United States v. Snead

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARVARLUS CORTEL SNEAD, Defendant-Appellant.

No. 21-4333

United States Court of Appeals, Fourth Circuit

December 28, 2022

UNPUBLISHED

Submitted: October 5, 2022

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:19-cr-00151-D-1)

ON BRIEF:

Paul A. Tharp, ARNOLD &SMITH, PLLC, Charlotte, North Carolina for Appellant.

Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H Miller, Deputy Assistant Attorney General, William A. Glaser, Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Michael F. Easley, Jr., United States Attorney, Bryan Stephany, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before NIEMEYER and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM.

A jury found Marvarlus Snead guilty of engaging a minor in the production of a visual depiction of sexually explicit conduct, in violation of 18 U.S.C. § 2251(a) and (e) (Count I); trafficking a minor in prostitution, in violation of 18 U.S.C. § 1591(a)(1) and (b)(2) (Count III); and using a facility in interstate commerce to carry on an unlawful activity, in violation of 18 U.S.C. § 1952(a)(3) and (2) (Count IV).^[1] The district court ordered a new trial on Count I after concluding that its jury instructions on that count were erroneous under the intervening opinion in United States v. McCauley, 983 F.3d 690 (4th Cir. 2020), but the court entered judgment in accordance with the jury verdict as to the other two counts and sentenced Snead to serve 420 months in prison and to pay $202,743.35 in restitution. Snead appeals, challenging his convictions and sentence. For the following reasons, we affirm.

I.

In December 2017, Snead decided to become a pimp. He spoke with Ashanti McLean, who had previously worked as a prostitute, and learned about advertising, pricing, and terminology used in the sex-industry. Snead then met and recruited a 25-year-old woman, C.T., to work for him as a prostitute. In social media messages he told her she could make "thousands of dollars in a night" and that his friend would place ads for her on the website Backpage.com. Snead and McLean set up advertisements for C.T. online and coached her on how to act with "customers." Snead also provided C.T. with the drug MDMA, also known as "Molly," to allow her to engage in commercial sex acts for days at a time without getting tired or feeling pain. Snead set the prices for C.T.'s services and kept half of her earnings.

Snead next recruited 17-year-old Jane Doe to engage in commercial sex. Doe had lived in and out of foster care since age eight and had no stable housing. Snead had known Doe since early in her childhood. Doe experienced domestic abuse in the late summer of 2017, and Snead claims that he "rescued" her from that abuse. In January 2018, Snead reached out to Doe through the social media platform Facebook, promising Doe that "[w]e can get this money together. I can help you get on your feet." In a phone call on January 12, 2018, Snead told Doe he had a family business that would "help [her] get on [her] feet," and asked her age and birthdate. Doe told Snead she was 17 years old and gave her correct date of birth. After the phone call, Snead asked Doe to send him "sexy" pictures.

Snead instructed McLean to pick up Doe and advertise pictures of Doe on Backpage.com. Snead then traveled to Wilmington, North Carolina, with C.T. and Doe. Snead told Doe that men were coming to see her, who would pay her to spend time with her but not touch her. When the men arrived, however, they had sex with Doe while C.T. waited in the living area of the hotel room. Snead later took C.T. and Doe to Jacksonville, North Carolina and rented rooms for them to service more clients there. Snead stayed in the city from January 14 to January 21, accompanying Doe as she engaged in commercial sex. During this period, Snead texted Doe "[w]e need another female but she has to be at least 18. Your birthday can't get here fast enough."

Snead kept the first $300 of Doe's earnings, and half of the remainder. Doe also paid for the hotel rooms, clothes, shoes, jewelry, and nails that Snead picked for her. Snead drugged Doe with Molly twice while she was sleeping without her knowledge or consent.

On January 24, 2018, authorities arrested Snead during a prostitution sting operation. That morning, Snead and Doe had taken "photographs and videos of themselves naked and having sexual intercourse," which became the basis for the charges on Count I. Br. of the United States at 12. A detective with the New Hanover County Sheriff's Office responded to an advertisement for Doe on Backpage.com and set up a "date." Upon arrival, deputies detained Snead and took Doe to the station for questioning. In an interview with the detectives, Doe stated that Snead thought she was 19 years old.

