Case: 1:19-cr-00567 Document #: 416 Filed: 02/16/23 Page 1 of 10 PageID #:12528

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
Case No. 19 CR 567
v.
Judge Harry D. Leinenweber
ROBERT SYLVESTER KELLY, a/k/a
“R. Kelly,” DERREL McDavid,
and MILTON BROWN, a/k/a “June
Brown”,

Defendants.

ORDER
Before the Court is Defendant Robert Kelly’s (“Kelly”) Motion for

a Judgment of Acquittal (Dkt. No. 387) and two of Kelly’s Motions for a

New Trial (Dkt. Nos. 388, 408). For the reasons stated herein, the

Motions are denied.

STATEMENT
A. Motion for Judgment of Acquittal

Kelly moves for a judgment of acquittal under Federal Rule of

Criminal Procedure 29 (c). A judgment of acquittal should only be granted

when “the evidence is insufficient to sustain the conviction.” United

States v. James, 464 F.3d 699, 705 (7th Cir. 2006). When analyzing a

motion for a judgment of acquittal, a court views the evidence in the

light most favorable to the Government. Id. A court may only overturn a

conviction if “the record contains no evidence from which a rational

jury could have returned a verdict of guilty.” Id.

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Kelly’s Motion challenges his convictions on all six counts. The

Motion can be divided into two parts: Kelly’s convictions on the child

pornography counts (one through three), and the inducement counts (nine,

ten, and twelve). Kelly’s Motion states that he is challenging his

conviction of count eleven (which he was acquitted of), rather than count

twelve (which he was convicted of). Upon review of the Motion, it appears

to the Court that Kelly is actually challenging his conviction on count

twelve so the Court will analyze the argument as to that count.

1. Counts One through Three

Counts One through Three of the superseding indictment were all

brought under 18 U.S.C § 2251 (a). The statute penalizes anyone who

induces a minor to engage in sexual conduct for the purpose of creating

a visual depiction of the conduct. The statute also requires the

depiction be transported or transmitted in interstate commerce. Here,

Counts One through Three charged Kelly with the creation of Videos One,

Two, and Three. Each video contains a depiction of Kelly engaging in

sexual conduct with Jane, a minor at the time.

Kelly argues that the Government did not prove each element of the

statute at trial. Specifically, Kelly argues that the Government failed

to show that Kelly enticed minor Jane into sexual conduct with the

purpose of creating a video. Kelly also argues that the Government failed

to prove that the Videos traveled in interstate commerce. In the

alternative, Kelly argues that the Government failed to prove that Kelly

knew that the videos would be put in interstate commerce.

The Court disagrees with Kelly’s arguments. First, there is ample

evidence that Kelly induced Jane into sexual conduct. Jane testified

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about how Kelly gradually persuaded her into sexual activity with him.

Jane described how Kelly induced her into making Videos One through Three

and that Kelly positioned the camera and told Jane exactly what to do

and say while having sex with him.

Second, the statute does not require that the sexual conduct be

for the sole purpose of creating a video. It is enough that creating a

video depiction be a purpose of the sexual conduct, it need not be the

sole purpose. United States v. Merrill, 23 F.4th 766, 770 (7th Cir.

2022), see also United States v. McCauley, 983 F.3d 690, 697 (4th Cir.

2020). Kelly also seemingly argues that there was no commercial purpose

associated with the production of these videotapes. The statute does not

require that the video be made for any commercial purpose. United States

v. Andersson, 803 F.2d 903, 905-06 (7th Cir. 1986), see also United

States v. Sirois, 87 F.3d 34, 40 (2d Cir. 1996) (“Congress has

unambiguously indicated that a defendant does not need to have a

commercial motive to be liable under § 2251(a)”).

Third, the Government presented evidence showing that the images

on Videos One, Two, and Three, traveled in interstate commerce. Kelly

argues that the Government was required to show that the physical videos

were transported in interstate commerce. The term “visual depiction,”

as used in § 2251(a) is defined in 18 U.S.C. § 2256(5). There, visual

depiction is defined as data “capable of conversion into a visual image,

and data which is capable of conversion into a visual image that has

been transmitted by any means.” Thus, transportation of the data on

Videos One, Two, or Three, would satisfy the statute, regardless of what

medium housed that data. The Government produced testimony establishing

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that the data from Video One traveled across the country. Specifically,

Betty Allwang from the National Center for Missing and Exploited Children

(“NCMEC”) testified that the NCMEC received a series depictions called

the paneled room series from law enforcement agencies across the country.

Ms. Allwang also testified that she compared the paneled room series

with Video 1 and that she concluded that the paneled room series was

from Video One.

