Over-zealous prosecutors, in this apparently open-and-shut sex trafficking case, are looking at embarrassing errors and lies that may set the accused free.
Marcellus Overton, a popular barbershop owner in Niagara Falls, originally pled guilty to charges claiming he transported underage females from here to Backpages.com-rendezvous in Georgia.
He was facing life in prison when he took the plea deal.
Overton is now seeking to withdraw his plea deal since finding multi-page prosecution documents from female Victim #1, saying Overton is innocent—she, Victim #1, initiated the sex service on her own.
Overton’s advisor, Christopher Thurston, said that Overton is seeking to abandon his original guilty plea, filing instead for “full discovery” to find exactly what the government is hiding.
Noting the prosecution’s hidden files held a key for the defense, Overton made at least six attempts though lawyers to see a pile of paperwork allegedly “saturated with exculpatory information.” None of this information was available when Overton entered his guilty plea, while trying to avoid anywhere from a decade to life in prison.
On house arrest with a nighttime curfew while his federal case is pending, Overton has been fighting for his liberty for five long years of pre-trial litigation. Marcellus is a father, and once a businessman before this happened. He has a clean record.
Overton was first handed an assigned attorney by the court who was “grossly incompetent.”
Advisor Thurston claimed that the attorney for Overton “appeared to be cooperating more with the prosecution than defending his client.”
When it surfaced that materials were hidden from pre-trial discovery, “The defense attorney naively expressed disbelief that a prosecutor would ever withhold or even falsify information. He was baffled, saying he had never seen that in his life,” Thurston said.
Overton was assigned another attorney. Then he was assigned a third attorney by the court.
The new discovery materials are sealed and may only be examined “in chambers” by the defendant and his council. But now the defense is moving to withdraw Overton’s guilty plea, a move that even the judge was expecting.
According to statistics, the federal government has a 97% confession rate. Not convictions, but rather confessions. There is great concern these days that prosecutors nationwide are being caught withholding exculpatory evidence from defendants, among a host of other misdeeds. Overton’s case seems to fit right in—making him an example of how far the feds are willing to go to add to our global record at incarceration—2.3 million people. Are all those people 100% guilty?
Federal agents arrested Marcellus Overton in 2015. He was charged with “sex trafficking of a minor and transportation of a minor to engage in criminal sexual activity.” The girl was 17, over the age of legal consent. The charges carry a mandatory minimum of 10 years in prison and a maximum of life. Overton was accused of operating a prostitution ring which included three women, the one under-18 [Victim #1] and charged with six counts of sex trafficking. The two incidents occurred in December 2012 and in March 2013.
As if planned with the date in mind, his arrest was announced during “Human Trafficking Awareness Month.” Prosecutors claim Overton knowingly transported a minor under 18 years old between New York and Georgia to engage in prostitution.”
The charges against Overton read:
“Defendant knowingly recruited, enticed, harbored, transported, provided, obtained, and maintained by any means, Victim 1, a person under the age of 18 years, knowing and in reckless disregard of the fact, having had a reasonable opportunity to observe Victim 1, that Victim 1 had not attained the age of 18 years and that Victim 1 would be caused to engage in a commercial sex act.”
One of the confusing points of the allegation was how Overton could have known the female was under 18: did they show him I.D., birth certificate, or, did he attend the Victim’s birthday party? Silly. But, how?
Count 2 charges that (…) defendant knowingly transported Victim 1 between New York and Georgia with the intent that [she] engage in prostitution and in sexual activity for which any person can be charged with a criminal offense.”
The prosecutors seemed to have a case, with broad allegations, and a lack of concrete evidence.
Feds: “The defendant harbored and maintained females, including Victim 1, by, among other things, providing shelter, food, clothing, and narcotics (one victim claimed there was a drug involved; the other victim did not). The defendant took photographs of the females, including Victim 1, and posted advertisements on the internet—on Backpage.com—advertising the females’ availability, available locale, and a phone number to respond to each advertisement.”
“The defendant arranged for hotel rooms at which the females could engage in commercial sex activities during ‘in call’ appointments and transported or arranged for transportation of the females for ‘out call’ appointments. The defendant required Victim 1 and other victims to give him money they had received for the commercial sex acts resulting from the Backpage advertisements.”
Yet, interestingly, evidence exists to say the alleged Victims were running their little ‘call-girl’ ring, themselves, from photography to entertainment. There must be an amazing amount of information in that agent’s notes.
U.S. District Judge William M. Skretny wrote: “On November 26, 2018, the day before trial, Overton waived indictment and pleaded guilty to a superseding information charging him with conspiracy to commit sex trafficking of a minor. (…) In his plea agreement and at his plea colloquy, Overton admitted to trafficking …”
So, why Georgia? There are sex rings in Niagara Falls. Why go all the way to Georgia? Apparently, the caravan was really headed to the March Madness basketball playoffs, to reap big bucks from fans, according to federal prosecutors.
However, the timeline is confused since Overton was there and left a month prior to the sporting event in Georgia.
