United States v. Charles Willoughby, III

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                                            UNPUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                              No. 23-4288


        UNITED STATES OF AMERICA,

                            Plaintiff - Appellee,

                     v.

        CHARLES WILLOUGHBY, III,

                            Defendant - Appellant.



        Appeal from the United States District Court for the Eastern District of Virginia, at
        Norfolk. Elizabeth W. Hanes, District Judge. (2:21-cr-00096-EWH-DEM-1)


        Submitted: July 30, 2024                                     Decided: September 4, 2024


        Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and MOTZ, Senior Circuit
        Judge.


        Affirmed by unpublished per curiam opinion.


        ON BRIEF: Lawrence H. Woodward, Jr., RULOFF, SWAIN, HADDAD, MORECOCK,
        TALBERT & WOODWARD, P.C., Virginia Beach, Virginia, for Appellant. Jessica D.
        Aber, United States Attorney, Elizabeth M. Yusi, Assistant United States Attorney,
        OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.


        Unpublished opinions are not binding precedent in this circuit.
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        PER CURIAM:

               Charles Willoughby, III, was convicted after a two-day bench trial of travel with

        intent to engage in illicit sexual conduct, in violation of
18 U.S.C. § 2423
(b). The district

        court sentenced Willoughby to 84 months’ imprisonment.              On appeal, Willoughby

        challenges his conviction, arguing that the evidence was insufficient to establish that he

        travelled with the intent to engage in illicit sexual conduct and that the district court erred

        in admitting into evidence testimony of Willoughby’s sexual assaults or attempted sexual

        assaults of other female minors. Finding no error, we affirm.

               Willoughby first argues that there was insufficient evidence to prove that the

        purpose of his travel was to engage in illicit sexual conduct. We review de novo a district

        court’s denial of a Fed. R. Crim. P. 29 motion for acquittal based on the sufficiency of the

        evidence. United States v. Savage,
885 F.3d 212, 219
(4th Cir. 2018). In assessing the

        sufficiency of the evidence, we determine whether there is substantial evidence to support

        the conviction when viewed in the light most favorable to the government.
Id.
“Substantial

        evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient

        to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States

        v. Rodriguez-Soriano,
931 F.3d 281, 286
(4th Cir. 2019) (cleaned up).

               In assessing whether substantial evidence supports a conviction, we may not resolve

        conflicts in the evidence or evaluate witness credibility. Savage,
885 F.3d at 219
. We

        must also “draw[] all reasonable inferences from the facts” in “the light most favorable to

        the prosecution.” United States v. Denton,
944 F.3d 170, 179
(4th Cir. 2019) (internal

        quotation marks omitted). Accordingly, “[a] defendant who brings a sufficiency challenge

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        bears a heavy burden, as appellate reversal on grounds of insufficient evidence is confined

        to cases where the prosecution’s failure is clear.” Savage,
885 F.3d at 219
(internal

        quotation marks omitted).

               To sustain a conviction under
18 U.S.C. § 2423
(b), the government must prove that

        (1) the defendant travelled in interstate commerce and (2) the defendant intended to engage

        in illicit sexual conduct. ∗ See United States v. Kelly,
510 F.3d 433, 440-41
(4th Cir. 2007).

        We have carefully reviewed the record and conclude that substantial evidence supports

        Willoughby’s conviction.

               Willoughby also contends that the district court abused its discretion in admitting

        into evidence testimony of his sexual assaults or attempted sexual assaults of other female

        minors. We review the district court’s admission of evidence for abuse of discretion.

        United States v. Ebert,
61 F.4th 394, 403
(4th Cir. 2023). “A district court abuses its

        discretion when it acts arbitrarily or irrationally, fails to consider judicially recognized

        factors constraining its exercise of discretion, relies on erroneous factual or legal premises,

        or commits an error of law.” United States v. Dillard,
891 F.3d 151, 158
(4th Cir. 2018).




               ∗
                 Prior to December 21, 2018,
18 U.S.C. § 2423
(b) stated, as relevant here, “[t]he
        person who travels in interstate commerce for the purpose of engaging in any illicit sexual
        contact with another person shall be fined under this title or imprisoned not more than 30
        years, or both.” After that date, the language was changed to prohibit a person who travels
        in interstate commerce with a “motivating purpose of engaging in any illicit sexual
        conduct.” On December 22, 2023, the language was changed to prohibit a person who
        travels in interstate commerce “with intent to engage in any illicit sexual conduct.” The
        charged criminal conduct occurred prior to December 21, 2018, and both parties agreed to
        proceed with the language in place prior to the change.

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               Rule 404(b) of the Federal Rules of Evidence prohibits the admission into evidence

        of another “crime, wrong, or other act . . . 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). Such propensity evidence is excluded because it might “so overpersuade

        [the jury] as to prejudge one with a bad general record.” Michelson v. United States,
335

        U.S. 469, 476
(1948). But the Rule allows the admission of evidence of other acts or crimes

        if used to prove “motive, opportunity, intent, preparation, plan, knowledge, identity,

        absence of mistake, or lack of accident”—in other words, non-propensity uses of the

        evidence. Fed. R. Evid. 404(b)(2).

               To be admissible under Rule 404(b), the evidence must be: (1) relevant to an issue

        other than the defendant’s character; (2) necessary to prove an element of the charged

        offense; (3) reliable; and (4) admissible under Fed. R. Evid. 403, in that the probative value

        of the evidence must not be substantially outweighed by its prejudicial nature. United

        States v. Queen,
132 F.3d 991, 997
(4th Cir. 1997). The lower court was within its

        discretion to conclude that the testimony regarding his prior sexual assaults of other female

        minors was offered for a non-propensity purpose and therefore admissible under Rule 404.

               The lower court was also within its discretion to conclude that this evidence was

        admissible under the Rule 413 exception to the general bar on character evidence. Rule

        413 allows ordinarily impermissible character evidence in cases where the defendant is 1)

        accused of sexual assault and 2) when that evidence concerns a prior sexual assault. Fed.

        R. Evid. 413. The defendant was charged with a crime meeting the definition of “Sexual

        Assault” found in Rule 413(d). Moreover, the proffered testimony is evidence of prior

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        sexual assaults. Therefore, the court did not abuse its discretion in admitting the evidence

        under Rule 413. 1

               Accordingly, we affirm the criminal judgment. We dispense with oral argument

        because the facts and legal contentions are adequately presented in the materials before this

        court and argument would not aid the decisional process.

                                                                                        AFFIRMED




               1
                As we find that the evidence was properly admitted under Rules 404 and 413, we
        need not address whether it was also admissible as intrinsic. See United States v. Brizuela,
962 F.3d 784
, 793–95 (4th Cir. 2020).

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