United States Court of Appeals
For the First Circuit
No. 07-1578
UNITED STATES OF AMERICA,
Appellee,
v.
MARTIN ROB VANVLIET,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Court]
Before
Lipez and Howard, Circuit Judges,
and DiClerico,* District Judge.
Michael J. Traft, with whom Carney & Bassil, P.C. was on
brief, for appellant.
Cam Barker, Appellate Section, Criminal Division, United
States Department of Justice, for appellee.
September 17, 2008
*
Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. Martin Rob Vanvliet appeals from
his conviction and sentence for interstate travel with the intent
to engage in an illicit sexual act, 18 U.S.C. § 2423(b). We affirm
his conviction, but remand for resentencing in light of Kimbrough
v. United States, 128 S. Ct. 558 (2007), which was issued
subsequent to the sentencing in this case.
I.
In October 2001, Waltham, Massachusetts police detective
Timothy King conducted an undercover sting operation that targeted
persons using the internet to arrange sexual acts with minors. On
October 26, while posing in several internet chat rooms as a
fifteen-year-old girl named "Michelle" from Waltham, Detective King
was contacted by Vanvliet, who identified himself as "Rob" from New
Jersey. During this online conversation, Vanvliet inquired whether
"Michelle" was interested in older men, stated that he "love[d]
younger girls," that he was "horney (sic)," and that he would like
"to plan some fun activities," a "good time together," and "some
sexy fun," which he described as "hugging, kissing . . . and more."
He asked "Michelle" to describe her breasts, and stated that he
"would love to turn you on" and "love to feel you." Vanvliet
offered to drive from New Jersey to Massachusetts in the near
future to meet "Michelle." The two exchanged email addresses and
agreed to talk again. Near the end of their online conversation,
Vanvliet wrote: "kisses . . . all over . . . your body."
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Over the next three weeks, Vanvliet and "Michelle"
continued their online and email conversations, twice trying
unsuccessfully to arrange trysts, and finally agreeing that
Vanvliet would drive from New Jersey to meet "Michelle" at 5:00
p.m. on November 19 at a Dunkin' Donuts located in a Waltham strip
mall. During these communications, Vanvliet assured "Michelle"
that he would not force her to do anything that she did not want to
do, but if they did anything, it would be "safe."
Before the appointed time on November 19, Detective King
and his colleagues set up undercover police surveillance near the
Dunkin' Donuts parking lot. At some time between 4:30 and 5:00
p.m., Vanvliet was observed driving slowly past the Dunkin' Donuts
and scrutinizing the nearby area. Vanvliet continued driving down
the road past the Dunkin' Donuts, but a minute or two later, he
returned in the opposite direction, again canvassing the area near
the Dunkin' Donuts. Detective King, who was following Vanvliet in
an unmarked police vehicle, saw Vanvliet look in his rear-view
mirror, then proceed to drive away from the area at a high speed.
At the next intersection, Vanvliet put on his right turn signal,
but abruptly made a left turn.
Detective King immediately pulled Vanvliet over for
speeding and inquired whether Vanvliet had come to Waltham to meet
a fifteen-year-old girl. Vanvliet responded: "I wasn’t going to do
anything. I was just curious." Vanvliet consented to a search of
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his vehicle’s trunk and told Detective King that he had used the
laptop in his trunk to communicate with "Michelle" online.
Detective King asked Vanvliet if he could take the laptop into
police custody. Vanvliet expressed concern because the laptop
contained important work files, but when Detective King assured
Vanvliet that he could make arrangements to return the work
materials to him, Vanvliet agreed to the seizure. Detective King
let Vanvliet go with a speeding citation.
Subsequent police searches of Vanvliet’s laptop revealed
remnants of Vanvliet’s prior online and email communications with
"Michelle," pornographic photographs of prepubescent girls, and
several unused condoms in the laptop case’s side-pockets. On
November 22, Vanvliet contacted Detective King to obtain his work
files, and King responded that he would email them. Two days
later, Vanvliet sent Detective King the list of the work files he
needed. Detective King attempted to email Vanvliet the work files,
but repeatedly received error messages that the files were too
large to transmit. After several such attempts, Vanvliet
instructed Detective King to cease his transmission efforts,
claiming that he since had produced duplicates of the requested
work files. On December 27, Vanvliet informed Detective King of
his opinion that he had never voluntarily consented on November 19
to the search and seizure of his laptop.
