     15-3703
     United States v. Graham

                         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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   5th day of September, two thousand seventeen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   UNITED STATES OF AMERICA,
13            Appellee,
14
15                -v.-                                           15-3703
16
17   KENNETH GRAHAM,
18            Defendant-Appellant.
19   - - - - - - - - - - - - - - - - - - - -X
20
21   FOR APPELLANT:                          ROBERT A. CULP; Garrison, NY.
22
23   FOR APPELLEE:                           MONICA J. RICHARDS for James P.
24                                           Kennedy, Jr., Acting United States
25                                           Attorney for the Western District
26                                           of New York; Buffalo, NY.
27


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 1       Appeal from a judgment of the United States District Court

 2   for the Western District of New York (Arcara, J.).

 3       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND

 4   DECREED that the judgment of the district court be AFFIRMED.

 5       Kenneth Graham appeals from a judgment of conviction entered

 6   in the United States District Court for the Western District

 7   of New York (Arcara, J.) pursuant to jury verdict. We assume

 8   the parties’ familiarity with the underlying facts, the

 9   procedural history, and the issues presented for review.


10       Graham was charged with three counts of sex trafficking in

11   violation of 18 U.S.C. § 1591. Specifically, the indictment

12   alleged sex trafficking by force, fraud, or coercion with respect

13   to Victims 1 and 2 (in violation of § 1591(a) and (b)(1)); and

14   sex trafficking of a minor with respect to Victims 2 and 3 (in

15   violation of § 1591(a)(1) and (b)(2)). All three victims

16   testified against Graham, minor Victim 3 by means of two-way

17   closed-circuit television. After conviction on all three

18   counts, Graham was sentenced to 30 years of incarceration

19   (consecutive 15-year terms on Counts One and Two and a concurrent

20   10-year term on Count Three), restitution of $366,000, and

21   forfeiture of $80,000.

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 1       Graham argues (1) insufficiency of evidence as to an effect

 2   on interstate commerce (Count One) and participation in a

 3   “venture” (as to all three counts); (2) constructive amendment

 4   as to Counts Two and Three; (3) erroneous jury instruction as

 5   to knowledge of causation; (4) abuse of discretion in allowing

 6   Victim 3 to testify remotely; (5) abuse of discretion in

 7   precluding evidence under Rule 412 of the Federal Rules of

 8   Evidence; and (6) abuse of discretion in denying a new trial

 9   based on a claim of ineffective assistance of counsel.


10       1.   “We review challenges to the sufficiency of evidence

11   de novo,” while “view[ing] the evidence in the light most

12   favorable to the government, drawing all inferences in the

13   government’s favor and deferring to the jury’s assessments of

14   the witnesses’ credibility.” United States v. Pierce, 785 F.

15   3d 832, 837-38 (2d Cir. 2015). “[T]he evidence must be viewed

16   in conjunction, not in isolation,” United States v. Persico,

17   645 F. 3d 85, 104 (2d Cir. 2011), and “[w]e will sustain the

18   jury’s verdict if any rational trier of fact could have found

19   the essential elements of the crime beyond a reasonable doubt.”

20   Pierce, 785 F.3d at 838 (internal quotation marks omitted).



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 1       We need not decide whether the evidence was sufficient to

 2   establish that Graham participated in a “venture.” Section

 3   1591(a) contains two subdivisions in the disjunctive--(a)(1)

 4   prohibits certain conduct with respect to victims of sex

 5   trafficking, and (a)(2) prohibits the receipt of financial or

 6   other benefits from “participation in a venture” that engages

 7   in the conduct prohibited by (a)(1). A violation of either

 8   subdivision therefore constitutes a violation of § 1591(a). The

 9   jury was instructed as to both subdivisions and returned special

10   verdict sheets that indicate separate unanimous guilty verdicts

11   as to each count under both (a)(1) and (a)(2). The question

12   whether the evidence was sufficient to show a “venture” under

13   (a)(2) is therefore of no consequence.


14       The evidence as to Count One (and all counts) was sufficient

15   to establish that the violation was in and affecting interstate

16   commerce. “[I]t is well established that the burden of proving

17   a nexus to interstate commerce is minimal.” United States v.

18   Elias, 285 F.3d 183, 188 (2d Cir. 2002) (discussing interstate

19   commerce nexus in context of the Hobbs Act). “Even a potential

20   or subtle effect on commerce will suffice.” Id. (internal

21   quotation marks omitted). The conduct underlying Graham’s

                                    4
 1   conviction was inherently commercial, and the government adduced

 2   evidence that its commission as to all three counts involved

 3   the use of internet advertisements, condoms, hotels, and rental

 4   cars. Considering that evidence in its totality and in the light

 5   most favorable to the government, it is sufficient to establish

 6   that the violation as to each count occurred in and affecting

 7   interstate commerce.


