United States v. Juan Gray-Sommerville

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4891
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN BRANDON GRAY-SOMMERVILLE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00107-RJC-1)
Submitted: June 12, 2015 Decided: July 15, 2015
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant. Jill
Westmoreland Rose, Acting United States Attorney, Asheville,
North Carolina, Anthony J. Enright, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Brandon Gray-Sommerville (Gray-Sommerville) appeals
his conviction following a jury trial on one count of sex
trafficking a minor child in violation of 18 U.S.C. § 1591(a).
The district court sentenced Gray-Sommerville to 225 months’
imprisonment. On appeal, Gray-Sommerville seeks vacature of his
criminal judgment on numerous grounds. Finding no error, we
affirm.
I.
Gray-Sommerville first challenges the sufficiency of the
evidence to support his conviction on the single count of sex
trafficking a minor child in violation of 18 U.S.C. § 1591(a).
Because Gray-Sommerville failed to renew his Federal Rule of
Criminal Procedure 29 motion for judgment of acquittal after he
introduced evidence in his own defense and because the district
court did not reserve ruling on such motion at the close of the
government’s case-in-chief, we review only for plain error. See
United States v. Whal, 290 F.3d 370, 373-75 (D.C. Cir. 2002)
(failure to renew motion for judgment of acquittal at close of
all evidence did not waive sufficiency of evidence challenge
where district court reserved decision on motion for judgment of
acquittal made at close of government’s case-in-chief until
after case submitted to jury); United States v. Villasenor, 236
- 2 -
F.3d 220, 222 (5th Cir. 2000) (“[The defendant] moved for a
judgment of acquittal at the close of the government’s case, but
he did not renew the motion at the close of the evidence. As a
result, his claims based on the sufficiency of the evidence are
reviewable for plain error only.”). See also Fed. R. Crim. P.
52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s
attention.”). To establish plain error, Gray-Sommerville must
initially establish: (1) there was error; (2) the error was
plain; and (3) the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732 (1993). Even if he
establishes each of these three prongs of plain error review,
before we may exercise our discretion to correct the error, we
must be convinced that the error “seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted)
(alteration in original).
Gray-Sommerville cannot even get past the first prong of
plain error review——i.e. establishing error. With respect to
the elements of a § 1591(a)(1) offense as alleged in Gray-
Sommerville’s indictment, the district court instructed the jury
as follows:
For you to find the defendant guilty of this
crime you must find beyond a reasonable doubt:
- 3 -
One, that the defendant knowingly recruited,
enticed, harbored, transported, provided, obtained or
maintained by any means the person named in the
indictment, that is I.P.
Two, that the defendant did so knowing or in
reckless disregard of the fact that the person had not
attained the age of 18 years and would be caused to
engage in a commercial sex act.
And three, that the defendant’s act was in or
affected interstate or foreign commerce.
(J.A. 568-69). Notably, Gray-Sommerville does not challenge on
appeal the correctness of this jury instruction regarding the
elements of his charged § 1591(a)(1) offense.
The district court did not err in failing to sua sponte
grant Gray-Sommerville judgment of acquittal at the close of all
evidence in his trial “if, viewing the evidence in the light
most favorable to the prosecution, the verdict is supported by
substantial evidence.” United States v. Smith, 451 F.3d 209,
216 (4th Cir. 2006) (internal quotation marks omitted).
Substantial evidence is “evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
Id. (internal quotation marks omitted). Moreover, “[t]he jury,
not the reviewing court, weighs the credibility of the evidence
and resolves any conflicts in the evidence presented.” United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal
quotation marks omitted) (alteration in original).
- 4 -
Gray-Sommerville acknowledges his participation in the
recruitment, transportation, harboring, maintaining, obtaining,
and enticement of I.P. to engage in a commercial sex act, but
challenges as insufficient the evidence to support the jury’s
finding that: (1) he knew or acted in reckless disregard of the
fact that I.P. was less than eighteen years old; or (2) his
conduct was in or affecting commerce. We have thoroughly
reviewed the record and conclude substantial evidence supports
the jury’s findings on both of these elements. With respect to
whether Gray-Sommerville knew or acted in reckless disregard of
the fact that I.P. was less than eighteen years old, the jury
heard the testimony of Gray-Sommerville’s then current
girlfriend, Araminta Brace (Brace). Brace testified that she
and Gray-Sommerville met I.P. for the first time when they
picked her up from her high school in Morganton, North Carolina
in a vehicle driven by Gray-Sommerville. Brace, who was sitting
in the passenger seat, asked I.P., who was sitting in the
backseat behind Gray-Sommerville, “‘Sweetie, how old are you?’”
(J.A. 353). I.P. responded: “‘If I tell you he won’t want
me.’” Id. “[Brace then] said, ‘Sweetie, it doesn’t matter what
he wants. I just need to know how old you are.’” Id. I.P.
responded, “‘Okay. I’m 16.’” Id. Gray-Sommerville then said:
“‘Damn, she’s 16. Should we turn around?’” (J.A. 354). When
Brace responded in the affirmative, Gray-Sommerville said:
- 5 -
“‘Nah, that’s a waste of my gas.’” Id. And so Gray-Sommerville
just kept traveling by vehicle toward Charlotte, North Carolina.
This testimony by Brace is alone sufficient to support the
jury’s finding that Gray-Sommerville knew or acted in reckless
disregard of the fact that I.P. was less than eighteen years
old. See United States v. Baker, 985 F.2d 1248, 1255 (4th Cir.
1993) (“The law is well settled in this circuit that the
uncorroborated testimony of an accomplice may be sufficient to
sustain a conviction.”). Nonetheless, the jury also heard the
testimony of Detective Michael Sardelis of the
Charlotte-Mecklenburg Police Department that Gray-Sommerville
confessed to him that he knew I.P. was under the age of eighteen
when he arrived in Charlotte and took her to a hotel room prior
to prostituting her. In sum, sufficient evidence supports the
first element challenged by Gray-Sommerville. Next, with
respect to the interstate commerce element, the government’s
evidence that Gray-Sommerville advertised I.P. on the Internet
website www.Backpage.com is sufficient to satisfy this element.
United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009)
(“[I]t is beyond debate that the Internet and email are
facilities or means of interstate commerce.”). Accordingly,
Gray-Sommerville is not eligible for appellate relief from his
conviction for the sex trafficking of a minor child in violation
of 18 U.S.C. § 1591(a) on plain error review.
- 6 -
II.
Gray-Sommerville next challenges his conviction on the
basis that his due process rights under the Fifth Amendment to
the United States Constitution and his right to confront all
witnesses against him under the Confrontation Clause of the
Sixth Amendment to the United States Constitution were violated
by the combination of the government’s announcement that it
would call I.P. to testify during its case-in-chief, his
reasonable reliance on such announcement, and then the
government’s failure to do so. Relatedly, Gray-Sommerville
further contends, relying on Crawford v. Washington, 541 U.S. 36(2004), that the government’s failure to call I.P. to testify
during its case-in-chief violated his Sixth Amendment right to
confront all witnesses against him. Because Gray-Sommerville
failed to raise these arguments below, we review for plain error
under Olano, 507 U.S. at 732.
With respect to the government’s failure to call I.P. to
testify during its case-in-chief after allegedly announcing its
intention to do so, Gray-Sommerville cannot get past the first
prong of plain error review——i.e. he cannot establish the
district court erred. Id. Critically, the record flatly belies
Gray-Sommerville’s contention that the government announced to
him and the district court that it would call I.P. to testify
during its case-in-chief. Indeed, the record is clear that on
- 7 -
the morning of the start of trial, the government represented to
Gray-Sommerville and the district court outside the presence of
the jury that the government “may or may not call the victim.”
(J.A. 179). The record is not in conflict on this point.
Moreover, Gray-Sommerville cannot establish the first prong
of plain error review with respect to his contention, relying on
Crawford, 541 U.S. at 36, that the government’s failure to call
I.P. to testify during its case-in-chief violated his Sixth
Amendment right to confront all witnesses against him.
Gray-Sommerville did not suffer a Crawford error as he contends.
In Crawford, the Supreme Court made clear the Sixth Amendment’s
Confrontation Clause prohibits the introduction of out-of-court
testimonial evidence used for establishing the truth of the
matter asserted unless the witness is unavailable and the
defendant has had a prior opportunity for cross-examination of
such witness. Id. at 59 n.9, 68. Fatal to Gray-Sommerville’s
contention is his failure to identify any statement by I.P.
heard by the jury which was testimonial and/or was offered for
the truth of the matter asserted. Moreover, our review of the
record discloses none. Accordingly, Gray-Sommerville is
entitled to no appellate relief with respect to his asserted
Crawford error.
- 8 -
III.
Gray-Sommerville next argues the district court abused its
discretion by admitting, over his objection, other act evidence
that he advertised and transported a prostitute, whom he learned
was a minor, just three months prior to meeting I.P. According
to Gray-Sommerville, such evidence was only admitted to show he
had bad character, and thus, must be guilty of his charged
offense. See Fed. R. Evid. 404(b)(1) (“Evidence of a crime,
wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character.”).
Gray-Sommerville’s argument is without merit. We review the
district court’s challenged evidentiary ruling for abuse of
discretion. United States v. Basham, 561 F.3d 302, 325-26 (4th
Cir. 2009).
Immediately prior to the admission of the challenged
evidence, which the government introduced through the testimony
of two law-enforcement officers, the district court instructed
the jury that it was “about to hear evidence presented from the
government concerning alleged acts of the defendant which may
be similar to the act charged in the indictment but which was
committed on a different occasion.” (J.A. 411). The district
court then instructed the jury that it could consider such
evidence “only for the limited purposes” of “determin[ing]
- 9 -
whether the defendant had the state of mind or intent necessary
to commit the crime charged in the indictment; whether he acted
according to a plan or in preparation for the commission of a
crime; and whether the defendant acted intentionally and not by
mistake or accident.” (J.A. 412).
Gray-Sommerville concedes that the challenged evidence was
relevant to the issue of his intent to commit the crime of child
sex trafficking, i.e., relevant to the issue of his mental
state, and thus satisfies the test for relevancy under Federal
Rule of Evidence 401 and qualifies as a legitimate reason for
admission under Federal Rule of Evidence 404(b)(2). He
nonetheless contends that the challenged evidence was
inadmissible because his intent was not at issue in his trial.
Gray-Sommerville’s contention is without merit. The mens
rea component of the § 1591(a) offense charged in
Gray-Sommerville’s indictment required the government to prove
beyond a reasonable doubt that Gray-Sommerville took the actions
alleged in the indictment with respect to I.P. knowingly or in
reckless disregard of the fact that I.P. had not attained the
age of eighteen. As the district court instructed the jury
without objection by Gray-Sommerville, the word “‘knowingly’ as
that term . . . has been used in these instructions means that
the act was done voluntarily and intentionally, not because of
mistake or accident.” (J.A. 569). Because Gray-Sommerville’s
- 10 -
intent was squarely at issue in his trial, the challenged
evidence was admissible under Federal Rule of Evidence 404(b) to
prove Gray-Sommerville acted intentionally with respect to the
acts alleged in his indictment and not because of mistake or
accident. See Fed. R. Evid. 404(b)(2) (evidence may be
admissible to prove, inter alia, intent, absence of mistake, or
lack of accident).
This brings us to Gray-Sommerville’s argument that even if
the challenged evidence is relevant, its probative value is
substantially outweighed by the danger of unfair prejudice, and
therefore, excludable under Federal Rule of Evidence 403. See
Fed. R. Evid. 403 (“The court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of
. . . unfair prejudice . . . .”). In response to this same
argument by Gray-Sommerville below, the district court held the
other act evidence involving Gray-Sommerville advertising and
transporting another minor for prostitution just three months
prior to the charged instant offense “is highly probative on the
issue of the mental state of the defendant,” and is not
substantially outweighed by the danger of unfair prejudice.
(J.A. 408). After reviewing the record, we find the challenged
evidence was no more sensational or disturbing than the charged
offense, and therefore, did not unfairly prejudice
Gray-Sommerville. See United States v. Boyd, 53 F.3d 631, 637
- 11 -
(4th Cir. 1995) (holding Rule 403 balancing test undeniably
weighed in favor of admitting challenged evidence because
challenged evidence did not involve conduct any more sensational
or disturbing than defendant’s charged offenses).
In sum, the district court did not abuse its discretion in
admitting the challenged evidence.
IV.
In conclusion, we affirm the judgment below in toto. ∗ We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
∗
We grant Gray-Sommerville’s motion to file a pro se
supplemental brief. We have considered the issues raised in
such brief and find them to be without merit.
- 12 -