Kelly argues that the Government’s evidence that Videos Two and

Three traveled in interstate commerce was insufficient. The Government

put on testimony from Charles Freeman, Lisa Van Allen, and Keith Murrell

establishing that Videos 2 and 3 traveled in interstate commerce. Kelly

argues that Charles Freeman and Lisa Van Allen’s testimony was “rejected

whole cloth by the jury.” (Mot. for Jdgmt. of Acquittal ¶ 14, Dkt.

No. 387.) Kelly’s evidence for this assertion is that he was acquitted

of Counts Four, Six, Seven, and Eight of the indictment. Kelly argues

that by acquitting him on these charges, the jury necessarily concluded

that the tapes acquired by Van Allen and Freeman did not contain child

pornography. This argument does not hold water. Like Counts One through

Three, Count Four was brought under 18 U.S.C. § 2251(a). Counts Six

through Eight were brought under 18 U.S.C. § 2252 and charge Kelly with

conspiracy to receive child pornography and receipt of child pornography.

For a jury to convict under either statute, the Government must prove

each element of the charged offense. If the Government fails to prove

even one element, a jury cannot convict. When reading its verdict, the

jury did not explain why it chose to acquit Kelly of Counts Four through

Eight. It did not explain that it was acquitting Kelly of those Counts

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because it found that Videos Two, Three, and Four did not contain child

pornography. In fact, it is quite the opposite. By convicting Kelly of

Counts Two and Three, the jury communicated that it found that Videos

Two and Three contained child pornography and were transported in

interstate commerce. The Court finds no reason to disturb the jury’s

verdict now.

In the alternative, Kelly argues that he was not aware that the

videos would be transported in interstate commerce. This argument fails.

18 U.S.C. § 2251(a) is clear that knowledge is only one of the ways the

statute may be satisfied. Actual transportation also satisfies the

statute. Here, the Government proved that Videos One through Three were

actually transported in interstate commerce. Thus, Kelly’s knowledge is

irrelevant.

Kelly’s Motion for a Judgment of Acquittal on Counts One through

Three is denied.

2. Counts Nine through Eleven

Counts Nine through Eleven of the indictment were all brought under

18 U.S.C. § 2422(b). § 2422(b) prohibits the use of facility of

interstate commerce to induce a minor to engage in criminal sexual

conduct. Kelly was convicted of using the telephone to induce and entice

three minors, Jane, Nia, and Pauline, into criminal sexual conduct.

Kelly’s argument on these counts is twofold: first, that he did not use

a facility of interstate commerce; second, that he did not induce the

minors in question, Jane, Nia, and Pauline, to engage in criminal sexual

activity using the phone.

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First, the telephone is a facility of interstate commerce, even

when used in an intra state fashion. See United States v. Richeson, 338

F.3d 653, 660 (7th Cir. 2003) (citing United States v. Marek, 238 F.3d

310 (5th Cir.2001)); U.S. v. Nader, 542 F.3d 713, 720 (9th Cir. 2008)

(“intrastate telephone calls involve the use of a facility in interstate

commerce.”) (internal quotation marks omitted); see also 15 U.S.C Section

78dd–3(f)(5) (stating that intrastate use of a telephone would qualify

as interstate commerce in a different context).

Second, the Government provided ample evidence to show that Kelly

used the telephone to induce Jane, Pauline, and Nia to engage in criminal

sexual activity. The Seventh Circuit has found that “child sexual abuse

can be accomplished by several means and is often carried out through a

period of grooming.” United States v. Chambers, 642 F.3d 588, 593 (7th

Cir. 2011). Here, the Government elicited testimony that Kelly used the

phone to groom Jane, Pauline, and Nia, into committing illegal sex acts

with him. Jane testified that her telephone conversations with Kelly

that started innocuously but progressed into more sexual topics. After

some time, Kelly persuaded Jane to have phone sex, which then led to

physical sex. Nia testified that she and Kelly had regular phone calls,

which led to Kelly enticing her into sexual conduct when they met in

person. Pauline testified that she had regular sexual contact with Kelly,

all arranged over the phone.

Looking at the evidence in the light most favorable to the

Government, the Court finds that there was enough evidence to sustain a

guilty verdict on all six counts Kelly was convicted of. Kelly’s Motion

for a Judgment of Acquittal is denied.

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B. Motions for a New Trial

Kelly moves for a new trial under Federal Rule of Criminal

Procedure 33. If a district judge believes that “a serious danger that

a miscarriage of justice has occurred-that is, that an innocent person

has been convicted - he has the power to set the verdict aside.” United

States v. Morales, 902 F.2d 604, 606 (7th Cir 1990). A Rule 33 motion

is not to be granted lightly. Id. at 605.

Kelly argues that he is entitled to a new trial because the

Government violated its obligations under Napue v. Illinois, 360 U.S.

