          United States Court of Appeals
                      For the First Circuit

No. 09-2549

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                   JOSE M. RODRÍGUEZ-RODRÍGUEZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]



                              Before

                    Boudin, Stahl and Howard,
                         Circuit Judges.


     Chauncey B. Wood, with whom Wood & Nathanson, LLP was on
brief, for appellant.
     Jenifer Y. Hernandez-Vega, Assistant United States Attorney,
with whom Rosa Emilia Rodriguez-Velez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division and Luke Cass, Assistant United States Attorney,
were on brief, for appellee.


                        December 13, 2011
           HOWARD, Circuit Judge. After a four-day trial, a jury in

the District of Puerto Rico convicted Jose Rodríguez-Rodríguez of

using an interstate commerce facility or means in attempting to

persuade a minor to engage in illegal sexual activity, in violation

of 18 U.S.C. § 2422(b).1   He presses two arguments in support of

his appellate claims that the district court erroneously denied his

post-trial motion for judgment of acquittal or for a new trial.

First, he asserts that the indictment actually charged him with

attempting to persuade a minor to engage in sexual activity not

with him, but with another minor, a charge which he says was

unsupported by the evidence.   Second, he argues that the district

court constructively amended the indictment in two ways:        by

instructing the jury in accordance with the government's theory

that the indictment charged him with attempting to persuade a minor

to have sexual relations with him, and also by instructing the jury

in such a way that he may have been convicted based on uncharged

conduct.   Although the indictment is not a model of clarity, we

reject Rodríguez's reading of it, find nothing improper about the

jury instructions, and accordingly affirm his conviction.




     1
      The statute also proscribes attempts to "induce, entice or
coerce" a minor. As the specific definitions of these words are
not at issue, we use the terms interchangeably throughout this
opinion.

                                -2-
                                        I.

            We set forth the facts in the light most favorable to the

jury's verdict.        United States v. Mitchell, 596 F.3d 18, 20 (1st

Cir. 2010).     On April 2, 2008, Rodríguez was logged into an on-line

chat room known as "Latin Chat," where he struck up a virtual

"conversation" with a person using the screen name "Patsychula 14"

("Patsy").      Rodríguez soon disclosed that he was a forty-year-old

man, and Patsy identified herself as a fourteen-year-old girl.                At

Rodríguez's request, she also described her height, weight and

general appearance.        Only a few minutes into the conversation,

Rodríguez steered the subject towards sex.           After making numerous

sexually explicit comments and suggestions, Rodríguez asked Patsy

if she would like to have sex, told her where he lived and gave her

his phone number.

            The virtual conversation then moved from the chat room to

the more private confines of one-on-one instant messaging, a form

of communication that Rodríguez and Patsy used on roughly a dozen

days between April 2 and May 22, 2008.          In addition, Rodríguez and

Patsy   spoke    by    telephone   on   five   occasions   during    the    same

timespan.        The    conversations     revolved   around   sex,    and     in

particular, Rodríguez's stated desire to have sex with Patsy.                 On

May 21, the two agreed to meet two days later at a sandwich shop,

from which Rodríguez would take Patsy to a hotel.




                                        -3-
           Unbeknownst to Rodríguez, the person he thought was a

fourteen-year-old girl named Patsy was in fact Agent Christine

Segarra of the FBI's "cyber squad," working undercover to apprehend

online predators.2     Rodríguez was arrested when he arrived at the

sandwich shop.

                                    II.

           In February 2009, a grand jury returned a one-count

superceding indictment with the following charge:

           From in or about April, 2008, and continuing
           through in or about May, 2008, in the District
           of Puerto Rico, and within the jurisdiction of
           this Court, Jose Rodríguez Rodríguez, the
           defendant herein, did use a facility and means
           of interstate or foreign commerce to attempt
           to knowingly persuade, induce and/or entice an
           individual who represented herself to be and
           who the defendant believed to be under the age
           of eighteen, that is, a fourteen year old
           female, to engage in sexual activity, that is,
           sexual intercourse with a person less than
           sixteen years of age, for which he could be
           charged with a criminal offense in Puerto
           Rico.   All in violation of Title 18, United
           States Code, Section 2422(b).

           At trial, the government proffered the testimony of

Segarra   and    another   FBI   agent,    transcripts    of     the   virtual

conversations    and   recordings   of    the   phone   calls,   as    well   as

evidence linking Rodríguez to the phone, email, and instant message

accounts involved in those conversations.          Counsel for Rodríguez,

who deferred making an opening statement, did not cross-examine any


     2
      Segarra testified that she used a voice-altering device in
order to sound younger on the phone.

                                    -4-
of the government's witnesses.      At the close of the government's

case, Rodríguez moved for a judgment of acquittal.          He argued that

the indictment -- by using the phrase "that is, sexual intercourse

with a person less than 16 years of age" -- charged Rodríguez with

attempting to entice Patsy to have sex with another minor, a charge

for which there was no supporting evidence.             After a lengthy

colloquy, the trial court agreed with the government that the

phrase, combined with the subsequent phrase "for which he could be

charged with a criminal offense," alleged that Rodríguez sought to

entice the girl to have sex with him, which would qualify as sexual

assault under Puerto Rico law.3

          The defense consisted of testimony from Rodríguez and his

spouse.   Two main themes were presented.           The first was that,

because   of   various   details   and    inconsistencies     during    the

conversations, Rodríguez never actually believed that Patsy was a

fourteen-year-old-girl.     Second,      both   Rodríguez   and   his   wife

testified that he suffered from erectile dysfunction when in the

presence of women, and therefore he could not have intended to

complete the act specified in the indictment.

