13-4259 UNITED STATES V. NICHOLAS ALVAREZ



### 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**  **’ 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 “** **SUMMARY ORDER ”).**  **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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 3 rd** **day of February, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **GUIDO CALABRESI,** 7 **RICHARD C. WESLEY,** 8 **Circuit Judges**

**.** 9 10
- - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 13-4259** 15 16 **NICHOLAS ALVAREZ,** 17 **Defendant-Appellant**

**.** 18
- - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** Benjamin L. Coleman, Coleman, 21 Balogh & Scott LLP, San Diego, 22 California. 23 24 **FOR APPELLEE:** Kathryn M. Martin, Michael A. 25 Levy, forPreet Bharara, U.S. 26 Attorney for the Southern 27

1District of New York, New York, 1 New York. 2 3 Appeal from a judgment of the United States District 4 Court for the Southern District of New York (Briccetti, J. ). 5 6 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 7 **AND DECREED**that the judgment of the district court be 8
**AFFIRMED**

. 9 10 Nicholas Alvarez appeals from the judgment of the 11 United States District Court for the Southern District of 12 New York (Briccetti, J. ), sentencing him to 235 months 13 imprisonment and ten years of supervised release after his 14 conviction on six counts relating to the prostitution of 15 others. We assume the parties’ familiarity with the 16 underlying facts, the procedural history, and the issues 17 presented for review. 18 19 Alvarez was convicted by a jury of one count of 20 transporting an individual for prostitution, 18 U.S.C. 21 § 2421; two counts of persuading, inducing, enticing, or 22 coercing an individual to travel for prostitution (the 23 “coercion-to-travel” counts), id. § 2422(a); and two counts 24 of sex trafficking, id. § 1591. He also pled guilty to one 25 count of failing to register as required by the Sex Offender 26 Registration and Notification Act, id. § 2250. 27 28 Alvarez challenges his convictions on the grounds that 29 the district court: **(1)** did not instruct the jury that but30 for causation was a necessary element of the sex trafficking 31 and coercion-to-travel counts; **(2)** excluded, under Federal 32 Rule of Evidence 412, evidence of the victims’ continued 33 prostitution activity after they left Alvarez; **(3)** did not 34 instruct the jury that it must evaluate with special 35 scrutiny the government’s witnesses who admitted to drug use 36 or addiction; and **(4)** decided against conducting individual 37 inquiries of jurors after at least one juror expressed 38 concern that Alvarez had recorded personal information 39 during jury selection. On the record before us, we conclude 40 that none of these decisions by the district court 41 represents error. 42 43 **1.** The district court’s instructions did not require 44 the jury to find a causal connection between Alvarez’s 45 charged conduct and the victims’ engagement in prostitution. 46 Alvarez contends for the first time on appeal that the jury 47

2instructions constituted error because the sex trafficking 1 and coercion-to-travel charges required the government to 2 prove beyond a reasonable doubt that, but for Alvarez’s 3 conduct, the victims would not have engaged in prostitution. 4 Because Alvarez did not preserve this challenge in the 5 district court, we review the jury instructions for plain 6 error. Fed. R. Crim. P. 52(b); see, e.g. , United States v. 7 Vilar , 729 F.3d 62, 88 (2d Cir. 2013). 8 9 Alvarez relies on Burrage v. United States , 134 S. Ct. 10 881 (2014), for his argument that but-for causation is a 11 required element of the charged crimes. In Burrage , the 12 Court considered a statute’s enhanced penalties for 13 narcotics distribution when “death or serious bodily injury 14 results from” use of the narcotics. Id. at 889-90; see21 15 U.S.C. § 841(b)(1)(A)-(C). The Court held that the plain 16 meaning of the phrase “results from” requires “not merely 17 conduct but also a specified result of conduct”--namely, 18 death or serious bodily injury--and therefore also requires 19 but-for causation linking the conduct and the specified 20 result. Id. at 887. Burrage ’s requirement of but-for 21 causation is therefore relevant in interpreting a statute 22 only if that statute satisfies the premise of Burrage ’s 23 interpretive logic: a statute that requires both conduct on 24 the part of the defendant and a specified result. 25 26 The sex trafficking statute is addressed to “[w]hoever 27 knowingly . . . recruits, entices, harbors, transports, 28 provides, obtains, or maintains by any means a 29 person . . . , knowing . . . that means of force, threats of 30 force, fraud, coercion . . . , or any combination of such 31 means will be used to cause the person to engage in a 32 commercial sex act . . . .” 18 U.S.C. § 1591(a). The 33 coercion-to-travel statute is directed to “[w]hoever 34 knowingly persuades, induces, entices, or coerces any 35 individual to travel in interstate or foreign commerce . . . 36 to engage in prostitution, or in any sexual activity for 37 which any person can be charged with a criminal offense.” 38 18 U.S.C. § 2422(a). Neither statute specifies a necessary 39 result. The sex trafficking statute criminalizes certain 40 means when they are “used to cause” an act, and thus is 41 concerned with the means and not with the result. The 42 result itself is not an element of the offense. Other 43 courts have come to the same conclusion when interpreting a 44 different provision of the sex trafficking statute, which 45 similarly uses the word “cause” in the future tense. See 46 United States v. Garcia-Gonzalez , 714 F.3d 306, 312 (5th 47

