     13-4259
     UNITED STATES V. NICHOLAS ALVAREZ

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 3rd day of February, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-4259
16
17       NICHOLAS ALVAREZ,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Benjamin L. Coleman, Coleman,
22                                             Balogh & Scott LLP, San Diego,
23                                             California.
24
25       FOR APPELLEE:                         Kathryn M. Martin, Michael A.
26                                             Levy, for Preet Bharara, U.S.
27                                             Attorney for the Southern


                                                  1
 1                              District of New York, New York,
 2                              New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Briccetti, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Nicholas Alvarez appeals from the judgment of the
12   United States District Court for the Southern District of
13   New York (Briccetti, J.), sentencing him to 235 months
14   imprisonment and ten years of supervised release after his
15   conviction on six counts relating to the prostitution of
16   others. We assume the parties’ familiarity with the
17   underlying facts, the procedural history, and the issues
18   presented for review.
19
20        Alvarez was convicted by a jury of one count of
21   transporting an individual for prostitution, 18 U.S.C.
22   § 2421; two counts of persuading, inducing, enticing, or
23   coercing an individual to travel for prostitution (the
24   “coercion-to-travel” counts), id. § 2422(a); and two counts
25   of sex trafficking, id. § 1591. He also pled guilty to one
26   count of failing to register as required by the Sex Offender
27   Registration and Notification Act, id. § 2250.
28
29        Alvarez challenges his convictions on the grounds that
30   the district court: (1) did not instruct the jury that but-
31   for causation was a necessary element of the sex trafficking
32   and coercion-to-travel counts; (2) excluded, under Federal
33   Rule of Evidence 412, evidence of the victims’ continued
34   prostitution activity after they left Alvarez; (3) did not
35   instruct the jury that it must evaluate with special
36   scrutiny the government’s witnesses who admitted to drug use
37   or addiction; and (4) decided against conducting individual
38   inquiries of jurors after at least one juror expressed
39   concern that Alvarez had recorded personal information
40   during jury selection. On the record before us, we conclude
41   that none of these decisions by the district court
42   represents error.
43
44        1. The district court’s instructions did not require
45   the jury to find a causal connection between Alvarez’s
46   charged conduct and the victims’ engagement in prostitution.
47   Alvarez contends for the first time on appeal that the jury
                                  2
 1   instructions constituted error because the sex trafficking
 2   and coercion-to-travel charges required the government to
 3   prove beyond a reasonable doubt that, but for Alvarez’s
 4   conduct, the victims would not have engaged in prostitution.
 5   Because Alvarez did not preserve this challenge in the
 6   district court, we review the jury instructions for plain
 7   error. Fed. R. Crim. P. 52(b); see, e.g., United States v.
 8   Vilar, 729 F.3d 62, 88 (2d Cir. 2013).
 9
10        Alvarez relies on Burrage v. United States, 134 S. Ct.
11   881 (2014), for his argument that but-for causation is a
12   required element of the charged crimes. In Burrage, the
13   Court considered a statute’s enhanced penalties for
14   narcotics distribution when “death or serious bodily injury
15   results from” use of the narcotics. Id. at 889-90; see 21
16   U.S.C. § 841(b)(1)(A)-(C). The Court held that the plain
17   meaning of the phrase “results from” requires “not merely
18   conduct but also a specified result of conduct”--namely,
19   death or serious bodily injury--and therefore also requires
20   but-for causation linking the conduct and the specified
21   result. Id. at 887. Burrage’s requirement of but-for
22   causation is therefore relevant in interpreting a statute
23   only if that statute satisfies the premise of Burrage’s
24   interpretive logic: a statute that requires both conduct on
25   the part of the defendant and a specified result.
26
27        The sex trafficking statute is addressed to “[w]hoever
28   knowingly . . . recruits, entices, harbors, transports,
29   provides, obtains, or maintains by any means a
30   person . . . , knowing . . . that means of force, threats of
31   force, fraud, coercion . . . , or any combination of such
32   means will be used to cause the person to engage in a
33   commercial sex act . . . .” 18 U.S.C. § 1591(a). The
34   coercion-to-travel statute is directed to “[w]hoever
35   knowingly persuades, induces, entices, or coerces any
36   individual to travel in interstate or foreign commerce . . .
37   to engage in prostitution, or in any sexual activity for
38   which any person can be charged with a criminal offense.”
39   18 U.S.C. § 2422(a). Neither statute specifies a necessary
40   result. The sex trafficking statute criminalizes certain
41   means when they are “used to cause” an act, and thus is
42   concerned with the means and not with the result. The
43   result itself is not an element of the offense. Other
44   courts have come to the same conclusion when interpreting a
45   different provision of the sex trafficking statute, which
46   similarly uses the word “cause” in the future tense. See
47   United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th