          The trial court instructed the jury that a conviction

would require the jury to find, among other things, that Rodríguez

"attempted to knowingly persuade . . . an individual to engage in



     3
      See Article 142 of the Puerto Rico Penal Code, P.R. Laws.
Ann. tit. 33, § 4770(a)(2008).

                                   -5-
sexual activity," that he believed the individual to be younger

than sixteen years old, and that if the attempted sexual activity

took place, it would have been a criminal offense in Puerto Rico.

The court also read to the jury the pertinent text of Article 142

of    the   Puerto   Rico    Penal    Code,    which     criminalizes   "sexual

penetration be it vaginal, anal, oral, digital or instrumental" if

the victim is under sixteen years old.                 After deliberating for

roughly three hours, the jury convicted Rodríguez.

             After   his    conviction,      Rodríguez   filed   a   motion   for

judgment of acquittal or for a new trial.                See Fed. R. Crim. P.

29(c) and 33.    He first argued that the government failed to prove

that he had tried to persuade a minor to have sexual intercourse

with another minor, which is what he alleged that the indictment

charged.     He further argued that the court's jury instruction

improperly amended the indictment by broadening the possible bases

for   his   conviction      because   the     indictment    specified   "sexual

intercourse," while the jury instruction used the term "sexual

activity" and referenced the Puerto Rico statute's list of various

types of illegal sexual activity.                The district court denied

Rodríguez's motion and subsequently sentenced him to 120 months in

prison.     This timely appeal followed.

                                      III.

             We review the denials of Rodríguez's post-trial motions

de novo. United States v. Rivera-Rodríguez, 617 F.3d 581, 596 (1st


                                       -6-
Cir. 2010).      Because both motions depend in large part on the

precise allegations lodged against Rodríguez, we turn first to the

language of the indictment.

           The critical language at issue in the indictment is that

Rodríguez attempted to "knowingly persuade . . . an individual . .

. who [he] believed to be . . . a fourteen year old female, to

engage in sexual activity, that is, sexual intercourse with a

person less than sixteen years of age, for which he could be

charged with a criminal offense in Puerto Rico."                          We reject

Rodríguez's interpretation that he was charged with trying persuade

Patsy to engage in sexual intercourse with another minor.                       In our

view, the appropriate reading of the paragraph that essentially

begins with "Jose Rodríguez Rodríguez" and ends with "sexual

intercourse with a person less than sixteen years of age, for which

he could be charged with a criminal offense" is that Rodríguez was

charged   with    persuading        Patsy    to    have    sex   with   him.     This

interpretation        is    consistent      with     the    "rule    of   the    last

antecedent," the hoary canon of construction pursuant to which

qualifying phrases are usually to be applied to the words or phrase

immediately preceding. Coffin v. Bowater, Inc., 501 F.3d 80, 94-95

(1st Cir. 2007) (citing Barnhart v. Thomas, 540 U.S. 20, 26

(2003)); see also United States v. Guild, No. 07cr404 (JCC), 2008

WL   1901724,    at    *4   (E.D.    Va.    Apr.    25,    2008)    (applying    last

antecedent rule in sexual abuse case to define alleged target of


                                           -7-
abuse).      Here, the phrase "for which he could be charged" modifies

the immediately preceding phrase, "sexual intercourse with a person

less than sixteen years of age."4          To sum up, we can do no better

than did the district court in denying Rodríguez's motion:

              The indictment, fairly read, charges Defendant
              with enticing a minor to engage in sexual
              activity with him, and not with anyone else.
              The last few lines of the indictment simply
              clarify what type of sexual activity Defendant
              is accused of, rather than, as Defendant
              understands it, introducing a new character
              (another minor) into the action.



                                     IV.

