United States v. Ricky Davis, 2017 U.S. App. LEXIS 6445

Ricky Davis brought 13-year-old Bianca to his home, took sexually explicit photographs, helped post them on an escort-advertising website, and introduced her to at least one man who later paid her for sex. Law enforcement later found the images and arrested Davis.
Davis was indicted on two federal counts: (1) sexual exploitation of a minor (18 U.S.C. § 2251(a)) and (2) attempted sex trafficking of a minor or by force (18 U.S.C. §§ 1591(a), 1594).
At trial, the jury convicted Davis on both counts; the district court sentenced him to concurrent 300-month terms.
On appeal Davis challenged the § 1591(a) conviction, arguing the district court’s jury instruction constructively amended the indictment by altering the mens rea element.
The indictment required proof that Davis knew Bianca was a minor or recklessly disregarded her age; the jury instruction, however, allowed conviction if the jury found Davis had a “reasonable opportunity to observe” Bianca (language from § 1591(c)) without proving knowledge or recklessness.
The Ninth Circuit affirmed the § 2251 conviction, reversed the § 1591(a) conviction for constructive amendment, vacated the sentence, and remanded for resentencing or retrial on § 1591(a).

Issue	Plaintiff's Argument (Government)	Defendant's Argument (Davis)	Held
Whether the district court constructively amended the indictment by instructing the jury that a “reasonable opportunity to observe” could substitute for knowledge or recklessness regarding the victim’s age	The instruction correctly reflected § 1591(c) and permitted conviction without direct proof of knowledge if the jury found a reasonable opportunity to observe	The instruction added a new, alternative basis for conviction not charged by the grand jury, thus constructively amending the indictment	Reversed: the instruction materially altered an essential mens rea element and constituted a constructive amendment
Whether reversal is required when a constructive amendment is found	N/A (government argued instruction was permissible)	N/A (Davis sought reversal on that ground)	Reversal is required as constructive amendment is per se reversible; vacated related sentence and remanded for resentencing or retrial on § 1591(a)

United States v. Ward, 747 F.3d 1184 (9th Cir. 2014) (standard for reviewing constructive amendment claims)
United States v. Antonakeas, 255 F.3d 714 (9th Cir. 2001) (grand jury indictment right and constructive amendment framework)
United States v. Adamson, 291 F.3d 606 (9th Cir. 2002) (distinguishing constructive amendment from variance)
United States v. Von Stoll, 726 F.2d 584 (9th Cir. 1984) (definitions of amendment vs. variance)
United States v. Dipentino, 242 F.3d 1090 (9th Cir. 2001) (example where jury instructions altered charged offense)
Stewart Clinical Lab., Inc. v. United States, 652 F.2d 804 (9th Cir. 1981) (amending indictment via instructions is reversible error)
United States v. Lockhart, 844 F.3d 501 (5th Cir. 2016) (similar § 1591(c) issue: including § 1591(c) language transformed mens rea)
United States v. Olson, 925 F.2d 1170 (9th Cir. 1991) (amendment requires reversal because it deprives grand jury charge)
United States v. Cotton, 535 U.S. 625 (2002) (grand jury indictment principles)
United States v. Ruiz-Alvarez, 211 F.3d 1181 (9th Cir. 2000) (sentencing package unbundled when a count is vacated)
United States v. McClain, 133 F.3d 1191 (9th Cir. 1998) (remand for resentencing after vacatur of a count)