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In October 2002, Vanvliet was indicted on one count of
interstate travel with the intent to engage in an illicit sexual
act with a minor, 18 U.S.C. § 2423(b), and one count of possession
of child pornography, id. § 2252A(a)(5)(B). The government
eventually dismissed the child pornography charge. Before trial,
Vanvliet moved to suppress all evidence seized from his laptop on
the alternative grounds that he had never given consent to the
search, or if he had, that Detective King had coerced his consent.
After a four day evidentiary hearing, the district court denied the
suppression motion.
After the government presented three days of evidence at
the trial, the jury retired to deliberate on January 31, 2006 at
around 2:30 p.m. The court recessed for the day at 4:30 p.m.
without a verdict. The jury resumed deliberations the next morning
at 9:00 a.m. At 11:30 a.m., it asked the district court for a
clarification concerning the intent element of § 2423(b), viz.,
whether the government was required to prove that Vanvliet had
intended to engage in sexual acts with "Michelle" on November 19,
or only that he had intended to do so at some point in time. The
court instructed the jury that the government must prove the former
fact. At 1:30 p.m., the jury asked the court for a copy of
Detective King's police report and a transcript of his trial
testimony concerning his November 19 traffic stop of Vanvliet.
Shortly thereafter, before the court had answered this jury
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request, the jury notified the court that "[f]ollowing extensive
deliberations, the eleven of us are split 6-5. How do we proceed
from here?"1
The district court consulted with government and defense
counsel, and defense counsel asked for a mistrial because "we know
the count." The court denied this defense motion. Instead, it
said it would give a so-called modified Allen charge, to which
neither side objected. See Allen v. United States, 164 U.S. 492,
501 (1896). The delivered charge read:
I have two questions from you and let
me first answer the second one. While you
have disclosed your vote, I want to direct you
should it change, direct you not to let us
know again what your vote is. It’s really
part of your deliberations that we don’t want
to know, but you had indicated following
extensive deliberations, the eleven of us, I
won’t disclose the split, how do we proceed
from here?
I’d like you to try again to
deliberate. Those of you who believe that the
government has proved the defendant guilty
beyond a reasonable doubt should stop and ask
yourself if the evidence is really convincing
enough given that other members of the jury
are not so convinced, and those of you who
believe that the government has not proved the
defendant guilty beyond a reasonable doubt
should stop and ask yourself if the doubt you
have is a reasonable one given that other
members of the jury do not share it.
None of you should hesitate to change
your mind if after reconsidering things you’re
convinced that other jurors are right and that
your original position was wrong, but remember
1
After one juror was excused for illness, the parties had
consented to continue the trial with only eleven jurors.
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this, do not ever change your mind just to get
the case over. In the end, your vote must be
exactly that, your vote. As important as it
is for you to reach a unanimous agreement, it
is also important that you do so honestly and
in good conscience. Bear in mind that the
failure to come to a unanimous decision is
itself a decision. It means that the
government has not proved the case beyond a
reasonable doubt to a jury unanimously. So,
I’m asking you to go back and try again under
those circumstances.
With respect to the jury's other question, the court noted that
Detective King’s police report was never admitted in evidence at
trial, and that a redacted transcript of King's testimony
concerning the traffic stop would not be available "by the end of
today." At approximately 4:30 p.m., the re-instructed jury reached
a unanimous verdict of guilt beyond a reasonable doubt.
During Vanvliet’s sentencing, the district court
expressed disagreement with the Guidelines’ policy of imposing a
two-level enhancement for Vanvliet’s use of a computer, noting that
computers routinely are used to commit most § 2423(b) offenses. It
imposed a 46-month Guideline sentence, however, observing that a
district court’s disagreement with Guidelines policy would not
support a decision to impose a below-Guidelines sentence. Vanvliet
now appeals from both his judgment of conviction and his sentence.
II.
A. Suppression Motion
Vanvliet first contends that the district court
erroneously determined that he voluntarily consented to his
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computer’s confiscation because it was only Detective King’s false
promise to arrange a prompt return of critical work-related
material on the computer that induced his consent.
