United States v. Robert Gross, 23 F.4th 1048

Background

Robert Gross was convicted in May 2019 of interstate stalking (Counts 1–2) as to Yuling Liu and Chunqiu Wu and multiple firearm offenses; the district court sentenced him to 420 months.
On October 1, 2017, surveillance at Tea Spa Massage (Kansas) showed Gross naked in the parlor, berating and grabbing employee Liu after an argument; Gross spoke with Wu by phone at the parlor and later was observed driving out of Wu’s neighborhood.
Jury convicted Gross on Counts 1 and 2 (stalking Liu and Wu) and on the firearm counts; Gross was acquitted on two other stalking counts.
After trial Wu was charged and pleaded guilty to transporting a person for prostitution and admitted employees engaged in sex acts; FBI had opened a separate investigation of Wu just before Gross’s trial, unknown to the prosecution team at trial.
Gross moved for acquittal or a new trial based on Wu’s perjured testimony denying sex work; district court denied the motion. On appeal the Eighth Circuit affirmed Count 2, vacated Count 1 for insufficient evidence, denied new-trial relief as to Count 2, vacated the sentence, and remanded for resentencing.

Issues

Issue	Gross's Argument	Government's Argument	Held
Sufficiency — Count 2 (Wu)	Gross contends evidence fails to show interstate travel with intent to harass Wu	Circumstantial evidence (travel from Missouri to Kansas, phone call where he said he would “be down there,” video showing anger) permits inference of intent; single trip suffices	Affirmed — reasonable jurors could infer interstate travel with intent and that travel caused substantial emotional distress
Sufficiency — Count 1 (Liu)	Gross argues he had no intent to harass Liu when he crossed state line; his anger arose only after arriving and being denied services	Government argued intent to harass Wu and her employees generally supported conviction as to Liu	Reversed — conviction vacated; no evidence Gross intended to harass Liu at time of interstate crossing
New trial based on Wu perjury	Wu perjured herself about sex work; government used false testimony; verdict likely affected	Government says defense elicited the false testimony on cross; prosecution did not rely on it and did not know of the separate FBI probe at trial; other evidence supported intent	Denied as to Count 2 — even assuming perjury, Gross failed to show reasonable likelihood it affected Count 2 verdict
Sentencing/remand & multiplicity	Gross challenged substantive reasonableness and argued multiplicity (receipt and possession for same firearm)	Government defended sentencing structure; court reviewed multiplicity for plain error and cited precedent	Sentence vacated and remanded for resentencing (because Count 1 vacated); no plain error found on multiplicity issue

Key Cases Cited

United States v. Lussier, 844 F.3d 1019 (8th Cir. 2017) (standard for reviewing sufficiency of the evidence)
United States v. Wills, 346 F.3d 476 (4th Cir. 2003) (elements of interstate-travel stalking)
United States v. Al-Zubaidy, 283 F.3d 804 (6th Cir. 2002) (intent must exist at time of interstate travel)
United States v. White, 915 F.3d 1195 (8th Cir. 2019) (circumstantial evidence may support verdict)
Musacchio v. United States, 577 U.S. 237 (2016) (sufficiency review is against statutory elements, not erroneous jury instructions)
United States v. Lee, 790 F.3d 12 (1st Cir. 2015) (single interstate trip can satisfy §2261A(1))
United States v. Walker, 665 F.3d 212 (1st Cir. 2011) (same: single trip can be sufficient where emotional distress results)
Giglio v. United States, 405 U.S. 150 (1972) (false testimony by government witnesses may require new trial)
Greenlaw v. United States, 554 U.S. 237 (2008) (sentencing-package doctrine permits vacatur of entire sentence when convictions change on appeal)
United States v. Funchess, 422 F.3d 698 (8th Cir. 2005) (prosecution may not use or allow false testimony to go uncorrected)
United States v. Bass, 478 F.3d 948 (8th Cir. 2007) (three-part test for due process violation based on false testimony)