[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. Hon. George A. O'Toole, Jr., U.S. District
Mittleman, by Appointment of the Court, for appellant, and
Michael Gemma, with whom Charles W. Rankin, Kerry A.
Haberlin, and Rankin & Sultan, were on Pro se brief.
Quinlivan, Assistant United States Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief, for appellee.
Lynch, Circuit Judge, Souter, Associate
Justice,[*] and Stahl, Circuit Judge.
2012, Defendant-Appellant Michael Gemma was convicted in
federal district court of sex trafficking and transporting
minors to engage in prostitution. In this appeal, Gemma makes
a plethora of challenges to the district court's
judgment. Finding none of merit, we AFFIRM.
Facts and Background
September 2011, Massachusetts State Police Trooper Dylan
Morris spotted a red Nissan Altima with Pennsylvania tags
traveling approximately 95 miles per hour on I-84. After
giving chase, the officer pulled the vehicle over. Upon
approaching the vehicle, the trooper requested identification
from the driver, Michael Gemma, who produced a Florida
driver's license and a car rental agreement.
Morris also noticed that the female passenger, "
A.L.," was not wearing a seatbelt. Because of this,
Morris asked her for identification in order to cite her for
the violation. A.L. informed the trooper that she did not
have her I.D., but stated that her name was " Ashley
Torres." Morris asked for her date of birth. A.L.
responded " December 23." When asked for the year,
A.L. responded " 1992?," with
a rising vocal inflection as though her birth year was a
Morris then asked A.L. to step out of the car so that he
could speak with her separately. A.L. told Morris that she
had moved back to Boston from Puerto Rico, gave her
mother's address, and indicated that she had known Gemma
for about two years. Trooper Morris returned to the vehicle
and asked Gemma about A.L. Gemma responded that he knew only
her first name and had known her only for about a month.
Morris later testified that, at this point, he noticed a
faint odor of raw marijuana coming from the interior of the
vehicle. Morris asked Gemma to step out of the vehicle,
advised him of his Miranda rights, and proceeded to conduct a
thorough search of the vehicle, including the trunk. Inside
the vehicle, Morris observed lingerie, high heel shoes, a
quantity of condoms, and a laptop computer, but no marijuana.
this time, Trooper Scott Shea arrived at the scene. Shea ran
Gemma's driver's license information and discovered
that his right to operate a motor vehicle in Massachusetts
had been suspended. Gemma was placed under arrest for driving
with a suspended license.
Morris then resumed questioning A.L. about her identity. A.L.
provided her mother's name and address, and said that her
mother's phone number was stored in her cell phone, which
was still in the vehicle. With A.L.'s permission, Morris
retrieved the phone from the car so that A.L. could call her
mother. When A.L. turned the phone on, Morris noticed text
messages, such as " Are you available for an
outcall?" and " I have $200." Trooper Morris
recognized these messages as consistent with prostitution.
Morris then spoke on the phone with A.L.'s mother, who
provided A.L.'s true name, informed him that she was
sixteen years old, and advised him that A.L. had run away
from Department of Children and Families (" DCF" )
custody. A.L.'s mother also informed him that there was a
Child-in-Need-of-Services warrant outstanding for her. The
troopers took both Gemma and A.L. back to the state police
barracks in separate cruisers.
the barracks, Morris interviewed A.L., who revealed that she
and Gemma were returning from New York and New Jersey where
Gemma had been posting internet advertisements offering sex
with her. Trooper Morris later found ads on the internet for
sex that showed A.L.'s photograph and contained
A.L.'s or Gemma's phone number. During police
questioning, Gemma admitted that A.L. was a prostitute, but
he denied any involvement.
17, 2012, Gemma was indicted in the United States District
Court for the District of Massachusetts for sex trafficking
of children or by force, fraud, or coercion, and aiding and
abetting, in violation of 18 U.S.C. § 1591(a) and 18
U.S.C. § 2 (Count 1), and transporting minors to engage
in prostitution and aiding and abetting, in violation of 18
U.S.C. § 2423(a) and 18 U.S.C. § 2 (Count 2).
Before trial, Gemma moved to suppress all physical and
testimonial evidence deriving from Trooper Morris' search
of the Nissan Altima. The district court partially granted
this motion, excluding the contents of the defendant's
laptop and cell phone as well as Trooper Morris'
observations. The court, however, declined to suppress
A.L.'s cell phone and the contents thereof. The court
held that neither party had adequately addressed the
circumstances of its seizure and found that the phone had
been taken with A.L.'s consent. Because Gemma had "
no possessory interest in A.L.'s cell phone," the
court held that he lacked
standing to challenge its seizure and subsequent search.
start of the trial, as part of the preliminary instructions
to the jury, the court read the allegations of the
indictment. This reading included the charges of aiding and
abetting. During the course of the trial, A.L. testified that
she had run away from DCF custody and met the defendant
through a friend. The defendant had communicated with A.L. by
text messages and Facebook. A.L. testified that she told the
defendant how old she was, and that her Facebook page listed
her correct age. A.L. eventually went to stay with the
defendant, who brought her to a hotel in Woburn,
Massachusetts and introduced her to a pimp who went by the
name " Rich Dollar" and a prostitute, Nicki.
According to A.L., the defendant then took "
sexual" pictures of her with his cell phone, brought her
to another hotel in Shrewsbury, Massachusetts, and instructed
Nicki to explain to A.L. that she had been brought there to
exchange sex for money. After the defendant posted ads on the
internet, A.L. began to receive calls and texts from men who
wanted to pay to have sex with her.
testified that she initially refused these calls, but, after
Gemma threatened to hit her if she did not answer them, she
thereafter engaged in prostitution, giving the money paid for
her services to the defendant. According to A.L., Gemma
continued to threaten her, telling her that if she told
anyone what she was doing, she would not like the outcome.
She also testified that when Gemma brought her to New York
and New Jersey, she told him that she did not want to have
sex for money anymore and threatened to call the police. In
response, Gemma pushed A.L. into a car, causing her to hit
her head and suffer a slight concussion.
trial's conclusion, the district court provided its final
jury instructions. For Count 1, the court explained that
there were two theories under which the government could
prove its sex trafficking case. The first theory, which the
court referred to as " Alternative 1A," was
summarized as " sex trafficking by force, fraud or
coercion." The second theory, " Alternative
1B," required proving that " the defendant knew or
recklessly disregarded the fact that A.L. was under the age
of 18 and would be caused by anyone, not necessarily the
defendant, to engage in a commercial sex act." This
knowledge element could be proven by showing that "
[t]he defendant actually knew that A.L. was under the age of
18; that he recklessly disregarded facts that would have
given him that knowledge; or, . . . that he had a reasonable
opportunity to observe A.L. in the course of events."
court then instructed the jury on Count 2, explaining that
the government must prove the transportation of a minor to
engage in prostitution by showing "  that the
defendant knowingly transported A.L. in interstate or foreign
commerce;  that he did so with an intent that A.L. would
engage in prostitution; and,  that A.L. had not attained
the age of 18 years." The court instructed that the
government needed to prove A.L.'s age, but not the
defendant's knowledge of A.L.'s age.
the court's final jury instructions, nor the jury form,
mentioned a charge of aiding and abetting. After
deliberations, the jury found the defendant guilty on each
count and found that the government had proven his guilt
under both alternative theories for liability under Count 1.
appeal, Gemma raises a number of challenges to the ...