United States v. Robert Gross ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3167
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United States of America
Plaintiff - Appellee
v.
Robert J. Gross
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 24, 2021
Filed: January 24, 2022
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Before KELLY, ERICKSON, and GRASZ, Circuit Judges.
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KELLY, Circuit Judge.
In May 2019, a jury convicted Robert Gross of two counts of interstate
stalking (Counts 1 and 2), 18 U.S.C. §§ 2261A(1)(B) and 2261(b), and six counts
related to his unlawful receipt and possession of firearms. The district court
sentenced him to a total of 420 months of imprisonment. Gross appeals, challenging
the sufficiency of the evidence on Counts 1 and 2, alleging error in the denial of his
motion for new trial, and arguing that his sentence is substantively unreasonable.
I.
Gross was charged in a Superseding Indictment with four counts of interstate
stalking (Counts 1–4), alleging that he stalked four different women by traveling
from his residence in Missouri to Kansas with the intent to harass and intimidate
each of them, causing substantial emotional distress. 1 Counts 1 and 2 arose out of
Gross’s conduct toward Yuling Liu and Chunqiu Wu, 2 respectively.
At trial, Wu testified that in 2017 she operated three massage parlors in
Kansas, and Gross was a regular customer at all three. One of the parlors was called
Tea Spa Massage, and this was where Liu worked. On the morning of October 1,
2017, Gross went to Tea Spa Massage. When he arrived, Liu was the only employee
there and Gross was the only customer.
Surveillance video from the reception area at Tea Spa Massage that morning
showed both Gross and Liu. Gross was naked, walking down the parlor’s hallway
and out of view, and then going into a room off the reception area. Liu closed the
door behind him. Gross came back out, saw Liu was eating, and said he thought the
parlor was “open for business” and that he would “come back later.” Liu gave him
his money back but told him that the parlor was indeed open. Gross then became
upset, and began to call Liu a “bitch,” tell her she was stupid, and berate her for
eating breakfast when he wanted a massage. He asked her personal questions and
then called her a liar when she answered. He also threatened to report her to
immigration for various violations and have her sent “back to China.”
1
Gross was also charged with three counts of possession of a firearm by a
convicted felon (Counts 5, 7, and 9), 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and three
counts of receiving a firearm while under indictment (Counts 6, 8, and 10), 18 U.S.C.
§§ 922(n) and 924(a)(1)(D).
2
On appeal, the parties refer to Yuling Liu and Chunqiu Wu as “Liu” and
“Wu” respectively. We adopt this naming convention for purposes of consistency.
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Liu offered to call Wu but Gross said he did not need to speak with Wu on the
phone because he would “be down there to talk to her.” Liu called Wu anyway and
gave the phone to Gross. Gross told Wu that there had been “a problem” in one of
her other parlors the night before and that she “owe[d him] some money.”
Specifically, he said that he paid $60 at the other parlor “for a 15-minute massage
that [he] gave [him]self.” Gross told Wu that, as the manager, she should have been
there to solve the problem “before [he] got mad.” He said that he was “super mad
now” because the same thing was happening again.
Gross eventually told Wu that he expected Liu to give him a massage, and he
handed the phone and his money back to Liu. Liu tried to return the money, but
Gross refused and, while naked, grabbed Liu from behind and held her closely. Liu,
still on the phone with Wu, broke free, ran outside, and flagged down a passerby.
By the time Liu reentered the parlor with the passerby, Gross was dressed. Gross
took the phone and told Wu “I am going, but you owe me some money. Remember
that.” He then left Tea Spa Massage parlor.
At trial, Wu testified that later the same morning, she was driving into the
subdivision where she lived when she spotted Gross driving out of her
neighborhood. She took photographs of his car and contacted the police. Wu had
never seen Gross in her neighborhood before and was “very afraid.” On cross-
examination, Gross’s counsel asked Wu whether employees engaged in sex work at
her massage parlors. Wu answered no.
The jury convicted Gross on Counts 1 and 2 for interstate stalking of Liu and
Wu but acquitted him on Counts 3 and 4. The jury also convicted him on all firearms
counts.
Several months after Gross’s trial, Wu was charged with, and later pleaded
guilty to, transporting an individual for purposes of prostitution in the United States
District Court for the District of Kansas. After her arrest, she admitted that she knew
workers in her massage parlors engaged in sex acts with customers. Only after Wu
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was charged did the prosecution team in the instant case learn that the FBI had
opened an investigation into Wu days before Gross’s trial. In fact, the FBI had
conducted surveillance of Wu on the same day she testified at the trial. Gross
subsequently filed a motion for judgment of acquittal or, alternatively, a new trial on
the grounds that the government’s case rested on Wu’s perjured testimony. The
district court denied the motion.
