Submitted February 16, 2017
from the United States District Court for the Eastern
District of California Anthony W. Ishii, District Judge,
Presiding. DC No. CR 12-0056 AWI
Sasso (argued), Assistant Federal Defender; Heather E.
Williams, Federal Defender; Office of the Federal Public
Defender, Fresno, California; for Defendant-Appellant.
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
Before: A. Wallace Tashima and Andrew D. Hurwitz, Circuit
Judges, and Lynn S. Adelman, [*] District Judge.
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.
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.
panel addressed other arguments in a concurrently filed
TASHIMA, Circuit Judge
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.
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
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.
appeal followed. Davis challenges his conviction under §
1591(a) on the ground that the district court's jury