16‐1145‐cr
United States v. Vickers
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 COURTʹS 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
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 12th day of September, two thousand seventeen.
PRESENT: RALPH K. WINTER,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 16‐1145‐cr
DAVID ALLEN VICKERS,
Defendant‐Appellant.
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FOR APPELLEE: AARON J. MANGO, Assistant United States
Attorney, for James P. Kennedy, Jr., Acting
United States Attorney for the Western District
of New York, Buffalo, New York.
FOR DEFENDANT‐APPELLANT: LAWRENCE GERZOG, Esq., New York, New
York.
Appeal from the United States District Court for the Western District of New
York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant David Allen Vickers appeals a judgment of the district court
dated April 5, 2016, convicting him, after a jury trial, of two counts of attempted and
actual transportation of a minor in interstate and foreign commerce with intent to
engage in criminal sexual activity with such minor. See 18 U.S.C. §§ 2423(a),(e).
Vickers, who is a truck driver by trade, was convicted on the basis of testimony that, on
multiple occasions, he brought two boys, ʺJ.A.ʺ and ʺR.M.,ʺ with him on interstate and
foreign trucking trips and molested them as part of a larger pattern of child exploitation
spanning from the early 1980s until 2007, during which he lured adolescent boys from
broken homes into relationships of trust and then sexually abused them. The district
court sentenced Vickers principally to concurrent terms of imprisonment of thirty years
and life. On appeal, Vickers argues that: (1) the indictment failed to charge an essential
element of his crimes of conviction; (2) certain prior act evidence was erroneously
admitted; (3) the evidence was insufficient to sustain his convictions; and (4) his
sentence is substantively unreasonable. We assume the partiesʹ familiarity with the
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underlying facts, procedural history, and issues on appeal and discuss each claim of
error in turn.
1. Sufficiency of the Indictment
Vickers first argues that the indictment omitted an essential element of his crimes
of conviction.
We review legal challenges to a criminal indictment de novo. See United States v.
Pirro, 212 F.3d 86, 92 (2d Cir. 2000). Under the Fifth Amendmentʹs Grand Jury Clause,
there are ʺtwo constitutional requirements for an indictment.ʺ United States v. Lee, 833
F.3d 56, 69 (2d Cir. 2016) (quoting United States v. Resendiz‐Ponce, 549 U.S. 102, 108
(2007)). It must contain (1) ʺthe elements of the offense charged and fairly inform[] a
defendant of the charge against which he must defendʺ and it must (2) ʺenable[] him to
plead an acquittal or conviction in bar of future prosecutions for the same offense.ʺ Id.
(quoting Resendiz‐Ponce, 549 U.S. at 108). In this vein, Federal Rule of Criminal
Procedure 7(c)(1) requires an indictment be ʺa plain, concise, and definite written
statement of the essential facts constituting the offense charged.ʺ We have noted that
ʺan indictment need do little more than to track the language of the statute charged and
state the time and place (in approximate terms) of the alleged crime.ʺ United States v.
Vilar, 729 F.3d 62, 80 (2d Cir. 2013) (quoting United States v. Yannotti, 541 F. 3d 112, 127
(2d Cir. 2008)). Moreover, even where the indictment fails to allege an element of the
offense charged, we will affirm a conviction if we conclude that such error was harmless
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beyond a reasonable doubt. See Lee, 833 F.3d at 69 (holding that ʺthe grand juryʹs failure
to allege an [essential] element [of] a felony [offense is not] a structural error that is
impervious to harmless‐error analysisʺ).
Here, Vickers was charged with violating 18 U.S.C. § 2423, which makes it
unlawful for a person to ʺknowingly transport[] an individual who has not attained the
age of 18 years in interstate or foreign commerce . . . with intent that the individual
engage . . . in any sexual activity for which any person can be charged with a criminal
offense,ʺ id. § 2423(a), or to attempt to do so, see id. § 2423(e). A defendant may be
convicted under 18 U.S.C. § 2423 if it is proved that he ʺ(1) knowingly transported a
minor across state lines . . . (2) with the intent that the minor engage in sexual activity
for which some person could be criminally chargedʺ under federal, state, or foreign law.
United States v. Vargas‐Cordon, 733 F.3d 366, 375 (2d Cir. 2013).
Vickers claims error because, although the indictment alleged that, between
certain approximate dates in the Western District of New York and elsewhere, Vickers
ʺknowingly transport[ed], and attempt[ed] to transportʺ his minor victims ʺin interstate
and foreign commerce with the intentʺ to engage in sex acts with them ʺfor which [he]
could be charged with a criminal offense . . . [a]ll in violation of Title 18, United States
Code, Sections 2423(a) and 2423(e),ʺ App. 19, the indictment did not specify the federal,
state, or foreign sex abuse laws under which Vickers could be so charged.
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We need not decide whether such an omission was error for, even if it was, the
error was harmless beyond a reasonable doubt because (1) before trial, Vickers received
a bill of particulars specifying those laws; (2) before trial, the government sought jury
instructions trial that would explain such laws (which instructions the jury ultimately
received); (3) the jury returned a verdict with special findings ʺthat the defendant
intended to engage in sexual activity for which the defendant could be charged withʺ
specific New Jersey, Pennsylvania, New York, and Canadian criminal offenses, Govʹt
App. 54, 56; and (4) the government presented overwhelming evidence of Vickersʹs
guilt, as discussed below.1 Accordingly, the putative deficiency in the indictment does
not warrant reversal of Vickersʹs convictions because any such deficiency was harmless
beyond a reasonable doubt.
2. Evidentiary Rulings on Prior Acts
Vickers next argues that the district court erroneously admitted testimony
concerning (1) Vickersʹs sexual abuse of victims other than J.A. and R.M., including on
1 We note that there is some disagreement among our sister circuits as to whether
the underlying sex crimes with which a defendant could be charge are themselves an element of
a § 2423 (a) or (e) offense. Compare United States v. Mannava, 565 F.3d 412, 415 (7th Cir. 2009)
(ʺThe liability created by 18 U.S.C. § 2422(b) [, whose relevant language is identical to § 2423,]
depends on the defendantʹs having violated another statute, and the elements of the offense
under that other statute must therefore be elements of the federal offense in order to preserve
the requirement of jury unanimity.ʺ) with United States v. Jockish, 857 F.3d 1122, 1127 (11th Cir.
2017) (holding that the underlying sex crimes with which a defendant could be charged are
ʺnothing more than a possible means by which a defendant met an element of the offenseʺ).
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intrastate and interstate trucking trips, and (2) the grooming techniques he employed to
secure his victimsʹ trust.
We review a district courtʹs evidentiary rulings for abuse of discretion. United
States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011). Under Federal Rule of Evidence 404(b)(1),
evidence of a defendantʹs prior acts is generally inadmissible to show that he has a
propensity to act in a certain manner and acted in accordance with that propensity,
except that such evidence is admissible to prove, inter alia, ʺmotive, opportunity, intent,
preparation, plan, [or] knowledge,ʺ provided that the government gives a defendant
reasonable notice of its intent to introduce the evidence and for what purpose. Fed. R.
Evid. 404(b)(1),(2).
Sexual assault and child molestation cases are different. In such cases, ʺthe court
may admit evidence that the defendant committed any other sexual assaultʺ or ʺany
other child molestationʺ and such ʺevidence may be considered on any matter to which
it is relevant.ʺ Fed. R. Evid. 413(a) (assault); Fed. R. Evid. 414(a) (molestation). Indeed,
Rules 413 and 414 permit evidence of prior acts of sexual assault or child molestation to
prove a defendantʹs propensity to commit such acts. See United States v. Davis, 624 F.3d
508, 511‐12 (2d Cir. 2010).
