United States v. Graham
Opinion
SUMMARY ORDER
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
Graham argues (1) insufficiency of-evidence as to an effect 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.
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1. “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,
We need not decide whether the evidence was sufficient to establish that Graham participated in a “venture.” Section 1591(a) contains two subdivisions in the disjunctive — (a)(1) prohibits certain conduct with respect to victims of sex trafficking, and (a)(2) prohibits the receipt of financial or other benefits from “participation in a venture” that engages in the conduct prohibited by (a)(1). A violation of either subdivision therefore constitutes a violation of § 1591(a). The jury was instructed as to both subdivisions and returned special verdict sheets that indicate separate unanimous guilty verdicts as to each count under both (a)(1) and (a)(2). The question whether the evidence was sufficient to show a “venture” under (a)(2) is therefore of no consequence.
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,
2. “To prevail on a constructive amendment claim, a 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 charged 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 1., in reckless disregard of the fact, that means of force, threats of force, fraud, coercion ... or any combination 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 attained the age of 18 yeai’S.” Taken together, the effect of these *27 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 observe 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)” 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,
3. Section 1591(a) prohibits certain conduct with respect 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 convict without finding knowledge of causation.
The district court, consistent with Sand’s Modern Federal 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, not 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.,
4. In a proceeding involving an alleged offense against 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.
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,
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.
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.
5. 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 “manifest error.” United States v. Miller,
We cannot state that the district court’s decision should be reversed for manifest error because Graham ultimately suffered no harm from this ruling. See
6. The district court denied Graham’s post-trial motion, made through new counsel, for a new trial under Rule 33 of the Federal 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,
Graham argued that trial counsel was unconstitutionally ineffective, and swore in *29 an affidavit that he would 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 trial counsel and his trial counsel’s law partner in which they affirmed that they both unsuccessfully 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.
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Kenneth GRAHAM, Defendant-Appellant
- Cited By
- 3 cases
- Status
- Unpublished