Consensual searches are a recognized exception to the
Fourth Amendment’s warrant requirement, United States v. Vilches-
Navarrete, 523 F.3d 1, 15 (1st Cir. 2008), but the government bears
the burden to prove by a preponderance of the evidence that
defendant or an authorized third party gave the consent
voluntarily, United States v. Diaz, 494 F.3d 221, 225 (1st Cir.
2007). Voluntariness is a question of fact that turns on the
district court’s comprehensive assessment of the totality of the
circumstances attending the interaction between defendant/third
party and the searching officers. United States v. Luciano, 329
F.3d 1, 9 (1st Cir. 2003). "'[I]f under all the circumstances it
has appeared that the consent was not given voluntarily - that it
was coerced by threats or force, or granted only in submission to
a claim of lawful authority - then we have found the consent
invalid and the search unreasonable.'" United States v. Barnes,
506 F.3d 58, 63 n.6 (1st Cir. 2007) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 233 (1973)).2 Appellate challenges to
2
Factors relevant to voluntariness may include, but are not
limited to: (i) the consenter’s age, education, past experiences,
and intelligence; (ii) whether law enforcement officials advised
the consenter of his constitutional right to refuse consent; (iii)
the length and conditions of the consenter’s detention and/or
questioning; and (iv) law enforcement officials’ use of any
inherently coercive tactics. See Schneckloth, 412 U.S. at 226;
-8-
the district court's factual findings relating to the validity of
the consent normally are reviewed only for clear error. United
States v. Jones, 523 F.3d 31, 37 (1st Cir. 2008).
Besides evidence of police coercion or intimidation, the
totality-of-the-circumstances test would require consideration of
any evidence that law enforcement officers’ fraud, deceit, trickery
or misrepresentation prompted defendant’s acquiescence to the
search. Moran v. Burbine, 475 U.S. 412, 421 (1986) (noting that a
waiver is voluntary if, inter alia, "it was the product of a free
and deliberate choice rather than intimidation, coercion, or
deception"); United States v. Berkowitz, 429 F.2d 921, 925 (1st
Cir. 1970) ("Where consent [to search] is given, courts must go
beyond appearances and inquire whether the consent was a
'voluntary, intentional and understood waiver of a known right, or,
on the contrary, was the product of deceit, duress and coercion,
actual or implicit.'" (quoting United States v. Curiale, 414 F.2d
744, 746 (2d Cir. 1969))); see also United States v. Rosario-Diaz,
202 F.3d 54, 69 (1st Cir. 2000) (finding the Moran requirements
satisfied).
Before the district court, Vanvliet raised only two
alternative arguments against finding a valid consent: (i)
Detective King seized the computer without seeking – or obtaining
– Vanvliet’s consent; or (ii) Vanvliet’s consent was solely the
United States v. Trueber, 238 F.3d 79, 95 (1st Cir. 2001).
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product of Detective King’s coercive tactics. On appeal, defendant
abandons these two arguments,3 in favor of the distinct contention
that Detective King tricked him into consent by promising prompt
return of the work files on his laptop.
Vanvliet’s failure to raise this discrete "trickery”
theory in connection with his pretrial suppression motion
constitutes waiver. See Luciano, 329 F.3d at 9 & n.10.4 His
theory depends upon specific factfinding that would have been done
by the district court if the claim had been timely raised. Lacking
the necessary evidentiary record, we are unable to conduct
effective appellate review. Id.; United States v. Lopez-Lopez, 282
F.3d 1, 10 (1st Cir. 2002); United States v. Bashorun, 225 F.3d 9,
16 (1st Cir. 2000); United States v. Nuñez, 19 F.3d 719, 723 n.10
(1st Cir. 1994). For example, the district court heard no evidence
as to whether Detective King actually and in good faith intended to
make arrangements promptly to return Vanvliet’s computer – or at
least a copy of the hard drive’s contents – to Vanvliet. See
United States v. Twomey, 884 F.2d 46, 52 (1st Cir. 1989) (finding
3
In his reply brief, Vanvliet contends that he has not
abandoned the two arguments that he raised before the district
court and invites us to review these findings for clear error.
