United States v. Rodriguez-Rodriguez, No. 09-2549 (1st Cir. 2011)
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Defendant was convicted of using an interstate commerce facility or means in attempting to persuade a minor to engage in illegal sexual activity (18 U.S.C. 2422(b)). The First Circuit affirmed, rejecting a claim that the indictment actually charged him with attempting to persuade a minor to engage in sexual activity not with him, but with another minor, a charge that the defendant claimed was unsupported by the evidence. The court acknowledged that the indictment was "not a model of clarity." The court also rejected an argument that the district court constructively amended the indictment by instructing the jury in accordance with the government's theory and by instructing the jury in such a way that he may have been convicted based on uncharged conduct.
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