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United States v. Gemma

United States Court of Appeals, First Circuit

March 30, 2016

MICHAEL GEMMA, Defendant, Appellant

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         Elaine 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.

         Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

         Before Lynch, Circuit Judge, Souter, Associate Justice,[*] and Stahl, Circuit Judge.


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          STAHL, Circuit Judge.

          In 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.

         I. Facts and Background

         In 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.

         Trooper 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

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a rising vocal inflection as though her birth year was a question.

         Trooper 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.

         Trooper 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.

         Around 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.

         Trooper 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.

         Back at 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.

         On May 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

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standing to challenge its seizure and subsequent search.

         At the 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.

         A.L. 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.

         At the 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."

         The 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 " [1] that the defendant knowingly transported A.L. in interstate or foreign commerce; [2] that he did so with an intent that A.L. would engage in prostitution; and, [3] 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.

         Neither 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.

         II. Analysis

         On appeal, Gemma raises a number of challenges to the ...

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