Arguments raised for the first time in a reply brief are waived.
United States v. Martí-Lón, 524 F.3d 295, 299 n.2 (1st Cir. 2008).
4
The Criminal Rules allow the district court to grant an
exception to a waiver only for "good cause," Fed. R. Crim. P.
12(e); see United States v. Santos Batista, 239 F.3d 16, 19-20 (1st
Cir. 2001). Vanvliet did not offer such a justification to the
district court.
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no clear error in district court’s factual determination that a
police officer’s statement that he intended to obtain a search
warrant anyway if defendant’s parents did not consent to a search
was not "coercive" because a warrant likely would have issued, and
the officer’s statement was "an honest expression of his good-faith
belief that a warrant would issue").
Vanvliet’s belated attempts on appeal to avoid the
consequences of his waiver are unavailing. Although the government
bore the ultimate burden to prove his valid consent by a
preponderance, Diaz, 494 F.3d at 225, it need not have anticipated
every possible suppression theory, or have adduced evidence to
rebut legal arguments never articulated in defendant’s suppression
motion, see Luciano, 329 F.3d at 9. Vanvliet’s motion to suppress
focused solely on the issues of whether he consented, and if so,
whether that consent was the product of police intimidation.
Generalized challenges to the "validity” of consent cannot preserve
more particularized arguments for suppression. See United States
v. Coplin, 463 F.3d 96, 102 n.6 (1st Cir. 2006) (noting that "'a
party is not at liberty to articulate specific arguments for the
first time on appeal simply because the general issue was before
the district court'" (quoting United States v. Slade, 980 F.2d 27,
31 (1st Cir. 1992))).
Likewise, the mere fact that the record happens to
contain some evidence that might have proved material to deciding
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the unarticulated trickery theory, such as Vanvliet's reliance on
Detective King's statement (viz., Vanvliet's statement that he
would consent "as long as [Detective King] could get [the computer]
back for [my] work information"), does nothing to cure the
evidentiary deficit as to other critical facts missing from the
records, such as Detective King's subjective intent and good faith
in promising to return the computer materials.5
Because Vanvliet has either abandoned or waived all of
these legal arguments, we affirm the district court's denial of his
suppression motion.
B. Allen Charge
Vanvliet next contends that the district court erred in
giving an Allen charge in response to the jury's announced deadlock
because the instruction's language and the attendant circumstances
likely would have coerced jurors into abandoning their
conscientiously held views of the evidence in order to achieve a
unanimous verdict. See United States v. Hernandez-Albino, 177 F.3d
33, 38 (1st Cir. 1999).
5
Although Vanvliet argues that Detective King's unsuccessful
attempts to return his computer files decisively proves the
officer's bad faith ab initio, defense counsel acknowledged that
Detective King tried several times to email Vanvliet the hard
drive's contents, and that only a computer glitch thwarted these
attempts.
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1. Language of the Allen Charge
We note, at the outset, that Vanvliet does not dispute
that the Allen charge contained the three essential components
required to insure that it was not coercive: statements that (i)
both the majority and minority jurors should re-examine their
positions; (ii) the jury has the right to fail to agree on a
verdict; and (iii) the government bears the ultimate burden to
prove defendant's guilt beyond a reasonable doubt. See United
States v. Paniagua-Ramos, 135 F.3d 193, 197-98 (1st Cir. 1998)
(noting that failure to include any of these three instructions
constitutes plain error). Rather, he argues that the district
court's wording of the Allen charge constitutes reversible error
because it contained two features likely to coerce those jurors who
were leaning toward acquittal into abandoning their conscientiously
held beliefs.
We normally review a district court decision to give a
modified Allen charge for an abuse of discretion. United States v.
Irwin, 593 F.2d 138, 142 (1st Cir. 1979); see United States v.
Banks, 514 F.3d 959, 974 (9th Cir. 2008); United States v. Henry,
325 F.3d 93, 106 (2d Cir. 2003). Because defense counsel did not
object contemporaneously to the Allen charge's wording, however, we
review Vanvliet's argument only for plain error. Hernandez-Albino,
177 F.3d at 37. We will not reverse unless Vanvliet demonstrates
that the Allen charge contained error which was obvious and
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affected his substantial rights, and that we should exercise our
discretion to reverse such an error because it "'seriously
affect[ed] the fairness, integrity or public reputation of judicial
proceedings.'" Id. at 177 F.3d at 37-38 (quoting United States v.
