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9th Circuit: Sex trafficking conviction reversed for constructive amendment of charge

United States v. Davis, — F.3d — (9th Cir. Apr. 14, 2017): Jury instruction constructively amended sex trafficking charge by broadening mens rea element

A grand jury indicted Ricky Davis on two counts, one of which was attempted sex trafficking of a minor “knowing or in reckless disregard of the fact that the person had not attained the age of 18 years.” Later, after the grand jurors had been sent home and the case was about to go to Mr. Davis’ jury, the district court described the charge in the jury instructions as attempted sex trafficking of a minor knowing or recklessly disregarding the victim’s age or having had “a reasonable opportunity to observe” the victim. The last piece was lifted out of the statute — but that did not make it okay, because it constructively amended the charge in the indictment. When a constructive amendment like this happens, it is impossible to know whether the grand jury would have indicted for the crime actually proved, causing the grand jury process to look like a bit of a charade. Noting that a constructive amendment constitutes per se reversible error, the Ninth Circuit reversed Mr. Davis’ attempted sex trafficking conviction. Because his conviction on another count survived and the reversal of the attempted sex trafficking charge “unbundled” the sentencing package, the court remanded the case for resentencing on an open record, or for retrial on the attempted sex trafficking charge.

Defense appellate lawyers: Did you notice the remarkable phrase “per se reversible error” up there? The constructive amendment issue belongs on your top shelf, next to Apprendi, Johnson, and “they forgot to prove an element.”

(Congratulations to Assistant Federal Defender Peggy Sasso and Federal Defender Heather E. Williams, of Fresno, California.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)