we reverse for judicial bias where the judge’s remarks “reveal such a high
degree of favoritism or antagonism as to make fair judgment impossible,” Liteky v. United States,
510 U.S. 540, 555 (1994), and “the jurors have been impressed with the trial judge’s partiality to
one side to the point that this became a factor in the determination of the jury,” United States v.
Mulder, 273 F.3d 91, 109 (2d Cir. 2001). None of the instances Kidd cites suggests even the
slightest bias on the part of the district court.
* * *
For the reasons stated above, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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