707 F. App'x 23
2d Cir.2017Background
- Defendant Kenneth Graham was convicted by a jury in the W.D.N.Y. on three counts of sex trafficking under 18 U.S.C. § 1591: two counts alleging force/fraud/coercion (Victims 1 & 2) and one count alleging trafficking of a minor (Victims 2 & 3).
- All three victims testified at trial; Victim 3 (a minor) testified via two-way closed-circuit television.
- Jury returned guilty verdicts under both § 1591(a)(1) and (a)(2) for each count; sentencing totaled 30 years, restitution, and forfeiture.
- On appeal Graham raised multiple challenges: sufficiency of interstate-commerce and venture evidence; constructive amendment relating to § 1591(c); jury instruction on causation/knowledge; legality of remote testimony for Victim 3; exclusion of prior-sexual-conduct evidence under Rule 412; and ineffective assistance/new-trial claims.
- The Second Circuit affirmed the district court in all respects, finding the evidence and procedures sufficient and the district court’s factual findings and discretionary rulings not clearly erroneous or an abuse of discretion.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Graham) | Held |
|---|---|---|---|
| Sufficiency re: interstate commerce / venture | Evidence (internet ads, condoms, hotels, rental cars) suffices to show effect on interstate commerce; venture need not be resolved because jury found both (a)(1) and (a)(2) guilty | Insufficient nexus to interstate commerce; insufficient proof of participation in a "venture" | Affirmed — minimal nexus standard met; (a)(2) venture sufficiency unnecessary because jury found (a)(1) and (a)(2) guilty |
| Constructive amendment (use of § 1591(c) instruction) | Inclusion of § 1591(c) was proper as it supplies an evidentiary alternative in (a)(1) prosecutions based on age | Jury instruction on § 1591(c) constructively amended the indictment because indictment did not charge (c) | Affirmed — no constructive amendment; jury separately found mens rea required by (a)(2), so (c)’s inclusion did not alter core of charged offenses |
| Jury instruction on knowledge/causation | Charge (read in full) adequately conveyed requirement to find knowledge/reckless disregard that force/fraud/coercion would cause the commercial sex act | Instruction allowed conviction without proper finding that defendant knew coercion would cause the sex act | Affirmed — instructions read in entirety and special verdict sheets included causation language; not prejudicial or confusing |
| Remote testimony (Victim 3) | Two-way CCTV permitted under 18 U.S.C. § 3509 and Craig where child would suffer serious emotional distress from defendant’s presence; district court made factual findings and considered psychiatric assessment | Use of closed-circuit testimony violated Confrontation Clause; insufficient particularized findings of necessity | Affirmed — district court’s factual findings (including psychiatric assessment) not clearly erroneous and met constitutional standard |
| Exclusion of prior sexual-history evidence (Rule 412) | Exclusion proper; government nonetheless elicited prior prostitution history so defense could cross-examine on relevant points | Exclusion prevented presentation of prior-consent evidence, harming defense | Affirmed — even if exclusion was marginal, any error was harmless because the victims’ prior prostitution was revealed in testimony and could be used in cross-examination |
| New trial / ineffective assistance claim | Government argued counsel advised defendant to plead; district court credited counsel affidavits | Graham alleged counsel failed to advise plea due to error about admissibility and thus ineffective assistance | Affirmed — district court found Graham’s affidavit not credible; denial of Rule 33 motion not an abuse of discretion |
Key Cases Cited
- United States v. Pierce, 785 F.3d 832 (2d Cir.) (standard for reviewing sufficiency of evidence in criminal cases)
- United States v. Persico, 645 F.3d 85 (2d Cir.) (evidence must be viewed in conjunction)
- United States v. Elias, 285 F.3d 183 (2d Cir.) (minimal interstate-commerce nexus suffices)
- United States v. D’Amelio, 683 F.3d 412 (2d Cir.) (constructive amendment doctrine and notice of core criminality)
- United States v. Robinson, 702 F.3d 22 (2d Cir.) (§ 1591(c) as an evidentiary alternative in (a)(1) prosecutions based on age)
- Time, Inc. v. Petersen Pub. Co. L.L.C., 173 F.3d 113 (2d Cir.) (jury charge reviewed in entirety; prejudice required to reverse)
- United States v. Ledee, 762 F.3d 224 (2d Cir.) (review of factual findings supporting closed-circuit testimony)
- Maryland v. Craig, 497 U.S. 836 (1990) (Confrontation Clause allows remote testimony if necessity and particularized findings shown)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (clear-error standard for factual findings)
- United States v. Miller, 626 F.3d 682 (2d Cir.) (review of Rule 412 evidentiary rulings for abuse of discretion/harmless error)
- United States v. Snype, 441 F.3d 119 (2d Cir.) (deferential review of district court’s denial of Rule 33 new-trial motion)