Olano, 507 U.S. 725, 736 (1993)); see Lowenfield v. Phelps, 484
U.S. 231, 240 (1988) (noting that defense's failure
contemporaneously to object to Allen charge is itself evidence that
the charge was not coercive).
a. Consideration of Other Jurors' Views
Citing the ABA's recommended Allen instruction, see ABA
Standards for Criminal Justice § 15-5.4 (3d ed. 1996) ("ABA
Standards"), Vanvliet contends that the charge given by the
district court improperly instructed jurors to consider other
jurors' contrary views, whereas it should have instructed them
independently to re-examine the evidence.
The challenged language did not urge a juror to defer to
other jurors' opinions at the expense of his or her own independent
assessment of the evidence. Rather, it properly instructed that
jurors have an obligation to consult each other and discuss the
evidence. See ABA Standards § 15-5.4 (noting that model Allen
charge should instruct that "jurors have a duty to consult with one
another," although "no juror should surrender his or her honest
belief as to the weight or effect of the evidence solely because of
the opinion of the other jurors, or for the mere purpose of
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returning a verdict"); United States v. Angiulo, 485 F.2d 37, 40
(1st Cir. 1973) (observing that one justification for an Allen
charge is that "jurors need to be reminded that they should
deliberate together in an atmosphere of mutual deference and
respect"). The district court expressly admonished the jury: "[D]o
not ever change your mind just because other jurors see things
differently," and "it is also important that you [reach a decision]
honestly and in good conscience." See Spears v. Greiner, 459 F.3d
200, 205 (2d Cir. 2006) ("[W]hen an Allen charge directs jurors to
consider the views of other jurors, specific cautionary language
reminding jurors not to abandon their own conscientious beliefs is
generally required."). We thus find no plain error.
b. Unequal Treatment of Jurors' Views
Vanvliet also contends that the Allen charge, by
advising those jurors favoring acquittal to "ask yourselves if the
doubt you have is a reasonable one," improperly suggested that the
jurors can only acquit based upon a doubt about the sufficiency of
proof of the charge, as opposed to believing that the defendant is
completely innocent. Stated this way, according to Vanvliet, the
charge suggests that a not guilty result can only be based upon a
doubt, rather than a sincere belief that the defendant committed no
crime.
Read in the context of the entire charge, the challenged
language merely repeated the traditional formulation for acquittal:
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a juror should vote to acquit if he or she finds that a review of
the evidence raises a "reasonable doubt" as to defendant's guilt.
Even if a juror believed that the government adduced no evidence of
guilt at all, it is nonsensical to suggest that this juror would be
deterred from acquitting because his doubt about the strength of
the government's case was so pronounced that the juror was
convinced of defendant's innocence rather than just the weakness of
the government's case for guilt. There was no plain error in the
instruction.
2. Circumstantial Context of the Allen Charge
Vanvliet next argues that, even if the Allen charge's
language was not erroneous, five attendant circumstances made it
unduly coercive. He contends that, unlike his forfeited challenge
to the Allen charge's language, he preserved his challenge to the
coercive circumstances by asking that the district court declare a
mistrial. With one possible exception, however, he failed to
articulate any of the specific circumstances as grounds for his
mistrial request. Therefore, we review four of the five grounds
only for plain error. See Hernandez-Albino, 177 F.3d at 37-38.
a. District Court's Knowledge of Numerical Split
In conjunction with his request for a mistrial, defense
counsel argued that an Allen charge was ill-advised because "we
know the count." On appeal, Vanvliet reiterates that a district
court which has been informed of a deadlocked jury's numerical
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split should exercise utmost caution in opting to give an Allen
charge, should do so only as a last resort, and should first try
less coercive measures (e.g., a brief instruction to continue
deliberations and not again to reveal numerical splits). Even if
we assume that Vanvliet's bare-bones objection before the district
court ("[W]e know the count.") was adequate to preserve this
argument, and even if we review this argument under the less
onerous abuse-of-discretion standard, Irwin, 593 F.2d at 142, we
find no abuse.
