United States v. Franesiour Kemache-Webster ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4801
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANESIOUR B. KEMACHE-WEBSTER, a/k/a Bryan Webster,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:10-
cr-00654-RWT-1)
Argued: October 26, 2012 Decided: November 28, 2012
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Warren Lease, SMITH, LEASE & GOLDSTEIN, LLC,
Rockville, Maryland, for Appellant. Jonathan Biran, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, LisaMarie Freitas, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Franesiour Kemache-Webster of
enticing a minor to engage in illegal sexual activity in
violation of 18 U.S.C. § 2422(b), and the district court
sentenced him to life imprisonment. Kemache-Webster now appeals
both his conviction and sentence. With regard to his
conviction, he contends that the district court (1) erred by
denying his motion for acquittal based on insufficiency of
evidence and (b) abused its discretion by making several
evidentiary rulings. With regard to his sentence, Kemache-
Webster claims both procedural and substantive errors and asks
this Court to vacate it. Finding no merit in these contentions,
we affirm.
I.
In late 2008, Kemache-Webster’s daughter “Nikki,” who was
14 years old and had been living with her mother, came to live
with Kemache-Webster in Washington, D.C. Nikki lived there with
Kemache-Webster until March 2010 when Kemache-Webster went to
federal prison in Illinois for writing a bad check. Soon
thereafter, Nikki moved back in with her mother in Maryland.
From prison, Kemache-Webster sent Nikki emails and letters
and placed telephone calls to her that revealed (in graphic
detail) that Kemache-Webster and Nikki had maintained an
2
incestuous relationship while she was living with him. The
communications indicated that Kemache-Webster intended for the
relationship to continue after his incarceration and that he
even intended to marry Nikki and conceive children with her, the
first of which would be named Ne’Vaeh (“Heaven” spelled
backwards). Kemache-Webster also sent Nikki a detailed plan for
their reunion, which was to occur immediately after his
anticipated release in 2010. This plan specified that Nikki
would meet him at a bus station in Washington, D.C., from which
they would go to a nearby hotel where “every thought, idea, and
desired position [would] be acted upon, assisted and fully
accomplished.” (J.A. 429.)
Nikki responded to Kemache-Webster’s communications in
kind. For example, a July 27, 2010 letter from Kemache-Webster
to Nikki referenced recent comments from Nikki as follows: “Now
as for Ne’Vaeh . . . it sounded like when we last spoke openly
and by a letter I got from you on Monday . . . that you are
really wanting to get pregnant this year . . . as soon as I am
home and we are settled.” (S.S.A. 013.)1 But the plan never
1
This letter was included in the original Joint Appendix,
but the copy quality made it illegible. The government included
a legible copy in a proposed Second Supplemental Appendix.
Kemache-Webster opposed the government’s request for leave to
file much of the material in the Second Supplemental Appendix,
but he did not oppose the government’s request to replace
illegible copies with legible ones. Therefore, we grant the
(Continued)
3
materialized because Kemache-Webster never got out of prison.
Instead, prior to his release, the government discovered these
communications and indicted him on one count of enticing a minor
to engage in unlawful sexual activity under 18 U.S.C. § 2422(b).
The case proceeded to a three-day jury trial in April 2011,
which concluded with a guilty verdict. Several months later,
following a sentencing hearing, the district court sentenced
Kemache-Webster to life imprisonment.
II.
We turn now to Kemache-Webster’s contention that the
district court erred by denying his motion for acquittal. The
motions challenged the sufficiency of the evidence. We review
challenges to the sufficiency of the evidence de novo, United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005), and we must
sustain the verdict if there is substantial evidence, viewed in
the light most favorable to the government, to support it.
Burks v. United States, 437 U.S. 1, 17 (1978). Substantial
government’s request for leave to file the portions of the
Second Supplemental Appendix that are merely legible copies of
exhibits included in the prior Joint Appendices. Since the
other material in the proposed Second Supplemental Appendix does
not affect our analysis of any issue in this appeal, we deny the
government’s request to file those portions of the Second
Supplemental Appendix.