              Rodríguez's other argument is that the district court's

jury       instructions   impermissibly     amended   his   indictment    by

broadening the potential bases for his conviction from "sexual

intercourse" to the larger assortment of sexual activities with a

minor      criminalized   under   Puerto   Rico   law.5     A   constructive


       4
      Rodríguez also fails to demonstrate that enticing two minors
to engage in sexual intercourse with each other is a crime in
Puerto Rico. In his Rule 29 argument below, Rodríguez pointed to
subsection (g) of Article 142, P.R. Laws. Ann. tit. 33, § 4770(g),
which includes as sexual assault "[i]f the victim is forced or
induced by means of abuse or physical or psychological violence
into participating or becoming involved in unwanted sexual
relations with third parties." First of all, the indictment does
not allege violence or abuse. Second, the indictment does mention
the age of the victim, which is an element of subsection (a), but
not subsection (g).
       5
      Rodríguez also argues that the indictment was constructively
amended because the jury instructions did not reflect his reading
of the indictment, i.e., that he was charged with trying to induce
Patsy to have sex with another minor.     Given our conclusion in

                                     -8-
amendment occurs when the charging terms of an indictment are

effectively altered by the prosecution or court after the grand

jury has last passed upon them.   United States v. Brandao, 539 F.3d

44, 57 (1st Cir. 2008).   "[A] court cannot permit a defendant to be

tried on charges that are not made in the indictment against him."

Stirone v. United States, 361 U.S. 212, 217 (1960).           To do

otherwise would fail "to preserve the defendant's Fifth Amendment

right to indictment by grand jury, to prevent re-prosecution for

the same offense in violation of the Sixth Amendment, and to

protect the defendant's Sixth Amendment right to be informed of the

charges against him."     Brandao, 539 F.3d at 57 (citing United

States v. Pierre, 484 F.3d 75, 81 (1st Cir. 2007)).       Where, as

here, the objection was preserved below, a finding of constructive

amendment requires reversal. United States v. Bucci, 525 F.3d 116,

131 (1st Cir. 2008).

          Rodríguez's brief also makes a somewhat less developed

alternative argument that the jury instruction resulted in a

prejudicial variance, which would also entitle him to reversal.   A

variance occurs "'when the charging terms remain unchanged but when

the facts proved at trial are different from those alleged in the

indictment.'"   United States v. Fornia-Castillo, 408 F.3d 52, 66

(1st Cir. 2005) (quoting United States v. Fisher, 3 F.3d 456, 463

(1st Cir. 1993)).   Unlike the per se prejudice of a constructive


Section III, we reject this claim.

                                  -9-
amendment, a variance is grounds for reversal only if the defendant

has been prejudiced.        See id.      (observing that as long as "the

statutory violation remains the same, the jury can convict even if

the facts found are somewhat different than those charged -- so

long as the difference does not cause unfair prejudice").6

              Here, there was neither constructive amendment of the

indictment     nor   variance   in   the     proof.         The   indictment   made

reference to "sexual activity" that "violated Puerto Rico law." In

order for the jury to determine whether the government had met its

burden -- i.e., whether it proved that Rodríguez attempted to

entice Patsy and whether the intended sexual activity was illegal

-- it had to be instructed on Puerto Rico law, in this case Article

142.       As noted, Article 142 prohibits various forms of sexual

penetration     with   an   individual     under      age    sixteen,   including

"vaginal, anal, oral-genital, digital or instrumental."                   Article

142 thus arguably covers a number of acts in addition to the



       6
      The doctrines of constructive amendment and prejudicial
variance are related, United States v. Fornia-Castillo, 408 F.3d
52, 66 (1st Cir. 2005), and we have observed that the two "are
closer to a continuum than exclusive categories." United States v.
Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006). "The line between
'the crime charged' and 'the facts charged' is inherently fuzzy."
Id.; Haines v. Risley, 412 F.3d 285, 291 (1st Cir. 2005) ("Save at
either end of the spectrum, it is far from clear what distinguishes
a permissible variance . . . from an impermissible constructive
amendment."); see also, 3 Charles Alan White & Sarah N. Welling,
Federal Practice and Procedure § 516 (4th ed. 2011) ("The
distinction between variances and constructive amendments is a
matter of degree, and the distinction is rather shadowy.")
(footnotes omitted).

                                      -10-
particular proposal made by the defendant, but the statute clearly

includes his alleged conduct.     In the absence of a clear-cut

objection and significant risk of prejudice, it is commonplace to

read to the jury a single statutory sequence that criminalizes

various related acts, without excising portions that a jury would

disregard anyway as not directly pertinent.   That is what was done

here.7   Accordingly, we conclude that the court's instruction

neither amounts to an amendment of the indictment nor condones a

prejudicial variance in the proof.

                                 V.

            Finding no error in the district court's denial of

Rodríguez's post-trial motions, the judgment of conviction is

affirmed.




     7
      We also note that several leading medical dictionaries
include among their definitions of "sexual intercourse" -- the
specific act included in the indictment -- descriptions fully
consistent with the language of the state law. See e.g., Dorland's
Medical Dictionary 961 (31st ed. 2007) ("any physical contact
between two individuals involving stimulation of the genital organs
of at least one"); Miller-Keane Encyclopedia and Dictionary of
Medicine, Nursing and Allied Health 943 (7th ed. 2003) (same); The
American Heritage Medical Dictionary 749 (Rev. ed. 2007) ("sexual
union between humans involving genital contact other than vaginal
penetration by the penis").

                                -11-