                                  3
 1   Cir. 2013); United States v. Brooks, 610 F.3d 1186, 1197 n.4
 2   (9th Cir. 2010). The coercion-to-travel statute contains no
 3   word suggesting causation. Therefore, neither statute comes
 4   within the analysis of Burrage. Alvarez has shown no error-
 5   -and certainly no plain error--in the omission of but-for
 6   causation from the jury instructions.
 7
 8        2. Pursuant to Federal Rule of Evidence 412, the
 9   district court denied Alvarez’s motion in limine to
10   introduce evidence that his victims continued to engage in
11   prostitution after they left Alvarez. Alvarez contends that
12   this decision violated his constitutional rights and
13   misinterpreted Rule 412. This Court reviews the district
14   court’s evidentiary rulings for abuse of discretion, United
15   States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009), and the
16   district court’s application of constitutional standards de
17   novo, United States v. Tropeano, 252 F.3d 653, 657 (2d Cir.
18   2001).
19
20        Rule 412, which applies in a “proceeding involving
21   alleged sexual misconduct,” prohibits admission of evidence
22   offered to prove either “that a victim engaged in other
23   sexual behavior” or “a victim’s sexual predisposition.”
24   Fed. R. Evid. 412(a). However, Rule 412 does not bar
25   “evidence whose exclusion would violate the defendant’s
26   constitutional rights.” Id. R. 412(b)(1)(c)). Alvarez’s
27   constitutional rights included “a meaningful opportunity to
28   present a complete defense” at his trial, Holmes v. South
29   Carolina, 547 U.S. 319, 324 (2006), and to confront the
30   witnesses against him including by “impeach[ing] the
31   credibility of a prosecution witness by cross-examination
32   directed at possible bias,” Davis v. Alaska, 415 U.S. 308,
33   309 (1974). Here, the district court admitted evidence of
34   the victims’ history of prostitution prior to their meeting
35   Alvarez. In that way, Alvarez was able to present a
36   complete defense and to impeach the government’s witnesses
37   using the admitted evidence of the victims’ earlier
38   prostitution. The excluded evidence of the victims’ later
39   prostitution was not critical to protect Alvarez’s
40   constitutional rights.
41
42        Because there was no constitutional deprivation, we
43   review the evidentiary challenge for abuse of discretion.
44   Alvarez has not shown any abuse of discretion in the
45   district court’s application of Rule 412 to exclude only the
46   subsequent history of the victims’ prostitution.
47

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 1        3. The district court rejected Alvarez’s proposed jury
 2   instruction that the jury give special scrutiny to
 3   government witnesses who admitted to drug use or addiction.
 4   We review de novo a preserved challenge to the district
 5   court’s jury instructions, see United States v. Vaughn, 430
 6   F.3d 518, 522 (2d Cir. 2005). This review focuses on the
 7   central requirement of a district court’s jury instructions:
 8   “that the charge be fair to both sides.” United States v.
 9   Russo, 74 F.3d 1383, 1393 (2d Cir. 1996). The district
10   court instructed the jury concerning its obligation to
11   scrutinize all witnesses’ testimony; fairness did not
12   require the district court to reiterate or elaborate upon
13   this charge. See United States v. Valdez, 16 F.3d 1324,
14   1334 (2d Cir. 1994).
15
16        4. Alvarez challenges the district court’s handling of
17   potential jury bias during trial. However, Alvarez
18   contemporaneously consented to the district court’s
19   approach. “A defendant who waives a claim of error may not
20   raise it on appeal.” United States v. Gomez, 617 F.3d 88,
21   92 (2d Cir. 2010).
22
23        After the jury was empaneled, at least one juror
24   expressed anxiety to the court deputy that Alvarez had taken
25   notes about the jurors’ personal information during jury
26   selection. The attorneys and the district court discussed
27   the situation at length. Alvarez’s counsel initially
28   requested that the district court undertake an individual
29   colloquy with each reporting juror. Without ruling on that
30   proposal, the district court explained its disinclination to
31   make an inquiry of any juror, for fear of drawing more
32   attention to any issue. Instead, the court proposed an
33   instruction that the jury remain unbiased. Alvarez’s
34   counsel acceded to the use of a jury instruction in lieu of
35   any colloquy, and he contributed to the crafting of that
36   instruction. Counsel did not object; when he ultimately
37   agreed to the proposed instruction he added, “[w]ith the
38   consent of the defendant, just to put it on the record.”
39   Alvarez thus waived this challenge below and cannot raise it
40   on appeal. See United States v. Peterson, 385 F.3d 127, 138
41   (2d Cir. 2004); United States v. Blume, 967 F.2d 45, 48 (2d
42   Cir. 1992).
43




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1        For the foregoing reasons, and finding no merit in
2   Alvarez’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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