United States v. Tykarsky

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-8-2008
USA v. Tykarsky
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3663
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"USA v. Tykarsky" (2008). 2008 Decisions. Paper 396.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 06-3663
_____________
UNITED STATES OF AMERICA,
v.
TODD TYKARSKY,
a/k/a TODDTY63,
a/k/a GOLPHER12345,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cr-00400)
District Judge: Honorable Harvey Bartle III, Chief Judge
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 12, 2008
____________
Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges
(Filed: October 8, 2008)
OPINION
ALDISERT, Circuit Judge
Appellant Todd Tykarsky challenges his convictions in the United States District
Court for the Eastern District of Pennsylvania for actual or attempted persuasion of a
minor to engage in illicit sexual activity, in violation of 18 U.S.C. § 2422(b), and
traveling for the purpose of engaging in illicit sexual activity, in violation of 18 U.S.C. §
2423(b). Tykarsky’s challenges to his convictions were raised in a previous appeal to this
Court. See United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006). There, we joined
several of our sister courts of appeals in holding that the involvement of an actual minor,
as distinguished from an adult government decoy, is not a prerequisite for conviction
under § 2422(b) or § 2423(b). We upheld Tykarsky’s conviction but remanded for re-
sentencing. After his re-sentencing, Tykarsky filed this appeal, raising previously
adjudicated issues to preserve them for review by the Supreme Court.1
We do not reconsider previously addressed issues concerning convictions after
limited remand for re-sentencing. In United States v. Kikumura, 947 F.2d 72 (3d Cir.
1991), we held,
[A defendant] cannot continue to litigate questions already
decided by this Court in a prior proceeding. . . . Indeed, under
the law of the case doctrine, when a court “decides upon a
rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case.”
1
Tykarsky claims that (1) “[t]he government’s evidence was insufficient,” (2) his
rights under the “Fifth and Sixth Amendments were violated where the Indictment as
drafted failed to properly charge the offenses and resulted in an improper constructive
amendment and prejudicial variance,” and (3) “[t]he Indictment and each count are
unconstitutional as drafted and as applied and in violation of the commerce clause and
interstate travel provisions of the United States Constitution.” Appellant’s Br. at 20.
2
Id. at 77 (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)).
The judgment of the District Court will therefore be affirmed.
3