United States v. Ricky Davis, 687 F. App'x 534

Defendant Ricky Davis was convicted of sexual exploitation of a minor (18 U.S.C. § 2251(a)) and attempted sex trafficking of a minor (18 U.S.C. §§ 1591(a), 1594); he appeals those convictions and sentence.
At trial the government presented evidence that Davis photographed Bianca (who said she was “about 16 or 17”), encouraged her to undress for photos to attract paying men, planned to post photos on a website, arranged dates by screening texts and providing Bianca’s number, and connected her to at least one customer with whom she later had sex for money.
Davis moved for acquittal under Rule 29 at the close of the government’s case as to the § 1591(a) count; the district court denied the motion.
On appeal, Davis challenged (1) sufficiency of the evidence for the § 1591(a) attempted sex trafficking conviction and (2) the § 2251(a) sexual exploitation conviction on the ground that the government must prove scienter as to the victim’s age.
The Ninth Circuit reviewed the Rule 29 denial de novo (viewing evidence in the light most favorable to the government) and also assessed statutory mens rea issues under precedent and Supreme Court authorities.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for attempted sex trafficking (§§ 1591(a), 1594)	Government: evidence (photos, arranging dates, facilitation of paid sex) supports each element, including mens rea and actus reus	Davis: government failed to prove each element beyond a reasonable doubt	Denied: viewing evidence favorably, a rational jury could find guilt beyond a reasonable doubt; sufficiency challenge fails
Whether § 2251(a) requires proof of defendant's knowledge (or recklessness) as to victim's minority	Government: scienter as to age is not required under Ninth Circuit precedent	Davis: Elonis and related decisions require at least reckless/negligent awareness of age	Rejected: Ninth Circuit precedent controls—defendant’s awareness of minority is not an element of § 2251(a)
Constructive amendment of indictment for § 1591(a) count	Government: indictment supported the prosecution theory presented at trial	Davis: trial theory and evidence effectively broadened the indictment	Held: conviction under § 1591(a) reversed—not for insufficiency but because the indictment was constructively amended; remanded
Post-judgment sentencing challenges	Davis: challenged sentence based on convictions	Government: sentence rests on convictions	Court: did not reach sentencing arguments because § 1591 conviction was vacated

United States v. Somsamouth, 352 F.3d 1271 (9th Cir. 2003) (standard for Rule 29 sufficiency review)
United States v. U.S. Dist. Court for Cent. Dist. of Cal., 858 F.2d 534 (9th Cir. 1988) (holding defendant’s awareness of the subject’s minority is not an element of § 2251(a))
X-Citement Video, Inc. v. United States, 513 U.S. 64 (1994) (interpreting scienter requirements in child pornography context)
Elonis v. United States, 575 U.S. 723 (2015) (clarifying mens rea requirements for federal threats statute; did not alter § 2251(a) analysis)