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United States v. Davis

United States Court of Appeals, Ninth Circuit

April 14, 2017

United States of America, Plaintiff-Appellee,
v.
Ricky Davis, AKA Rick Dog, AKA Ricky Loks, Defendant-Appellant.

          Submitted February 16, 2017

         Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding. DC No. CR 12-0056 AWI

         COUNSEL

          Peggy Sasso (argued), Assistant Federal Defender; Heather E. Williams, Federal Defender; Office of the Federal Public Defender, Fresno, California; for Defendant-Appellant.

          Brian W. Enos (argued), Assistant United States Attorney; Camil A. Skipper, Assistant United States Attorney & Appellate Chief; Phillip A. Talbert, Acting United States Attorney; United States Attorney's Office, Fresno, California; for Plaintiff-Appellee.

          Before: A. Wallace Tashima and Andrew D. Hurwitz, Circuit Judges, and Lynn S. Adelman, [*] District Judge.

         SUMMARY [**]

         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.

          OPINION

          TASHIMA, Circuit Judge

         Ricky Davis appeals his convictions for sexual exploitation and attempted sex trafficking of a minor, as well as the resulting sentence. We have jurisdiction under 28 U.S.C. § 1291. We affirm Davis' conviction for sexual exploitation of a minor, but we reverse his conviction for attempted sex trafficking.[1]

         I.

         On September 17, 2011, Ricky Davis brought thirteen-year-old Bianca to his house. Once there, he discussed the possibility of Bianca making money by going on dates, took sexually explicit photos of her, helped to post these images on a website known for advertising escort services, and introduced Bianca to at least one individual with whom Bianca later had sex in exchange for money. Some months later, after two different men had trafficked Bianca, law enforcement discovered the sexually explicit photographs and arrested Davis.

         Davis was indicted for (1) sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a), and (2) attempted sex trafficking either by force or of a minor, in violation of 18 U.S.C. §§ 1591(a), 1594. Davis was convicted on both counts. The district court sentenced him to concurrent 300-month terms of imprisonment.

         This appeal followed. Davis challenges his conviction under § 1591(a) on the ground that the district court's jury ...


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