United States v. Davis, No. 15-10402 (9th Cir. 2017)
Annotate this CaseDefendant 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.
Court Description: Criminal Law. The panel affirmed a conviction for sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a), reversed a conviction for attempted sex trafficking of a minor in violation of 18 U.S.C. § 1591(a), vacated the sentence, and remanded for further proceedings. The panel held that a constructive amendment of the indictment occurred, where the § 1591(a) charge required the government to prove beyond a reasonable doubt that the defendant affirmatively knew of the minor’s age or that he recklessly disregarded her minority status, but the jury instructions and the government’s closing argument stated that the jurors could convict, even without a finding as to knowledge or recklessness, so long as they determined that the defendant had a reasonable opportunity to observe the minor. The panel remanded to the district court for resentencing on an open record or, alternatively, for the defendant to be retried on the § 1591(a) charge. The panel addressed other arguments in a concurrently filed memorandum. UNITED STATES V. DAVIS 3
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