4
evidence is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of
guilt beyond a reasonable doubt. Alerre, 430 F.3d at 693. A
defendant bringing a sufficiency challenge “must overcome a
heavy burden,” United States v. Hoyte, 51 F.3d 1239, 1245 (4th
Cir. 1995), and reversal for insufficiency must “be confined to
cases where the prosecution's failure is clear.” Burks, 437 U.S.
at 17. Here we find that the evidence was sufficient to support
Kemache-Webster’s conviction.
18 U.S.C. § 2422(b) makes it illegal to “knowingly
persuade[], induce[], entice[], or coerce[] any individual
[under 18] to engage in . . . sexual activity for which any
person can be charged with a criminal offense, or attempt[] to
do so.” 18 U.S.C. § 2422(b).2 Thus, there are two prongs to the
statute, one for a completed violation and the other for an
attempted violation. Both parties here agree that Kemache-
Webster was convicted of a completed violation.
2
The statute does not define the words “persuade,”
“induce,” “entice,” or “coerce.” Therefore, we give them their
ordinary meaning. At least as they apply to this case, the
words are essentially synonymous, and “the idea conveyed is of
one person leading or moving another . . . as to some action
[or] state of mind.” United States v. Engle, 676 F.3d 405, 412
n.3 (4th Cir. 2012) (quoting United States v. Broxmeyer, 616
F.3d 120, 125 (2d. Cir. 2010)). In this opinion we will use
“entice” as shorthand for the collection of these four verbs.
5
In Engle, we explained that the attempt prong “criminalizes
an intentional attempt to achieve a mental state—a minor’s
assent.” Engle, 676 F.3d at 419 (quoting U.S. v. Burk, 652 F.3d
132, 140 (1st Cir. 2011)). From that holding, it follows that
the completed violation prong criminalizes a successful attempt
to achieve the victim’s assent. Therefore, to prove a completed
violation of the statute, the government must show that the
minor actually assented to the illegal sexual activity, but the
completion of the act assented to is not required. Thus, it is
irrelevant whether the defendant and the minor have sex because
the crime is complete when the minor assents.
On appeal, Kemache-Webster contends that the district court
should have granted his motions for acquittal since the evidence
against him was insufficient in two ways. First, he contends
that there was insufficient evidence to support a conclusion
that Nikki gave her assent to engage in illegal sexual acts with
him. And, Kemache-Webster argues, since the district court only
charged the jury on the completed violation prong of the
statute, not the attempt prong, the jury could not convict
without evidence of Nikki’s assent. Second, Kemache-Webster
contends that the jury could not have found that the sexual
activity Kemache-Webster proposed to Nikki was illegal since the
evidence showed that the activity was to occur in Washington,
D.C., and the district court only instructed the jury that
6
incest was illegal in Maryland. We address these two
contentions in turn.
A.
Kemache-Webster’s first contention—that there was
insufficient evidence to support a finding that Nikki gave her
assent—is incorrect. Kemache-Webster’s letter to Nikki stating
that “it sounded like . . . you are really wanting to get
pregnant this year . . . as soon as I am home and we are
settled” supports the inference that Nikki gave her assent by
telling her father that she intended to resume their incestuous
relationship and bear his child. (S.S.A. 013.) Thus, a
reasonable jury could conclude that Kemache-Webster “enticed”
Nikki as required for a conviction under 18 U.S.C. § 2422(b).
B.
Kemache-Webster next contends the district court improperly
charged the jury by instructing them on the law of incest from
Maryland.3 The district court charged the law of incest from
Maryland. Kemache-Webster did not object to the charge, but he
now asserts that the law of Washington, D.C., should have been
charged because the evidence at trial included specific plans
for post-incarceration sex in Washington, D.C., but no specific
3
Although Kemache-Webster claims he is appealing the denial
of his motion for acquittal, he is actually challenging the
district court’s jury charge.
7
plans to have sex in Maryland. Because Kemache-Webster did not
object to the jury instruction at trial, we review for plain
error. See Fed.R.Civ.P. 51(d)(2) (“A court may consider a plain
error in the instructions that has not been preserved . . . if
the error affects substantial rights.”). Applying plain error
review, we will not reverse unless Kemache-Webster can
establish: “(1) there is an error; (2) the error is plain; (3)
the error affects substantial rights; and (4) the court
determines . . . that the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” In re
Celotex Corp., 124 F.3d 619, 630–31 (4th Cir. 1997). Kemache-
Webster cannot satisfy this standard.
