Case Information
*1 15-3703 United States v. Graham
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 а stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5 th day of September, two thousand seventeen.
PRESENT: DENNIS JACOBS,
PIERRE N. LEVAL,
REENA RAGGI,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - -X
UNITED STATES OF AMERICA,
Appellee,
-v.- 15-3703 KENNETH GRAHAM,
Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - -X FOR APPELLANT: ROBERT A. CULP; Garrison, NY. FOR APPELLEE: MONICA J. RICHARDS for James P.
Kennedy, Jr., Acting United States Attorney for the Western District оf New York; Buffalo, NY.
Appeal from a judgment of the United States District Court for the Western District of New York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED .
Kenneth Graham appeals from a judgment of conviction entered in the United States District Court for the Western District of New York (Arcara, J.) pursuant to jury verdict. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
Graham was charged with three counts of sex trafficking in violation of 18 U.S.C. § 1591. Specifically, the indictment alleged sex trafficking by force, fraud, or coercion with respect to Victims 1 and 2 (in violation of § 1591(a) and (b)(1)); and sex trafficking of a minor with respect to Victims 2 and 3 (in violation of § 1591(a)(1) and (b)(2)). All three victims testified against Graham, minor Victim 3 by means of two-way closed-circuit television. After conviction on all three counts, Graham was sentenced to 30 years of incarceration (consecutive 15-year terms on Counts One and Two and a concurrent 10-year term on Count Three), restitution of $366,000, and forfeiture of $80,000.
Graham argues (1) insufficiency of evidence as to an effeсt
on interstate commerce (Count One) and participation in a
“venture” (as to all three counts); (2) constructive amendment
as to Counts Two and Three; (3) erroneous jury instruction as
to knowledge of causation; (4) abuse of discretion in allowing
Victim 3 to testify remotely; (5) abuse of discretion in
precluding evidence under Rule 412 of the Federal Rules of
Evidence; and (6) abuse of discretion in denying a new trial
based on a claim of ineffective assistance of counsel.
“We review challenges to the sufficiency of evidence
de novo,” while “view[ing] the evidence in the light most
favorable to the government, drawing all inferences in the
government’s favor and deferring to the jury’s assessments of
the witnesses’ credibility.” United States v. Pierce, 785 F.
3d 832, 837-38 (2d Cir. 2015). “[T]he evidence must be viewed
in conjunction, nоt in isolation,” United States v. Persico,
The evidence as to Count One (and all counts) was sufficient
to establish that the violation was in and affecting interstate
commerce. “[I]t is well established that the burden of proving
a nexus to interstate commerce is minimal.” United States v.
Elias,
defendant must demonstrate that the terms of the indictment are
in effect altered by the . . . jury instructions which so modify
essential elements
of the offense charged that there is a
substantial likelihood that the defendant may have been
convicted of an offense other than that chargеd in the
indictment.” United States v. D’Amelio,
Section 1591(a) prohibits the conduct described in (a)(1) and (a)(2) if it is committed while “knowing, or ... in reckless disregard of the fact, that means of force, threats of force, fraud, coercion . . . or any combinаtion of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act.” Section 1591(c) provides that “[i]n a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person . . . the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not аttained the age of 18 years.” Taken together, the effect of these provisions is that in § 1591 cases based on the victim’s age, the government must prove knowledge or reckless disregard of the victim’s age under (a)(2) but only a reasonable opportunity to оbserve the victim under (a)(1).
Graham argues that his indictment was constructively
amended because the jury was instructed on § 1591(c) even though
the indictment did not charge him under that subsection.
Subsection (c), however, does not state a separate offense; it
expressly refers to “prosecution[s] under subsection (a)(1)”
*7
and it provides “an alternative to proving any mens rea with
regard to the defendant’s awareness of the victim’s age.”
United States v. Robinson,
to sex-trafficking victims committed while knowing or recklessly disregarding that force, fraud, or coercion “will be used to cause the person to engage in a commercial sex act,” or when the victim is under 18 and is “caused to engage in a commercial sex act.” Graham argues that the instruction allowed the jury to сonvict without finding knowledge of causation.
