In United States v. Ricky Davis, the Ninth Circuit Court of Appeals vacated and remanded a conviction for attempted sex trafficking of a minor. The defendant was accused of brining a minor to his house and discussing the possibility of the minor making money by going on dates, taking photos and assisting her in getting the photos online to a known escorting website.

Davis was arrested and indicted for sexual exploitation of a minor (18 U.S.C. 2251) and attempted sex trafficking either by for or of a minor (18 U.S.C. 1591(a), 1594).

The indictment alleged that Davis:

“knowingly attempted to recruit, entice, harbor, transport, provide, obtain, and maintain by any means, a person to engage in a commercial sex act, to wit: a minor female victim, . . . knowing or in reckless disregard of the fact that the person had not attained the age of 18 years[.]”

However, at trial the jury instruction as to the section 1591 violation charged:

“The elements of sex trafficking are: . . . (2) knowing that [the minor] had not attained the age of 18 years, or recklessly disregarded that fact, or the defendant had a reasonable opportunity to observe [the minor], and that [the minor] would be caused to engage in a commercial sex act . . . .”

The above was also reiterated by the prosecutor in closing argument. On appeal, Davis alleged that the inclusion of the phrase “or the defendant had a reasonable opportunity to observe [the minor]” was a constructive amendment to the indictment.

The Ninth Circuit held that a constructive amendment occurred because “the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually provided.” The court further held that this was a constructive amendment and not a variance, stating that:

“An amendment of the indictment occurs when the charging terms of the indictment were altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.”

The appellate court indicated that the district court’s jury instructions and the government’s argument had the effect of altering the terms of the amendment.

The Ninth Circuit reversed. See United States v. Davis, No. 15-10402

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