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United States v. Vickers

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

ʺ SUMMARY ORDER ʺ ). 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 12 th day of September, two thousand seventeen.

PRESENT: RALPH K. WINTER,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

UNITED STATES OF AMERICA,

Appellee

,

v. 16

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DAVID ALLEN VICKERS,

Defendant

‐ Appellant

.

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FOR APPELLEE: AARON J. MANGO, Assistant United States

A tt orney, for James P. Kennedy, Jr., Acting

United States A tt orney for the Western District

of New York, Bu ff alo, New York.‐ 2

‐ 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 a tt empted 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, ʺ J.A. ʺ and ʺ R.M., ʺ with him on interstate and

foreign trucking trips and molested them as part of a larger pa tt ern 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

admi tt ed; (3) the evidence was insu ffi cient to sustain his convictions; and (4) his

sentence is substantively unreasonable. We assume the parties ʹ familiarity with the‐ 3

‐ underlying facts, procedural history, and issues on appeal and discuss each claim of

error in turn.

1. Su ffi ciency of the Indictment

Vickers fi rst argues that the indictment omi tt ed 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 Amendment ʹ s Grand Jury Clause,

there are ʺ two 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) ʺ the elements of the o ff ense charged and fairly inform[] a

defendant of the charge against which he must defend ʺ and it must (2) ʺ enable[] him to

plead an acqui tt al or conviction in bar of future prosecutions for the same o ff ense. 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 ʺ a plain, concise, and de fi nite wri tt en

statement of the essential facts constituting the o ff ense charged. ʺ We have noted that

ʺ an indictment need do li tt le 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. Yanno tt i

, 541 F. 3d 112, 127

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

o ff ense charged, we will a ffi rm a conviction if we conclude that such error was harmless‐ 4

‐ beyond a reasonable doubt. See Lee

, 833 F.3d at 69 (holding that ʺ the grand jury ʹ s failure

to allege an [essential] element [of] a felony [o ff ense is not] a structural error that is

impervious to harmless

‐ error analysis ʺ ).

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

unlawful for a person to ʺ knowingly transport[] an individual who has not a tt ained 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

o ff ense, ʺ id. § 2423(a), or to a tt empt 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 charged ʺ 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

ʺ knowingly transport[ed], and a tt empt[ed] to transport ʺ his minor victims ʺ in interstate

and foreign commerce with the intent ʺ to engage in sex acts with them ʺ for which [he]

could be charged with a criminal o ff ense

. . . [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.‐ 5

‐ 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 fi ndings ʺ that the defendant

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

speci fi c New Jersey, Pennsylvania, New York, and Canadian criminal o ff enses, Gov ʹ t

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

guilt, as discussed below. 1 Accordingly, the putative de fi ciency in the indictment does

not warrant reversal of Vickers ʹ s convictions because any such de fi ciency was harmless

beyond a reasonable doubt.

2. Evidentiary Rulings on Prior Acts

Vickers next argues that the district court erroneously admi tt ed testimony

concerning (1) Vickers ʹ s 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)

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

depends on the defendant ʹ s 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

ʺ nothing more than a possible means by which a defendant met an element of the offense ʺ ).‐ 6

‐ intrastate and interstate trucking trips, and (2) the grooming techniques he employed to

secure his victims ʹ trust.

We review a district court ʹ s 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 defendant ʹ s 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

, ʺ motive, 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 di ff erent. In such cases, ʺ the court

may admit evidence that the defendant commi tt ed any other sexual assault ʺ or ʺ any

other child molestation ʺ and such ʺ evidence may be considered on any ma tt er 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 defendant ʹ s 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 ʺ exclude relevant evidence if its probative value is

substantially outweighed by a danger of, ʺ inter alia

, ʺ unfair prejudice, confusing the‐ 7

‐ issues, misleading the jury,

. . . or needlessly presenting cumulative evidence. ʺ Fed. R.

Evid. 403; see Davis

, 624 F.3d at 512. At bo tt om, ʺ so long as the district court has

conscientiously balanced the pro ff ered evidence ʹ s probative value with the risk for

prejudice, ʺ a Rule 403 determination ʺ will 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 victims ʹ 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 ʺ grooming evidence

. . . was directly tied

to ʺ Vickers ʹ s sexual abuse of his victims of the charged crimes and was thus properly

admi tt ed under Rules 413 and 414. Appellee ʹ s Br. at 37.

As to the testimony concerning Vickers ʹ s sexual abuse of other victims, we

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

was probative of Vickers ʹ s propensity for sexually abusing adolescent boys who were

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

abuse of the victims on trucking trips was probative of his knowledge, intent, and plan‐ 8

‐ in bringing J.A. and R.M. on the trucking trips charged in the indictment. As to the

testimony concerning Vickers ʹ ʺ grooming ʺ of his victims, we conclude that such

evidence was admissible even under Rule 404(b), because it was probative of Vickers ʹ s

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

We identify no abuse of discretion in the district court ʹ s 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 o ff ered, 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. Su ffi ciency of the Evidence

Vickers next argues that the evidence was insu ffi cient to support his convictions.

In an appeal challenging the su ffi ciency of the evidence, we review the evidence

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

might have drawn in the government ʹ s favor. ʺ United States v. Salameh

, 152 F.3d 88, 151

(2d Cir. 1998) (per curiam). ʺ A 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). ʺ Nonetheless,

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

D ʹ Amato

, 39 F.3d 1249, 1256 (2d Cir. 1994).‐ 9

‐ 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 ʺ one 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 omi tt ed).

Vickers contends that the evidence was insu ffi cient 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 ʺ was to deliver the cargo tendered

for such delivery. ʺ Appellant ʹ s Br. at 22. We are not persuaded. As the government

notes, the relevant question is not the purpose of the trucking trips, but what Vickers ʹ s

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

government presented su ffi cient evidence for a jury to infer that Vickers brought the

boys on the trips for the purpose of sexually abusing them. Indeed, J.A. testi fi ed 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. testi fi ed that, when he was fi fteen and sixteen years old, he went on trucking trips

with Vickers from New York to New Jersey and Pennsylvania, and back to New York,‐ 10

‐ and that on such trips Vickers a tt empted to and did sexually abuse him in a similar

manner. And R.M. testi fi ed 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 boy ʹ s presence was something Vickers sought to conceal. Other

victims also testi fi ed 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 Vickers ʹ s dominant purpose for bringing J.A. and R.M. on the interstate and foreign

trucking trips. Accordingly, the evidence was su ffi cient to convict Vickers for violating

18 U.S.C. §§ 2423(a) and (e).

4. Reasonableness of the Sentence

Vickers ʹ s last argues that his life sentence is substantively unreasonable.

Our substantive review of Vickers ʹ s sentence is akin ʺ to the consideration of a

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

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

actors, which should be found only if the alleged tort ʹ shocks 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 ʺ set aside a district court ʹ s substantive

determination only in exceptional cases where the trial court ʹ s decision ʹ cannot 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)).‐ 11

‐ Vickers submits that the district court ʹ s ʺ rote application ʺ 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). Appellant ʹ s

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) ʺ provided no reason why

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

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

that the statutory maximum sentence ʹ probably [would] be upheld ʹ on appeal

. . .

because [the] sentence was ʹ relatively far below ʹ the initial, [erroneously calculated,]

Guidelines ʺ 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

Vickers ʹ s 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 ʺ the range of permissible decisions ʺ in this case. Rigas, 583 F.3d at 122 (internal

quotation marks omitted).

We have reviewed Vickers ʹ s remaining arguments and conclude they are

without merit. Accordingly, the district court ʹ s judgment is AFFIRMED

.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk