16‐1145‐cr

United States v. Vickers

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 COURTʹS 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

ʺSUMMARY ORDERʺ).  A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 12th day of September, two thousand seventeen.

PRESENT: RALPH K. WINTER,

DENNY CHIN,

    SUSAN L. CARNEY,

Circuit Judges.

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UNITED STATES OF AMERICA,  

      Appellee,

     v.           16‐1145‐cr

DAVID ALLEN VICKERS,      

      Defendant‐Appellant.

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FOR APPELLEE: AARON J. MANGO, Assistant United States

Attorney, for James P. Kennedy, Jr., Acting

United States Attorney for the Western District

of New York, Buffalo, New York.
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FOR DEFENDANT‐APPELLANT: LAWRENCE GERZOG, Esq., New York, New

York.

Appeal from the United States District Court for the Western District of New

York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant David Allen Vickers appeals a judgment of the district court

dated April 5, 2016, convicting him, after a jury trial, of two counts of attempted and

actual transportation of a minor in interstate and foreign commerce with intent to

engage in criminal sexual activity with such minor.  See 18 U.S.C. §§ 2423(a),(e).  

Vickers, who is a truck driver by trade, was convicted on the basis of testimony that, on

multiple occasions, he brought two boys, ʺJ.A.ʺ and ʺR.M.,ʺ with him on interstate and

foreign trucking trips and molested them as part of a larger pattern of child exploitation

spanning from the early 1980s until 2007, during which he lured adolescent boys from

broken homes into relationships of trust and then sexually abused them.  The district

court sentenced Vickers principally to concurrent terms of imprisonment of thirty years

and life.  On appeal, Vickers argues that: (1) the indictment failed to charge an essential

element of his crimes of conviction; (2) certain prior act evidence was erroneously

admitted; (3) the evidence was insufficient to sustain his convictions; and (4) his

sentence is substantively unreasonable.  We assume the partiesʹ familiarity with the
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underlying facts, procedural history, and issues on appeal and discuss each claim of

error in turn.

1. Sufficiency of the Indictment

Vickers first argues that the indictment omitted an essential element of his crimes

of conviction.

We review legal challenges to a criminal indictment de novo.  See United States v.

Pirro, 212 F.3d 86, 92 (2d Cir. 2000).  Under the Fifth Amendmentʹs Grand Jury Clause,

there are ʺtwo constitutional requirements for an indictment.ʺ  United States v. Lee, 833

F.3d 56, 69 (2d Cir. 2016) (quoting United States v. Resendiz‐Ponce, 549 U.S. 102, 108

(2007)).  It must contain (1) ʺthe elements of the offense charged and fairly inform[] a

defendant of the charge against which he must defendʺ and it must (2) ʺenable[] him to

plead an acquittal or conviction in bar of future prosecutions for the same offense.ʺ  Id.

(quoting Resendiz‐Ponce, 549 U.S. at 108).  In this vein, Federal Rule of Criminal

Procedure 7(c)(1) requires an indictment be ʺa plain, concise, and definite written

statement of the essential facts constituting the offense charged.ʺ  We have noted that

ʺan indictment need do little more than to track the language of the statute charged and

state the time and place (in approximate terms) of the alleged crime.ʺ  United States v.

Vilar, 729 F.3d 62, 80 (2d Cir. 2013) (quoting United States v. Yannotti, 541 F. 3d 112, 127

(2d Cir. 2008)).  Moreover, even where the indictment fails to allege an element of the

offense charged, we will affirm a conviction if we conclude that such error was harmless
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beyond a reasonable doubt.  See Lee, 833 F.3d at 69 (holding that ʺthe grand juryʹs failure

to allege an [essential] element [of] a felony [offense is not] a structural error that is

impervious to harmless‐error analysisʺ).   