 8       2.      “To prevail on a constructive amendment claim, a

 9   defendant must demonstrate that the terms of the indictment are

10   in effect altered by the . . . jury instructions which so modify

11   essential elements of the offense charged that there is a

12   substantial likelihood that the defendant may have been

13   convicted of an offense other than that charged in the

14   indictment.” United States v. D’Amelio, 683 F.3d 412, 416 (2d

15   Cir. 2012) (internal quotation marks omitted). We view

16   “constructive amendment as a per se violation of the Grand Jury

17   Clause requiring reversal,” but we have “consistently permitted

18   significant flexibility in proof, provided that the defendant

19   was given notice of the core of criminality to be proven at

20   trial.” Id. at 417 (footnote and internal quotation marks

21   omitted).

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 1       Section 1591(a) prohibits the conduct described in (a)(1)

 2   and (a)(2) if it is committed while “knowing, or ... in reckless

 3   disregard of the fact, that means of force, threats of force,

 4   fraud, coercion . . . or any combination of such means will be

 5   used to cause the person to engage in a commercial sex act, or

 6   that the person has not attained the age of 18 years and will

 7   be caused to engage in a commercial sex act.” Section 1591(c)

 8   provides that “[i]n a prosecution under subsection (a)(1) in

 9   which the defendant had a reasonable opportunity to observe the

10   person . . . the Government need not prove that the defendant

11   knew, or recklessly disregarded the fact, that the person had

12   not attained the age of 18 years.” Taken together, the effect

13   of these provisions is that in § 1591 cases based on the victim’s

14   age, the government must prove knowledge or reckless disregard

15   of the victim’s age under (a)(2) but only a reasonable

16   opportunity to observe the victim under (a)(1).


17       Graham argues that his indictment was constructively

18   amended because the jury was instructed on § 1591(c) even though

19   the indictment did not charge him under that subsection.

20   Subsection (c), however, does not state a separate offense; it

21   expressly refers to “prosecution[s] under subsection (a)(1)”

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 1   and it provides “an alternative to proving any mens rea with

 2   regard to the defendant’s awareness of the victim’s age.”

 3   United States v. Robinson, 702 F.3d 22, 32 (2d Cir. 2012).

 4   Regardless, we need not here decide whether the indictment’s

 5   failure to reference subsection (c) bears on the core of

 6   criminality charged because the jury returned separate verdicts

 7   of guilty under (a)(1) and (a)(2). Cf. D’Amelio, 683 F.3d at

 8   417. It thus necessarily found that Graham knew or recklessly

 9   disregarded his victims’ respective ages (which is necessary

10   under (a)(2)), so the inclusion of the lesser “opportunity to

11   observe” instruction in the charge cannot have altered the

12   verdict.


13       3.     Section 1591(a) prohibits certain conduct with respect

14   to sex-trafficking victims committed while knowing or recklessly

15   disregarding that force, fraud, or coercion “will be used to

16   cause the person to engage in a commercial sex act,” or when

17   the victim is under 18 and is “caused to engage in a commercial

18   sex act.” Graham argues that the instruction allowed the jury

19   to convict without finding knowledge of causation.


20       The district court, consistent with Sand’s Modern Federal


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 1   Jury Instructions (2012), charged the jury to determine whether

 2   Graham “knew or was in reckless disregard of the fact that force,

 3   threats of force, fraud or coercion would be used with respect

 4   to” the victims and that they “would engage in a commercial sex

 5   act.” App. 243–45. It is true that this formulation is not

 6   explicit about causation of the sex act. However, the district

 7   court referred to the requirement of causation elsewhere in the

 8   jury charge, including the definitions, and in its recitation

 9   of the indictment and of the statute itself. The statutory

10   wording, including causation, was also repeated on the special

11   verdict sheets, on which the jury recorded its verdict as to

12   each count. App. 249–50. “[I]t is basic law that a jury charge

13   should be examined in its entirety, not scrutinized

14   strand-by-strand. We will reverse a jury verdict due to an

15   erroneous instruction only if we are persuaded that the error

16   was prejudicial or the charge was highly confusing.” Time, Inc.

17   v. Petersen Pub. Co. L.L.C., 173 F.3d 113, 119 (2d Cir. 1999)

18   (internal citation and quotation marks omitted). In the full

19   context of the entire jury charge, we conclude that the

20   instruction on causation was sufficient.


21       4.   In a proceeding involving an alleged offense against

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 1   a child, the district court may order, under certain

 2   circumstances and upon application, that the testimony of the

 3   child be taken by closed-circuit television. 18 U.S.C.

 4   § 3509(b)(1). One such circumstance is that “[t]he child is

 5   unable to testify because of fear.” 18 U.S.C.

 6   § 3509(b)(1)(B)(i). The district court must support a ruling

 7   on the child’s inability with factual findings on the record.

 8   18 U.S.C. § 3509(b)(1)(C).


