Case Information
Before: *1 TASHIMA and HURWITZ, Circuit Judges, and ADELMAN, [**]
District Judge. Ricky Davis appeals his convictions and sentence for sexual exploitation and attempted sex trafficking of a minor. We have jurisdiction pursuant to 28 U.S.C. § *2 1291. In this disposition we affirm Davis’ conviction for sexual exploitation of a minor under 18 U.S.C. § 2251(a), reject his insufficiency of the evidence challenge to his conviction for attempted sex trafficking under 18 U.S.C. §§ 1591(a), 1594, and remand. [1]
1. At the close of the government’s case-in-chief, Davis unsuccessfully moved for acquittal of Count 2, see Fed. R. Crim. P. 29. Davis challenges the district court’s denial of his Rule 29 motion on the ground that the government failed sufficiently to prove each of § 1591(a)’s elements. This argument is unpersuasive.
We review de novo the denial of a motion for acquittal under Rule 29.
See
United States v. Somsamouth
,
*3 Here, the evidence presented at trial, when viewed in the light most favorable to the government, established that:
• prior to September 17, 2011, Davis and Bianca had sex in an apartment into which they had to sneak “because,” according to Bianca, “[she] look[ed] too young”;
• Bianca initially requested a “Hello Kitty” tattoo; • on the night of September 17, 2011, Bianca told Davis she was “about 16 or 17” years old;
• Davis instructed Bianca on “a way to get money” by going on dates; • Davis encouraged Bianca to get naked for the photographs because “it would be sexier for the guys”;
• Davis made clear he intended to post these photographs on the Redbook website;
• after taking the photographs, Davis and Bianca had sex; • Davis facilitated Bianca’s Redbook dates by first having potential customers text him and only then providing the customer with Bianca’s phone number; and
• Davis actually did facilitate a connection between Bianca and at least one individual with whom Bianca subsequently had sex in exchange for money.
Based on this evidence, a rational trier of fact could conclude that the government carried its burden with respect to each of § 1591(a)’s essential elements, including *4 the provision’s mens rea and actus reus requirements. Accordingly, Davis’ sufficiency of the evidence challenge fails.
2.
Davis’ challenge to his conviction under § 2251(a) is precluded by our
precedent,
United States v. U.S. Dist. Court for Cent. Dist. of Cal.
,
Davis argues that the Supreme Court’s subsequent decision in
Eloni v.
United
States,
• ! •
For the reasons set forth herein and in our concurrently filed opinion, we affirm Davis’ conviction under § 2251, but reverse his conviction under § 1591(a), not for insufficiency of the evidence, but because the indictment on this count was constructively amended, and remand to the district court for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED.
Notes
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. * * The Honorable Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation.
[1] In a concurrently filed opinion, we reverse Davis’ conviction for attempted sex trafficking of a minor in violation of 18 U.S.C. §§ 1591(a), 1594, and remand for further proceedings. We do not reach Davis’ arguments challenging his now-vacated sentence. The facts are sufficiently set forth in our opinion and we do not repeat them here.