United States v. Gemma
2016 U.S. App. LEXIS 5852
| 1st Cir. | 2016Background
- Michael Gemma was stopped by Massachusetts State Police driving with a minor passenger (A.L.); troopers discovered texts and later learned A.L. was 16 and a runaway from DCF.
- Trooper Morris retrieved A.L.’s cell phone (with her permission) at the roadside; texts suggested prostitution; Gemma and A.L. were arrested and taken to the barracks.
- Gemma was indicted on two federal counts: sex trafficking under 18 U.S.C. § 1591(a) (two theories: force/fraud/coercion and child sex trafficking) and transporting a minor to engage in prostitution under 18 U.S.C. § 2423(a).
- Pretrial, the district court suppressed some vehicle-search observations but admitted A.L.’s phone and its contents (finding consent/community-caretaking justification); Gemma moved unsuccessfully for additional DCF records and later to exclude the phone evidence.
- At trial the government proved Gemma posted ads and transported A.L.; jury convicted on both counts and on both § 1591 theories; Gemma appealed multiple rulings.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Gemma) | Held |
|---|---|---|---|
| 1. Sufficiency of indictment re: aiding-and-abetting language | Indictment tracked statutes and fairly informed defendant; aiding-abetting language permissible | Indictment defective for alleging aiding-and-abetting without naming a principal/codefendant | No plain error; circuit law unsettled and any error harmless because jury charge/vernict did not rely on aiding-and-abetting |
| 2. Admissibility of A.L.’s cell phone | Seizure/retrieval reasonable under community-caretaking; texts admissible | Gemma had privacy interest; phone seizure/search violated Fourth Amendment and tainted evidence | Affirmed: officer reasonably retrieved phone to assist potentially endangered minor; texts admissible and not a pretext for investigation |
| 3. Production of DCF records | Government produced relevant email; additional DCF material speculative, likely inadmissible under Rule 412, and not constitutionally required | Denial deprived Gemma of potentially exculpatory evidence and confrontation rights | Affirmed: requested records irrelevant or of slight probative value, likely excluded by Rule 412, speculative, and not required by Brady/Confrontation |
| 4. Admission of other-act evidence re: "Faye" | Evidence of Gemma prostituting/abusing another woman probative of intent/plan under Rule 404(b) | Other-act evidence unfairly prejudicial and improper propensity evidence | Affirmed: probative of intent and modus operandi; district court did not abuse discretion under Rules 404(b)/403 |
| 5. Prosecutorial comments in closing | Prosecutor highlighted admissions and tied them to admissible evidence; not a comment on silence | Remarks amounted to improper comment on defendant's failure to testify | No reversible error: comments referenced defendant’s admissions, not silence; jury instructions cured any potential concern |
| 6. Jury instruction on § 1591 knowledge element | Instruction correctly described two alternative theories and ways to prove knowledge (actual knowledge, reckless disregard, or reasonable opportunity to observe) | Instruction allegedly uncertain in light of Encarnación‑Ruiz (mens rea issues) | Affirmed: Encarnación‑Ruiz inapposite; defendant convicted on both § 1591 theories so any error would be harmless |
Key Cases Cited
- United States v. Laureano-Pérez, 797 F.3d 45 (1st Cir.) (plain-error standard for preserved defects)
- United States v. Serino, 835 F.2d 924 (1st Cir. 1987) (indictment sufficiency standard)
- Hamling v. United States, 418 U.S. 87 (1974) (indictment may track statutory language)
- United States v. Martin, 747 F.2d 1404 (11th Cir. 1984) (aiding-and-abetting indictment issues)
- United States v. Boskic, 545 F.3d 69 (1st Cir. 2008) (standard for affirming denial of suppression)
- Cady v. Dombrowski, 413 U.S. 433 (1973) (police community-caretaking doctrine)
- United States v. Rodriguez-Morales, 929 F.2d 780 (1st Cir.) (application of community-caretaking in roadside contexts)
- United States v. Rivera, 799 F.3d 180 (2d Cir.) (Rule 412 relevance of prior prostitution in § 1591 cases)
- United States v. Roy, 781 F.3d 416 (8th Cir.) (prior prostitution not relevant to coercion/§ 1591 liability)
- United States v. Appolon, 715 F.3d 362 (1st Cir. 2013) (assessment of unfair propensity inference for other-act evidence)
- United States v. Encarnación-Ruiz, 787 F.3d 581 (1st Cir. 2015) (mens rea for aider/abettor under separate statute; distinguished)