Nevertheless, the admission of all prior act evidence is subject to Rule 403, which
permits the district court to ʺexclude relevant evidence if its probative value is
substantially outweighed by a danger of,ʺ inter alia, ʺunfair prejudice, confusing the
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issues, misleading the jury, . . . or needlessly presenting cumulative evidence.ʺ Fed. R.
Evid. 403; see Davis, 624 F.3d at 512. At bottom, ʺso long as the district court has
conscientiously balanced the proffered evidenceʹs probative value with the risk for
prejudice,ʺ a Rule 403 determination ʺwill be disturbed only if it is arbitrary or
irrational.ʺ United States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006).
Vickers concedes that testimony concerning his sexual abuse of other victims is
subject to Rules 413 and 414, but submits that such evidence should have been excluded
as unfairly prejudicial under Rule 403. He further contends that testimony about the
techniques he employed to gain his victimsʹ trust, e.g., having the boys sit on his lap,
massaging their feet, sleeping in bed with them, giving them drugs and alcohol, and
promising them money in exchange for sex acts, is subject to Rule 404(b), rather than
Rules 413 and 414, and thus should have been excluded as impermissible propensity
evidence. The government counters that this ʺgrooming evidence . . . was directly tied
toʺ Vickersʹs sexual abuse of his victims of the charged crimes and was thus properly
admitted under Rules 413 and 414. Appelleeʹs Br. at 37.
As to the testimony concerning Vickersʹs sexual abuse of other victims, we
conclude that such evidence was plainly admissible under Rules 413 and 414 because it
was probative of Vickersʹs propensity for sexually abusing adolescent boys who were
entrusted to his care ‐‐ like J.A. and R.M. In particular, testimony about Vickersʹs sexual
abuse of the victims on trucking trips was probative of his knowledge, intent, and plan
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in bringing J.A. and R.M. on the trucking trips charged in the indictment. As to the
testimony concerning Vickersʹ ʺgroomingʺ of his victims, we conclude that such
evidence was admissible even under Rule 404(b), because it was probative of Vickersʹs
knowledge of how to secure adolescent boysʹ trust so that he could sexually abuse them.
We identify no abuse of discretion in the district courtʹs decision to admit all of the
challenged testimony under Rule 403. The district court carefully considered the
testimony and the purpose for which it was offered, and, indeed, excluded some
testimony about certain abuse incidents that did not involve trucking trips and occurred
when Vickers was very young because its probative value was substantially outweighed
by the danger of unfair prejudice.
3. Sufficiency of the Evidence
Vickers next argues that the evidence was insufficient to support his convictions.
In an appeal challenging the sufficiency of the evidence, we review the evidence
in ʺthe light most favorable to the government and credit every inference that the jury
might have drawn in the governmentʹs favor.ʺ United States v. Salameh, 152 F.3d 88, 151
(2d Cir. 1998) (per curiam). ʺA verdict of guilty may be based entirely on circumstantial
evidence as long as the inferences of culpability drawn from the circumstances are
reasonable.ʺ United States v. MacPherson, 424 F.3d 183, 190 (2d Cir. 2005). ʺNonetheless,
a conviction based on speculation and surmise alone cannot stand.ʺ United States v.
DʹAmato, 39 F.3d 1249, 1256 (2d Cir. 1994).
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As noted above, 18 U.S.C. § 2423 requires the government to prove that the
defendant transported a minor in interstate commerce intending that the minor engage
in sex acts that could be charged as a crime under federal, state, or foreign law. Vargas‐
Cordon, 733 F.3d at 375. Illegal sexual activity must be ʺone of the dominant motives for
the interstate transportation of the minors, and not merely an incident of the
transportation.ʺ Id. at 375‐76 (internal quotation marks omitted).
