US v. Daheem Bryant-Royal

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to supplement [999521986-3] Originating case number: 1:12-cr-00040-WDQ-1 Copies to all parties and the district court/agency. [999587743].. [14-4340]

Appeal: 14-4340

Doc: 54

Filed: 05/21/2015

Pg: 1 of 13

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4340

Doc: 54

Filed: 05/21/2015

Pg: 2 of 13

PER CURIAM:
A jury convicted Daheem Bryant-Royal of sexual abuse of a
minor in violation of 18 U.S.C. § 2243(a).
his conviction on three grounds.
discussion

during

closing

Bryant-Royal appeals

He claims (1) the prosecutor’s

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

acquaintances
“Base”).

who

a

lived

party
at

a

with
military

a

group

base

in

of

teenaged

Maryland

(the

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.
2

When the

Appeal: 14-4340

guests

Doc: 54

Filed: 05/21/2015

decided

to

leave

the

Pg: 3 of 13

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.
the house and left near a toilet.
Royal arrived at the house.

M.J. was carried into

Shortly thereafter, Bryant-

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.
3

Appeal: 14-4340

Doc: 54

Filed: 05/21/2015

Pg: 4 of 13

§ 2242 (Count Two, for “[s]exual abuse”).
the

government

to

prove

that

Count One required

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.
However, Bryant-Royal

raised

had

“establish

the

burden

to

an

affirmative
by

a

Id. § 2243(d).

defense--which

preponderance

of

he
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

of

testimony

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 BryantRoyal, “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.
4

Bryant-Royal’s defense for

Appeal: 14-4340

Doc: 54

Filed: 05/21/2015

Pg: 5 of 13

Count Two centered on the theory that M.J. consented to the
sexual

act

concocted

and,

the

fearing

rape

pregnancy

allegation.

By

or

other

consequences,

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

of

the

establish

testimony

Bryant-Royal’s

assault.

She

Bryant-Royal

testified

called

Bryant-Royal’s

state
that

her

of
on

mind
the

ex-girlfriend

directly

night

approximately

of

nine

before
the

to
the

offense,

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.”
356.

Counsel

explained

that

Bryant-Royal

“told

S.J.A.

[U.S.

Army

Criminal Investigation Command], ‘I thought she was of age,’”
and

stated

that

the

jury

“didn’t
5

see

the

tape”

of

that

Appeal: 14-4340

Doc: 54

statement.
these

S.J.A. 356.

assertions

evidence.
the

Filed: 05/21/2015

jury

evidence.

Pg: 6 of 13

The government objected to each of

because

they

referenced

statements

not

in

The court overruled each objection, but instructed
to

base

its

verdict

See S.J.A. 357.

on

its

recollection

of

the

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
going

to

talk

out-of-court
about

the

statements,
Defendant’s

noting:
prior

“[I]f

we’re

statements,

he

admitted [M.J.] looked young. . . . He admitted she had braces.
He didn’t say that she told him that she was 16.
what he said.

That’s not

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.
his conviction.

6

Bryant-Royal timely appealed

Appeal: 14-4340

Doc: 54

Filed: 05/21/2015

Pg: 7 of 13

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

government
improper,

argument

concedes
but

that

that

contends

he

the

that

believed

she

prosecutor’s

the

remarks

were

was

16.

statement
invited

by

The
was
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.”
7

United States v. Wilson, 135

Appeal: 14-4340

Doc: 54

Filed: 05/21/2015

Pg: 8 of 13

F.3d 291, 297 (4th Cir. 1998) (alterations in original) (quoting
United

States

v.

Adam,

70

F.3d

776,

(internal quotation marks omitted).

780

(4th

Cir.

1995))

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
8

age,

the

remarks

did

not

Appeal: 14-4340

Doc: 54

prejudice

Filed: 05/21/2015

him.

With

Pg: 9 of 13

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
evidence

Bryant-Royal
thus

that

actually

failed

he

to

show

reasonably

believed
by

believed

a

she

was.

Because

preponderance

M.J.

was

at

of

the

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.

establishing
evidence
respect

Third,

Bryant-Royal’s

established
to

there

the

Bryant-Royal’s

was

guilt
elements

competent
for
of

affirmative

Count

proof
One.

Count
defense,

One,
the

at

trial

Undisputed
and,

with

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
9

Appeal: 14-4340

Doc: 54

Filed: 05/21/2015

Pg: 10 of 13

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.
1336,

1346-47

prosecutor’s

of

Cir.

improper

“objectionable
context

(4th

the

and

See Bennett v. Angelone, 92 F.3d

1996)

(holding

religious

argument

unwarranted,”

trial,

it

was

when

not

that

although

the

closing

was

during

“viewed

in

sufficiently

the

total

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

attorney’s

consider

remarks

at

Bryant-Royal’s
closing
10

argument

contention
deprived

that
him

of

his
the

Appeal: 14-4340

Doc: 54

effective

Filed: 05/21/2015

assistance

Amendment.

of

Pg: 11 of 13

counsel

Bryant-Royal

argues

in

violation

that

of

defense

the

Sixth

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 ineffectiveassistance 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
following:

outweighed

unfair

by

prejudice,

a

danger

of

confusing

one

the

or

more

issues,

of

the

misleading

the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”

Fed. R. Evid. 403.
11

We “review a district

Appeal: 14-4340

Doc: 54

Filed: 05/21/2015

Pg: 12 of 13

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

omitted).

(4th

Indeed,

Cir.
“[a]

1990))

(internal

district

court’s

quotation

decision

to

marks
admit

evidence over a Rule 403 objection will not be overturned except
under

the

most

extraordinary

circumstances,

discretion has been plainly abused.”

where

that

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

outweighs its probative value.”
444, 449 (4th Cir. 1991).

undue

prejudice

substantially

United States v. Mark, 943 F.2d

“[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).
The

We find no such prejudice here.
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
12

Appeal: 14-4340

to

Doc: 54

Count

Filed: 05/21/2015

One,

the

only

count

Pg: 13 of 13

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.
943 F.2d at 449.

Mark,

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.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
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.

13