The district court, consistent with Sand’s Modern Federal
*8
Jury Instructions (2012), charged the jury to determine whether
Graham “knew or was in reckless disregard of the fact that force,
threats of force, fraud or coercion would be used with respect
to” the victims and that they “would engage in a commercial sex
act.” App. 243–45. It is true that this formulation is not
explicit about causation of the sex act. However, the district
court referred to the requirement of causation elsewhere in the
jury charge, including the definitions, and in its recitation
of the indictment and of the statute itself. The statutory
wording, including causation, was also repeated on the special
verdict sheets, on which the jury recorded its verdict as to
each count. App. 249–50. “[I]t is basic law that a jury charge
should be examined in its entirety, nоt scrutinized
strand-by-strand. We will reverse a jury verdict due to an
erroneous instruction only if we are persuaded that the error
was prejudicial or the charge was highly confusing.” Time, Inc.
v. Petersen Pub. Co. L.L.C.,
a child, the district court may order, under certain circumstances and upon application, that the testimony of the child be taken by closed-circuit television. 18 U.S.C. § 3509(b)(1). One such circumstance is that “[t]he child is unable to testify because of fear.” 18 U.S.C.
§ 3509(b)(1)(B)(i). The district court must support a ruling on the child’s inability with factual findings on the record. 18 U.S.C. § 3509(b)(1)(C).
Moreover, to invoke a statutory procedure that forecloses
in-person cross-examination, the district court must preserve
“the essence of effective confrontation” guaranteed by the
Confrontation Clause of the Sixth Amendment. Maryland v. Craig,
*10
The district court allowed Victim 3, who was 16 during the
events in question and 17 when testifying, to testify by two-way
closed-circuit television. The district court, on voir dire,
found that she was “extremely nervous and uncomfortable and
fearful,” App. 121, and credited her statement that she was
afraid of facing Graham in court. Id. These apprehensions of
appearing for live testimony may fail to meet our demanding
constitutional standard absent specific indicia of the emotional
trauma the child witness would еxperience “not by [testimony
in] the courtroom generally, but by the presence of the
defendant.” Craig,
To examine these constitutional concerns more closely, we
reviewed the psychiatric assessment of Victim 3’s mental status
submitted by the U.S. Attorney’s office. This assessment
reinforced the government’s submission that the child witness
would suffer specific psychiatric trauma and be unable to
reasonably communicate if forced to testify in the live presence
of the defendant. Id. (“[A] determination that the child
witness will suffer ‘sеrious emotional distress such that the
child cannot reasonably communicate’ clearly suffices to meet
constitutional standards”) (internal citations omitted). The
*11
district court credited this psychiatric assessment in approving
the government’s motion. App. 121. In such a close case, a more
complete record identifying particular findings on the mental
status of the child witness would have been helpful. However,
viewing the record in its entirety including the psychiatric
assessment, we cannot say the district court committеd clear
error in its findings of fact. See Anderson v. City of Bessemer
City,
The district court granted the government’s motion to
preclude evidence that Victims 1 and 3 worked as prostitutes
before or apart from the conduct alleged in the indictment on
the basis that “evidence offered to prove that a victim engaged
in other sexual behavior” is generally inadmissible in a
proceeding involving alleged sexual misconduct. Fed. R. Evid.
412. We review evidentiary decisions for abuse of discretion
and will reverse only in instances of “manifеst error.” United
States v. Miller,
made through new counsel, for a new trial under Rule 33 of the Fedеral Rules of Criminal Procedure. “We review a district court’s denial of a Rule 33 motion deferentially and will reverse only for abuse of discretion.” United States v. Snype, 441 F.3d 119, 140 (2d Cir. 2006).
Graham argued that trial counsel was unconstitutionally ineffective, and swore in an affidavit that he wоuld have accepted a plea offer if counsel would have told him that the victims’ prior histories of prostitution would not be admissible. The government submitted affidavits from Graham’s *13 trial counsel and his trial counsel’s law partner in which they affirmed that they both unsuccеssfully sought to persuade Graham that he had no viable defense and should plead guilty. The district court credited counsel’s version of events and found Graham’s to be “self-serving, not credible, and contradictory to the rest of the record.” Special App. 35. Graham provides no basis upon which to find an abuse of discretion in the district court’s conclusion.
Accordingly, and finding no merit in appellant’s other arguments, we hereby AFFIRM the judgment of the district court.
FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK