*4 BEA, Circuit Judge:
Wilfredo Lopez was convicted in the U.S. District Court for the District of Guam of an attempt to entice a minor to engage in prohibited sexual activity and an attempt to transfer obscenity to a minor under sixteen years of age in violation of 18 U.S.C. §§ 2422(b) and 1470. On appeal, Lopez argues the district court erred by admitting into evidence edited video clips of his post-arrest interrogation, thereby creating the misleading impression that Lopez confessed to key elements of the charges, and further erred by denying his trial motions for acquittal under Federal Rule of Criminal Procedure 29. For the following reasons, we reject Lopez’s claim of prejudicial error, deny relief with respect to additional contentions that the district court committed plain error, and affirm the judgment of conviction.
6 U NITED S TATES V . L OPEZ
I. BACKGROUND
Wilfredo Lopez served as a member of the U.S. Army in the Territory of Guam. Lopez worked at Andersen Air Force Base (AAFB), a federal enclave within the special maritime and territorial jurisdiction of the United States, but lived off- base in territory subject to both federal law and the laws of Guam.
In November 2017, the U.S. Air Force Office of Special Investigations (OSI) identified Lopez as a potential child predator. An OSI agent had posted an advertisement on a classifieds website in which he posed as a thirteen-year-old girl named “Brit” seeking friends among “other mil brats” living on-base. Lopez responded to the advertisement under the alias “Chris Bain” with an email that invited “Brit” to “chill by the lookout on base” and “do whatever if you know what I mean.” When “Brit” replied that she was thirteen years old, Lopez responded “I’m 29, I can get in trouble for this.” Nevertheless, Lopez continued to communicate with “Brit” by email, asked for her phone number, and offered to message her using a Facebook account he operated under the alias “Blake Johnson.”
In the email exchanges that followed, Lopez repeatedly asked “Brit” to do “naughty things” and offered to “teach [her] how to kiss, have sex, suck a dick.” Lopez escalated the conversation by sending “Brit” a photograph of his erect penis and requesting nude photographs in return. “Brit” responded with photographs of a female law enforcement agent that appeared to depict a teenage girl in a sweater and in a dress. Lopez then sent “Brit” a second photograph of his erect penis and a video depicting the same. All told, Lopez asked to meet “Brit” on four separate occasions at different locations within AAFB. The first and second invitation involved proposed meetings at the Base Exchange and at an on-base Burger King, neither of which materialized. Lopez then proposed meeting “Brit” at the on- base library. Lopez appeared at the library, waited for some time, and left when “Brit” failed to arrive. Finally, Lopez arranged to meet “Brit” at her supposed on-base residence. OSI agents arrested Lopez when he arrived at the agreed- upon location.
After his arrest, Lopez consented to a video-recorded *6 interview with two OSI agents and a special agent from the Federal Bureau of Investigation. During the eighty-minute interrogation, Lopez admitted to communicating online with a person claiming to be an underage girl. However, Lopez maintained that he knew “Brit” was an undercover agent because of the suspicious timing and content of the messages sent from her account. Lopez noted, for example, that many of the messages were sent during the middle of the day when school-aged girls would be in class and lack access to email. Lopez also described in some detail the process by which he checked the photographs received from “Brit” for evidence of law enforcement involvement. When asked why he continued the email and text message exchanges after “Brit” told him she was underage, Lopez claimed that he hoped to obtain a discharge from the military to avoid the automatic deduction of child support and alimony payments from his military wages for the benefit of his estranged wife.
In December 2017, a grand jury in the U.S. District Court for the District of Guam indicted Lopez on two counts of sex crimes against children. The first count alleged Lopez violated 18 U.S.C. § 2422(b) by an attempt to entice a minor “to engage in sexual activity for which a person can be charged with a criminal offense, to wit: First Degree Criminal Sexual Conduct, in violation of 9 [G.C.A.] § 25.15(a)(1), all in violation of Title 18, United States Code, Sections 2422(b) and 2.” The Guam statute cited in the indictment punishes the sexual penetration of a minor under fourteen years of age as a first-degree felony. Notably, Guam law also punishes an attempt to the same grade and degree as a completed offense. 9 G.C.A. §§ 13.10, 13.60(a). The second count alleged Lopez violated 18 U.S.C. § 1470 by an attempt to transfer obscene materials to a minor under sixteen years of age.
At a pretrial hearing, the Government moved to introduce into evidence eleven video clips of the post-arrest interrogation in which Lopez appeared to confess he believed “Brit” was an underage girl. With few exceptions, the video clips were about ten seconds long, omitted the agents’ questions, and presented only portions of Lopez’s complete statements. Lopez immediately objected on the ground that the rule of completeness codified in Federal Rule of Evidence 106 required either excluding the clips or admitting the entire recording. The district court reserved decision and invited written motions from Lopez and the Government. The Government subsequently filed a motion in limine arguing that, although prosecutors could introduce *7 the video clips into evidence as admissions by a party opponent, the hearsay bar prohibited Lopez from introducing additional footage of the interrogation because the footage contained self-serving statements about his conduct and good character.
The district court considered the motion in limine prior to jury selection on the morning of trial. Lopez renewed his objection that the video recording should be admitted in full or not at all. Lopez explained through counsel that, although he believed that the Ninth Circuit precedents cited by the Government appeared to cut against his position, the Federal Rules of Evidence are nevertheless best read to require his requested ruling. The court overruled Lopez’s objection and admitted into evidence the video clips proffered by the Government after concluding that they were not misleading and that the additional footage was inadmissible hearsay.
The case proceeded to trial. At the close of the Government’s evidence, Lopez moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Lopez predicated his Rule 29 motion exclusively on the argument that no reasonable jury could conclude Lopez believed “Brit” was an underage girl as required by the mens rea element of both charged offenses. The district court summarily denied the motion.
Lopez then took the stand in his own defense to testify that he believed “Brit” was a law enforcement agent all along. Lopez claimed to have spotted the ruse because of his familiarity with the tactics of sex offender sting operations and because the timing of the messages was inconsistent with the schedule of a school-aged girl. Lopez claimed he continued the conversation only because he sought discharge from the military to circumvent the garnishment of his wages for child support and alimony payments. Lopez further explained that the clips presented by the Government inaccurately portrayed the lengthy post-arrest interrogation by omitting footage in which he repeatedly denied believing “Brit” was underage. After the defense rested, Lopez renewed his Rule 29 motion on the same basis as the original motion. The district court found the record contained sufficient evidence to support conviction, denied the motion once again, and proceeded to instruct the jury using a written script agreed upon by both parties.
The jury returned a verdict of guilty on both counts. The court sentenced Lopez to concurrent 120-month sentences to be followed by 36 months of supervised release, including *8 10 U NITED S TATES V . L OPEZ special conditions of supervised release, as well as registration under the terms of the Sex Offender Registration and Notification Act. Lopez timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II. DISCUSSION
On appeal, Lopez argues the district court prejudiced his defense by admitting into evidence isolated excerpts of the post-arrest interrogation recording and denying his motion to introduce the remaining footage. Lopez also challenges the evidence and jury instructions supporting his attempt conviction pursuant to 18 U.S.C. § 2422(b) as well as the indictment, jury instructions, and jury verdict form supporting his attempt conviction pursuant to 18 U.S.C. § 1470 on several theories never raised below. We consider each argument in turn under the applicable standard of review.
A. Evidentiary Challenge
Lopez challenges his convictions on the ground that the
district court violated Federal Rule of Evidence 106 by
allowing the Government to introduce excerpts of the
recorded post-arrest interrogation while excluding the
remaining interrogation footage as inadmissible hearsay.
We review challenged evidentiary rulings for an abuse of
discretion.
United States v. Vallejos
,
We hold the district court abused its discretion and violated Rule 106 by categorically excluding the entirety of the remaining interrogation footage as inadmissible hearsay despite the risk that the Government’s selective editing of the interrogation footage would mislead the jury. However, we agree with the Government that the district court’s evidentiary ruling was harmless error.
1. The Rule of Completeness—Rule 106
This is not the first case in which we have addressed the
intersection of Federal Rule of Evidence 106 and the bar to
the admission of hearsay evidence codified in Federal Rule
of Evidence 802. In
United States v. Collicott
,
(1988)). At the same time, we also held that the rule of completeness does not compel the admission of inadmissible hearsay evidence simply because such evidence is relevant to the case. Id.
When Rule 106 and Rule 802 collide, the critical inquiry
for the trial court is the purpose for which the evidence is
offered. Portions of a document or recording are admissible
under Rule 106 notwithstanding the bar on hearsay evidence
when offered “to correct a misleading impression in the
edited statement” introduced by an opposing party.
Vallejos
,
The district court abused its discretion by categorically excluding the entirety of the remaining interrogation footage as inadmissible hearsay. The first step in the district court’s error was the erroneous conclusion that the Government’s selectively edited excerpts accurately presented the content of Lopez’s statements. On a fair review of the interrogation recording, it should have been apparent that the excerpts risked misleading the jury by making it seem as though Lopez confessed during interrogation to believing “Brit” was underage when, in reality, the full recording conveys a different impression.
For example, one clip shown at trial depicts an isolated moment in which Lopez stated: “Um, I was just bored at first, and was on Gmail, and that’s when she told me she was 15, [sic] and I was like oh shit.” However, the Government’s editing truncated Lopez’s explanation that he believed the “Brit” persona was a scam:
Um, I was just bored at first, and was on Gmail, and that’s when she told me she was 15, and I was like oh shit , but then that’s when the thing started happening in my life and I was like you know what, this can get me into trouble, and then I knew that [the “Brit” persona] was a scam from the beginning. In another clip, the Government presented Lopez’s affirmative answer to an agent’s statement “You’re 29. 29 and a 13-year-old.” as if it were an admission. In fact, the exchange took place during a colloquy in which Lopez *11 attempted to explain why he believed “Brit” was a law enforcement agent:
Lopez: If it was a regular 13 year-old, that 13 year-old girl would not keep messaging a 29 year-old guy, especially calling him the “boyfriend” and herself “girlfriend,” when do you see that? You don’t see that at all.
Agent: Yea, that’s crazy right?
Lopez: So I already know.
Agent: How old are you?
Lopez: I’m 29.
Agent: You’re 29. 29 and a 13-year-old. Lopez: Yeah. So from there I was like, ok, it’s someone, that’s watching me, and then that’s when you guys came out and then I was like ok, that’s the OSI.
Yet another clip followed the same pattern by presenting Lopez in what appears to be an agitated state admitting “I wasn’t talking to you guys, I was talking to a minor.” In context, Lopez was cajoling the interrogating agents to expel him from the military:
Lopez: Come on now, sir, can you just get me out of the army?
Agent: [Laughs] Listen, my job isn’t to get people out of the army, my job is to, to investigate federal crimes. So, um. . .
Lopez: No, I wasn’t talking to you guys, I was talking to a minor.
Agent: [Pause] I mean, in your frame of mind, what you attempted to do, what were you attempting to do?
U NITED S TATES V . L OPEZ 15
Lopez: Get kicked out of the army.
Agent: Ok. So, were you or were you not trying to have sex with a 13 year-old?
Lopez: No, I promise you that. I wasn’t. The potentially misleading impact of the Government’s clips means they should not, in fairness, have been considered in isolation from Lopez’s related statements at other points in the interrogation.
This case is a far cry from
Dorrell
and
Vallejos
, in which
we found the excluded portions of the defendants’
confessions fell outside the ambit of Rule 106 because they
did not serve to correct misapprehensions created by the
partial introduction of a document or recording. In
Dorrell
,
we affirmed the exclusion of portions of a confession in
which the defendant explained the political and religious
motivations behind his attempted sabotage of a missile
factory. Removing these details “did not change the
meaning of the portions of his confession submitted to the
jury” because his expressions of ideological zeal during the
confession were presented as justifications for his criminal
conduct, not to contradict evidence of the conduct to which
he had confessed.
The district court compounded this error by ruling
categorically that all remaining portions of the interrogation
recording would be inadmissible hearsay if Lopez moved to
introduce them into evidence. To be sure, Rule 106 does not
obligate a district court to grant a party’s motion to introduce
an
entire
document or recording to correct the misleading
impression created by the opposing party’s partial
introduction. We have long recognized that “[a]pplication
of the rule of completeness is a matter for the trial judge’s
discretion.”
Dorrell
,
In response to Lopez’s objection, the district court could have excluded the video clips offered by the Government or admitted the Government’s clips subject to Lopez’s ability to proffer additional portions of the recording under Rule 106. The only course foreclosed by the Federal Rules of Evidence was the one taken here: admitting portions of a document or recording that risked misleading the jury while foreclosing the admission of any additional portions of the same document or recording.
2. Harmless Error Review
Nevertheless, we hold that remand for a new trial is
unwarranted because the district court’s misapplication of
Rule 106 was harmless error. Throughout the proceedings
below, Lopez’s defense focused on disputing the knowledge
element of both charged offenses by attempting to persuade
the jury that he believed “Brit” was an adult law enforcement
agent. Given the extensive circumstantial evidence
presented at trial of Lopez’s belief that “Brit” was underage,
the probative value of the wrongfully excluded interrogation
footage, and the mitigating effect of Lopez’s trial testimony
on any prejudice resulting from admission of the
interrogation excerpts, we conclude “it is more probable than
not that the error did not materially affect the verdict.”
*14
Bailey
,
It is well established that the strength of the
Government’s case can render trial errors harmless by
reducing the likelihood that tainted evidence impacted the
Lopez also argues for the first time on appeal that showing the
interrogation excerpts at trial violated his Fifth Amendment right against
self-incrimination and his due process right to a fair trial even if the
excerpts were admissible under the Federal Rules of Evidence. Because
we hold the district court abused its discretion and violated Rule 106 by
admitting the evidence, we need not pass on the contention that Rule 106
violated the Constitution as applied in this case. In any event, harmless
error review would be equally applicable to such a violation. Lopez does
not argue the district court’s erroneous evidentiary ruling amounts to a
structural constitutional error requiring automatic reversal. Nor does
Lopez argue the district court violated his Fifth Amendment right not to
testify at trial by putting him in a position where taking the stand was the
only way to rebut the Government’s misleading evidence. verdict.
See United States v. Gonzalez-Flores
, 418 F.3d
1093, 1102 (9th Cir. 2005);
United States v. Gonzalez-
Sandoval
,
Lopez’s trial testimony also served to mitigate any prejudice resulting from the improper admission of the misleading excerpts. Lopez took the stand to explain his state of mind when communicating with “Brit.” Lopez told the jury he communicated with “Brit” despite knowing the persona was a law enforcement trap because he hoped to obtain a discharge from the military and thus avoid paying child support and alimony. Lopez specifically testified about the interrogation, noting that it lasted almost two hours and that the clips presented by the Government were misleading. Taken together, the Government’s evidence and *15 Lopez’s trial testimony left the jury in substantially the same position to judge the credibility of Lopez’s mens rea defense as it would have been absent the district court’s erroneous evidentiary ruling. A new trial is not required under these circumstances.
B. Attempted Enticement of a Minor Next, Lopez challenges the sufficiency of the evidence supporting his attempted enticement conviction pursuant to 18 U.S.C. § 2422(b). The indictment alleged Lopez violated Section 2422(b) by attempting to entice a minor to engage in sexual activity criminalized by Guam’s First Degree Criminal Sexual Conduct statute, 9 G.C.A. § 25.15(a)(1). Lopez twice moved for acquittal under Federal Rule of Criminal Procedure 29 on the ground that the Government failed to prove the mens rea required for conviction by showing Lopez believed “Brit” was underage. The district court denied both motions after concluding the evidence was sufficient to allow a reasonable jury to find all elements of the charged offense, including that Lopez believed “Brit” was underage.
On appeal, Lopez challenges the denials of his Rule 29 motions on the ground that the Government failed to prove a different element of the Section 2422(b) offense: that the sexual activity in which he sought to entice “Brit” to engage was “sexual activity for which any person can be charged with a criminal offense.” According to Lopez, this statutory language means “the Government had to prove that Mr. Lopez attempted to entice a minor to engage in sexual activity that would have violated a criminal offense for which he actually could have been prosecuted.” Because the indictment cited a Guam law criminalizing the sexual penetration of a minor under fourteen, Lopez argues the jury “had to find that Mr. Lopez attempted to entice a minor to engage in ‘sexual penetration,’ as is required to violate the Guam statute.” In other words, Lopez asks us to interpret Section 2422(b) as requiring the Government to charge a *16 20 U NITED S TATES V . L OPEZ predicate offense and to prove Guam would have had jurisdiction to prosecute him for said predicate offense. Because the Government failed to prove Guam or another governmental entity would have had jurisdiction to prosecute violations of the Guam statute cited in the indictment that were to occur on AAFB, a federal enclave, accepting Lopez’s argument would require us to reverse the Section 2422(b) conviction and remand for acquittal. See United States v. Audette , 923 F.3d 1227, 1238 (9th Cir. 2019).
As an initial matter, we conclude Lopez forfeited this
statutory argument by failing to raise it before the district
court. While Rule 29 motions need not specify grounds for
acquittal, it is well established that Rule 29 motions raising
particular grounds fail to preserve appellate review of other
grounds not raised.
United States v. Hussain
,
Our decisions in Hussain and Graf used the term “waiver” rather than “forfeiture” to describe arguments for acquittal not properly
We conclude it was not error, let alone plain error, for the district court to enter a judgment of conviction as to the Section 2422(b) attempted enticement charge on this record. We hold as a matter of first impression that Lopez’s reading of Section 2422(b) to require charging a specific predicate offense is inconsistent with the statute’s text and how the statute has been interpreted. Instead, Section 2422(b)’s “sexual activity for which any person can be charged with a criminal offense” element requires the Government to prove *17 the defendant proposed sexual conduct that would have constituted any criminal offense in one or more relevant territorial jurisdictions. Under this reading of Section 2422(b), the Government presented sufficient evidence to allow the jury to conclude Lopez attempted to entice “Brit” to engage in sexual conduct that is criminal in Guam. 1. Meaning of “any sexual activity for which any person
can be charged with a criminal offense” in 18 U.S.C. § 2422(b)
“As always, we begin with the text of the statute.”
Friends of Animals v. U.S. Fish & Wildlife Serv.
, 879 F.3d
preserved before the district court.
See Hussain
,
Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life. By its plain language, Section 2422(b) criminalizes communications that persuade, induce, entice, or coerce a minor to engage in sexual activity regarded as criminal. For the reasons that follow, we hold Section 2422(b) requires proof that the defendant’s persuasive communications described sexual conduct that could be charged in at least one relevant territorial jurisdiction but does not require the *18 Government to indict a specific predicate offense or to prove a governmental entity would have had jurisdiction to prosecute the defendant for such predicate offense.
First, the phrase “any person” in the clause “for which
any person can be charged with a criminal offense” indicates
Congress deliberately chose to divorce criminal liability
under Section 2422(b) from the actual or attempted
commission of a predicate offense. By using the phrase “
any
person
” rather than “
the defendant
,” Section 2422(b) sets out
an objective inquiry that asks whether
a
person could be
charged in an applicable territorial jurisdiction for the sexual
conduct proposed in the defendant’s communications.
See,
e.g
.,
United States v. Saldaña-Rivera
,
Second, Congress knows how to impose a predicate offense requirement; it did not do so in Section 2422(b). Consider the differences between Section 2422(b) and the Racketeer Influenced and Corrupt Organizations Act (RICO), which imposes criminal liability on “[w]hoever . . . commits . . . or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do.” 18 U.S.C. § 1959(a). The same word imposing criminal liability under RICO, “[w]hoever,” also modifies the phrase “a crime of violence . . . in violation of the laws of any State or the United States.” Thus, the defendant must have committed or threatened to commit a particular predicate offense to be convicted under RICO. By contrast in Section 2422(b), the word “[w]hoever” modifies the act of criminal enticement while “any person” modifies the “can be charged with a criminal offense” element. The defendant must have *19 24 U NITED S TATES V . L OPEZ committed the enticement but need not necessarily be chargeable with a particular predicate offense. Lopez does not cite, nor are we aware of, any statute similar to Section 2422(b) in which Congress used this structure to impose a predicate offense requirement.
Third, Section 2422(b)’s use of the indefinite article “a”
is further evidence that the “can be charged with
a
criminal
offense” element is not tethered to the defendant or to
limitations imposed elsewhere in the statute. Whereas
definite articles like “the” restrict the noun that follows as
particularized in scope or previously specified by context,
the indefinite “a” has generalizing force.
See Nielsen v.
Preap
, 139 S. Ct. 954, 965 (2019) (citing
The
, Merriam-
Webster’s Collegiate Dictionary 1294 (11th ed. 2005));
In
Re Cardelucci
,
Finally, Section 2422(b)’s repeated use of the word
“any” (“any facility,” “any sexual activity,” “any person”)
suggests the class of communications covered by the statute
should be construed broadly. Unless limited by context, the
word “any” bears the “expansive meaning” of “one or some
indiscriminately of whatever kind.”
Ali v. Fed. Bureau of
*20
Prisons
,
Lopez fails to identify any contrary words in the text or
context of Section 2422(b) that support his reading of the
statute to require the Government to indict a specific
predicate offense and prove hypothetical jurisdiction over
the same. Instead, Lopez relies on our decisions in
United
States v. Dhingra
,
Nor does our dissenting colleague, who repeatedly asserts Section 2422(b) requires the Government to charge a predicate offense, without offering a single word in the text of the statute on which to anchor his assertion. See, e.g. , Dissenting Op. 48–49, 52 n.6, 55, 59–60.
In
Dhingra
, a defendant convicted pursuant to Section
2422(b) for engaging in explicit online conversations with a
fourteen-year-old girl argued the statute violated the First
and Tenth Amendments by incorporating all state and local
laws, thereby subjecting defendants to far-flung local
standards of conduct and usurping the states’ police power
over sex crimes. 371 F.3d at 564. We avoided these
challenges by holding Section 2422(b) applies only “to
situations in which an individual could actually be
prosecuted” for the proposed sexual conduct consistent with
“the jurisdiction and venue restrictions of state and federal
law.”
Id.
at 565. By specifying “an individual,”
Dhingra
kept faith with the statute’s use of “any person” to indicate
*21
the defendant himself need not be prosecutable for the
proposed sexual acts.
See id.
at 564 (“[A] [Section] 2422(b)
violation is its own offense subject to prosecution
independent of other underlying offenses.”). We further
explained in
Dhingra
that Section 2422(b)’s “can be charged
with a criminal offense” requirement is similar to the
community standards element of judicial review of an
obscenity statute in that both require the jury to evaluate the
defendant’s conduct against local rather than national
standards.
See id.
at 565 (“As would be the case in the
speech context, . . . ‘a juror applying community standards
will inevitably draw upon personal knowledge of the
community or vicinage from which he comes.’” (quoting
Ashcroft v. ACLU
,
*22
In
Tello
, another Section 2422(b) case, an Arizona
resident entered California with the intent to pick up a
purported minor with whom he had been communicating
online and to return to Arizona to have sex with her.
offense or to prove the relevant court would have had jurisdiction over the defendant for said predicate offense. Rather, we affirmed the Section 2422(b) conviction based on our reading of California law and said nothing about the propriety of the indictment’s citations to certain state laws over others.
In sum, Lopez identifies no prior decision in which our court has inferred from the text of Section 2422(b) that the Government must set out a particular predicate offense in the indictment. We have consistently resolved sufficiency of the evidence challenges to Section 2422(b) convictions by assessing whether the conduct proposed by the defendant would have been illegal in the relevant state or territory and have not required the Government to prove the relevant court would have had jurisdiction over a particular predicate offense charged in the indictment alongside the Section 2422(b) offense. See id. ; United States v. Goetzke , 494 F.3d 1231, 1235 (9th Cir. 2007) (per curiam); United States v. Meek , 366 F.3d 705, 717–20 (9th Cir. 2004). Similarly, every one of our decisions to consider a constitutional challenge to Section 2422(b) has given full effect to the plain meaning of the statute without adopting a specific predicate Our dissenting colleague insists that we misread Tello because the court in that case “understood that it was limited to the California predicate offenses charged in the indictment .” Dissenting Op. 57 (emphasis in original). But the Tello court said no such thing. Rather, the Tello court resolved the appeal on the narrow ground that the appellant was incorrect about the jurisdictional scope of California law. Because we agree with the dissent that Guam’s jurisdictional statute would not extend to completed sexual conduct occurring solely within AAFB (a federal enclave), this narrower ground is unavailable here. That is why we address, as a matter of first impression, whether Section 2422(b) requires the Government to charge a predicate offense and prove here that Guam would have had jurisdiction over said predicate offense.
U NITED S TATES V . L OPEZ 29
offense requirement or imposing other atextual narrowing
constructions.
See Shill
, 740 F.3d at 1351–55 (rejecting
vagueness challenge to the requirement that the defendant’s
communications relate to “a criminal offense”);
Dhingra
,
371 F.3d at 564 (rejecting First and Tenth Amendment
challenges to the use of state and local law to define criminal
sexual activity). We now join several other circuits in
holding Section 2422(b) does not require the Government to
allege a specific predicate offense or to prove that the
relevant court would have had jurisdiction over the
defendant for the commission of such offense, so long as the
Government proved the defendant’s proposed sexual
conduct would have constituted “
a
criminal offense” under
the laws of an applicable territorial jurisdiction.
See, e.g.
,
United States v. Jockisch
,
The Sixth and Eleventh Circuits have concluded Section 2422(b)
does not require proof that the defendant could have been prosecuted
under a particular law so long as the jury may reasonably conclude the
defendant’s communications proposed a criminal sexual act.
See
Jockisch
, 857 F.3d at 1131–32;
Hart
, 635 F.3d at 855–56. The First,
Second, and Eighth Circuits have declined to read a predicate offense
requirement into Section 2422(b) without definitively rejecting the
possibility.
See United States v. Berk
,
2. Plain Error Review
Next, we determine whether the district court plainly erred by entering a judgment of conviction on the Section *24 2422(b) count. Conviction for attempted enticement under Section 2422(b) requires proof that the defendant “knowingly (1) attempted to (2) persuade, induce, entice, or coerce (3) a person under 18 years of age (4) to engage in sexual activity that would constitute a criminal offense.” Goetzke , 494 F.3d at 1234–35. Lopez contests only the “sexual activity that would constitute a criminal offense” element of the Section 2422(b) charge, which requires proof that the defendant’s communications sought to induce a minor to engage in conduct that would be criminal in at least one relevant territorial jurisdiction.
To determine whether the sexual conduct proposed would have been criminal, we look to the criminal and jurisdictional laws of the territorial jurisdictions in question. See Tello , 600 F.3d at 1165. This case involves conduct within the Territory of Guam, in which Lopez resided, as well as conduct that occurred or was intended to occur within AAFB. Guam authorizes criminal jurisdiction over individuals whose conduct within the Territory constitutes at least one element of an offense under territorial law. Federal prosecutors exercise exclusive criminal jurisdiction Guam’s territoriality statute provides for criminal jurisdiction over “conduct which is an element of the offense or the result which is such an element occurs within this Territory.” 9 G.C.A. § 1.16(a)(1); see also Model Penal Code § 1.03. Judicial construction of the Guam statute is limited, but jurisdictions with identical statutory language similarly require at least one element of the crime be committed in-state to authorize a criminal prosecution. See, e.g. , State v. Sumulikoski , 110 A.3d 856, 862 (N.J. 2015); State v. Wagner , 596 N.W.2d 83, 87 (Iowa 1999).
over AAFB because the base is a federal enclave within the special maritime and territorial jurisdiction of the United States. See 18 U.S.C. § 7; United States v. Smith , 925 F.3d 410, 415–16 (9th Cir. 2019).
The district court did not err, let alone plainly err, by
entering a judgment of conviction for the Section 2422(b)
offense. The Government adduced sufficient evidence at
trial to prove Lopez proposed to engage in unlawful sexual
activity with a person he believed to be a minor. Under
Guam law, an attempt to engage in sexual penetration of a
minor under fourteen is a felony in the first degree
punishable to the same extent as the completed offense.
See
9 G.C.A §§ 25.15(a)(1) (First Degree Criminal Sexual
Conduct), 13.60(a) (Attempt). An attempt conviction
requires proof of the defendant’s “intent to engage in
conduct which would constitute such crime” and “a
*25
substantial step toward commission of the crime.”
Id.
§ 13.10;
see People v. Flores
,
That is exactly what happened here when Lopez intentionally communicated with “Brit” from within the Territory of Guam in furtherance of his goal of sexual penetration. The Government introduced records of email communications in which Lopez discussed sex with “Brit” and sought to persuade “her” to have sex when they met in person. Lopez acknowledged at trial that he used online classifieds forums on prior occasions to invite others to visit him “off base, because that’s where I live.” A reasonable jury could conclude some of the communications with “Brit” were sent from off-base locations, including from Lopez’s home, where he spent substantial time and likely formed the intent sexually to penetrate a minor. It is well established that communications intended to groom a victim to engage in sexual activity in the future constitute substantial steps toward the completion of a crime. See, e.g. , Tello , 600 F.3d at 1165–66 (finding substantial step where defendant sought to persuade minor victim to engage in sexual acts and to agree to travel with him from California to Arizona); Goetzke , 494 F.3d at 1236 (finding substantial step where defendant sent letters to the victim proposing sexual activities at an unspecified future date).
This is not the first Section 2422(b) case in which we
have recognized that substantial steps toward the completion
of a crime in another jurisdiction gave rise to criminal
liability in the forum where the substantial steps occurred.
In
Tello
, we rejected the argument that California could not
have prosecuted the defendant for sexual acts which were to
take place in Arizona because we concluded that California
law authorized prosecution of
intentional conduct
undertaken in the state in partial execution of a crime to be
completed within or without the State. By driving into
California for a criminal purpose, the defendant took a
substantial step toward committing an act that would have
violated California law even though the completed crime
was planned to take place in Arizona.
See
Lopez argues the Government failed to prove the Section 2422(b) offense because the indictment specified that he engaged “in sexual activity for which a person can be charged with a criminal offense, to wit: First Degree Criminal Sexual Conduct, in violation of 9 [G.C.A.] § 25.15(a)(1) , all in violation of Title 18, United States Code, Sections 2422(b) and 2.” The indictment did not specify Guam’s attempt statute, and so the only potential predicate offense in the indictment was 9 G.C.A. § 25.15(a)(1), which criminalizes the completed sexual penetration of a minor under fourteen. It is undisputed that Guam would have lacked jurisdiction to prosecute an offense taking place exclusively within AAFB territory, and the evidence adduced at trial indicated Lopez proposed to meet “Brit” only at locations within AAFB. Thus, the argument goes, the Government proved Lopez could have been charged with completed sexual penetration of a minor under Guam law only if the United States could have prosecuted that offense on AAFB territory under the Assimilated Crimes Act, 18 U.S.C. § 13.
The Assimilated Crimes Act authorizes federal authorities to prosecute violations of state law taking place within federal enclaves. Assimilation of state law offenses into federal law is appropriate only *27 34 U NITED S TATES V . L OPEZ
Because Section 2422(b) does not contain a predicate
offense requirement, however, the indictment’s citation to
Guam’s First Degree Criminal Sexual Conduct statute was
mere surplusage. Gratuitous language in an indictment
cannot bind the Government to proving elements not
required for conviction pursuant to the applicable criminal
statute. In
United States v. Garcia-Paz
,
To be sure, the Government complicated this case by citing an inapt example of applicable law. Lopez perpetuated this difficulty by failing to object to the indictment, failing to seek a bill of particulars, and seeming to agree that the conduct alleged would have been *28 chargeable in Guam until filing this appeal. But the question presented by Lopez’s sufficiency of the evidence challenge is whether the Government adduced sufficient evidence at trial for the jury to conclude Lopez committed each element of the Section 2422(b) offense. See Hussain , 972 F.3d at 1146; Graf , 610 F.3d at 1166. Because Section 2422(b) requires that the jury conclude a person in Lopez’s position could have been charged with a criminal offense in a relevant territorial jurisdiction for engaging in the conduct Lopez [11] Our dissenting colleague argues Garcia-Paz is “a far cry from this case” because the “any sexual activity for which any person can be charged with a criminal offense” element of the Section 2422(b) charge “requires statutes to give it meaning.” Dissenting Op. 66. But here again, our colleague assumes without any basis in ordinary principles of statutory interpretation that Section 2422(b) defines this element of the offense by reference to a particular predicate offense that must be charged in the federal indictment. Garcia-Paz dealt with the same legal question presented here: Whether the insertion of an illustrative “to wit” clause in an indictment obligates the Government to prove the particular conduct alleged in the illustrative clause. It does not. Our dissenting colleague further argues Garcia-Paz differs from
this case because “here the jury was specifically instructed that the government must prove beyond a reasonable doubt a predicate crime that Lopez did not commit.” Dissenting Op. 66 n.21. This argument is curious given that Lopez asks us to reverse his Section 2422(b) conviction on the ground that the court failed to instruct the jury as to the elements of the Guam First Degree Criminal Sexual Conduct statute cited in the indictment. See infra , Part II.C.
proposed, the Government carried its burden of proof. The district court did not err, let alone plainly err, by entering a judgment of conviction on this record.
Our dissenting colleague believes this case does not
involve a question of statutory interpretation at all and turns
instead on the question whether “a court [can] amend the
indictment returned by the grand jury to excise the charged
predicate offense and substitute a different predicate
offense.” Dissenting Op. 60. But this view of the case
simply
assumes
and asserts that Section 2422(b) requires the
Government to charge a particular predicate offense without
engaging in the statutory interpretation required to justify
such a conclusion. Looking to the statute at issue here is not
a needlessly “abstract inquiry.” Dissenting Op. 58 n.14.
Rather, it is the first step in evaluating Lopez’s argument that
the jury lacked sufficient evidence to convict him under
Section 2422(b). Only by construing the requirements of the
statute of conviction can our court determine whether the
Government offered sufficient proof at trial to support the
jury’s verdict. That is what it means to “begin with the text
of the statute.”
Friends of Animals
, 879 F.3d at 1003
*29
(quoting
Limtiaco
,
As explained above, Congress did not structure Section 2422(b) like other statutes in which the federal criminal offense is explicitly defined by proof of a predicate offense. Rather, Section 2422(b) extends criminal liability to those persons who violate local standards of conduct by enticing Because Guam could have prosecuted a person in Lopez’s position for attempted sexual penetration of a minor, we need not decide whether the Guam offense cited in the indictment could have been assimilated into and prosecuted under federal law pursuant to the Assimilated Crimes Act.
or attempting to entice a minor to engage in “any sexual
activity for which any person can be charged with a criminal
offense.”
See Dhingra
,
By incorrectly assuming that Section 2422(b) requires
the Government to charge a predicate offense, our dissenting
colleague confuses the distinction between the constructive
amendment of an indictment, which typically requires
reversal, and a variance in proof, which requires reversal
only upon a showing of prejudice.
See United States v.
Ward
,
38 U NITED S TATES V . L OPEZ
Here, there is no question that the Government proved at
trial the same criminal behavior alleged in the indictment by
adducing evidence that Lopez used online profiles to engage
in lewd and predatory conversations in an attempt to engage
in sexual relations with a person he believed to be an
underage girl. Nor is there any question that the Section
2422(b) attempted enticement offense indicted by the grand
jury was ultimately proved at trial. Whether the behavior in
which Lopez engaged could have been charged under one
Guam offense or another is irrelevant to the culpability of his
conduct under federal law. Section 2422(b) was enacted to
punish those who engage in predatory communications with
minors, and the grand jury was fully appraised of the
relevant allegations when it made its decision to indict Lopez
for violating this prohibition.
See id.
at 587 (holding “the
divergence between the indictment and proof did not affect
the sufficiency of the complaint or alter the crime charged”
because the culpable conduct proved at trial was the same as
the conduct alleged in the indictment). Indeed, we have
never found a constructive amendment where “the
indictment simply contains superfluously specific language
describing alleged conduct irrelevant to the defendant’s
culpability under the applicable statute.”
Ward
, 747 F.3d
at 1191;
see also Garcia-Paz
,
Similarly, in United States v. D’Amelio , 683 F.3d 412 (2d Cir. 2012), the defendant appealed his Section 2422(b) *31 conviction on the ground that the indictment alleged he attempted to entice a minor “us[ing] a facility and means of interstate commerce . . . to wit , . . . a computer and the Internet ,” whereas the evidence at trial included analogue telephone conversations. Id. at 414–15. The Second Circuit affirmed the conviction after concluding the divergence between the indictment and the proof at trial did not alter the “core of criminality” set out in the indictment or modify an “essential element” of the crime. Id. at 417. Without such an impact, the divergence did not constructively modify the indictment in violation of the defendant’s Fifth Amendment rights. Id. at 422–24. The circumstances in D’Amelio are on all fours with this case, and the Second Circuit’s analysis is consistent with our circuit’s approach. Whether a “to wit” clause in an indictment offers surplus content to the interstate jurisdictional element or the “for which any person can be charged with a criminal offense” element of the Section 2422(b) offense, an indictment is not constructively amended by proof at trial of a different means unless the divergence otherwise prejudices the defendant’s substantial rights.
Contrary to the view of our dissenting colleague, this
case has little in common with
Howard v. Daggett
, 526 F.2d
1388 (9th Cir. 1975) (per curiam).
See
Dissenting Op. 67.
The defendant in
Howard
was charged with inducing two
specific women to engage in interstate prostitution.
Id.
at 1389. At trial however, the evidence and the jury
instructions also referred to the defendant’s conduct toward
other alleged prostitutes not named in the indictment.
Id.
We found this change constituted an impermissible
amendment of the indictment because the criminal conduct
charged under the statute was different from the conduct for
which the defendant was convicted.
Id.
at 1390.
Howard
was a case in which the evidence at trial involved “a complex
set of facts distinctly different from those set forth in the
charging instrument.”
Von Stoll
,
This case involves, at most, a variance in which “the
charging terms of the indictment are left unaltered, but the
evidence offered at trial proves facts materially different
from those alleged in the indictment.”
Ward
, 747 F.3d
at 1189 (quoting
Von Stoll
,
C. Jury Instructions
Lopez also raises a due process challenge to the jury instructions given for the Section 2422(b) charge. Prior to deliberations, the district court read the indictment to the jury and instructed the jury on all elements of the Section 2422(b) offense using a script expressly approved by both parties. As to the “sexual activity for which any person can be charged with a criminal offense” element, the court instructed the jury that to reach a guilty verdict, it must conclude:
[I]f the sexual activity had occurred, the defendant would have been charged with a criminal offense under the laws of Guam. . . . It is not necessary for the [G]overnment to prove that the individual was actually persuaded, induced and enticed to engage in sexual activity charge[d] in the indictment. . . . But it is necessary for the [G]overnment *33 to prove that the defendant intended to engage in some form of unlawful sexual activity with the individual and knowingly and willfully took some action that was a substantial step toward bringing about or engaging in sexual activity charged in the indictment.
On appeal, Lopez for the first time relies on his reading
of Section 2422(b) as requiring a specific predicate offense
to argue that the district court violated his due process rights
by failing to instruct the jury on the elements of the Guam
criminal sexual penetration statute cited in the indictment.
We review forfeited objections to jury instructions for plain
error, meaning the defendant must identify an error that was
plain, affected his substantial rights, and seriously
undermined
the
integrity or reputation of
judicial
proceedings.
United States v. Peterson
,
“It is a violation of due process for a jury instruction to
omit an element of the crime.”
Evanchyk v. Stewart
,
U NITED S TATES V . L OPEZ 43 Because Section 2422(b) requires the Government to prove only that “any person” engaging in the sexual conduct proposed by the defendant could be charged under federal, state, or territorial law, the district court was not required to instruct the jury on the elements of a particular predicate offense as if they were elements of the Section 2422(b) offense. See Garcia-Paz , 282 F.3d at 1215–16 (rejecting jury instruction challenge where surplusage in the indictment did not constitute an essential element of the charged offense). We once again reject Lopez’s core argument that Section 2422(b) requires the indictment and proof of a specific predicate offense.
The district court nevertheless erred in failing to define
the “laws of Guam” against which Lopez’s proposed sexual
conduct was to be evaluated. Generally, trial courts need not
define terms to the jury that are obvious, in common use, or
“have plain and ordinary meanings within the statute.”
Dhingra
, 371 F.3d at 567;
see also United States v.
Chambers
,
sexual penetration of a minor under fourteen. See 9 G.C.A. §§ 13.10, 13.60(a), 25.15(a)(1). Without a working definition of applicable Guam law, the jury may have lacked the requisite knowledge to evaluate whether the sexual *35 conduct Lopez proposed to “Brit” was criminal in Guam.
To be clear, the burden was on the district court, not the
Government, to instruct the jury on the requirements of
applicable federal, state, and territorial laws. Federal courts
may take judicial notice of matters of public record,
including statutes.
See
Fed. R. Evid. 201(b);
Lee v. City of
Los Angeles
,
We need not decide whether the error was plain or
seriously undermined the integrity or reputation of judicial
proceedings because there is no question that Lopez cannot
meet his burden of demonstrating prejudice to his substantial
rights. Because jury instruction error is nonstructural, a
misstatement or omission in jury instructions affects a
defendant’s substantial rights only when prejudice results.
See United States v. Alghazouli
,
Lopez fails to identify a reasonable probability that the jury would have come to a different decision had the district court instructed that 9 G.C.A. §§ 13.10, 13.60(a), and 25.15(a)(1) criminalize attempts to engage in sexual penetration of a minor under fourteen years of age. The jury necessarily concluded that Lopez believed “Brit” was underage when it decided to convict on the Section 2422(b) and Section 1470 charges because the offenses require proof that the defendant knew or mistakenly believed the victim was under eighteen or sixteen years of age, respectively. Every piece of evidence capable of supporting the jury’s verdict in this regard indicated “Brit” was thirteen, including her statements in the chat transcripts, Lopez’s reactions to those statements, and photographs sent from “Brit” to Lopez. *36 The jury clearly credited the Government’s documentary evidence over Lopez’s trial testimony that he never believed “Brit” was underage, and this credibility decision would not likely have changed based on the missing instruction. Nor did Lopez contest the fact that he proposed to engage in sexual penetration with “Brit” as opposed to other forms of sexual conduct that would not have violated this particular territorial law. After all, Lopez admitted to sending the emails that the Government presented at trial and instead relied on a mens rea defense that the jury disregarded.
We can envision a different Section 2422(b) case in which the definition of applicable federal or state offenses would influence the jury’s evaluation of whether the defendant proposed sexual conduct that would have been criminal in at least one relevant jurisdiction. The jury’s verdict may well come down to distinctions in state law where the victim’s age places the victim within the protections of the criminal laws of certain jurisdictions but not others. This, however, is not such a case.
D. Attempted Transfer of Obscenity to a Minor
Finally, Lopez raises a sufficiency of the evidence
challenge to his conviction under 18 U.S.C. § 1470 for
attempted transfer of obscenity to a minor under sixteen. In
his Rule 29 motions, Lopez argued unsuccessfully that the
Government failed to prove he had knowledge of “Brit’s”
age as to the Section 1470 charge by showing he believed
“Brit” was under sixteen. On appeal, Lopez argues the
Government was obligated to prove Lopez transmitted
obscene materials to an actual minor because the indictment,
jury instructions, and jury verdict form all indicate that he
was charged and convicted for
completed
transfer of
obscenity rather than attempt. We review this challenge for
plain error because Lopez failed to raise it below.
See Hussain
,
Lopez is simply incorrect that the indictment charged
completed transfer of obscenity rather than an attempt. His
argument rests solely on the caption preceding the relevant
count in the indictment, which read “Transfer of Obscenity
to a Minor.” However, the operative text of the indictment
charged Lopez with “attempt[ing] to transfer obscene matter
. . . by sending a girl he believed was thirteen years old two
*37
images and a video which depicted an adult male exposing
his erect penis.” This language defeats Lopez’s argument
because “it is well established that the caption is completely
surplusage and does not control the body of the indictment.”
United States v. Pazsint
,
Further, although our overall review is for plain error, we agree with the Government that Lopez waived objection to the jury instructions and jury verdict form as to the Section 1470 charge. When the record demonstrates the defendant knowingly relinquished an objection, including an objection to particular jury instructions, the issue is unreviewable on appeal. See Depue , 912 F.3d at 1233; United States v. Kaplan , 836 F.3d 1199, 1217 (9th Cir. 2016). Lopez reviewed the jury instructions at the request of the district court and approved a script that included a substantial step instruction for the Section 2422(b) count but not the Section 1470 count. In doing so, Lopez was fully aware that the indictment charged an attempt to violate Section 1470 and knew that the attempt charge under Section 2422(b) warranted a substantial step instruction. This knowledge is sufficient to establish waiver and foreclose consideration of the argument on appeal.
Lopez also waived objection to the jury verdict form by approving a draft that described the Section 1470 charge as “Transfer of Obscenity” without reference to attempt. Jury verdict forms are generally considered a type of jury instruction, and the same waiver standard applies. See United States v. Stinson , 647 F.3d 1196, 1218 (9th Cir. 2011). Challenges to the content of trial documents expressly approved by a defendant with full knowledge of his rights are waived and cannot support the reversal of a conviction on appeal.
48 U NITED S TATES V . L OPEZ
III. CONCLUSION
Lopez failed to demonstrate the district court committed prejudicial error or plain error warranting relief. We therefore AFFIRM the judgment of conviction. BENNETT, Circuit Judge, dissenting in part:
I respectfully dissent from the Majority’s affirmance of Wilfredo Lopez’s conviction on count one—attempted enticement of a minor in violation of 18 U.S.C. § 2422(b). [1] The grand jury charged Lopez with attempting to “entice[] a person who the defendant believed to be under eighteen years of age[] to engage in sexual activity for which a person can be charged with a criminal offense, to wit: First Degree Criminal Sexual Conduct, in violation of 9 [Guam Code Annotated (“GCA”)] § 25.15(a)(1).” [2] As I explain below, Lopez could not have been charged with or committed First Degree Criminal Sexual Conduct in violation of 9 GCA § 25.15(a)(1) as the predicate offense for his § 2422(b) violation, because the sexual activity he proposed was to take place on Anderson Air Force Base (AAFB), a place within the Special Maritime and Territorial Jurisdiction of the United States, and that crime is not assimilated under the [1] I concur in the remainder of the majority opinion. 9 GCA § 25.15(a)(1) provides: “A person is guilty of criminal
sexual conduct in the first degree if he or she engages in sexual penetration with the victim and if any of the following circumstances exists: (1) the victim is under fourteen (14) years of age . . . .” Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. Thus, Lopez could not have committed and did not commit the crime with which he was charged in the indictment. Per force, the government presented insufficient evidence of his guilt. The Majority convicts the defendant for a different, uncharged crime—attempting to “entice[] a person who the defendant believed to be under eighteen years of age[] to engage in sexual activity for which a person can be charged *39 with a criminal offense, to wit: attempted First Degree Criminal Sexual Conduct, in violation of 9 GCA §§ 13.10, 13.60(a), & 25.15(a)(1) . ” [4] See Majority at 31. Though I *40 letter also stated: “The Government did not charge the attempted object offense, which is codified separately ([9 GCA] § 13.10) and involves distinct elements (specific intent).” Id. at 2. The government filed no response. I don’t understand why the Majority discusses this particular
uncharged predicate offense. As Lopez himself acknowledged at oral argument, the government could have charged him with enticement in violation of § 2422(b), with the predicate offense of sexual abuse of a minor within the Special Maritime and Territorial Jurisdiction of the United States, in violation of 18 U.S.C. § 2243(a). Oral Arg. at 2:22– 2:33, https://cdn.ca9.uscourts.gov/datastore/media/2020/10/20/19- 10017.mp3. Lopez was clearly trying to induce someone who he believed was under sixteen to engage in on-base sexual acts. But while that uncharged predicate offense would not have suffered from a possible attempting to entice to attempt flaw, a conviction based on it would still suffer from the flaws I identify here.
(9th Cir. 2007) (per curiam). We “read § 2422(b) to
incorporate only the laws ‘for which a person could be
charged with a criminal offense,’
i.e.