But another story has been alleged, altogether. The Georgia trip’s point was a visit to Overton’s friends. Part of the trip was to celebrate one of the government’s alleged “Victims” years of sobriety—a matter Overton took seriously, taking the woman annually to sobriety gatherings across the U.S. The two “Victims” got together when Overton was away and made plans for another kind of rendezvous, to make money in an anonymous place.
According to the Department of Justice, “The (original guilty) plea was the culmination of an investigation by Immigration and Customs Enforcement, Homeland Security Investigations, Special Agent-in-Charge Kevin Kelly, and the New York State Police, under the direction of Major Edward Kennedy. One investigator’s name was apparently withheld from the agency’s press release.
Judge Skretny: “Overton, however, was convinced that the government failed to produce all exculpatory materials in discovery, and he questioned his attorney’s effectiveness in failing to obtain those materials before he entered his guilty plea.”
“This court appointed independent counsel to advise Overton as to any attorney-conflict issues stemming from his ineffectiveness concerns and as to whether it was in his best interests to pursue a motion to vacate his plea (…) or proceed to sentencing.”
Judge Skretny assigned the second defense attorney “to help Overton decide whether to file a motion to withdraw his plea and whether he will claim ineffective assistance of counsel, improprieties in the grand jury or that prosecutors withheld evidence.”
Apparently, all three things took place. His lawyer was incapable, his grand jury indictment relied heavily on a testimony since impeached, and much new evidence has only now been released.
“There followed multiple disclosures in response to Overton’s multiple requests,” Judge Skretny continues, “including producing previously undisclosed material relating to FBI Special Agent Karen Wisniewski, a witness whom the government did not intend to call at trial, but for whom Overton had requested pretrial discovery.”
In addition to others, Special Agent Karen Wisniewski was curiously absent from the agency’s big announcement on the case. Thanks to Overton’s tenacity in making the government disclose hidden documents, we now know her name.
Discovery unearthed multiple pages of reports and handwritten notes by Wisniewski “saturated with exculpatory information,” none of which was disclosed before Overton entered his guilty plea, despite his requests for it. Six or more requests.
Federal prosecutors, for their part, deny committing any violations, oppose any kind of hearing, saying Overton has “no basis” to withdraw his guilty plea, and finally request that the matter be set down for sentencing as soon as possible.
Judge Skretny wrote in a decision: “Overton contends that he once saw a law enforcement document among Victim 1’s belongings that set forth exculpatory statements that Victim 1 allegedly made to law enforcement.
“The document would have Victim 1 say that ‘she never worked for him; that she engaged in prostitution on her own; and that she did not work for or with him.’ (…) The government maintains that it is unaware of any such statement given by Victim 1 to law enforcement, and that it has provided all statements to the defense.”
Judge Skretny nonetheless ruled that “the government is ordered to contact each involved law enforcement agency (…) to inquire into the existence and whereabouts of the alleged statement.
“If the alleged statement exists and is discovered, the government must produce it to the defense. If the alleged statement once existed but has been destroyed, the government must provide an explanation to the defense. If it is reported by a given law enforcement agency that the alleged statement never existed, the government must provide that confirmation to the defense.”
Whether the newly unearthed information and the attempt to vacate his plea deal will have any impact on Marcellus Overton’s case remains to be seen.
Overton, all along, has wished to see this case through without facing a life sentence.
The question is really was he a sex trafficker in the case of these three women, one of whom was already a sex worker in an outfit called Mean, Inc., before she spent time with Overton. And she still is a sex worker now, as this case draws out.
The Feds have yet to admit their mistake, that the younger woman wasn’t “trafficked” until she herself engaged in the act. The younger woman told the investigator she had not been pushed at all by Overton.
Moreover, isn’t a prostitution or sex trafficking operation usually involving many more players—than just four people and two occasions?
It seems like someone may have done something wrong, but we’re not quite sure who, and, if so, is a life sentence warranted?
The feds can call the case of three prostitutes advertising to have paid sex on two occasions a “sex trafficking” case only if they nail Overton and tie him to the crime.
Without charging Overturn as a sex trafficker, the case would simply be a prostitution charge for the women, a probable misdemeanor.
Again: Here is the whole case: Overton takes three female friends down to Georgia; one is 17, the others in their 20s. The women on one day advertise to turn some tricks [Overton claimed he did not know]. They come back home the following day and he’s never involved again in any of their activities.
According to one source, the feds do not have any Johns as witnesses. It is possible that the women did not engage in any sex work in Georgia during their brief trip.
The other incidents was when, a few months prior to the Georgia trip, he drove Victim #1 to a motel where she made a rendezvous with a man for paid sex.
Overton is expected to submit as evidence that he received no money, did not set up the dates, or manage the women in any way.
Even if Overton did take money from the women, something he is expected to deny, how much sex trafficking went on during these two days?
The women were sex workers before and after their brief encounter with Overton and he faces life in prison?
One woman already said it was her idea.
The other is a long-time sex worker, not a line of work suggested to her by Overton.
Apparently, she was later arrested in a Falls hotel and earned a number of charges, including prostitution. And that case was somehow muted to keep Overton and the defense unaware. My goodness, how much other material is missing in this shoddy excuse for a case?