Sex Trafficking Conviction Reversed Because the Jury Instructions Changed the Charge

The Ninth Circuit reversed Ricky Davis's conviction for attempted sex trafficking of a minor under 18 U.S.C. § 1591(a) because the jury instructions changed the crime charged. Lawyers call this a "constructive amendment" of the indictment. It happens when the charge the jury is allowed to convict on is different from the charge the grand jury approved.

What the Indictment Said

The indictment said 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."

So the government had to prove Davis knew the girl was under 18, or recklessly ignored that fact.

What the Jury Was Told

At trial, the jury was told one element was "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 said 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."

The prosecutor made the same point in closing argument: "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's Ruling

The court found the indictment had been 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.'"

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."

The court reversed the attempted sex trafficking conviction, vacated the sentence, and sent the case back. It affirmed a separate conviction for sexual exploitation of a minor under 18 U.S.C. § 2251(a). See United States v. Davis, No. 15-10402 (9th Cir. 2017).

Why This Matters

Only a grand jury can decide what a federal felony charge says. When the instructions or the prosecutor's argument give jurors a broader path to conviction than the indictment does, that can be grounds for reversal. Comparing the indictment, word for word, with the jury instructions and the closing arguments is one of the first steps in reviewing a trial record for appeal. If an appeal is possible, the notice of appeal is generally due within 14 days after the judgment is entered. FRAP 4(b)(1)(A).

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