United States v. Nicholas Alvarez

13-4259
UNITED STATES V. NICHOLAS ALVAREZ
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 3rd day of February, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-4259
16
17 NICHOLAS ALVAREZ,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: Benjamin L. Coleman, Coleman,
22 Balogh & Scott LLP, San Diego,
23 California.
24
25 FOR APPELLEE: Kathryn M. Martin, Michael A.
26 Levy, for Preet Bharara, U.S.
27 Attorney for the Southern
1
1 District of New York, New York,
2 New York.
3
4 Appeal from a judgment of the United States District
5 Court for the Southern District of New York (Briccetti, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Nicholas Alvarez appeals from the judgment of the
12 United States District Court for the Southern District of
13 New York (Briccetti, J.), sentencing him to 235 months
14 imprisonment and ten years of supervised release after his
15 conviction on six counts relating to the prostitution of
16 others. We assume the parties’ familiarity with the
17 underlying facts, the procedural history, and the issues
18 presented for review.
19
20 Alvarez was convicted by a jury of one count of
21 transporting an individual for prostitution, 18 U.S.C.
22 § 2421; two counts of persuading, inducing, enticing, or
23 coercing an individual to travel for prostitution (the
24 “coercion-to-travel” counts), id. § 2422(a); and two counts
25 of sex trafficking, id. § 1591. He also pled guilty to one
26 count of failing to register as required by the Sex Offender
27 Registration and Notification Act, id. § 2250.
28
29 Alvarez challenges his convictions on the grounds that
30 the district court: (1) did not instruct the jury that but-
31 for causation was a necessary element of the sex trafficking
32 and coercion-to-travel counts; (2) excluded, under Federal
33 Rule of Evidence 412, evidence of the victims’ continued
34 prostitution activity after they left Alvarez; (3) did not
35 instruct the jury that it must evaluate with special
36 scrutiny the government’s witnesses who admitted to drug use
37 or addiction; and (4) decided against conducting individual
38 inquiries of jurors after at least one juror expressed
39 concern that Alvarez had recorded personal information
40 during jury selection. On the record before us, we conclude
41 that none of these decisions by the district court
42 represents error.
43
44 1. The district court’s instructions did not require
45 the jury to find a causal connection between Alvarez’s
46 charged conduct and the victims’ engagement in prostitution.
47 Alvarez contends for the first time on appeal that the jury
2
1 instructions constituted error because the sex trafficking
2 and coercion-to-travel charges required the government to
3 prove beyond a reasonable doubt that, but for Alvarez’s
4 conduct, the victims would not have engaged in prostitution.
5 Because Alvarez did not preserve this challenge in the
6 district court, we review the jury instructions for plain
7 error. Fed. R. Crim. P. 52(b); see, e.g., United States v.
8 Vilar, 729 F.3d 62, 88 (2d Cir. 2013).
9
10 Alvarez relies on Burrage v. United States, 134 S. Ct.
11 881 (2014), for his argument that but-for causation is a
12 required element of the charged crimes. In Burrage, the
13 Court considered a statute’s enhanced penalties for
14 narcotics distribution when “death or serious bodily injury
15 results from” use of the narcotics. Id. at 889-90; see 21
16 U.S.C. § 841(b)(1)(A)-(C). The Court held that the plain
17 meaning of the phrase “results from” requires “not merely
18 conduct but also a specified result of conduct”--namely,
19 death or serious bodily injury--and therefore also requires
20 but-for causation linking the conduct and the specified
21 result. Id. at 887. Burrage’s requirement of but-for
22 causation is therefore relevant in interpreting a statute
23 only if that statute satisfies the premise of Burrage’s
24 interpretive logic: a statute that requires both conduct on
25 the part of the defendant and a specified result.
26
27 The sex trafficking statute is addressed to “[w]hoever
28 knowingly . . . recruits, entices, harbors, transports,
29 provides, obtains, or maintains by any means a
30 person . . . , knowing . . . that means of force, threats of
31 force, fraud, coercion . . . , or any combination of such
32 means will be used to cause the person to engage in a
33 commercial sex act . . . .” 18 U.S.C. § 1591(a). The
34 coercion-to-travel statute is directed to “[w]hoever
35 knowingly persuades, induces, entices, or coerces any
36 individual to travel in interstate or foreign commerce . . .
37 to engage in prostitution, or in any sexual activity for
38 which any person can be charged with a criminal offense.”
39 18 U.S.C. § 2422(a). Neither statute specifies a necessary
40 result. The sex trafficking statute criminalizes certain
41 means when they are “used to cause” an act, and thus is
42 concerned with the means and not with the result. The
43 result itself is not an element of the offense. Other
44 courts have come to the same conclusion when interpreting a
45 different provision of the sex trafficking statute, which
46 similarly uses the word “cause” in the future tense. See
47 United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th
3
1 Cir. 2013); United States v. Brooks, 610 F.3d 1186, 1197 n.4
2 (9th Cir. 2010). The coercion-to-travel statute contains no
3 word suggesting causation. Therefore, neither statute comes
4 within the analysis of Burrage. Alvarez has shown no error-
5 -and certainly no plain error--in the omission of but-for
6 causation from the jury instructions.