, the law of the venue
that would have jurisdiction over the defendant.”
United
States v. Dhingra
,
The indictment charged Lopez as follows: Between on or about October 30, 2017, and on or about November 22, 2017 in the District of Guam, the defendant WILFREDO LEE LOPEZ, used the mail or any facility or means of interstate or foreign commerce, that is, a cellphone and the Internet, to knowingly attempt to persuade, induce, and entice[] a person who the defendant believed to be under eighteen years of age, to engage in sexual activity for which a person can be charged with a criminal offense, to wit: First Degree Criminal Sexual Conduct, in violation of 9 GCA § 25.15(a)(1) , all in violation of Title 18, United States Code, Sections 2422(b) and 2.
(emphasis added).
First Degree Criminal Sexual Conduct, in violation of
9 GCA § 25.15(a)(1), is the charged predicate offense for
Lopez’s attempted enticement of a minor. Because the
indictment lists
only
this offense, this offense is the only
offense we can consider in determining whether the
government presented sufficient evidence of the defendant’s
*41
52
U NITED S TATES V . L OPEZ guilt.
[6]
See United States v. Ward
,
This rule is an old one. As Lord Mansfield noted in 1770: “[T]here is a great difference between amending indictments and amending informations. Indictments are found upon the oaths of a jury, and ought only to be amended by themselves; but informations are as declarations in the The Majority misreads my dissent, stating that it “ assumes and asserts that Section 2422(b) requires the Government to charge a particular predicate offense without engaging in the statutory interpretation required to justify such a conclusion.” Majority at 36 (emphasis in original). But I neither assume nor assert that Section 2422(b) requires the government to charge a particular predicate. See infra n.17. I simply take the indictment the grand jury returned as it comes to us—an indictment that does list a specific predicate offense. And so I need not address whether the Majority’s attempt to distinguish Section 2422(b) from the RICO statute to support its conclusion, see Majority at 22–25, is sound statutory construction, or instead interpretive legerdemain. We said in Ward :
“If an indictment could be so lightly departed from,
then the great importance which the common law
attaches to an indictment by a grand jury, as a
prerequisite to a prisoner’s trial for a crime, and
without which the Constitution says ‘no person shall
be held to answer,’ [might] be frittered away until its
value is almost destroyed . . . .”
747 F.3d at 1189 (alterations in original) (quoting
United States v.
Leichtnam
,
that:
The general rule is that indictments cannot be
amended in substance. “An amendment to an
indictment occurs when the charging terms of an
indictment are altered.”
United States v. Cancelliere
,
69 F.3d 1116, 1121 (11th Cir. 1995). This follows
from the fundamental distinction between the
information and the indictment . . . which must be
returned by a grand jury. If the indictment could be
changed by the court or by the prosecutor, then it
would no longer be the indictment returned by the
grand jury. Indeed, in
Russell v. United States
,
A.
In amending the indictment, the Majority invades the
province of the grand jury and takes upon itself a role that
the Constitution specifically and exclusively carves out for
the grand jury.
Ward
,
government:
The defendant, WILFREDO LEE LOPEZ, is charged in Count 1 of the indictment with attempted enticement of a minor in violation of Section 2422(b) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
The Majority misreads our decision in
Dhingra
, to
conclude that the government need not prove that the
charged predicate offense(s) “could actually be prosecuted”
against the defendant, but instead can present evidence on
any predicate crime it wishes, regardless of what the grand
jury charged.
See
Majority at 26–27. The Majority tries to
frame the issue as “whether
Dhingra
requires the
Government to charge and prove a specific predicate offense
as an essential element of [the] Section 2422(b) enticement
charge.” Majority at 27 n.5. But
Dhingra
never discusses
the
actual
issue presented here—whether the government is
limited to proving the predicate offense charged by the grand
jury.
See Dhingra
,
The Majority also misreads our decision in
United States
v. Tello
,
computer, or any means of interstate or foreign commerce, that is, a cellphone and the Internet, to attempt to persuade, induce, and entice, an individual under the age of eighteen (18) years of age to engage in sexual activity for which a person can be charged with a criminal offense, to wit: First Degree Criminal Sexual Conduct, in violation of 9 Guam Code Annotated Section 25.15(a)(1) . . . .
[12] The Majority extracts the phrase “a § 2422(b) violation is its own offense subject to prosecution independent of other underlying offenses” to support its argument. See Majority at 26 (quoting Dhingra , 371 F.3d at 564) (cleaned up). However, the sentence in full reads: “Similarly, because a § 2422(b) violation is its own offense subject to prosecution independent of other underlying offenses, the state’s power to prosecute criminal sexual conduct under state law is in no way abrogated.” Dhingra , 371 F.3d at 564. This has nothing to do with whether the government could prove a § 2422(b) violation based on the facts of a hypothetical offense never charged in the indictment (much less a hypothetical offense on which the petit jury was never instructed). conclusion. The Majority concludes that Tello “did not require the Government to procure indictment of a specific predicate offense or to prove the relevant court would have had jurisdiction over the defendant for said predicate offense.” Majority at 27–28. But that conclusion is unrelated to what the Tello court considered. The indictment alleged very specific predicate California offenses. 600 F.3d at 1165. Tello lived in Arizona and arranged over the internet to meet in California with someone he thought was a thirteen-year-old California resident. Id. at 1162–63. He told “her” that he would drive to California to pick her up and return with her to Arizona “where she could live with him and have sex.” Id. He drove from Arizona to the prearranged meeting place in Los Angeles and was then arrested. Id. at 1163. Though sex between adults and children was illegal in Arizona, see Ariz. Rev. Stat. § 13- 1405, the government did not charge the obvious Arizona crime as the predicate offense. So, the similarities between this case and Tello are clear. And Tello made the exact same argument Lopez makes:
Tello argues that the evidence showed only
that he intended to pick up a thirteen-year-old
girl in California and return to Arizona,
where he would engage in sexual activity
with her. Because the government did not
plead that Tello could be charged with a
criminal act under Arizona law, where the
“The criminal indictment alleged that Tello ‘could be charged
with a criminal offense under California law, namely: Lewd Act Upon a
Child Under the Age of 14 Years, a violation of California Penal Code
Section 288; Oral Copulation, a violation of California Penal Code
Section 288a; and Unlawful Sexual Intercourse with a Person Under the
Age of 18 Years, a violation of California Penal Code Section 261.5.’”
Tello
,
U NITED S TATES V . L OPEZ 57
intended sexual activity was to occur, Tello contends that there was insufficient evidence to support his conviction as pleaded. He concludes that his drive to Los Angeles to pick up what he thought was a thirteen[- ]year[-]old to take to Arizona for sex does not show a crime under California law.
600 F.3d at 1165. The court did not, however, treat the California predicate offenses listed in the indictment as irrelevant; nor did it find that the evidence obviously supported that Tello was enticing the person he thought was a thirteen-year-old girl to have sex in Arizona in violation of Arizona law, see id. at 1165–67, even though, as the Majority points out, the government made this argument in the alternative, see Majority at 27.
The
Tello
court, which did not look to the low-hanging
fruit (the Arizona offense) that the government could have
charged as the predicate offense, understood that it was
limited to the California
predicate offenses charged in the
indictment
.
Tello
,
the California jurisdictional statute is supposedly similar to 9 GCA § 1.16(a)(1). But they are not similar. California’s jurisdictional statute allows prosecution where a defendant performs an act in furtherance of his criminal intent within California, whereas Guam’s statute allows prosecution only if “the conduct which is an element of the offense or the result which is such an element” occurs off base. The government cites to nothing in the record to demonstrate that any element of the substantive predicate offense—penetration involving a child under fourteen—was contemplated to occur off-base. Instead, it argues that “Lopez engaged in substantial steps toward the commission of the
The Majority’s reliance on United States v. Shill , 740 F.3d 1347 (9th Cir. 2014), is similarly unavailing. There, we considered only whether § 2422(b) “should be construed narrowly to preclude prosecution where the predicate ‘criminal offense’ is a misdemeanor under state law.” Id. at 1349. We relied on § 2422(b)’s use of the term “any” in the clause “any sexual activity for which any person can be charged with a criminal offense” to hold that there was no textual basis to “exclude misdemeanor conduct from the statute’s ambit.” Id. at 1354. We said nothing, for example, about whether having charged a particular predicate misdemeanor, the government could prove an entirely different predicate misdemeanor. And the Majority cites no case where any court has even addressed the question of whether the government can charge a particular predicate crime but prove an uncharged predicate crime (and *47 I have found no such case). Instead, the Majority attempts to use inapposite cases to reach the conclusion that “Section 2422(b) does not require the Government to allege a specific predicate offense or to prove that the relevant court would § 2422 offense from off-base.” Lopez indeed took substantial steps off- base, but that is irrelevant under 9 GCA § 1.16(a)(1). As Lopez correctly argues in his Reply Brief:
Here, the emails Lopez sent to “Brit” constituted an element of the attempted enticement charge, but not of the object offense of Guam’s First Degree Criminal Sexual Conduct. That statute criminalizes “sexual penetration” where “the victim is under fourteen (14) years of age.” 9 GCA § 25.15(a)(1). There is no evidence Lopez attempted to entice “Brit” to commit any element of this offense within Guam’s territory; instead, as the Government agrees, to the exten[t] Lopez attempted to entice “Brit” to engage in sexual activity, that sexual activity would have occurred on the federal base, out of the reach of Guam’s laws. have had jurisdiction over the defendant for the commission of such offense.” Majority at 29.
Because the Majority asks the wrong question, its answer to that question is irrelevant. The right question is: Can a court amend the indictment returned by the grand jury to excise the charged predicate offense and substitute a different predicate offense. And the correct answer to that question is “no.”