 9       Moreover, to invoke a statutory procedure that forecloses

10   in-person cross-examination, the district court must preserve

11   “the essence of effective confrontation” guaranteed by the

12   Confrontation Clause of the Sixth Amendment. Maryland v. Craig,

13   497 U.S. 836, 857 (1990). To satisfy the Sixth Amendment’s

14   constitutional requirements, the court must make “a proper

15   finding of necessity,” including that “the emotional distress

16   suffered by the child witness in the presence of the defendant

17   is more than ... mere nervousness or excitement or some

18   reluctance to testify.” Id. at 856-57. We review the district

19   court’s findings of fact for clear error. United States v.

20   Ledee, 762 F.3d 224, 228 (2d Cir. 2014).



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 1       The district court allowed Victim 3, who was 16 during the

 2   events in question and 17 when testifying, to testify by two-way

 3   closed-circuit television. The district court, on voir dire,

 4   found that she was “extremely nervous and uncomfortable and

 5   fearful,” App. 121, and credited her statement that she was

 6   afraid of facing Graham in court. Id. These apprehensions of

 7   appearing for live testimony may fail to meet our demanding

 8   constitutional standard absent specific indicia of the emotional

 9   trauma the child witness would experience “not by [testimony

10   in] the courtroom generally, but by the presence of the

11   defendant.” Craig, 497 U.S. at 856.


12       To examine these constitutional concerns more closely, we

13   reviewed the psychiatric assessment of Victim 3’s mental status

14   submitted by the U.S. Attorney’s office. This assessment

15   reinforced the government’s submission that the child witness

16   would suffer specific psychiatric trauma and be unable to

17   reasonably communicate if forced to testify in the live presence

18   of the defendant. Id. (“[A] determination that the child

19   witness will suffer ‘serious emotional distress such that the

20   child cannot reasonably communicate’ clearly suffices to meet

21   constitutional standards”) (internal citations omitted). The

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 1   district court credited this psychiatric assessment in approving

 2   the government’s motion. App. 121. In such a close case, a more

 3   complete record identifying particular findings on the mental

 4   status of the child witness would have been helpful. However,

 5   viewing the record in its entirety including the psychiatric

 6   assessment, we cannot say the district court committed clear

 7   error in its findings of fact. See Anderson v. City of Bessemer

 8   City, 470 U.S. 564, 573-74 (1985).


 9       5.   The district court granted the government’s motion to

10   preclude evidence that Victims 1 and 3 worked as prostitutes

11   before or apart from the conduct alleged in the indictment on

12   the basis that “evidence offered to prove that a victim engaged

13   in other sexual behavior” is generally inadmissible in a

14   proceeding involving alleged sexual misconduct. Fed. R. Evid.

15   412. We review evidentiary decisions for abuse of discretion

16   and will reverse only in instances of “manifest error.” United

17   States v. Miller, 626 F.3d 682, 687–88 (2d Cir. 2010).


18       We cannot state that the district court’s decision should

19   be reversed for manifest error because Graham ultimately

20   suffered no harm from this ruling. See id. (In reviewing


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 1   evidentiary rulings for manifest error, we “affirm if the error

 2   was ‘harmless’—that is, if we can conclude that the error did

 3   not affect substantial rights.”) (citing Fed. R. Crim. P. 52(a)).

 4   The government brought out through the testimony of the victims

 5   that they had worked as prostitutes prior to their first contact

 6   with Graham. Graham was free to cross-examine the victims on

 7   this point and argue to the jury that their prior willingness

 8   to engage in commercial sex rebuts the allegation that he coerced

 9   or forced them to engage in commercial sex.


10       6.   The district court denied Graham’s post-trial motion,

11   made through new counsel, for a new trial under Rule 33 of the

12   Federal Rules of Criminal Procedure. “We review a district

13   court’s denial of a Rule 33 motion deferentially and will reverse

14   only for abuse of discretion.” United States v. Snype, 441 F.3d

15   119, 140 (2d Cir. 2006).


16       Graham argued that trial counsel was unconstitutionally

17   ineffective, and swore in an affidavit that he would have

18   accepted a plea offer if counsel would have told him that the

19   victims’ prior histories of prostitution would not be

20   admissible. The government submitted affidavits from Graham’s


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 1   trial counsel and his trial counsel’s law partner in which they

 2   affirmed that they both unsuccessfully sought to persuade Graham

 3   that he had no viable defense and should plead guilty. The

 4   district court credited counsel’s version of events and found

 5   Graham’s to be “self-serving, not credible, and contradictory

 6   to the rest of the record.” Special App. 35. Graham provides

 7   no basis upon which to find an abuse of discretion in the district

 8   court’s conclusion.


 9        Accordingly, and finding no merit in appellant’s other

10   arguments, we hereby AFFIRM the judgment of the district court.


11                                 FOR THE COURT:
12                                 CATHERINE O’HAGAN WOLFE, CLERK




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