United States v. Davis, No. 15-10402 (9th Cir. 2017)Annotate this Case
Defendant appealed his sentence and conviction for sexual exploitation and attempted sex trafficking of a minor. The court concluded that, because the conduct charged in the indictment was substantially different from the conduct described in the jury instructions, the district court constructively amended the indictment. In this case, under the indictment, the government was required to prove, beyond a reasonable doubt, either that defendant affirmatively knew of the victim's age, or, alternatively, that he recklessly disregarded her minority status. In contrast, the jury instructions afforded jurors a third option for convicting defendant: namely, they could convict so long as they determined that defendant had a reasonable opportunity to observe the victim. Therefore, defendant's conviction for attempted sex trafficking of a minor must be reversed. The court remanded for resentencing on defendant's single remaining conviction.