Although it would have been reversible error for the
district court to solicit information concerning the deadlocked
jury's numerical division, see United States v. Rengifo, 789 F.2d
975, 985 (1st Cir. 1986) ("[I]t has long been the rule that a court
commits reversible error if it inquires into the nature and extent
of the jury's division during deliberations." (citing Brasfield v.
United States, 272 U.S. 448, 449-50 (1926))), it was not reversible
error for the jury to reveal its division to the court voluntarily,
United States v. Lara-Ramirez, 519 F.3d 76, 85 n.8 (1st Cir. 2008);
Rengifo, 789 F.2d at 985; see United States v. Mejia, 356 F.3d 470,
477 (2d Cir. 2004) (quoting United States v. Tanios, 82 F.3d 98,
101 (5th Cir. 1996)). Instead, the district court's knowledge of
the numerical division of jurors favoring conviction and acquittal
might create a coercive situation if circumstances suggest that
minority or "holdout" jurors likely would infer that the court is
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directing the Allen charge specifically at them, and implying that
they should vote with the majority to get the case settled
expeditiously. See United States v. Ajiboye, 961 F.2d 892, 894
(9th Cir. 1992) (noting that there was no record evidence that "the
judge knew which jurors were the holdouts and each holdout juror
knew that the judge knew he was a holdout").
The district court did not abuse its discretion in
concluding that such coercive potential was not present here.
First, the jury volunteered the information that it was split 6-5,
a numerical division which is a far cry from a scenario where one
or two "holdout" jurors might be forced to yield their
conscientiously held views because they perceived themselves as
isolated and outnumbered. Second, the jury did not indicate
whether the majority of six favored Vanvliet's acquittal or his
conviction. See Gilbert v. Mullin, 302 F.3d 1166, 1176 (10th Cir.
2002) (observing that the district court "carefully avoided
eliciting information concerning the direction in which the jury
was leaning," so that "the jurors could not have labored under the
impression that the court was interested in what their actual
decision would be"); United States v. Daas, 198 F.3d 1167, 1180
(9th Cir. 1999) (observing that the district court "did not know
whether the majority was in favor of conviction or acquittal");
United States v. Frost, 125 F.3d 346, 376 (6th Cir. 1997)
(distinguishing case where "the jury disclosed both its precise
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numerical split and the position of its majority by revealing that
it was split eight to four in favor of acquittal"). Third, the
district court obviously had no idea which jurors were in the five-
member minority. See United States v. Banks, 506 F.3d 756, 771
(9th Cir. 2007) (noting that Allen charge was not coercive where
"the judge did not know the identity of the holdout juror").
Finally, the court explicitly told the jury that its vote was "part
of [its] deliberations" and not intended for others to know, that
the court would not "disclose the split," and that if it should
change, the jury must "not [] let [the judge and attorneys] know
again what the vote is." The judge's careful handling of the
jury's disclosure was the antithesis of an abuse of discretion.
We now turn to Vanvliet's four remaining arguments, all
of which we scrutinize for plain error only. Hernandez-Albino, 177
F.3d at 37-38.
b. Insubstantial and Early-Stage Deliberations on
a Complex "Intent" Issue
Vanvliet contends that the Allen charge was fatally
premature because the jury had deliberated a relatively short time
(in fact it was over six hours) before reporting its deadlock, and
was confronted with a fairly complex factual determination (viz.,
deciphering Vanvliet's intent from his words and actions on or
before November 19, 2001) which one reasonably would expect to
require much longer deliberations.
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Vanvliet cannot possibly demonstrate plain error in the
timing of the Allen charge. Absent some other indicia of coercion,
even an arguably premature Allen charge (and we are not suggesting
that this charge was premature) would not be reversible error. See
United States v. Steele, 298 F.3d 906, 911 (9th Cir. 2002).
Rather, the timing of an Allen charge is left to the district
court's sound discretion, see United States v. Tines, 70 F.3d 891,
896 (6th Cir. 1995); United States v. Alonso, 740 F.2d 862, 877
(11th Cir. 1984); United States v. Scruggs, 583 F.2d 238, 241 (5th
Cir. 1978), and is not subject to any fixed time constraints, see
United States v. Martinez, 446 F.2d 118, 120 (2d Cir. 1971) ("[W]e
[will] not place an arbitrary time limit on how long a jury must
deliberate before an Allen charge is appropriate.").
In Vanvliet's case, the more than six hours of jury
deliberations after a three day trial and the unequivocal jury
declaration of deadlock amply justified the exercise of the
district court's discretionary determination that an Allen charge
was not precipitate. See, e.g., Rengifo, 789 F.2d at 985 (noting
that, after seven hours of deliberations, the Allen charge was the
"correct response to the information that the jury was at an
impasse"); Andrews v. United States, 309 F.2d 127, 129 (5th Cir.
1962) (finding no plain error where Allen charge was given "one
hour and five minutes after the jury had begun deliberation"); see
also United States v. Sawyers, 902 F.2d 1217, 1220 (6th Cir. 1990)
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("[C]ontrary to what defendant claims, an Allen charge coming
relatively early is arguably less coercive than one coming after a
jury has worn itself out after several days of deadlocked
deliberations.").
c. District Court Pressure to Conduct Speedy
Deliberations
Vanvliet contends that the Allen charge was coercive
because the district court's earlier statement to the jury during
voir dire that the trial should conclude no later than January 31,
2006 pressured the jury into reaching a hasty verdict. The record
discloses, however, that the court stated at voir dire only that
the presentation of evidence – not the trial – should be concluded
by January 31, and the court added that "[jury] deliberations last
as long or as short as the jury wishes," and that the jurors
"should never change your mind[s] . . . just to get the case over."
In its Allen charge, the court reiterated that a juror should "not
ever change [his] mind just to get the case over."6
d. Failure to Give Allen Charge Before Jury
Retired
Vanvliet also suggests that it was per se erroneous for
the district court not to give the Allen charge as part of its
6
Vanvliet also suggests that the jury might have perceived the
district court's statement that a transcript of the police
officer's trial testimony could not be obtained until the next day
as an implicit recommendation that the jury should not wait for the
transcript, but should reach a verdict that day. We see no such
necessary implication in the court's simple statement of
administrative fact.
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original pre-deliberations instructions. We have not even
discussed the desirability of this practice in our own circuit
precedents. Hence, it could not be plain error to not give the
Allen charge as part of the pre-deliberation instructions. Even
where courts have endorsed such a preferred practice, there is no
per se rule. See, e.g., United States v. LaVallee, 439 F.3d 670,
690 (10th Cir. 2006) ("While the preferred practice is to give an
Allen charge prior to jury deliberations and along with other
instructions, there is no per se rule against giving an Allen
charge once the jury has begun to deliberate. In fact, this Court
has found on numerous occasions that Allen charges given during
deliberations were not unduly coercive.").
e. Rapidity of Verdict's Return After the Allen
Charge
Lastly, Vanvliet contends that the coerciveness of the
Allen charge is evident from the rapid return of the jury verdict
after the jury received the charge. Because the jury's verdict
came after a significant period of reflection (over two hours), and
because the factual issue of Vanvliet's intent to engage in illicit
sexual activity with "Michelle" was relatively straightforward, we
disagree. See Hernandez-Albino, 177 F.3d at 39, 41 (cataloging
cases where post-charge deliberations of even one hour disproved
"coercion," and concluding that despite obvious error, Allen charge
did not affect defendant's "substantial rights" because of the
length of deliberations – viz., one hour – after the Allen charge,
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especially given fact that the core factual dispute – the defense's
"mere presence" theory – was "relatively straightforward").
Because Vanvliet has not demonstrated any reversible
error, we reject his challenges to the Allen charge.
C. Charge of Prosecutorial Misconduct
1. Time of Defendant's Arrival at the Strip Mall
Vanvliet argues that the prosecutor engaged in misconduct
by deliberately distorting the evidence of Vanvliet's intent on
November 19, 2001 to engage in illicit sexual conduct with
"Michelle." Specifically, he contends that the government tried to
obfuscate the time of his arrival at the Dunkin' Donuts to make it
appear that he arrived very near the appointed time of 5:00 p.m.
