626 F.3d 161
2d Cir.2010Background
- Douglas was convicted in Vermont District Court of attempting to entice a minor to engage in illegal sexual activity and knowingly transporting a child pornography image in interstate commerce.
- Douglas argues ineffective assistance of counsel for failure to strike two jurors who were reluctant to view child pornography images.
- Douglas challenges the admission of ex-girlfriend Forrester’s testimony about chat files found on his computer under Rule 404(b).
- Douglas contends the government failed to provide adequate notice of the evidence and that the entrapment defense was prejudiced.
- Douglas argues the government did not prove a substantial step toward the crime; the district court’s ruling is reviewed de novo for sufficiency; the court affirms the district court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for juror strikes | Douglas; jurors were objecting to viewing images | Douglas; ineffective assistance due to failure to strike jurors | Claim declined on direct appeal (remand or habeas not used) |
| Whether Rule 404(b) evidence of past acts was admissible | Douglas’s intent was at issue; evidence relevant | Douglas; improper notice and improper use | Admissible under 404(b) and as propensity evidence under entrapment defense |
| Whether there was a substantial step toward enticement | Douglas engaged in activity showing intent and step toward crime | Douglas’s actions did not constitute a substantial step | Evidence showed substantial step; guilt upheld |
Key Cases Cited
- United States v. Morris, 350 F.3d 32 (2d Cir. 2003) (ineffective assistance may be raised on habeas; direct appeal not preferred)
- United States v. Gaskin, 364 F.3d 438 (2d Cir. 2004) (prefer §2255 for ineffective assistance; district court best factfinder)
- Massaro v. United States, 538 U.S. 500 (2003) (reiterates preference for §2255 to resolve IAC claims)
- Brand v. United States, 467 F.3d 179 (2d Cir. 2006) (elements of attempt; substantial step standard; intent focus)
- Garcia v. United States, 291 F.3d 127 (2d Cir. 2002) (Rule 404(b) probative value and limiting instructions)
- Dae Whan Kim v. United States, 435 F.3d 182 (2d Cir. 2006) (conviction requires attempt and intent; substantial step shown)
- United States v. Martinez, 54 F.3d 1040 (2d Cir. 1995) (standard for sufficiency of evidence in conspiracy/attempt cases)