The district court sentenced Gross to a 60-month sentence on both interstate
stalking counts and on each count of receipt of a firearm while under indictment,
with the sentences to run consecutively for a total of 300 months. The court
sentenced Gross to 120 months on each of the three counts charging him with
possession of a firearm as a convicted felon, with these sentences to be served
concurrently with each other but consecutively to all other sentences. Combined,
Gross’s total sentence is 420 months of incarceration.
On appeal, Gross challenges the sufficiency of the evidence on Counts 1 and
2, the interstate stalking convictions. Gross also appeals the denial of his post-trial
motion and challenges his sentence as substantively unreasonable.
II.
A.
Gross argues that the government failed to produce sufficient evidence to
support either of his interstate stalking convictions. We review challenges to the
sufficiency of the evidence de novo, “viewing the evidence in the light most
favorable to the verdict.” United States v. Lussier, 844 F.3d 1019, 1023 (8th Cir.
2017). We will reverse “only if no reasonable jury could have found the defendant
guilty beyond a reasonable doubt.” Id.The government must prove three essential elements to establish that a
defendant is guilty of interstate stalking under 18 U.S.C. § 2261A(1)(B): (1) the
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defendant traveled in interstate commerce; (2) the defendant traveled with the intent
to injure or harass a victim; and (3) the defendant caused the intended victim
substantial emotional distress in the course of, or as a result of, that travel. See
United States v. Wills, 346 F.3d 476, 493–94 (4th Cir. 2003); United States v. Al-
Zubaidy, 283 F.3d 804, 808 (6th Cir. 2002).
We begin with Count 2. Gross argues that the government failed to present
sufficient evidence that he engaged in interstate travel with the intent to harass Wu.
Gross asserts that the starting point for his travel was Tea Spa Massage, located in
Lawrence, Kansas, and that his subsequent drive to Wu’s neighborhood in Lenexa,
Kansas, was purely intrastate. The government did not provide direct evidence of
Gross’s interstate travel, but a reasonable jury could infer that on October 1, he
crossed from his home in Missouri to Tea Spa Massage and Wu’s neighborhood,
both in Kansas. See United States v. White, 915 F.3d 1195, 1197 (8th Cir. 2019)
(“A verdict may be based on circumstantial as well as direct evidence, and the
evidence need not exclude every reasonable hypothesis except guilt.” (cleaned up)).
As to his intent to engage in harassing conduct, the jury saw the video of Gross
at Tea Spa Massage on the morning of October 1. While there, Gross spoke to Wu
on the phone about the “problem” he experienced the night before at one of her other
massage parlors. He described himself as “super mad” and he blamed Wu.
Moreover, Gross initially was not interested in speaking with Wu on the phone when
Liu offered to make the call because, he said, he would “be down there to talk to
[Wu].” A reasonable jury could conclude that at least one reason Gross left his home
in Missouri and drove to Kansas that morning was to confront Wu about the fact that
he did not receive the services he paid for the previous evening and that he believed
she owed him a refund.
Gross also argues that the government failed to prove that he engaged in a
“course of conduct” that caused Wu substantial emotional distress. Gross points out
that there was no evidence that he “harassed” or “intimidated” Wu more than once.
Even if Gross is right that there was only one instance of harassment involving Wu,
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however, the government was not required to prove a “course of conduct” to
establish his guilt.
The federal stalking statute defines two separate crimes: one prohibiting
stalking via interstate travel under 18 U.S.C. § 2261A(1), and another prohibiting
stalking via interstate communications (often called cyberstalking) under 18 U.S.C.
§ 2261A(2). See United States v. Gonzalez, 905 F.3d 165, 180 (3d Cir. 2018) (listing
elements for both crimes). Only cyberstalking includes a “course of conduct”
requirement. In contrast, interstate travel stalking requires that a defendant cause
emotional distress “in the course of, or as a result of, such travel.” 18 U.S.C.
§ 2261A(1). Thus, for an interstate travel stalking charge, a single interstate trip is
sufficient. See United States v. Lee, 790 F.3d 12, 18 (1st Cir. 2015) (affirming
stalking conviction over challenges to sufficiency of the evidence where defendant
took a single interstate trip); United States v. Walker, 665 F.3d 212, 224–25 (1st Cir.
2011) (holding that the interstate trip can itself be sufficient to convict where the
victim suffered emotional distress as a result of that trip).