First, even if we assume error in charging the proper
substantive law on illegal sexual activity, it is not clear that
such an error is plain. The law of Maryland could be just as
appropriate as the law of Washington, D.C., because the jury
could have found that the enticing was completed in Maryland or
that Nikki had given her assent to a sexual relationship that
would have included sex in Maryland, where she lived when she
gave her assent. Further, we find no plain error here because
Kemache-Webster cannot show that the error affected his
substantive rights since incest is illegal in Washington, D.C.,
just as it is in Maryland. D.C. St. §22-1901.
For these reasons, we reject Kemache-Webster’s contention.
8
III.
Kemache-Webster also contends that the district court made
three erroneous evidentiary rulings, which we review for abuse
of discretion. United States v. Johnson, 617 F.3d 286, 292 (4th
Cir. 2010). First, Kemache-Webster contends that the district
court abused its discretion by allowing the government to redact
some benign portions of written correspondence between Kemache-
Webster and Nikki, finding that the redacted portions provided
no meaningful context to the admitted portions of the
correspondence. Second, Kemache-Webster contends that the
district court abused its discretion by refusing to allow him to
introduce evidence of Nikki’s alleged behavioral problems, which
would have supported his claim that he was communicating with
Nikki as a sexual partner in an attempt to gain her trust in
order to help remedy those behavioral problems. On this point,
the district court ruled that Nikki’s alleged behavioral
problems were not relevant to any issue that the jury needed to
decide. Third, Kemache-Webster contends that the district court
abused its discretion by allowing a government investigator to
provide lay opinion testimony, based upon his review of
communications between Kemache-Webster and Nikki, as to the
meaning of certain “code” words that Kemache-Webster and Nikki
used to refer to their body parts. Here, the district court
found that the investigator’s testimony was admissible as
9
opinion testimony that was based on the inspector’s personal
review of hundreds of emails between Kemache-Webster and Nikki.
Having considered Kemache-Webster’s arguments and reviewed each
of the district court’s challenged rulings, we find no abuse of
discretion.
IV.
Finally, Kemache-Webster challenges his sentence. In
reviewing any sentence, “whether inside, just outside, or
significantly outside the Guidelines range,” we apply a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). We first must “ensure that the
district court committed no significant procedural error.” Id.
at 51. “If, and only if, we find the sentence procedurally
reasonable can we ‘consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.’”
United States v. Carter, 564 F.3d 325, 328 (4th Cir.2009)
(quoting Gall, 552 U.S. at 51).
On appeal, Kemache-Webster contends that his sentence is
both procedurally and substantively unreasonable. As for the
procedural challenges, Kemache-Webster contends that the
district court (1) disregarded the Sentencing Guidelines, (2)
10
relied on unproven facts and uncharged conduct,4 and (3) failed
to explain and apply the factors set forth in 18 U.S.C. §
3553(a). We have considered these contentions and find them to
be meritless. In fact, the record makes clear that the district
court relied on the Sentencing Guidelines to calculate the
sentencing range and then considered the appropriateness of that
range in light of the § 3553(a) factors. Moreover, Kemache-
Webster offers no basis for concluding that the district court
considered facts that were not supported by ample evidence.
With regard to the substantive challenges, Kemache-Webster
primarily contends that the district court abused its discretion
by imposing a sentence for enticement of incest that was greater
than Maryland’s penalty for actual incest. However, the
district court noted numerous reasons for imposing a life
sentence, including Kemache-Webster’s criminal history, attempts
to circumvent court orders, and failure to accept the
seriousness of his crime. Therefore, we do not find that the
length of this sentence represented an abuse of discretion.
4
Kemache-Webster also makes a related argument that
allowing judge-found facts to serve as the basis for
enhancements to his sentence deprives him of his constitutional
right to a jury trial. Kemache-Webster correctly notes that a
panel of this Court has already rejected this argument. See
United States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).
11
V.
For the foregoing reasons, we affirm Kemache-Webster’s
conviction and sentence.
AFFIRMED
12