Sunday, April 16, 2017

Case o' The Week: The Ninth Gets Constructive - Davis and Constructive Amendments

  Constructive amendment math: 1+1+9 = 3.
One (grand jury) indicts on a charge, and a second (petit) jury convicts on a different charge  -- add the Ninth, and a (third) petit jury will hear the charge again on remand and retrial.
 United States v. Ricky Davis, 2017 U.S. App. LEXIS 6445, (9th Cir. Feb. 16, 2017), decision available here.

The Honorable Judge Wallace Tashima
Players: Decision by Judge Tashima, joined by Judge Hurwitz and District Judge Adelman. Welcome win for AFPD Peggy Sasso, E.D. Cal. (Fresno).

Facts: Ricky Davis was convicted after trial of, among other things, attempted sex trafficking in violation of 18 USC § 1591(a). Id. at *2. Davis was charged with pimping a minor girl, “knowing or in reckless disregard of the fact that the person had not attained the age of 18 years.” Id. at *5.
  At trial, however, the jury was instructed that it could find Davis guilty if he “had a reasonable opportunity to observe [the minor], and that [the minor] would be caused to engage in a commercial sex act.” Id. at *6. (A valid approach to prove the offense under the statute, but not an allegation charged in the indictment).

Issue(s): “Davis challenges his conviction under § 1591(a) on the ground that the district court's jury instruction constructively amended the indictment.” Id. at *3.

Held:We . . . conclude that a constructive amendment occurred because 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 . . . . Our holding today is consistent with United States v. Lockhart, 844 F.3d 501 (5th Cir. 2016), the facts of which are indistinguishable from this case. There, the Fifth Circuit observed: By including the language found in § 1591(c), the district court materially modified an essential element of the indictment by transforming the offense with which the indictment charged [the defendant] from one requiring specific mens rea into a strict liability offense. Id. at 515-16 (footnote and citation omitted). We agree.Id. at *7-*8 (internal quotations and citation omitted).

Of Note: Constructive amendment, or variance? A critical question: constructive amendments usually mean reversals, while mere variances are more likely to be upheld on a “prejudice substantial rights” analysis.
  Judge Tashima explains “An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.” Id. at *8-*9 (internal quotations and citation omitted).
  Because the jury instruction here “had the effect of alternating the terms of the indictment,” this was a constructive amendment – earning a reversal.
  Davis is clear and accessible discussion on the (sometimes nuanced) issues of constructive amendments and variances – a good resource, for these challenges.

How to Use: Davis received a sentence of 300 months, concurrent, on another count – so why reverse and remand on this count? Because the sentencing package became “unbundled” when this count was reversed --  requiring remand and resentencing or retrial. Id. at *9-*10.
  “Unbundling” is valuable appellate principal, much on the mind of the Johnson litigators of late. Turn to Davis for a useful and recent example of this remand-hook.
For Further Reading: In February, A.G. Sessions created a “Task Force on Crime Reduction and Public Safety.” On April 5, the Attorney General distributed an “update” on that task force, to the United States Attorneys. See Memo here. Recommendations from the Task Force hit by July 27.
  In related news, A.G. Sessions recently spoke at Nogales and laid out immigration prosecution priorities. See speech here. 
  Busy times ahead.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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