US v. Juan Gray-Sommerville, No. 14-4891 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4891 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN BRANDON GRAY-SOMMERVILLE, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 his Brandon conviction Gray-Sommerville following a jury (Gray-Sommerville) trial on one appeals count of sex trafficking a minor child in violation of 18 U.S.C. § 1591(a). The district court imprisonment. sentenced Gray-Sommerville to 225 months’ 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 attention.”). initially plain; though was not brought to the court’s To establish plain error, Gray-Sommerville must establish: and it (3) (1) the there error was error; affected his (2) the error substantial United States v. Olano, 507 U.S. 725, 732 (1993). was rights. 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 fairness, that integrity proceedings.” the or Id. error public (internal “seriously reputation quotation affect[s] the of judicial marks omitted) (alteration in original). Gray-Sommerville cannot even get past the first prong of plain error review——i.e. establishing error. the elements of a § 1591(a)(1) offense as With respect to alleged in Gray- Sommerville’s indictment, the district court instructed the jury as follows: For you to find the defendant guilty of crime you must find beyond a reasonable doubt: - 3 - this 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 (internal (4th Cir. 2006) 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 girlfriend, Araminta Brace (Brace). and Gray-Sommerville met I.P. for then current Brace testified that she the first time when they picked her up from her high school in Morganton, North Carolina in a vehicle driven by Gray-Sommerville. in the passenger seat, asked I.P., Brace, who was sitting who was sitting in the backseat behind Gray-Sommerville, “‘Sweetie, how old are you?’” (J.A. 353). me.’” Id. he wants. I.P. responded: “[Brace then] said, ‘Sweetie, it doesn’t matter what I just need to know how old you are.’” responded, “‘Okay. “‘Damn, she’s 16. Brace “‘If I tell you he won’t want responded I’m 16.’” Id. the affirmative, - 5 - I.P. Gray-Sommerville then said: Should we turn around?’” in Id. (J.A. 354). Gray-Sommerville When said: “‘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. 1993) See United States v. Baker, 985 F.2d 1248, 1255 (4th Cir. (“The law is well settled in this circuit that the uncorroborated testimony of an accomplice may be sufficient to sustain a conviction.”). testimony of Nonetheless, the jury also heard the Detective Charlotte-Mecklenburg Michael Police Sardelis Department that of the 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. first respect element to In sum, sufficient evidence supports the challenged the interstate by Gray-Sommerville. commerce element, Next, the with government’s evidence that Gray-Sommerville advertised I.P. on the Internet website www.Backpage.com is sufficient to satisfy this element. United States (“[I]t is facilities v. beyond or Barlow, debate means of 568 that F.3d the interstate 215, 220 (5th Internet commerce.”). and Cir. email 2009) are 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 would combination call reasonable I.P. of to the testify reliance government’s government’s on failure to during such do announcement its case-in-chief, announcement, so. that Relatedly, and then it his the 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 district court erred. review——i.e. Id. he cannot establish the 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 Amendment during right to its case-in-chief confront all violated witnesses his Sixth 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 matter evidence asserted used unless for the establishing witness is the truth unavailable of the and the defendant has had a prior opportunity for cross-examination of such witness. Id. at 59 n.9, 68. contention his is failure to Fatal to Gray-Sommerville’s identify any statement by I.P. heard by the jury which was testimonial and/or was offered for the truth of the matter asserted. record discloses none. Moreover, our review of the 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, offense. wrong, and thus, must be guilty of his charged See Fed. R. Evid. 404(b)(1) (“Evidence of a crime, 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. district court’s discretion. challenged evidentiary We review the ruling for abuse of 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.” court then evidence instructed “only for the the jury (J.A. 411). that limited - 9 - it could purposes” of The district consider such “determin[ing] 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 nonetheless under Federal contends Rule that of the Evidence 404(b)(2). challenged evidence He was inadmissible because his intent was not at issue in his trial. Gray-Sommerville’s contention is without merit. rea component of the § 1591(a) offense The mens 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). - 10 - Because Gray-Sommerville’s 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 substantially (J.A. 408). mental state outweighed by of the defendant,” the danger of and unfair is not prejudice. After reviewing the record, we find the challenged evidence was no more sensational or disturbing than the charged offense, and Gray-Sommerville. therefore, did not unfairly prejudice See United States v. Boyd, 53 F.3d 631, 637 - 11 - (4th Cir. weighed 1995) in (holding favor of Rule 403 admitting balancing challenged test undeniably 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. ∗ dispense with oral argument because the facts and We 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 -
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