In fact, he argues, the evidence demonstrated that he must have
arrived between 4:30 and 4:45 p.m., because Detective King admitted
to stopping Vanvliet's vehicle at 4:45 p.m. He insists that this
distortion was prejudicial because, if the jury had believed that
he permanently drove away from the Dunkin' Donuts well before 5:00
p.m., it would have been more likely to infer that he had abandoned
his intent to engage in sexual acts with "Michelle." Because
Vanvliet did not raise this prosecutorial misconduct argument
below, we review only for plain error. United States v. Robinson,
473 F.3d 387, 393 (1st Cir. 2007); see United States v. Shoup, 476
F.3d 38, 43 (1st Cir. 2007) (noting that appellant must establish
that prosecutor's erroneous closing remarks "'so poisoned the well
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that the trial's outcome was likely affected'" (quoting United
States v. Henderson, 320 F.3d 92, 107 (1st Cir. 2003))). We find
none.
In his trial testimony, Detective King freely admitted
that he was unable to recall the exact time of Vanvliet's arrival
at the Dunkin' Donuts and conceded that the traffic stop might have
occurred as early as 4:45 p.m. In its closing argument, the
government likewise expressly conceded that its evidence of arrival
time was at best approximate and that Vanvliet might have arrived
"before five o'clock," but contended that even Vanvliet's belated
decision to abandon his plans to engage in sexual acts with a minor
might not negate his intent under § 2423(b), see United States v.
Buttrick, 432 F.3d 373, 377 (1st Cir. 2005). Thus, the record
contains not one shred of evidence that either the prosecutor or
Detective King knowingly or deliberately tried to conceal
Vanvliet's arrival time from the jury. See United States v.
Brennan, 994 F.2d 918, 926 (1st Cir. 1993) (noting that no
prosecutorial misconduct claim will lie absent affirmative evidence
that the government knew, or should have known, that the evidence
it presented was false).
2. Defendant's Online Statements
Vanvliet also asserts that the prosecutor's closing
arguments falsely characterized several statements that he made to
"Michelle" in his chat room communications as indicia of his intent
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to engage in sexual acts with her. As examples, he cites the
prosecutor's focus on Vanvliet's reference to "kisses . . . all
over . . . your body," and the prosecutor's speculative statements
that Vanvliet had lured "Michelle" to the meeting by assuaging her
stated concerns that he might force her to have "real" or "unsafe"
sex.
None of these challenged closing remarks even approaches
plain error. Sexual predation is unquestionably one of the
permissible inferences that could be drawn from Vanvliet's initial
chat room exchanges, which were replete with sexually charged
allusions to "sexy fun." See United States v. O'Shea, 426 F.3d
475, 485 (1st Cir. 2005) ("'[T]he prosecutor may attempt to
persuade the jury to draw inferences from the evidence.'" (quoting
United States v. Hamie, 165 F.3d 80, 84 (1st Cir. 1999))); United
States v. Abreu, 952 F.2d 1458, 1471 (1st Cir. 1992) (finding no
plain error where prosecutor "merely asked the jury to make
reasonable inferences that defendant's lifestyle tended to indicate
criminal activity"); United States v. Werme, 939 F.2d 108, 117 (3d
Cir. 1991) ("The prosecutor is entitled to considerable latitude in
summation to argue the evidence and any reasonable inferences that
can be drawn from that evidence.").
D. Sentencing
Finally, Vanvliet argues that the district court
erroneously refused to consider a sentence below the recommended
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Guidelines sentencing range, even though it disagreed with the
Guidelines policy to enhance a sentence for his use of a computer,
based on its mistaken belief that it lacked that discretion. The
government correctly points out that Vanvliet's sentence must be
vacated in light of Kimbrough, which held that district courts
legitimately may cite their own disagreements with Guidelines
policy as justification for imposing a below-Guidelines sentence.
128 S. Ct. at 575. That decision was not available to the district
court when it made its sentencing decision. Accordingly, we remand
the case for resentencing.
The judgment of conviction is affirmed. The sentence is
vacated, and the case remanded for resentencing in accordance with
the opinion herein.
So ordered.
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