264 (1959). Napue stands for the principal that the Government may not

knowingly use false testimony to obtain a conviction. Id. at 269. A

defendant is entitled to a new trial under Napue if there was false

testimony, the Government knew, or should have known, it was false, and

there is a likelihood that the false testimony affected the judgment of

the jury. United States v. Cardena, 842 F.3d 959, 976-77 (7th Cir. 2016).

The false testimony must “bear a direct relationship to the defendant’s

guilt or innocence.” Id. at 977.

Kelly makes two separate motions under Napue: first about Dr.

Darrel Turner’s testimony, second, about Jane’s testimony.

1. Dr. Darrel Turner

The Government’s expert witness, Dr. Darrel Turner testified that

his hourly rate for the case was $250. On October 27, 2022, the Government

sent a letter to Kelly’s counsel informing them that Dr. Turner’s rate

for the case was $450 per hour. (Dr. Turner Letter, Mot. for New Trial,

Ex. A, Dkt. No. 388-1.) The Government should have known about this

discrepancy, as the contract was executed prior to trial. (Id.) Thus,

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the question before the Court is whether Dr. Turner’s testimony about

his rates directly related to the jury’s decision to convict Kelly on

any of the six counts.

The Court finds no likelihood that Dr. Turner’s testimony about

his rates affected the jury’s decision to convict Kelly. In Kelly’s

motion, he states: “Had the jurors known that Dr. Turner actively misled

them, the jurors would likely have rejected his testimony outright.”

(Mot. for a New Trial based on Dr. Turner’s testimony ¶ 8, Dkt. No. 388.)

Kelly does not explain how he reaches this conclusion, nor does he cite

any caselaw in support of his position.

The law in this circuit does not support Kelly’s position. United

States v. Freeman, 650 F.4d 673 (7th Cir. 2011) (affirming a district

court’s decision to grant a new trial when the Government’s star witness

testified falsely, the Government knew about it, and the Government

relied on the testimony to secure convictions); United States v.

Hilliard, 851 F.3d 768 (7th Cir. 2017) (affirming a district court’s

decision to deny a motion for a new trial where the Government did not

rely on the false testimony to secure a conviction); Griffin v. Pierce,

622 F.3d 831 (7th Cir. 2010) (affirming a district court’s decision to

deny a motion for a new trial where the false testimony did not change

the outcome of the trial). These cases show that a court should only

grant a new trial under Napue if the false testimony directly leads to

the Defendant’s conviction.

Here, it is not clear to the Court how the false testimony about

Dr. Turner’s rates bears on Kelly’s guilt. Dr. Turner had no personal

involvement in this case. He was not familiar with Kelly, or any witness

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in the case. Dr. Turner testified generally about grooming and victim

behavior. Dr. Turner did not express a conclusion about whether any of

those practices and behaviors were present in this case. While Dr.

Turner’s testimony may have provided helpful background information to

the jury, he never tied that information back to Kelly. As such, there

was sufficient evidence to sustain Kelly’s convictions, even without Dr.

Turner’s testimony. The Government’s case was mainly based on the

testimony of the victim-witnesses, who testified as to Kelly’s actions.

2. Jane

Jane, one of the victim-witnesses, testified that she was undecided

about whether she was going to seek restitution. Kelly argues that this

statement is false. In support, Kelly points to Jane’s private attorney’s

billing records which contains three entries discussing restitution. It

is not clear to the Court, which, if any, of the Napue requirements are

satisfied here. Simply because Jane and her attorney considered the

possibility of restitution, does not mean she lied during her testimony.

Jane’s testimony was that she was undecided. Her testimony was not that

she was not intending to pursue restitution. Kelly alleges that the

Government knew that Jane’s statement was false, because Jane’s attorney

discussed restitution with the Government in 2020. Again, nothing in the

record suggests that Jane was going to pursue restitution, just that it

was a possibility. Kelly argues that this “false” testimony was directly

related to his conviction because it goes to Jane’s credibility

generally. Kelly fails to specify further, only stating that Jane had

“motivation to share her story in ways that were not entirely honest

because she stood to gain significant restitution” which “could have

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affected the judgment of the jury.” (Mot. for a New Trial based on Jane’s

testimony ¶ 12, Dkt. No. 408.)

The Court finds that Kelly has not met the requirements of Napue,

nor is this a case that requires a new trial in the interest of justice.

Kelly’s Motions for a New Trial are denied.

CONCLUSION

For the reasons stated herein, Kelly’s Motion for a Judgment of

Acquittal (Dkt. No. 387) and Kelly’s Motions for a Tew Trial (Dkt.

Nos.388, 408) are denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Dated: 2/16/2023

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