3Cir. 2013); United States v. Brooks , 610 F.3d 1186, 1197 n.4 1 (9th Cir. 2010). The coercion-to-travel statute contains no 2 word suggesting causation. Therefore, neither statute comes 3 within the analysis of Burrage . Alvarez has shown no error4 -and certainly no plain error--in the omission of but-for 5 causation from the jury instructions. 6 7 **2.** Pursuant to Federal Rule of Evidence 412, the 8 district court denied Alvarez’s motion in limineto 9 introduce evidence that his victims continued to engage in 10 prostitution after they left Alvarez. Alvarez contends that 11 this decision violated his constitutional rights and 12 misinterpreted Rule 412. This Court reviews the district 13 court’s evidentiary rulings for abuse of discretion, United 14 States v. Mercado , 573 F.3d 138, 141 (2d Cir. 2009), and the 15 district court’s application of constitutional standards de 16

novo , United States v. Tropeano , 252 F.3d 653, 657 (2d Cir. 17 2001). 18 19 Rule 412, which applies in a “proceeding involving 20 alleged sexual misconduct,” prohibits admission of evidence 21 offered to prove either “that a victim engaged in other 22 sexual behavior” or “a victim’s sexual predisposition.” 23 Fed. R. Evid. 412(a). However, Rule 412 does not bar 24 “evidence whose exclusion would violate the defendant’s 25 constitutional rights.” Id. R. 412(b)(1)(c)). Alvarez’s 26 constitutional rights included “a meaningful opportunity to 27 present a complete defense” at his trial, Holmes v. South 28 Carolina , 547 U.S. 319, 324 (2006), and to confront the 29 witnesses against him including by “impeach[ing] the 30 credibility of a prosecution witness by cross-examination 31 directed at possible bias,” Davis v. Alaska , 415 U.S. 308, 32 309 (1974). Here, the district court admitted evidence of 33 the victims’ history of prostitution priorto their meeting 34 Alvarez. In that way, Alvarez was able to present a 35 complete defense and to impeach the government’s witnesses 36 using the admitted evidence of the victims’ earlier 37 prostitution. The excluded evidence of the victims’ later 38 prostitution was not critical to protect Alvarez’s 39 constitutional rights. 40 41 Because there was no constitutional deprivation, we 42 review the evidentiary challenge for abuse of discretion. 43 Alvarez has not shown any abuse of discretion in the 44 district court’s application of Rule 412 to exclude only the 45 subsequent history of the victims’ prostitution. 46 47

4**3.** The district court rejected Alvarez’s proposed jury 1 instruction that the jury give special scrutiny to 2 government witnesses who admitted to drug use or addiction. 3 We review de novoa preserved challenge to the district 4 court’s jury instructions, seeUnited States v. Vaughn , 430 5 F.3d 518, 522 (2d Cir. 2005). This review focuses on the 6 central requirement of a district court’s jury instructions: 7 “that the charge be fair to both sides.” United States v. 8 Russo , 74 F.3d 1383, 1393 (2d Cir. 1996). The district 9 court instructed the jury concerning its obligation to 10 scrutinize all witnesses’ testimony; fairness did not 11 require the district court to reiterate or elaborate upon 12 this charge. SeeUnited States v. Valdez , 16 F.3d 1324, 13 1334 (2d Cir. 1994). 14 15 **4.** Alvarez challenges the district court’s handling of 16 potential jury bias during trial. However, Alvarez 17 contemporaneously consented to the district court’s 18 approach. “A defendant who waives a claim of error may not 19 raise it on appeal.” United States v. Gomez , 617 F.3d 88, 20 92 (2d Cir. 2010). 21 22 After the jury was empaneled, at least one juror 23 expressed anxiety to the court deputy that Alvarez had taken 24 notes about the jurors’ personal information during jury 25 selection. The attorneys and the district court discussed 26 the situation at length. Alvarez’s counsel initially 27 requested that the district court undertake an individual 28 colloquy with each reporting juror. Without ruling on that 29 proposal, the district court explained its disinclination to 30 make an inquiry of any juror, for fear of drawing more 31 attention to any issue. Instead, the court proposed an 32 instruction that the jury remain unbiased. Alvarez’s 33 counsel acceded to the use of a jury instruction in lieu of 34 any colloquy, and he contributed to the crafting of that 35 instruction. Counsel did not object; when he ultimately 36 agreed to the proposed instruction he added, “[w]ith the 37 consent of the defendant, just to put it on the record.” 38 Alvarez thus waived this challenge below and cannot raise it 39 on appeal. SeeUnited States v. Peterson , 385 F.3d 127, 138 40 (2d Cir. 2004); United States v. Blume , 967 F.2d 45, 48 (2d 41 Cir. 1992). 42 43

5For the foregoing reasons, and finding no merit in 1 Alvarez’s other arguments, we hereby **AFFIRM** the judgment of 2 the district court. 3 4 FOR THE COURT: 5 CATHERINE O’HAGAN WOLFE, CLERK 6 7

6