Here, Vickers was charged with violating 18 U.S.C. § 2423, which makes it

unlawful for a person to ʺknowingly transport[] an individual who has not attained the

age of 18 years in interstate or foreign commerce . . . with intent that the individual

engage . . . in any sexual activity for which any person can be charged with a criminal

offense,ʺ id. § 2423(a), or to attempt to do so, see id. § 2423(e).  A defendant may be

convicted under 18 U.S.C. § 2423 if it is proved that he ʺ(1) knowingly transported a

minor across state lines . . . (2) with the intent that the minor engage in sexual activity

for which some person could be criminally chargedʺ under federal, state, or foreign law.  

United States v. Vargas‐Cordon, 733 F.3d 366, 375 (2d Cir. 2013).   

Vickers claims error because, although the indictment alleged that, between

certain approximate dates in the Western District of New York and elsewhere, Vickers

ʺknowingly transport[ed], and attempt[ed] to transportʺ his minor victims ʺin interstate

and foreign commerce with the intentʺ to engage in sex acts with them ʺfor which [he]

could be charged with a criminal offense . . . [a]ll in violation of Title 18, United States

Code, Sections 2423(a) and 2423(e),ʺ App. 19, the indictment did not specify the federal,

state, or foreign sex abuse laws under which Vickers could be so charged.
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We need not decide whether such an omission was error for, even if it was, the

error was harmless beyond a reasonable doubt because (1) before trial, Vickers received

a bill of particulars specifying those laws; (2) before trial, the government sought jury

instructions trial that would explain such laws (which instructions the jury ultimately

received); (3) the jury returned a verdict with special findings ʺthat the defendant

intended to engage in sexual activity for which the defendant could be charged withʺ 

specific New Jersey, Pennsylvania, New York, and Canadian criminal offenses, Govʹt

App. 54, 56; and (4) the government presented overwhelming evidence of Vickersʹs

guilt, as discussed below.1  Accordingly, the putative deficiency in the indictment does

not warrant reversal of Vickersʹs convictions because any such deficiency was harmless

beyond a reasonable doubt.

2. Evidentiary Rulings on Prior Acts

Vickers next argues that the district court erroneously admitted testimony

concerning (1) Vickersʹs sexual abuse of victims other than J.A. and R.M., including on

                                                            

1 We note that there is some disagreement among our sister circuits as to whether

the underlying sex crimes with which a defendant could be charge are themselves an element of

a § 2423 (a) or (e) offense.  Compare United States v. Mannava, 565 F.3d 412, 415 (7th Cir. 2009)

(ʺThe liability created by 18 U.S.C. § 2422(b) [, whose relevant language is identical to § 2423,]

depends on the defendantʹs having violated another statute, and the elements of the offense

under that other statute must therefore be elements of the federal offense in order to preserve

the requirement of jury unanimity.ʺ) with United States v. Jockish, 857 F.3d 1122, 1127 (11th Cir.

2017) (holding that the underlying sex crimes with which a defendant could be charged are

ʺnothing more than a possible means by which a defendant met an element of the offenseʺ).
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intrastate and interstate trucking trips, and (2) the grooming techniques he employed to

secure his victimsʹ trust.

We review a district courtʹs evidentiary rulings for abuse of discretion.  United

States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011).  Under Federal Rule of Evidence 404(b)(1),

evidence of a defendantʹs prior acts is generally inadmissible to show that he has a

propensity to act in a certain manner and acted in accordance with that propensity,

except that such evidence is admissible to prove, inter alia, ʺmotive, opportunity, intent,

preparation, plan, [or] knowledge,ʺ provided that the government gives a defendant

reasonable notice of its intent to introduce the evidence and for what purpose.  Fed. R.

Evid. 404(b)(1),(2).   

Sexual assault and child molestation cases are different.  In such cases, ʺthe court

may admit evidence that the defendant committed any other sexual assaultʺ or ʺany

other child molestationʺ and such ʺevidence may be considered on any matter to which

it is relevant.ʺ  Fed. R. Evid. 413(a) (assault); Fed. R. Evid. 414(a) (molestation).  Indeed,

Rules 413 and 414 permit evidence of prior acts of sexual assault or child molestation to

prove a defendantʹs propensity to commit such acts.  See United States v. Davis, 624 F.3d

508, 511‐12 (2d Cir. 2010).   

