09-4955-cr
USA v. Douglas


                           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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 23rd day
of November, two thousand ten.


Present:
           ROGER J. MINER,
           ROBERT A. KATZMANN,
           PETER W. HALL,
                      Circuit Judges,

________________________________________________

UNITED STATES OF AMERICA,

                  Appellee,

                  v.                                            No. 09-4955-cr

THOMAS DOUGLAS IV,

               Defendant-Appellant.
________________________________________________

Counsel for Appellee:                    TIMOTHY C. DOHERTY , JR., Assistant United States
                                         Attorney (Gregory L. Waples, Assistant United States
                                         Attorney, on the brief), for Tristram J. Coffin, United
                                           States Attorney for the District of Vermont, Burlington,
                                           Vt.

Counsel for Defendant-Appellant:           ROBIN C. SMITH , Law Office of Robin C. Smith, Esq.,
                                           P.C., Brooklyn, N.Y.


       Appeal from the United States District Court for the District of Vermont (Sessions, C.J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Thomas Douglas IV appeals from a judgment of conviction, entered

on November 24, 2009 in the United States District Court for the District of Vermont (Sessions,

C.J.), following a jury trial, of one count of attempting to entice a minor to engage in illegal

sexual activity and one count of knowingly transporting an image of child pornography in

interstate commerce. On appeal, Douglas raises a number of challenges to his conviction. First,

he argues that his counsel below was ineffective because he failed to strike two jurors; second, he

argues that the district court abused its discretion in admitting certain evidence of his past similar

acts; and third, he argues that he did not take the “substantial step” necessary to commit

attempted enticement.1 We assume the parties’ familiarity with the facts and procedural history

of the case.

       Douglas first argues that his counsel at trial was ineffective under Strickland v.

Washington, 466 U.S. 668 (1984), for failing to strike two jurors who expressed a reluctance to

view images of child pornography. “When faced with a claim for ineffective assistance of



       1
        In a companion per curiam opinion, we address and reject Douglas’s contention that he
cannot be convicted of criminal enticement pursuant to 18 U.S.C. § 2422(b) because his
communications were directed at an adult, not at a minor.

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counsel on direct appeal, we may: (1) decline to hear the claim, permitting the appellant to raise

the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255;

(2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the

record before us.” United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). “As the Supreme

Court [has] reminded us, ‘in most cases a motion brought under § 2255 is preferable to direct

appeal for deciding claims of ineffective assistance’ because the district court is ‘best suited to

developing the facts necessary to determining the adequacy of representation during an entire

trial.’” United States v. Gaskin, 364 F.3d 438, 467-68 (2d Cir. 2004) (quoting Massaro v. United

States, 538 U.S. 500, 504-05 (2003)). The same is true here. Accordingly, in these

circumstances, we decline to hear Douglas’s ineffective assistance of counsel claim.

       Douglas next argues that the district court abused its discretion when it admitted the

testimony of Brenda Forrester, his ex-girlfriend, regarding chat files that she found on his

computer. He reasons that the evidence was not admissible under Federal Rule of Evidence

404(b). He argues also that the government provided inadequate notice of the evidence and that

he would not have raised an entrapment defense if he had been fully advised of the content of

Forrester’s testimony. Both arguments fail.

       “In reviewing whether a district court properly admitted evidence under Rule 404(b), we

consider whether: ‘(1) the prior acts evidence was offered for a proper purpose; (2) the evidence

was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially

outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate

limiting instruction.’” United States v. Brand, 467 F.3d 179, 196 (2d Cir. 2006) (quoting United

States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002)).


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       All four prongs of the Rule 404(b) inquiry are satisfied here. As an initial matter, intent is

a proper purpose. FED . R. EVID . 404(b). As Douglas’s counsel indicated during closing

argument, Douglas’s intent was in dispute at trial. Forrester’s testimony was relevant to

Douglas’s intent because it tended to show that Douglas’s conversations with “Liz” were not

mere talk but were directed at having sexual contact with a minor, as he had done in the past.

