United States v. Vanvliet

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).

-9-
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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