The Majority tries to avoid this by wrongly holding that
this case “involves, at most, a variance in which the charging
terms of the indictment are left unaltered, but the evidence
offered at trial proves facts materially different from those
alleged in the indictment.” Majority at 40 (quotation marks
omitted) (quoting
Ward
,
This case does not involve an insignificant or harmless
“variance.”
United States v. Bolzer
,
engaged could have been charged under one Guam offense or another is irrelevant to the culpability of his conduct.” Majority at 38. I agree. However, in our criminal justice system, even the most “culpable” defendants are not convicted based on what the government could have charged; they are convicted based only on what the government did charge.
62 U NITED S TATES V . L OPEZ who were charged with armed mail robbery and conspiracy, argued that the conspiracy count should have been dismissed because of a fatal variance. Id. at 949. The evidence demonstrated that the defendants had been surveilling a different postal facility than the one described in the indictment. Id. at 950. Because the surveillance was “only one of four overt acts alleged to have been committed by the defendants in furtherance of the conspiracy,” and because the government presented sufficient evidence of the other overt acts, we held that the variance was harmless. Id. at 950–51. Unlike here, the charging terms in the Bolzer indictment remained unaltered.
The variance cases the Majority cites are inapposite. In
United States v. Antonakeas
,
United States v. D’Amelio
,
The government’s proof at trial did not modify an “essential element” of the alleged crime. The essential element at issue is D’Amelio’s use of a “facility or means of interstate . . . commerce,” 18 U.S.C. § 2422(b), not the particular means that were used. Neither the indictment nor proof at trial showed that D’Amelio committed this crime by means of, for example, use of force, which would have modified an “essential element” of the crime. Whether D’Amelio used the Internet or a telephone makes no difference under the relevant statute . . . .
Id. at 422 (first alteration in original) (footnote omitted).
The example provided by the Second Circuit of what would be improper—changing “use of a ‘facility or means of interstate . . . commerce’” to “use of force”—is precisely what the Majority has done here.
I agree with the Majority that § 2422(b) allows for a wide range of offenses to serve as predicate offenses. See Majority at 24–25. This, however, allows the government a wide range of choices to present to the grand jury . And perhaps it allows the government to take the substantial risk of not specifying a predicate offense. But after the grand jury has returned an indictment listing a predicate offense or offenses; absent a superseding indictment, the government is bound by the indictment the grand jury returned.
The Majority labels the predicate offense returned by the
grand jury “[g]ratuitous language,” and insists that it is
“mere surplusage,” Majority at 34, despite the fact that the
government has never made this argument—not before the
district court, not in its briefs, and not at oral argument. The
Majority is incorrect. Surplusage is language that “goes
beyond alleging elements of the crime.”
United States v.
Jenkins
,
*51 The Majority states that the holdings of the Sixth and Eleventh Circuits are that “Section 2422(b) does not require proof that the defendant could have been prosecuted under a particular law so long as the jury may reasonably conclude the defendant’s communications proposed a criminal sexual act.” Majority at 29 n.7. But I have found no case (and the Majority cites none) in which an indictment has charged a specific predicate offense or offenses, the government claims to have proved a completely different predicate offense, and the court upholds the conviction. A court, for example, can exercise its discretion to strike
surplusage “to protect a defendant against prejudicial or inflammatory allegations that are neither relevant nor material to the charges.” United
Section 2422(b) states that “[w]hoever, using . . . any . . . means of interstate or foreign commerce . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so” is guilty of a crime. Thus, “any sexual activity for which any person can be charged with a criminal offense” is an essential element of § 2422(b). See Jenkins , 785 F.2d at 1392. The government’s specification of “First Degree Criminal Sexual Conduct, in violation of 9 GCA § 25.15(a)(1)” in the indictment gives meaning to this essential element and is therefore both relevant and material to the charged offense. Cf. United States v. Terrigno , 838 F.2d 371, 373 (9th Cir. 1988).
United States v. Garcia-Paz
, 282 F.3d 1212 (9th Cir.
2002), on which the Majority relies, is inapposite. The
defendant was charged with violating 18 U.S.C. § 545—
“fraudulently or knowingly import[ing] or bring[ing] into
the United States, any merchandise contrary to law.”
Garcia-Paz
,
66 U NITED S TATES V . L OPEZ knowingly imported marijuana (as opposed to merchandise) in order to convict. Id. at 1215. The district court refused the instruction, and we affirmed. Id. at 1215–17. We found that a plain reading of the indictment showed “that the phrase ‘to wit’ did not “speak to Garcia-Paz’s knowledge, but rather was there to inform the jury what ‘merchandise’ the government would prove was smuggled.” Id. at 1215. Thus, the government had to prove that Garcia-Paz knowingly smuggled something that qualified as merchandise under the statute (marijuana so qualified), and separately had to prove that the merchandise was actually transported across the border. Id. at 1217. “Consequently, the removal of the reference to marijuana from the jury instruction did not alter the charge against Garcia-Paz.” Id. at 1216 (emphasis added).
The issue in the case was whether the “knowingly” element extended to the marijuana, i.e ., whether the indictment “allege[d] that Garcia-Paz had knowledge of the marijuana” such that relieving the government of proving knowledge of marijuana, as opposed to knowledge of merchandise, would alter the indictment. Id. at 1215–16. We held it did not.
Garcia-Paz is a far cry from this case, including because “any sexual activity for which any person can be charged with a criminal offense” is an element that requires statutes to give it meaning. And the possible predicate offenses have different elements and require different facts to prove those elements, which facts would need to be presented to the grand jury.
Garcia-Paz also differs from this case because here the jury was specifically instructed that the government must prove beyond a
This case is more akin to Howard v. Daggett , 526 F.2d 1388 (9th Cir. 1975) (per curiam), where we held that an indictment for the promotion of prostitution that listed the names of two specific women who had been induced to engage in prostitution could not be altered by jury instructions to allow for a conviction regarding other women. Id. at 1390. We explained:
The grand jury might have indicted appellant in a general allegation, without specifying the women to whom his alleged illegal acts or purposes related. But it did not do so. To allow the jury to consider the evidence respecting the other alleged prostitutes was to allow the jury to convict of a charge not brought by the grand jury. The supplemental instruction constituted an impermissible amendment of the indictment that destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.
Id. (quotation marks and citation omitted). [22] reasonable doubt a predicate crime that Lopez did not commit, that is , “First Degree Criminal Sexual Conduct, in violation of 9 Guam Code Annotated Section 25.15(a)(1).”
[22] Howard makes clear that the Majority’s claim that “[b]ecause Section 2422(b) does not contain a predicate offense requirement, . . . the indictment’s citation to Guam’s First Degree Criminal Sexual Conduct statute was mere surplusage” is incorrect. Majority at 34. The statute need not require that a predicate offense be listed in order for the government to be held to what is actually charged by the grand jury. In addition, the Majority’s claim that Lopez “perpetuated” the complexity
Permitting Lopez’s conviction to stand on a predicate offense not charged in the indictment permits the very thing we prohibited in Howard as violative of the Fifth Amendment.
B.
Having first addressed arguments the government never makes, I now move to arguments that the government does make—first, that Guam could have prosecuted a violation of 9 GCA § 25.15(a)(1) here, and second, that “[t]he Guam Offense was properly assimilated.” The indictment listed *54 9 GCA § 25.15(a)(1) [25] as the predicate offense for the of this case by “failing to seek a bill of particulars” makes no sense. Majority at 35. Since the grand jury specified a particular predicate offense, Lopez had no need to ask a question that the grand jury had already answered.
[23] The Majority never addresses this argument; it states only that Guam could have prosecuted Lopez for the attempt offense discussed above: “Guam could have prosecuted an individual in Lopez’s position for an attempt to engage in sexual penetration of a minor based on substantial steps taken within the Territory.” Majority at 33.
[24] The Majority sidesteps the government’s assimilation argument: “Because Guam could have prosecuted a person in Lopez’s position for attempted sexual penetration of a minor, we need not decide whether the Guam offense cited in the indictment could have been assimilated into and prosecuted under federal law.” Majority at 36 n.13.
[25] “A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with the victim and . . . the victim is under fourteen (14) years of age . . . .” 9 GCA § 25.15(a)(1). For purposes of this statute, “[s]exual [p]enetration means sexual intercourse, cunnilingus, fellatio, anal intercourse or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.” Id. § 25.10(a)(9).
§ 2422(b) violation. This offense could properly serve as the predicate offense only if either Guam had the authority to prosecute the completed offense or, if not, the offense can be assimilated under the ACA.
As the Majority correctly states, “[i]t is undisputed that Guam would have lacked jurisdiction to prosecute an offense taking place exclusively within AAFB territory.” Majority at 33. It is also undisputed that the planned completed offense of sexual penetration would have occurred on AAFB. With some exceptions that do not apply, Guam allows prosecution only for “conduct which is an element of the offense or the result which is such an element [if it] occurs within [its] Territory.” 9 GCA § 1.16(a)(1). Thus, Guam would have had no jurisdiction over the planned predicate offense charged here. While I have found no cases interpreting this Guam provision, other states have interpreted their own jurisdictional provisions, and those cases offer some guidance here.
In Arizona, there is territorial jurisdiction to prosecute an offense “when the ‘effect’ or ‘result’ of such crime occurs in [the state].” State v. Flores , 188 P.3d 706, 713 (Ariz. Ct. Lopez asked to meet “Brit” on four separate occasions
at different locations within AAFB. The first and second invitation involved proposed meetings at the Base Exchange and at an on-base Burger King, neither of which materialized. Lopez then proposed meeting “Brit” at the on-base library. Lopez appeared at the library, waited for some time, and left when “Brit” failed to arrive. Finally, Lopez arranged to meet “Brit” at her supposed on-base residence. [Air Force Office of Special Investigations] agents arrested Lopez when he arrived at the agreed-upon location.
Majority at 6–7.