Vickers contends that the evidence was insufficient to prove that sexual abuse
was a dominant motive of his transportation of J.A. and R.M. in interstate and foreign
commerce because the purpose of the trucking trips ʺwas to deliver the cargo tendered
for such delivery.ʺ Appellantʹs Br. at 22. We are not persuaded. As the government
notes, the relevant question is not the purpose of the trucking trips, but what Vickersʹs
intent was in bringing J.A. and R.M. along on such trips. As to that question, the
government presented sufficient evidence for a jury to infer that Vickers brought the
boys on the trips for the purpose of sexually abusing them. Indeed, J.A. testified that,
starting in 1999, when he was just ten years old, Vickers took him on multiple trucking
trips from New York to Canada, New Jersey, and Pennsylvania, and back to New York,
and that on such trips, in each locale, Vickers sexually abused him by, inter alia,
touching his penis, having oral sex with him, and ejaculating on his chest. Similarly,
R.M. testified that, when he was fifteen and sixteen years old, he went on trucking trips
with Vickers from New York to New Jersey and Pennsylvania, and back to New York,
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and that on such trips Vickers attempted to and did sexually abuse him in a similar
manner. And R.M. testified that, on one trip, Vickers instructed him to hide in the back
of the truck to keep from being seen by others when Vickers was making deliveries,
suggesting that the boyʹs presence was something Vickers sought to conceal. Other
victims also testified that Vickers also molested them when they accompanied him on
trucking trips. Based on this testimony, a jury reasonably could infer that sexual abuse
was Vickersʹs dominant purpose for bringing J.A. and R.M. on the interstate and foreign
trucking trips. Accordingly, the evidence was sufficient to convict Vickers for violating
18 U.S.C. §§ 2423(a) and (e).
4. Reasonableness of the Sentence
Vickersʹs last argues that his life sentence is substantively unreasonable.
Our substantive review of Vickersʹs sentence is akin ʺto the consideration of a
motion for a new criminal jury trial, which should be granted only when the juryʹs
verdict was ʹmanifestly unjust,ʹ and to the determination of intentional torts by state
actors, which should be found only if the alleged tort ʹshocks the conscience.ʹʺ United
States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010) (quoting United States v. Rigas, 583 F.3d
108, 122‐23 (2d Cir. 2009)). Indeed, we will ʺset aside a district courtʹs substantive
determination only in exceptional cases where the trial courtʹs decision ʹcannot be
located within the range of permissible decisions.ʹʺ Rigas, 583 F.3d at 122 (emphasis
omitted) (quoting United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)).
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Vickers submits that the district courtʹs ʺrote applicationʺ of § 2G1.3 mirrors an
approach to a child pornography guideline that we held generated a substantively
unreasonable sentence in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). Appellantʹs
Br. at 34. We disagree. In Dorvee, we vacated a sentence as substantively unreasonable
where the district court (1) made clearly erroneous findings of fact about the likelihood
that Dorvee would sexually assault a child in the future, (2) ʺprovided no reason why
the [statutory maximum sentence imposed] was required to deter Dorvee and offenders
with similar history and characteristics,ʺ and (3) ʺconsidered it a foregone conclusion
that the statutory maximum sentence ʹprobably [would] be upheldʹ on appeal . . .
because [the] sentence was ʹrelatively far belowʹ the initial, [erroneously calculated,]
Guidelinesʺ range. Id. at 183‐84. The district court made no such errors here. Instead, it
properly considered all of the sentencing materials before it and concluded that
Vickersʹs decades‐long history of repeatedly molesting young boys, the impact that
conduct had on his victims, the likelihood that he would reoffend, and his lack of
remorse for his crimes warranted a life sentence. We cannot say that a life sentence is
outside ʺthe range of permissible decisionsʺ in this case. Rigas, 583 F.3d at 122 (internal
quotation marks omitted).
We have reviewed Vickersʹs remaining arguments and conclude they are
without merit. Accordingly, the district courtʹs judgment is AFFIRMED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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