Constructive Amendment To Indictment Requires Reversal Of Attempted Sex Trafficking Conviction

The U.S. Court of Appeals for the Ninth Circuit has reversed a defendant’s conviction for attempted sex trafficking after finding a constructive amendment to indictment had occurred during trial. Ricky Davis was charged with attempted sex trafficking, a violation of 18 U.S.C. 1591(a). The indictment alleged that Davis “... knowingly attempted to recruit, entice, harbor, transport, provide, obtain, and maintain by any means, a person to engage in a commercial sex act, to wit: a minor female victim, ... knowing or in reckless disregard of the fact that the person had not attained the age of 18 years..”However, at trial, the jury was instructed that “The elements of sex trafficking are: ... (2) knowing that Bianca had not attained the age of 18 years, or recklessly disregarded that fact, or the defendant had a reasonable opportunity to observe Bianca, and that Bianca would be caused to engage in a commercial sex act ... ”

Another instruction stated, “For the defendant to be found guilty, the Government need not prove that the defendant knew Bianca had not attained the age of 18 so long as the defendant had a reasonable opportunity to observe Bianca.”

And during its closing, the Government argued that “We, again, submit that the evidence shows both, that Bianca had not attained the age of 18, or the defendant recklessly disregarded that fact, or he had a reasonable opportunity to observe Bianca and that she would be caused to engage in a commercial sex act.”

The Ninth Circuit, Court of Appeals found that the indictment was constructively amended.

“It is evident that the language of the indictment differs substantially from the jury instruction and the government's closing argument. Specifically, the indictment charged that Davis knew Bianca was a minor or that he recklessly disregarded this fact. Thus, under the indictment, the government was required to prove, beyond a reasonable doubt, either that Davis affirmatively knew of Bianca's age, or, alternatively, that he recklessly disregarded her minority status. In contrast, the jury instructions afforded jurors a third option for convicting Davis: namely, they could convict, even without a finding as to knowledge or recklessness, so long as they determined that Davis “had a reasonable opportunity to observe Bianca.”

The Ninth Circuit held that a constructive amendment occurs when “the crime charged [in the indictment] was substantially altered at trial so that it was impossible to know whether the grand jury would have indicted for the crime actually proved.”

Davis’ conviction was accordingly reversed. See United States v. Davis, No. 15-10402 (9th Cir. 2017).

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).


  1. R.Scott on May 24, 2017 at 10:58 pm

    Mr. Brandon I found your article very interesting my son is serving a 25 years sentence in an Arizona Prison and his lawyers during his trial objected saying situation as mentioned in your article and the judge objection out we are now trying to determine what can be done about his case he has written to the courts concerning the judges decision on the amendment and each time it was rejected can you tell me of anything that we can do do to help him please thank you

  2. Maria Williams on August 28, 2019 at 3:13 pm

    Good Day My nephew has filed a Habeas Corpus and the State responded to his motion. However, a question that we were trying to get answered is Can a structural error like a constructed amendment be waived on direct appeal? Is there any cases that cite this specifically?

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