App. 2008) (noting that if the defendant’s “conduct had a
direct effect in Arizona, Arizona can assert jurisdiction”).
[27]
Because the defendant’s criminal activity in
Flores
“intended to and did direct harm within Arizona,”—the
defendant “sought and obtained illegal entry into Arizona,
and he subsequently was illegally transported and present
within
th[e] state”—Arizona could validly exercise
territorial jurisdiction.
Id.
at 714;
see also State v. Meyers
,
In addition, in interpreting jurisdictional provisions like
Guam’s, states have held that there is no territorial
jurisdiction where no element of the crime is committed
within the state.
See, e.g.
,
State v. Sumulikoski
, 110 A.3d
856, 864 (N.J. 2015) (per curiam) (holding that the state
lacked jurisdiction to prosecute the offense where all
conduct that constituted elements of the offense occurred
outside the state and further holding that “status or ‘attendant
circumstances’ cannot provide a basis for jurisdiction”);
[29]
State v. Wagner
,
conduct] which is an element of the offense [if it] occurs within [the] State.” Haw. Rev. Stat. § 701-106(1)(a). New Jersey authorizes prosecution for “conduct which is an
element of the offense or the result which is such an element [if it] occurs within this State.” N.J. Rev. Stat. § 2C:1–3(a)(1).
U NITED S TATES V . L OPEZ 71 convict’s escape from custody in another state despite the convict having been originally prosecuted in Iowa and housed at the Iowa State Penitentiary because that was not an element of the escape offense). [30]
Here, neither the effects nor the result of the charged predicate offense could support Guam’s territorial jurisdiction over that offense because there is no evidence that Lopez attempted to meet “Brit” other than on base, or that penetration was even contemplated at an off-base location. That Lopez initiated communications off base does not mean that Guam could have prosecuted a crime that would clearly have occurred only on base. [31]
Furthermore, Lopez did not engage in (or even contemplate) conduct off-base that could constitute one or more elements of First Degree Criminal Sexual Conduct, in violation of 9 GCA § 25.15(a)(1). Guam law requires “the following relevant elements . . . be met: (1) the person engages in sexual penetration with the victim, and (2) the victim is under fourteen (14) years of age.” Guam v. Campbell , 2006 Guam 14 ¶ 37. Because no sexual penetration occurred here (or was contemplated to occur off base), none of the elements of this charged predicate offense occurred off base (or were contemplated to occur off base). Thus, Guam would have had no territorial jurisdiction over [30] Iowa authorizes prosecution if “conduct which is an element of the offense, or a result which constitutes an element of the offense, occurs within this state.” Iowa Code § 803.1(2). Because again, the predicate crime the indictment specified was
not solicitation of a minor, it was penetration of a minor. the charged predicate offense. In that way, this case is akin to Sumulikoski and Wagner.
Because Guam could never have prosecuted Lopez for a violation of 9 GCA § 25.15(a)(1), it is necessary to address whether that provision is assimilated under the ACA. If assimilated, then there is no defect in the indictment or mismatch between the indictment and the evidence. Lopez (despite his claims to the contrary) was communicating with someone he believed to be under the age of fourteen. Lopez was trying to entice this person into an act involving sexual penetration on-base, a place within the Special Maritime and Territorial Jurisdiction of the United States. Thus, if 9 GCA § 25.15(a)(1) is assimilated, we must reject Lopez’s sufficiency argument.
To determine whether the charged Guam offense is
assimilated under the ACA, we ask two questions. First,
“[i]s the defendant’s ‘act or omission . . . made punishable
by any enactment of Congress[?]’”
Lewis v. United States
,
“occupy so much of a field as would exclude use of the particular state statute at issue.” Id.
With respect to the first inquiry, the government concedes that conduct punishable under 9 GCA § 25.15(a)(1) is also punishable under the federal sexual abuse of a minor statute, 18 U.S.C. § 2243(a). With respect to the second inquiry, the Supreme Court has said that “it seems fairly obvious that the [ACA] will not apply where both state and federal statutes seek to punish approximately the same wrongful behavior.” Lewis , 523 U.S. at 165. Assimilation will generally be improper “where differences amount only to those of name, definitional language, or punishment.” Id.
Here, as Lopez points out, Guam and the federal
*58
government sought to “punish approximately the same
wrongful behavior, [thus] counseling against application of
the . . . [Guam] statute through the ACA.”
United States v.
Rocha
,
Whoever, in the special maritime and territorial jurisdiction of the United States . . . knowingly engages in a sexual act with another person who— (1) has attained the age of 12 years but has not attained the age of 16 years; and
(2) is at least four years younger than the person so engaging;
or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.
“would rewrite distinctions carefully considered by
Congress and would attempt to fill a gap in the federal
enclave law where no gap exists.”
[34]
United States v. Waites
,
[35]
I have not been able to find a single case in which a child sex
offense has been charged as an assimilated crime. And, at oral argument,
the government’s attorney conceded that she was not familiar with any
child sex offense being prosecuted under the ACA. Oral Arg. at 23:55.
federal statute to occupy the field.
See United States v. Do
,
II.
Because Lopez did not raise this particular sufficiency
challenge below, I agree with the Majority that we review
for plain error. But “plain-error review of a sufficiency-of-
the-evidence claim is only ‘theoretically more stringent’
than the standard for a preserved claim.”
United States v.
Flyer
,
“Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, we may then exercise our discretion to notice a forfeited error, Lopez argues in the alternative that he is entitled to a new trial on Count 1 because the jury instructions never informed the jury of the actual elements of 9 GCA § 25.15(a)(1). Lopez never raised this claim below, and affirmatively agreed to the instructions that were given, though as the Majority notes, the government doesn’t argue waiver. See Majority at 42 n.14. I do not need to reach this issue because of the error I find did occur, but I note that the Majority correctly states that “the district court should have instructed the jury on the applicable ‘laws of Guam.’” Majority at 42. “[I]t is difficult to imagine just what consequences flow from [the]
application of the plain error standard or to envision a case in which the
result would be different because of the application of one rather than
the other of the standards.”
United States v. Cruz
,
76
U NITED S TATES V . L OPEZ but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Myers
,
The district court erred because First Degree Criminal Sexual Conduct cannot serve as the predicate offense for the reasons discussed above. Therefore, prong one is met.
As to prong two, the error need only be “clear” or
“obvious.”
United States v. Olano
, 507 U.S. 725, 734
(1993). Because binding case law is consistent and clear that
the government is limited to charges listed in the indictment,
see Ward
,
It is also noteworthy that “we have expressed our
reluctance, regardless of the standard of review, to affirm a
conviction and send a defendant to prison . . . if the record
clearly showed that the evidence was insufficient.”
United
States v. Garcia-Guizar
,
“When a conviction is predicated on insufficient evidence, the last two prongs of the [plain-error] test will necessarily be satisfied . . . .” Cruz , 554 F.3d at 845. “A defendant’s ‘substantial rights,’ as well as the ‘fairness’ and ‘integrity’ of the courts, are seriously affected when someone is sent to jail for a crime that, as a matter of law, he did not commit.” Id.
III.
The grand jury dates to the Assizes of Clarendon in 1166.
Hurtado v. California
,
The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking relevant history, the grand jury continues to function as a barrier to reckless or unfounded charges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. Its historic office has been to provide a shield against arbitrary or oppressive action, by [e]nsuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.
United States v. Mandujano , 425 U.S. 564, 571 (1976) (quotation marks and citation omitted).
In our criminal justice system, “[t]he Fifth Amendment’s grand jury requirement establishes the ‘substantial right to be tried only on charges presented in an indictment returned by a grand jury.’” Antonakeas , 255 F.3d at 721 (quoting United States v. Miller , 471 U.S. 130, 140 (1985)). It is entirely within the government’s control as to the charges in the indictment it presents to the grand jury for its consideration. The government made its choice here and did not prove the offense the grand jury charged. While the Majority’s substantive analysis of the defendant’s conduct under Guam law is incorrect, that is not its gravest error. In contravention of the Constitution, it has taken on the role of the prosecutor (in its charging decision) and the grand jury (in performing its mandatory role under the Fifth Amendment). I therefore respectfully dissent.
Notes
[3] “Whoever within or upon [the Special Maritime or Territorial Jurisdiction of the United States], . . . is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.” 18 U.S.C. § 13(a).
[4] The government’s arguments as to the Guam offense that Lopez could have been convicted of are unclear. The government argued: “Lopez could be prosecuted for violation of Guam law because from his off-base home, he used the internet to send e-mail messages to Brit. Lopez could actually be prosecuted for violation of Guam law.” The government also argued: “Lopez’[s] acts advanced and verified the existence of his purpose—to gain Brit’s assent to engage in sexual activity. Lopez could actually be charged with attempting to persuade Brit to engage in sexual activity as defined by Guam law—the law of the venue that had jurisdiction over the defendant.” But the government never argued in its answering brief that the conviction should be affirmed because the defendant was guilty of “attempting to entice to attempt.” Neither did the government cite either GCA § 13.10 or § 13.60(a), relied upon by the Majority. Nor did the jury instructions, either directly or indirectly, inform the jury of any predicate offense other than 9 GCA § 25.15(a)(1), which was the only predicate offense specified in the indictment. And nothing in Lopez’s reply brief suggests that he thought attempting to entice to attempt had been raised by the government or was harbor serious doubts about whether such a crime (attempting to entice to attempt) could even exist,
[5]
Lopez
was neither charged with nor convicted of that theoretical
offense, nor was the jury instructed as to that theoretical
offense. Thus, I dissent.
I.
To successfully convict Lopez for attempted enticement
of a minor under § 2422(b), the government had to prove that
Lopez knowingly “(1) attempted to (2) persuade, induce,
entice, or coerce (3) a person under 18 years of age (4) to
engage in sexual activity that would constitute a criminal
offense.”
United States v. Goetzke
,