2008 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation

"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NOT PRECEDENTIAL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
 Tykarsky claims that (1) “[t]he government’s evidence was insufficient,” (2) his 1

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

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 resentencing. 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.”
3

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.