Gross appears to draw the “course of conduct” requirement from the district
court’s jury instructions, which asked the jury to find that Gross traveled interstate
“to engage in a course of conduct that caused or attempted to cause substantial
emotional distress.” However, where jury instructions ask the jury to find something
not required by the statutory elements of an offense, we review the sufficiency of
the evidence based only on the statutory elements of the charged crime. See
Musacchio v. United States, 577 U.S. 237, 243 (2016) (“[A] sufficiency challenge
should be assessed against the elements of the charged crime, not against the
erroneously heightened command in the jury instruction.”). A single incident is
sufficient, and Gross does not argue that the government failed to establish that he
engaged in an incident of harassing conduct that caused Wu substantial emotional
distress. Viewing the evidence in the light most favorable to the verdict, the
government presented sufficient evidence to support Gross’s conviction on Count 2.
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Next, we turn to Count 1. Gross argues that the government failed to establish
that he traveled across state lines with the intent to harass or intimidate Liu. Gross
contends that the evidence at trial showed that he traveled to Tea Spa Massage
seeking sexual services, and that he only became upset with Liu after she refused to
provide them.
At the start of the Tea Spa Massage surveillance video, Gross was already
naked, walking freely through the massage parlor. After about four and a half
minutes, he approached Liu, saw she was eating, and said “Why don’t you eat, give
me the money, I’ll come back later. I’ll just come back. . . . It’s okay.” Liu returned
his money, and he said “I thought you were open for business, but you’re not. You’re
not open.” When Liu disagreed and insisted that the massage parlor was in fact
open, Gross became angry. He began to berate Liu and threaten to notify
immigration authorities of her whereabouts, expressing his displeasure with the fact
that he “came all the way up here to get a massage” and didn’t get one.
According to the video, Gross did not show anger or engage in harassing
conduct until he and Liu began arguing about whether Tea Spa Massage was open
for business. The government suggests that Gross crossed the Missouri-Kansas line
with the intent to harass both “Wu and her employees” because he was upset about
not receiving the services he paid for the night before at another of Wu’s massage
parlors. But Count 1 charged Gross with traveling in interstate commerce with the
intent to harass Liu. The government presented no evidence that when Gross left his
home in Missouri that morning, he knew Liu would be working at Tea Spa Massage.
The government also presented no evidence that Gross was angry, upset, or
frustrated by anything related to Liu, or harbored any ill will toward her, until after
he arrived at Tea Spa—which, as no one disputes, was after he arrived in Kansas.
Cf. United States v. Conlan, 786 F.3d 380, 387 (5th Cir. 2015) (noting that
§ 2261A(2), which uses the same language regarding “person” and “that person” as
§ 2261A(1), requires that the defendant act with intent towards a particular person).
Even assuming an intent to harass the targeted victim need not be the only reason
for a defendant’s interstate travel, it must be at least one of the reasons to support a
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conviction under § 2261A. See Al-Zubaidy, 283 F.3d at 809 (“[Section] 2261A
requires more than a showing that [the defendant] crossed a state line and then later
stalked [the victim]. [The defendant] must have intended to harass or injure [the
victim] at the time he crossed the state line.”). Without evidence to support a finding
that he traveled in interstate commerce with the intent to harass, injure, or intimidate
Liu, no reasonable jury could find Gross guilty on Count 1, and his conviction on
this count is vacated. 3
B.
Gross also appeals the district court’s denial of his motion for a new trial on
the grounds that the government improperly relied on Wu’s perjured testimony to
obtain a conviction on the interstate stalking counts.4 We review the district court’s
decision for abuse of discretion. United States v. Donnell, 596 F.3d 913, 923 (8th
Cir. 2010).
“The government may not use or solicit false evidence or allow it to go
uncorrected.” United States v. Funchess, 422 F.3d 698, 701 (8th Cir. 2005). To
prove a due process violation on the grounds that the government presented false
testimony at his trial, Gross must show that: “(1) the prosecution used perjured
testimony; (2) the prosecution should have known or actually knew of the perjury;
and (3) there was a reasonable likelihood that the perjured testimony could have
affected the jury’s verdict.” United States v. Bass, 478 F.3d 948, 951 (8th Cir. 2007)
(quoting Funchess, 422 F.3d at 701).
3
We find no support for the government’s position that the charge of interstate
stalking in violation of 18 U.S.C. § 2261A is a “continuing offense.” In any event,
the only evidence presented at trial of harassment or intimidation directed at Liu
occurred on October 1.
4
Gross also sought a judgment of acquittal on this basis. But where the
government violates a defendant’s constitutional rights by introducing false
testimony, the remedy is a new trial, not a judgment of acquittal. See Giglio v.
United States, 405 U.S. 150, 153–54 (1972); United States v. Nelson, 970 F.2d 439,
443 (8th Cir. 1992).
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It is undisputed that Wu committed perjury when she denied that her massage
parlors offered sexual services. But the government argues that Gross cannot
establish a due process violation because it did not “use” Wu’s testimony. Rather,
it was Gross’s counsel who asked Wu on cross-examination whether her massage
workers engaged in sex work. And the government did not reference the perjured
testimony in its closing argument or object when defense counsel argued to the jury
that Wu lied when she said her massage parlors were not a front for prostitution.
The government also asserts that it neither knew nor should have known that
Wu’s testimony was false. The government concedes it had suspicions that Wu’s
massage parlors were offering sexual services. But it says the prosecution team,
which included an FBI Special Agent, was not aware until after Gross’s trial that a
separate FBI investigation of Wu was ongoing. The FBI opened its human
trafficking investigation into Wu on May 9, 2019, and Gross’s trial began on May
13, 2019. As part of the investigation, members of the FBI conducted surveillance
of Wu and her massage parlors, including on the day Wu testified at Gross’s trial.
However, the prosecution team did not learn of this separate investigation until Wu
was charged in the District of Kansas in November 2019. The government’s position
is that because its “suspicions were not fully confirmed until [Wu] admitted her
conduct after her arrest,” it did not know, nor should it have known, that Wu perjured
herself at Gross’s trial.
We need not wade into the first two prongs of the Bass test, both of which
present novel and challenging circumstances in this case. Even if the government
used testimony from Wu that it knew or should have known was false, Gross has
failed to demonstrate a reasonable likelihood that the perjured testimony could have
affected the verdict on Count 2.5 Gross asserts that Wu’s testimony “carried the
government’s case” and that her denial that her massage parlors were a front for
prostitution allowed the jury to dismiss his claim that he had traveled to Tea Spa
5
Because we vacate Count 1 for insufficient evidence, we consider this claim
only as it relates to Count 2.
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Massage for sex. His conduct on the video, he asserts, “takes on a whole new
meaning if he travelled there for sexual contact.”
But the jury heard evidence from both parties that indicated Wu’s massage
parlors likely offered sexual services. For example, Gross’s counsel elicited
testimony from two law enforcement officers that they suspected the parlors were
fronts for prostitution. And in the surveillance video, jurors heard Gross tell Wu that
he was mad because he did not get what he paid for from one of Wu’s “girls,” and
that he had to give himself a “15-minute massage.” Gross’s counsel also argued in
closing that Wu had lied about sex work at her massage parlors, and the government
did not argue otherwise.
Moreover, Wu’s testimony wasn’t the only evidence of Gross’s intent to
harass her. On the video, the jury heard Gross tell Wu that he was angry about the
“problem” he had the night before at one of her parlors. And whether the “problem”
was that he was denied sexual services or that he was denied a traditional massage,
a reasonable jury could conclude that Gross engaged in harassing conduct directed
at Wu both on the phone and later in her neighborhood.6
Because Gross has not shown a reasonable likelihood that Wu’s perjured
testimony could have affected the verdict on Count 2, we affirm the district court’s
denial of his motion for a new trial.
C.
Because we vacate Gross’s conviction on Count 1, we vacate his sentence and
remand for resentencing. See Greenlaw v. United States, 554 U.S. 237, 253 (2008)
(holding that in “sentencing package cases,” an appellate court “may vacate the
entire sentence on all counts so that, on remand, the trial court can reconfigure the
sentencing plan to ensure that it remains adequate to satisfy the sentencing factors
6
Again, Gross does not challenge the jury’s finding that he engaged in
harassing conduct that caused Wu substantial emotional distress.
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in 18 U.S.C. § 3553(a)”). Accordingly, we need not address Gross’s challenge to
the substantive reasonableness of his sentence.7
III.
Based on the foregoing, we vacate Gross’s conviction on Count 1 as well as
his sentence, and we remand for resentencing.
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7
Following oral argument, we ordered supplemental briefing to address
whether Gross could be sentenced for both receipt and possession of the same
firearm, in violation of both 18 U.S.C. § 922(n) and 18 U.S.C. § 922(g)(1). We
review this issue for plain error and find no error that is plain. See United States v.
Ganter, 3 F.4th 1002, 1009 (8th Cir. 2021) (sentence of consecutive terms of
incarceration for violations of § 922(n) and § 922(g)(1) based on defendant’s
possession of a single firearm affirmed with no discussion of multiplicity). We thank
counsel for their supplemental briefs.
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