See FED . R. EVID . 401 (defining relevant evidence as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence”). As we stated in Brand, “[t]he government

is required to establish only a ‘similarity or some connection’ to establish that a prior act is

relevant to [intent].” 467 F.3d at 197 (quoting Garcia, 291 F.3d at 137). We are satisfied that

the probative value of Forrester’s testimony, which related Douglas’s statement in an Internet

chat that he had “molested” his niece and other children, substantially outweighed the danger of

any unfair prejudice. Finally, the district court gave an appropriate limiting instruction. We

therefore conclude that the evidence was properly admitted under Rule 404(b).

       Moreover, Forrester’s testimony was admissible also as propensity evidence in view of

Douglas’s entrapment defense. Although Douglas does not appear to dispute its admissibility, he

rejoins that he did not have sufficient notice of the nature of Forrester’s testimony and claims that

he would not have asserted an entrapment defense if he had known the full extent of what she

would say. His argument is without merit.

       The government proffered that Forrester would testify that she had seen a chat transcript

in which Douglas stated that he had molested his niece. At trial, she testified that in the

transcript, “Mr. Douglas was talking to another person, another male, and they were talking


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about—that he had molested his niece.” Gov. App’x 357. When asked for further details, she

responded, “[Douglas] had told this person that he had molested his niece from—he molested

children from the ages of eight to 15.” Id. at 358. She said nothing further about these other

children. In these circumstances, we reject any contention that the government’s proffer was

inadequate or made in bad faith. Forrester testified that Douglas claimed to have molested his

niece, as the government had indicated in its proffer. She mentioned other children only in

connection with Douglas’s statements in the chat transcript. In any event, even assuming that

Douglas would have retracted his entrapment defense to prevent the admission of this testimony,

it would have been admissible independently to show his intent under Rule 404(b).

       Finally, “[i]n order to establish that a defendant is guilty of an attempt to commit a crime,

the government must prove that the defendant had the intent to commit the crime and engaged in

conduct amounting to a ‘substantial step’ towards the commission of the crime.” Brand, 467

F.3d at 202 (internal quotation marks omitted). Douglas argues that the government failed to

prove beyond a reasonable doubt that he took such a “substantial step.” He asserts that the

evidence reveals only that he talked and fantasized about “training” Liz’s daughter, which is

insufficient as a matter of law.

       To challenge successfully the sufficiency of the evidence underlying his conviction, a

defendant must carry a “heavy burden.” Brand, 467 F.3d at 201 (internal quotation marks

omitted).

       Not only must the evidence be viewed in the light most favorable to the
       government and all permissible inferences drawn in its favor, but if the evidence,
       thus construed, suffices to convince any rational trier of fact of the defendant’s
       guilt beyond a reasonable doubt, then the defendant’s conviction must stand.



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United States v. Dae Whan Kim, 435 F.3d 182, 184 (2d Cir. 2006) (per curiam) (alteration

omitted) (quoting United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995)).

       We have emphasized that “[a] conviction under § 2422(b) requires a finding only of an

attempt to entice or an intent to entice, and not an intent to perform the sexual act following the

persuasion.” Brand, 467 F.3d at 202. The inquiry therefore is whether Douglas attempted to

gain the consent or willingness of a minor to engage in criminal sexual activity, not whether he

attempted to have sex with a minor. As we hold in the accompanying per curiam opinion, a

defendant may do so by communicating with an adult guardian of a minor.

       Here, Douglas proposed that Liz bring her daughter to Alabama so that he could “train”

her. Thereafter, he told Liz that he expected to receive $500 on the sixteenth of May and said, “If

you want to come, I’ll help you then.” Gov. App’x 276. Douglas repeatedly referred to the $500

and suggested that he could use the money to help Liz travel. He advised her, “If you have

enough for gas here, come on. I can get you back if you want to go back.” Gov. App’x 286. He

calculated Liz’s gas expenses, gave her some assistance in finding a job in his area, and promised

to provide further assistance once she arrived. Further, Douglas gave Liz his phone number and

assured her that she would have a place to live when she arrived. On the basis of these facts, we

are persuaded that Douglas “engaged in conduct amounting to a ‘substantial step’ towards the

commission of the crime” and that his conduct was “of such a nature that a reasonable observer,

viewing it in context could conclude beyond a reasonable doubt that it was undertaken in

accordance with a design to violate the statute.” Brand, 467 F.3d at 202 (internal quotation

marks omitted).




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       We have considered Douglas’s remaining arguments and find them to be without merit.

For the reasons stated herein and in the accompanying per curiam opinion, the judgment of the

district court is AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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