United States v. Daheem Bryant-Royal , 607 F. App'x 258 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4340
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAHEEM BRYANT-ROYAL,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:12-cr-00040-WDQ-1)
Submitted: February 27, 2015 Decided: May 21, 2015
Before SHEDD, DUNCAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Rachel Yasser, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland;
Christine Duey, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Daheem Bryant-Royal of sexual abuse of a
minor in violation of 18 U.S.C. § 2243(a). Bryant-Royal appeals
his conviction on three grounds. He claims (1) the prosecutor’s
discussion during closing argument of his out-of-court
statements not in evidence deprived him of his constitutional
right to a fair trial; (2) his counsel’s inappropriate remarks
at closing argument deprived him of the effective assistance of
counsel; and (3) the district court erred by admitting into
evidence the testimony of his ex-girlfriend and phone records
showing text messages and phone calls between the two on the
night of the incident at issue. For the reasons that follow, we
affirm.
I.
A.
On September 4, 2011, Bryant-Royal, who was 21 years old at
the time, attended a party with a group of teenaged
acquaintances who lived at a military base in Maryland (the
“Base”). Prior to the party, Bryant-Royal made plans to meet
his ex-girlfriend after the party. During the evening, Bryant-
Royal stated his intention to “get some tonight.” S.J.A. 170.
The party guests included M.J., who was 15 years old at the
time. M.J. consumed alcoholic beverages at the party. When the
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guests decided to leave the party, she required assistance
walking to the car, and vomited multiple times during the drive
back to the Base. Over the course of the drive, Bryant-Royal,
also in the car and expressing frustration that the trip was
taking too long, made several unsuccessful attempts to call his
ex-girlfriend. She eventually answered his call, but said that
she would not see him that night because he would be returning
to the Base too late.
The group returned to the Base and dropped off Bryant-Royal
before driving to another guest’s house. M.J. was carried into
the house and left near a toilet. Shortly thereafter, Bryant-
Royal arrived at the house. A member of the group testified
that Bryant-Royal was agitated because he had not been able to
meet his ex-girlfriend. J.A. 97. After a time, everyone at the
house except for Bryant-Royal and M.J. went to bed. They awoke
to find M.J. crying in the living room, her hair and clothes
disheveled. M.J. stated that Bryant-Royal had raped her. Her
friends took her home, and M.J. reported the sexual assault to
her parents and law enforcement officials. Forensic evidence
confirmed that sexual intercourse had taken place between M.J.
and Bryant-Royal.
B.
Bryant-Royal was indicted under 18 U.S.C. § 2243 (Count
One, for “[s]exual abuse of a minor or ward”), and 18 U.S.C.
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§ 2242 (Count Two, for “[s]exual abuse”). Count One required
the government to prove that Bryant-Royal, “in the special
maritime and territorial jurisdiction of the United States . . .
knowingly engage[d] in a sexual act with another person who[]
(1) ha[d] attained the age of 12 years but ha[d] not attained
the age of 16 years; and (2) [wa]s at least four years younger
than [he].” 18 U.S.C. § 2243(a). Bryant-Royal’s knowledge of
M.J.’s age was not an element of the offense. Id. § 2243(d).
However, Bryant-Royal raised an affirmative defense--which he
had the burden to “establish by a preponderance of the
evidence”--that he “reasonably believed that [M.J.] had attained
the age of 16 years” at the time of the incident. Id.
§ 2243(c)(1). To rebut this defense, the prosecution introduced
the testimony of M.J. and a friend of hers, each of whom
testified about a different conversation in which Bryant-Royal
asked about M.J.’s age and was told that she was 15. J.A. 72,
99.
Count Two required the government to prove that Bryant-
Royal, “in the special maritime and territorial jurisdiction of
the United States[,] . . . knowingly . . . engage[d] in a sexual
act with another person [who was] incapable of appraising the
nature of the conduct; or . . . physically incapable of
participation in, or communicating unwillingness to engage in,
that sexual act.” 18 U.S.C. § 2242. Bryant-Royal’s defense for
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Count Two centered on the theory that M.J. consented to the
sexual act and, fearing pregnancy or other consequences,
concocted the rape allegation. By contrast, the government
sought to prove that Bryant-Royal’s conduct was knowing because
it was motivated by his anger at not getting back in time to
meet his ex-girlfriend. To prove this theory, the government
offered the testimony of Bryant-Royal’s ex-girlfriend to
establish Bryant-Royal’s state of mind directly before the
assault. She testified that on the night of the offense,
Bryant-Royal called her approximately nine times. The
government also introduced into evidence phone records showing
text messages and phone calls between the two on the night of
the offense.
During closing argument, defense counsel began by arguing
that M.J. consented to the sexual acts. He suggested that M.J.
panicked when Bryant-Royal ejaculated inside of her because she
did not want to become pregnant.
Turning to the argument that Bryant-Royal reasonably
believed M.J. was 16, defense counsel referred to out-of-court
statements Bryant-Royal allegedly made after his arrest.
Counsel stated that Bryant-Royal “thought she was 16.” S.J.A.
356. Counsel explained that Bryant-Royal “told [U.S. Army
Criminal Investigation Command], ‘I thought she was of age,’”
and stated that the jury “didn’t see the tape” of that
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statement. S.J.A. 356. The government objected to each of
these assertions because they referenced statements not in
evidence. The court overruled each objection, but instructed
the jury to base its verdict on its recollection of the
evidence. See S.J.A. 357. Given that Bryant-Royal’s statements
were not in evidence, the instruction effectively directed the
jury to disregard them.
Thereafter, in rebuttal, the government also referred to
Bryant-Royal’s out-of-court statements, noting: “[I]f we’re
going to talk about the Defendant’s prior statements, he
admitted [M.J.] looked young. . . . He admitted she had braces.
He didn’t say that she told him that she was 16. That’s not
what he said. He said that he thought she was at least 21.”
S.J.A. 369 (emphasis added). Defense counsel objected to these
statements, but the court again overruled the objection.
The jury convicted Bryant-Royal on Count One (sexual abuse
of a minor) but was unable to reach a verdict as to Count Two
(sexual abuse). The district court then sentenced Bryant-Royal
to 120 months’ incarceration for Count One, and dismissed Count
Two upon motion of the government. Bryant-Royal timely appealed
his conviction.
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II.
The issues before us on appeal are whether (1) the
prosecutor’s discussion of Bryant-Royal’s out-of-court statement
that he thought M.J. was 21 deprived Bryant-Royal of due
process, in violation of the Fifth Amendment to United States
Constitution; (2) Bryant-Royal’s counsel’s remarks at closing
argument deprived him of the effective assistance of counsel, in
violation of the Sixth Amendment; and (3) the district court
erred by admitting into evidence Bryant-Royal’s communications
with his ex-girlfriend. We address each issue in turn.
A.
We first consider Bryant-Royal’s due process argument.
Bryant-Royal explains that, because no reasonable person could
have believed that M.J. was 21, the prosecutor’s assertion that
Bryant-Royal had said that he thought M.J. was 21 undermined his
more reasonable argument that he believed she was 16. The
government concedes that the prosecutor’s statement was
improper, but contends that the remarks were invited by the
defense and did not prejudice the defendant.
In order to demonstrate that prosecutorial misconduct
deprived him of due process, a defendant “must show [1] that the
[prosecutor’s] remarks were improper and [2] that they
prejudicially affected the defendant’s substantial rights so as
to deprive [him] of a fair trial.” United States v. Wilson, 135
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F.3d 291, 297 (4th Cir. 1998) (alterations in original) (quoting
United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995))
(internal quotation marks omitted). Assuming, without deciding,
that the prosecutor’s remarks were improper, we consider six
factors to determine prejudice under the second prong of the
Wilson test:
(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters[;] . . . (5) whether
the prosecutor’s remarks were invited by improper
conduct of defense counsel[;] . . . and (6) whether
curative instructions were given to the jury.
United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010)
(alterations in original) (quoting Wilson, 135 F.3d at 299).
Ultimately, the question is “whether the prosecutor[’s] comments
‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Darden v. Wainwright, 477
U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)).
Applying the factors set forth above, we conclude that
Bryant-Royal has failed to show that the remarks deprived him of
a fair trial. First, we find that though the prosecutor’s
remarks had the potential to mislead the jury with respect to
Bryant-Royal’s belief about M.J.’s age, the remarks did not
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prejudice him. With respect to Bryant-Royal’s affirmative
defense, the jury had to determine “whether [Bryant-Royal] held
an opinion [that M.J. was older than fifteen,] and if so whether
that opinion was reasonable.” United States v. Yazzie, 976 F.2d
1252, 1256 (9th Cir. 1992). Although there was evidence that
could create an objectively reasonable belief that M.J. was at
least 16, see Appellant’s Br. at 13, there was no evidence
outside of defense counsel’s improper statements at closing as
to how old Bryant-Royal actually believed she was. Because
Bryant-Royal thus failed to show by a preponderance of the
evidence that he reasonably believed M.J. was at least 16
regardless of the prosecutor’s remarks, those remarks did not
prejudice him.
Second, the prosecutor’s remarks were isolated. The
prosecutor referred only once to the statement and discussed it
only briefly. Third, there was competent proof at trial
establishing Bryant-Royal’s guilt for Count One. Undisputed
evidence established the elements of Count One, and, with
respect to Bryant-Royal’s affirmative defense, the government
presented evidence that Bryant-Royal had been twice told that
M.J. was 15.
Fourth, there is no reason to believe that the prosecutor’s
remarks were made in order to divert the jury’s attention to
extraneous matters. To the contrary, and with respect to the
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fifth factor, the comments appear to have been made in direct
response to defense counsel’s improper remarks.
Sixth, and finally, any prejudice to Bryant-Royal was cured
by the district court’s final jury instructions. The court
instructed the jury to “rely upon [its] own recollection of the
evidence,” and not “[w]hat the lawyers ha[d] said.” S.J.A. 377.
A jury following this instruction would not have considered any
evidence of what Bryant-Royal said or did not say about his
belief in M.J.’s age because no such evidence was introduced.
And we presume that juries follow courts’ instructions. See,
e.g., United States v. Cone, 714 F.3d 197, 230 (4th Cir. 2013).
Upon consideration of these six factors, we hold that the
prosecutor’s improper remarks at closing argument did not result
in a denial of due process. See Bennett v. Angelone, 92 F.3d
1336, 1346-47 (4th Cir. 1996) (holding that although the
prosecutor’s improper religious argument during closing was
“objectionable and unwarranted,” when “viewed in the total
context of the trial, it was not sufficiently egregious to
render [the defendant’s] trial fundamentally unfair” because of
the strength of the evidence against him and the curative jury
instruction).
B.
We next consider Bryant-Royal’s contention that his
attorney’s remarks at closing argument deprived him of the
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effective assistance of counsel in violation of the Sixth
Amendment. Bryant-Royal argues that defense counsel made
arguments that were (1) improper; (2) based on evidence not in
the record; (3) irrelevant to any disputed element or defense;
and (4) inflammatory to the jury. See Appellant’s Br. at 22-24.
Bryant-Royal submits that these remarks operated collectively to
deprive him of effective counsel.
We “routinely decline to address on direct appeal” a claim
of ineffective assistance “unless ‘the lawyer’s ineffectiveness
conclusively appears from the record.’” United States v. Brown,
757 F.3d 183, 191 (4th Cir. 2014) (quoting United States v.
Bernard, 708 F.3d 583, 593 (4th Cir. 2013)). We follow that
practice here, and decline to reach Bryant-Royal’s ineffective-
assistance claim.
C.
Finally, we consider Bryant-Royal’s argument that the
district court erred by admitting evidence of his communications
with his ex-girlfriend on the night of the offense, in violation
of Federal Rule of Evidence 403. That rule provides that “[t]he
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. We “review a district
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court’s admission of evidence over a Rule 403 objection under a
broadly deferential standard.” United States v. Love, 134 F.3d
595, 603 (4th Cir. 1998) (quoting United States v. Simpson, 910
F.2d 154, 157 (4th Cir. 1990)) (internal quotation marks
omitted). Indeed, “[a] district court’s decision to admit
evidence over a Rule 403 objection will not be overturned except
under the most extraordinary circumstances, where that
discretion has been plainly abused.” United States v. Williams,
445 F.3d 724, 732 (4th Cir. 2006) (quoting Simpson, 910 F.2d at
157) (internal quotation marks omitted).
Under Rule 403, a trial court must ask “whether such
evidence has the potential to cause undue prejudice, and if so,
whether the danger of such undue prejudice substantially
outweighs its probative value.” United States v. Mark, 943 F.2d
444, 449 (4th Cir. 1991). “[W]hen reviewing a trial court’s
decision to admit evidence under Rule 403, we must look at the
evidence in a light most favorable to its proponent, maximizing
its probative value and minimizing its prejudicial effect.”
United States v. Udeozor, 515 F.3d 260, 265 (4th Cir. 2008)
(quoting Simpson, 910 F.2d at 157) (internal quotation marks
omitted). We find no such prejudice here.
The phone records and testimony of Bryant-Royal’s ex-
girlfriend had no bearing on Bryant-Royal’s reasonable belief
about M.J.’s age, which was the only disputed issue with regard
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to Count One, the only count for which he was convicted.
Moreover, Rule 403 excludes only evidence that has the potential
to cause undue prejudice, and only when such potential
substantially outweighs the evidence’s probative value. Mark,
943 F.2d at 449. Here, while the evidence had little probative
value--at most, it established Bryant-Royal’s desire to engage
in sexual intercourse and his frustration that he was unable to
meet his ex-girlfriend that night--it also lacked prejudicial
effect. The evidence suggested, if anything, that Bryant-Royal
wanted to see his ex-girlfriend late that night, not that he
planned to rape a person he knew to be 15. Because the evidence
did not carry the risk of causing prejudice that substantially
outweighed its probative value, the district court did not err
in admitting it.
III.
For the foregoing reasons, we affirm. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process. *
AFFIRMED
*
We also deny as moot the government’s motion to supplement
the record, ECF No. 44.
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