Doe returned to living with family members, but she had no running water and little stability. Consequently, Snead's mother and sister started feeding Doe, letting her wash her clothes, and driving her places. A few days after her 18th birthday, Doe, encouraged by Snead's family, signed an affidavit exonerating him. She testified that she signed the affidavit, written by Snead's mother, because she felt "obligated" and "loyal" due to his family's help. A year later, she signed another affidavit exonerating Snead, also written by his mother.

At trial, the jury found Snead guilty on all three counts. The district court ordered a new trial on the child pornography count but denied Snead's motion for judgment of acquittal on that count and entered judgment in accordance with the jury verdict on the remaining two charges, Counts III and IV.

II.

Snead levels several challenges to his conviction.

A.

Snead first contends that the district court should have entered a judgment of acquittal on Counts III and IV. Because Snead did not move for acquittal as to Counts III and IV before the district court, we consider only whether a manifest miscarriage of justice has occurred. United States v. Lam, 677 F.3d 190, 200 n.10 (4th Cir. 2012).

To sustain Snead's conviction on Count III, there must be substantial evidence that he "(1) knowingly recruited, transported, harbored, maintained, obtained, or enticed a person; (2) in or affecting interstate commerce; (3) knowing or in reckless disregard of the fact that the victim had not attained the age of eighteen years and would be made to engage in a commercial sex act." United States v. Jennings, 860 Fed.Appx. 287, 289 (4th Cir. 2021).

A conviction under 18 U.S.C. § 1952(a)(3), the basis for Count IV, requires proof that the defendant "(1) travel[ed] in interstate or foreign commerce or use[d] an interstate or foreign facility, such as the mail; (2) intend[ed] thereby to promote an unlawful activity; and (3) subsequently promote[d] or attempt[ed] to promote that unlawful activity." United States v. Monu, 782 F.2d 1209, 1211 (4th Cir. 1986). The internet is a facility of interstate commerce, see United States v. Phea, 755 F.3d 255, 266 (5th Cir. 2014), and Snead recognizes that "the term 'unlawful activity' includes prostitution offenses in violation of the laws of the State in which they are committed or of the United States." Br. of the Appellant at 24.

Substantial evidence supports both convictions. Snead used Facebook, Backpage.com, and other websites to facilitate his trafficking of Doe. He also coached Doe on how to act, set the prices for her services, and took the majority of her earnings. Doe testified that Snead facilitated her engagement in commercial sex acts twice in Wilmington and once in Jacksonville; Snead's other associate, C.T., corroborated this testimony.

As for Doe's age, she testified under oath that she told Snead in January 2018 that she was only 17 years old. Snead conceded that he knew Doe since her childhood. Indeed, Snead confirmed his knowledge when he texted her "[w]e need another female but she has to be at least 18. Your birthday can't get here fast enough." This evidence clearly established that Snead knew that Doe had not yet reached the age of 18.

B.

Snead next contends that the district court erred by failing to sever Count I, on which he has been granted a new trial, from Counts III and IV before trial. Improper joinder is a defect in an indictment that "must be raised by pretrial motion if the basis for the motion is then reasonably available." Fed. R. Crim. P. 12(b)(3). Given that Snead failed to do this, we will consider his improper joinder argument only if he shows good cause for not making a timely motion. Fed. R. Crim. P. 12(c)(3). Snead "has not even attempted" to argue that good cause excuses his waiver. See United States v. King, 628 F.3d 693, 699 (4th Cir. 2011). Accordingly, we will not consider his claim.

C.

Snead argues that the district court erred in admitting evidence of "other crimes" for which he was not on trial specifically his drug dealing. Evidence of other crimes or wrongful acts "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." Fed.R.Evid. 404(b)(1). Snead never challenged this evidence at trial. When a defendant argues on appeal that bad acts evidence has been wrongfully admitted without first objecting at trial, we review only for plain error. United States v. Denton, 944 F.3d 170, 185 (4th Cir. 2019). To prevail under this standard, Snead must prove...