US v. Juan Gray-Sommerville
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to file a pro se supplemental brief [999547590-2]. Originating case number: 3:13-cr-00107-RJC-1. Copies to all parties and the district court. [999620913]. [14-4891]
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Pg: 1 of 12
UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Pg: 2 of 12
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 -
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Pg: 3 of 12
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
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Pg: 4 of 12
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 -
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Gray-Sommerville
Pg: 5 of 12
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:
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Pg: 6 of 12
“‘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 -
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Pg: 7 of 12
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 -
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Pg: 8 of 12
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 -
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Pg: 9 of 12
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]
Appeal: 14-4891
Doc: 39
Filed: 07/15/2015
Pg: 10 of 12
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
Appeal: 14-4891
intent
Doc: 39
was
Filed: 07/15/2015
squarely
at
issue
Pg: 11 of 12
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 -
Appeal: 14-4891
(4th
Doc: 39
Cir.
weighed
1995)
in
Filed: 07/15/2015
(holding
favor
of
Pg: 12 of 12
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 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?