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,

on the 3rd 4 day of February, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 GUIDO CALABRESI,

8 RICHARD C. WESLEY,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 13-4259

16

17 NICHOLAS ALVAREZ, 

18 Defendant-Appellant.

19 - - - - - - - - - - - - - - - - - - - -X

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 but31 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 error5 -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