Nevertheless, the admission of all prior act evidence is subject to Rule 403, which

permits the district court to ʺexclude relevant evidence if its probative value is

substantially outweighed by a danger of,ʺ inter alia, ʺunfair prejudice, confusing the
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issues, misleading the jury, . . . or needlessly presenting cumulative evidence.ʺ  Fed. R.

Evid. 403; see Davis, 624 F.3d at 512.  At bottom, ʺso long as the district court has

conscientiously balanced the proffered evidenceʹs probative value with the risk for

prejudice,ʺ a Rule 403 determination ʺwill be disturbed only if it is arbitrary or

irrational.ʺ  United States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006).   

Vickers concedes that testimony concerning his sexual abuse of other victims is

subject to Rules 413 and 414, but submits that such evidence should have been excluded

as unfairly prejudicial under Rule 403.  He further contends that testimony about the

techniques he employed to gain his victimsʹ trust, e.g., having the boys sit on his lap,

massaging their feet, sleeping in bed with them, giving them drugs and alcohol, and

promising them money in exchange for sex acts, is subject to Rule 404(b), rather than

Rules 413 and 414, and thus should have been excluded as impermissible propensity

evidence.  The government counters that this ʺgrooming evidence . . . was directly tied

toʺ Vickersʹs sexual abuse of his victims of the charged crimes and was thus properly

admitted under Rules 413 and 414.  Appelleeʹs Br. at 37.

As to the testimony concerning Vickersʹs sexual abuse of other victims, we

conclude that such evidence was plainly admissible under Rules 413 and 414 because it

was probative of Vickersʹs propensity for sexually abusing adolescent boys who were

entrusted to his care ‐‐ like J.A. and R.M.  In particular, testimony about Vickersʹs sexual

abuse of the victims on trucking trips was probative of his knowledge, intent, and plan
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in bringing J.A. and R.M. on the trucking trips charged in the indictment.  As to the

testimony concerning Vickersʹ ʺgroomingʺ of his victims, we conclude that such

evidence was admissible even under Rule 404(b), because it was probative of Vickersʹs

knowledge of how to secure adolescent boysʹ trust so that he could sexually abuse them.  

We identify no abuse of discretion in the district courtʹs decision to admit all of the

challenged testimony under Rule 403.  The district court carefully considered the

testimony and the purpose for which it was offered, and, indeed, excluded some

testimony about certain abuse incidents that did not involve trucking trips and occurred

when Vickers was very young because its probative value was substantially outweighed

by the danger of unfair prejudice.

3. Sufficiency of the Evidence

Vickers next argues that the evidence was insufficient to support his convictions.

In an appeal challenging the sufficiency of the evidence, we review the evidence

in ʺthe light most favorable to the government and credit every inference that the jury

might have drawn in the governmentʹs favor.ʺ  United States v. Salameh, 152 F.3d 88, 151

(2d Cir. 1998) (per curiam).  ʺA verdict of guilty may be based entirely on circumstantial

evidence as long as the inferences of culpability drawn from the circumstances are

reasonable.ʺ  United States v. MacPherson, 424 F.3d 183, 190 (2d Cir. 2005).  ʺNonetheless,

a conviction based on speculation and surmise alone cannot stand.ʺ  United States v.

DʹAmato, 39 F.3d 1249, 1256 (2d Cir. 1994).
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As noted above, 18 U.S.C. § 2423 requires the government to prove that the

defendant transported a minor in interstate commerce intending that the minor engage

in sex acts that could be charged as a crime under federal, state, or foreign law.  Vargas‐

Cordon, 733 F.3d at 375.  Illegal sexual activity must be ʺone of the dominant motives for

the interstate transportation of the minors, and not merely an incident of the

transportation.ʺ  Id. at 375‐76 (internal quotation marks omitted).   

Vickers contends that the evidence was insufficient to prove that sexual abuse

was a dominant motive of his transportation of J.A. and R.M. in interstate and foreign

commerce because the purpose of the trucking trips ʺwas to deliver the cargo tendered

for such delivery.ʺ  Appellantʹs Br. at 22.  We are not persuaded.  As the government

notes, the relevant question is not the purpose of the trucking trips, but what Vickersʹs

intent was in bringing J.A. and R.M. along on such trips.  As to that question, the

government presented sufficient evidence for a jury to infer that Vickers brought the

boys on the trips for the purpose of sexually abusing them.  Indeed, J.A. testified that,

starting in 1999, when he was just ten years old, Vickers took him on multiple trucking

trips from New York to Canada, New Jersey, and Pennsylvania, and back to New York,

and that on such trips, in each locale, Vickers sexually abused him by, inter alia,

touching his penis, having oral sex with him, and ejaculating on his chest.  Similarly,

R.M. testified that, when he was fifteen and sixteen years old, he went on trucking trips

with Vickers from New York to New Jersey and Pennsylvania, and back to New York,
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and that on such trips Vickers attempted to and did sexually abuse him in a similar

manner.  And R.M. testified that, on one trip, Vickers instructed him to hide in the back

of the truck to keep from being seen by others when Vickers was making deliveries,

suggesting that the boyʹs presence was something Vickers sought to conceal.  Other

victims also testified that Vickers also molested them when they accompanied him on

trucking trips.  Based on this testimony, a jury reasonably could infer that sexual abuse

was Vickersʹs dominant purpose for bringing J.A. and R.M. on the interstate and foreign

trucking trips.  Accordingly, the evidence was sufficient to convict Vickers for violating

18 U.S.C. §§ 2423(a) and (e).   

4. Reasonableness of the Sentence

Vickersʹs last argues that his life sentence is substantively unreasonable.

Our substantive review of Vickersʹs sentence is akin ʺto the consideration of a

motion for a new criminal jury trial, which should be granted only when the juryʹs

verdict was ʹmanifestly unjust,ʹ and to the determination of intentional torts by state

actors, which should be found only if the alleged tort ʹshocks the conscience.ʹʺ  United

States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010) (quoting United States v. Rigas, 583 F.3d

108, 122‐23 (2d Cir. 2009)).  Indeed, we will ʺset aside a district courtʹs substantive

determination only in exceptional cases where the trial courtʹs decision ʹcannot be

located within the range of permissible decisions.ʹʺ  Rigas, 583 F.3d at 122 (emphasis

omitted) (quoting United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)).   
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Vickers submits that the district courtʹs ʺrote applicationʺ of § 2G1.3 mirrors an

approach to a child pornography guideline that we held generated a substantively

unreasonable sentence in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010).  Appellantʹs

Br. at 34.  We disagree.  In Dorvee, we vacated a sentence as substantively unreasonable

where the district court (1) made clearly erroneous findings of fact about the likelihood

that Dorvee would sexually assault a child in the future, (2) ʺprovided no reason why

the [statutory maximum sentence imposed] was required to deter Dorvee and offenders

with similar history and characteristics,ʺ and (3) ʺconsidered it a foregone conclusion

that the statutory maximum sentence ʹprobably [would] be upheldʹ on appeal . . .

because [the] sentence was ʹrelatively far belowʹ the initial, [erroneously calculated,]

Guidelinesʺ range.  Id. at 183‐84.  The district court made no such errors here.  Instead, it

properly considered all of the sentencing materials before it and concluded that

Vickersʹs decades‐long history of repeatedly molesting young boys, the impact that

conduct had on his victims, the likelihood that he would reoffend, and his lack of

remorse for his crimes warranted a life sentence.  We cannot say that a life sentence is

outside ʺthe range of permissible decisionsʺ in this case.  Rigas, 583 F.3d at 122 (internal

quotation marks omitted).

We have reviewed Vickersʹs remaining arguments and conclude they are

without merit.  Accordingly, the district courtʹs judgment is AFFIRMED.

FOR THE COURT:

Catherine OʹHagan Wolfe, Clerk