                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-8-2008

USA v. Tykarsky
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3663




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Recommended Citation
"USA v. Tykarsky" (2008). 2008 Decisions. Paper 396.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/396


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                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 06-3663
                                  _____________

                          UNITED STATES OF AMERICA,

                                          v.

                               TODD TYKARSKY,
                                 a/k/a TODDTY63,
                              a/k/a GOLPHER12345,

                                                     Appellant

                                  _____________

                  On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 03-cr-00400)
              District Judge: Honorable Harvey Bartle III, Chief Judge
                                     ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                              on September 12, 2008
                                  ____________

          Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges
                          (Filed: October 8, 2008)




                                     OPINION


ALDISERT, Circuit Judge

     Appellant Todd Tykarsky challenges his convictions in the United States District
Court for the Eastern District of Pennsylvania for actual or attempted persuasion of a

minor to engage in illicit sexual activity, in violation of 18 U.S.C. § 2422(b), and

traveling for the purpose of engaging in illicit sexual activity, in violation of 18 U.S.C. §

2423(b). Tykarsky’s challenges to his convictions were raised in a previous appeal to this

Court. See United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006). There, we joined

several of our sister courts of appeals in holding that the involvement of an actual minor,

as distinguished from an adult government decoy, is not a prerequisite for conviction

under § 2422(b) or § 2423(b). We upheld Tykarsky’s conviction but remanded for re-

sentencing. After his re-sentencing, Tykarsky filed this appeal, raising previously

adjudicated issues to preserve them for review by the Supreme Court.1

       We do not reconsider previously addressed issues concerning convictions after

limited remand for re-sentencing. In United States v. Kikumura, 947 F.2d 72 (3d Cir.

1991), we held,

              [A defendant] cannot continue to litigate questions already
              decided by this Court in a prior proceeding. . . . Indeed, under
              the law of the case doctrine, when a court “decides upon a
              rule of law, that decision should continue to govern the same
              issues in subsequent stages in the same case.”




       1
         Tykarsky claims that (1) “[t]he government’s evidence was insufficient,” (2) his
rights under the “Fifth and Sixth Amendments were violated where the Indictment as
drafted failed to properly charge the offenses and resulted in an improper constructive
amendment and prejudicial variance,” and (3) “[t]he Indictment and each count are
unconstitutional as drafted and as applied and in violation of the commerce clause and
interstate travel provisions of the United States Constitution.” Appellant’s Br. at 20.

                                              2
Id. at 77 (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)).

The judgment of the District Court will therefore be affirmed.




                                            3
