US v. Davis, No. 15-10402 (4-14-17)(Tashima w/Hurwitz & Adelman). The 9th reverses a conviction for "attempted sex trafficking" due to a variance. The defendant argued that the court and prosecution constructively amended the attempted sex trafficking count from "knowing or in reckless disregard" of the age to "reasonable opportunity to observe." The prosecution argued this theory to the jury about the minor status (the defendant had taken in the victim and then exploited and attempted to traffic her). In so arguing, and the court in so instructing, the indictment was changed from two options of proof --either knowledge or recklessness-- to a third option, reasonable opportunity to observe. This constructive alteration was such that it was impossible to know if the grand jury would have indicted for the crime proved. The conviction was thus reversed. Although the defendant was serving 300 months on the other count (the sexual exploitation count was affirmed), resentencing had to occur because of the unbundling.
Congrats to AFPD Peggy Sasso, Cal E (Fresno).The decision is here: