Ninth Circuit Vacates Conviction Based on Constructive Amendment

In U.S. v. Ricky Davis, the Ninth Circuit Appeals Court vacated and remanded a conviction for attempted sex trafficking of a minor.

The defendant in that case was accused of bringing a minor to his house and discussing the possibility of the minor making money by going on dates, taking photos of her 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 USC 2251) and attempted sex trafficking either by force or of a minor (18 USC 1591 (a), 1594).

The indictment alleging that Davis violated 1591 stated that he,

“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 that count provided that

“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 . . . [.]”

This was also in another place in the jury instructions AND the prosecutor argued the same thing in the closing argument.  The clause stating that “the defendant had a reasonable opportunity to observe [the minor]” is new.  The court should not have used this in the grand jury or in closing statements because the grand jury didn’t indict him for it.

The court 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 proved.”

The court also held that this was a constructive amendment and not a variance.  The court indicated that the difference was that

“An amendment of the indictment occurs when the charging terms of the indictment are 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 instruction and the government’s argument had the effect of altering the terms of the amendment.

The Ninth Circuit reversed U.S. v. Davis, No. 15-10402

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