7
8 2. Pursuant to Federal Rule of Evidence 412, the
9 district court denied Alvarez’s motion in limine to
10 introduce evidence that his victims continued to engage in
11 prostitution after they left Alvarez. Alvarez contends that
12 this decision violated his constitutional rights and
13 misinterpreted Rule 412. This Court reviews the district
14 court’s evidentiary rulings for abuse of discretion, United
15 States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009), and the
16 district court’s application of constitutional standards de
17 novo, United States v. Tropeano, 252 F.3d 653, 657 (2d Cir.
18 2001).
19
20 Rule 412, which applies in a “proceeding involving
21 alleged sexual misconduct,” prohibits admission of evidence
22 offered to prove either “that a victim engaged in other
23 sexual behavior” or “a victim’s sexual predisposition.”
24 Fed. R. Evid. 412(a). However, Rule 412 does not bar
25 “evidence whose exclusion would violate the defendant’s
26 constitutional rights.” Id. R. 412(b)(1)(c)). Alvarez’s
27 constitutional rights included “a meaningful opportunity to
28 present a complete defense” at his trial, Holmes v. South
29 Carolina, 547 U.S. 319, 324 (2006), and to confront the
30 witnesses against him including by “impeach[ing] the
31 credibility of a prosecution witness by cross-examination
32 directed at possible bias,” Davis v. Alaska, 415 U.S. 308,
33 309 (1974). Here, the district court admitted evidence of
34 the victims’ history of prostitution prior to their meeting
35 Alvarez. In that way, Alvarez was able to present a
36 complete defense and to impeach the government’s witnesses
37 using the admitted evidence of the victims’ earlier
38 prostitution. The excluded evidence of the victims’ later
39 prostitution was not critical to protect Alvarez’s
40 constitutional rights.
41
42 Because there was no constitutional deprivation, we
43 review the evidentiary challenge for abuse of discretion.
44 Alvarez has not shown any abuse of discretion in the
45 district court’s application of Rule 412 to exclude only the
46 subsequent history of the victims’ prostitution.
47
4
1 3. The district court rejected Alvarez’s proposed jury
2 instruction that the jury give special scrutiny to
3 government witnesses who admitted to drug use or addiction.
4 We review de novo a preserved challenge to the district
5 court’s jury instructions, see United States v. Vaughn, 430
6 F.3d 518, 522 (2d Cir. 2005). This review focuses on the
7 central requirement of a district court’s jury instructions:
8 “that the charge be fair to both sides.” United States v.
9 Russo, 74 F.3d 1383, 1393 (2d Cir. 1996). The district
10 court instructed the jury concerning its obligation to
11 scrutinize all witnesses’ testimony; fairness did not
12 require the district court to reiterate or elaborate upon
13 this charge. See United States v. Valdez, 16 F.3d 1324,
14 1334 (2d Cir. 1994).
15
16 4. Alvarez challenges the district court’s handling of
17 potential jury bias during trial. However, Alvarez
18 contemporaneously consented to the district court’s
19 approach. “A defendant who waives a claim of error may not
20 raise it on appeal.” United States v. Gomez, 617 F.3d 88,
21 92 (2d Cir. 2010).
22
23 After the jury was empaneled, at least one juror
24 expressed anxiety to the court deputy that Alvarez had taken
25 notes about the jurors’ personal information during jury
26 selection. The attorneys and the district court discussed
27 the situation at length. Alvarez’s counsel initially
28 requested that the district court undertake an individual
29 colloquy with each reporting juror. Without ruling on that
30 proposal, the district court explained its disinclination to
31 make an inquiry of any juror, for fear of drawing more
32 attention to any issue. Instead, the court proposed an
33 instruction that the jury remain unbiased. Alvarez’s
34 counsel acceded to the use of a jury instruction in lieu of
35 any colloquy, and he contributed to the crafting of that
36 instruction. Counsel did not object; when he ultimately
37 agreed to the proposed instruction he added, “[w]ith the
38 consent of the defendant, just to put it on the record.”
39 Alvarez thus waived this challenge below and cannot raise it
40 on appeal. See United States v. Peterson, 385 F.3d 127, 138
41 (2d Cir. 2004); United States v. Blume, 967 F.2d 45, 48 (2d
42 Cir. 1992).
43
5
1 For the foregoing reasons, and finding no merit in
2 Alvarez’s other arguments, we hereby AFFIRM the judgment of
3 the district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
6