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                                                                      [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 17-15002
                              ________________________

                        D.C. Docket No. 0:16-cr-60172-KAM-1

UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,


                                            versus


LEON L. ROBERTS,

                                                         Defendant - Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                      (April 30, 2019)

Before WILSON, JILL PRYOR and THAPAR,∗ Circuit Judges.

PER CURIAM:


       ∗  The Honorable Amul R. Thapar, United States Circuit Judge for the Sixth Circuit,
sitting by designation.
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       Leon Roberts was convicted and sentenced for sex trafficking of a minor, in

violation of 18 U.S.C. § 1591. On appeal, Roberts’s primary argument is that the

district court committed per se reversible error by constructively amending the

indictment at trial. The government concedes the error. Although a reversal

predicated on a constructive amendment normally does not bar the retrial of a

defendant, Roberts asserts that he cannot be retried because at trial the government

failed to introduce sufficient evidence of his mens rea. After a thorough review of

the record, and with the benefit of oral argument, we agree with Roberts that the

district court’s instructions constructively amended the indictment. Because there

was sufficient evidence of mens rea at the initial trial, Roberts may be retried for

the offense. We thus vacate Roberts’s conviction and sentence and remand the

case to the district court for a new trial.

                                I.      BACKGROUND

       Roberts was indicted for sex trafficking of a minor, in violation of 18

U.S.C. §§ 1591(a)(1) and (b)(2) and 2. The indictment charged Roberts with

committing the crime while “knowing, and in reckless disregard of the fact, that

S.A. had not attained the age of 18 years.” Doc. 7 at 1. He pled not guilty.




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A.     The Evidence

       At trial, the government presented evidence that Roberts prostituted S.A., a

14 year-old runaway, from May to June 2016.1 Roberts found clients for S.A. by

posting advertisements on Backpage.com. Roberts set the prices for S.A’s services

and kept the proceeds; in exchange, he let S.A. live in his hotel room. Roberts

forced S.A. to see clients “morning, afternoon, and night,” making her stay awake

all night to work. Doc. 178 at 55. 2 S.A. saw 5 to 10 clients each day, even when

she was in pain or on her period. Roberts once flipped S.A.’s mattress while she

was sleeping, causing her to hit her head; another time, she saw him with a gun,

which scared her. Roberts had no other income during this time.

       Although S.A. told Roberts that she was 18, her actions and appearance

betrayed her true age. Caroline Anderson, who dated Roberts and worked for him

as a prostitute, testified that she “didn’t believe [that S.A. was 18] the moment she

said it.” Doc. 179 at 138. Anderson explained that her “gut[]” and “mind” told

her that S.A. was “a minor.” Doc. 179 at 125. Some of her interactions with S.A.

had made Anderson suspicious that S.A. was not as old as she claimed; for

example, S.A. did not know how to use a tampon and did not know what orange



       1
          We recite the facts viewing the evidence in the light most favorable to the government
and drawing all reasonable inferences and credibility choices in the government’s favor. United
States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011).
       2
           All citations in the form “Doc. #” refer to numbered entries on the district court docket.
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juice was. Anderson repeatedly warned Roberts that she believed S.A. was a

minor. After a fight with Roberts, Anderson threatened to “call the police if [S.A.]

work[ed]” and report that she was underage. Doc. 180 at 61.

      Roberts’s behavior indicated that he also knew, or at least suspected, that

S.A. was a minor. In the online advertisements he made for her, Roberts described

S.A. as “young.” In text messages, he alluded to the possibility that “Child Net,” a

Florida social service provider that works with the Florida Department of Children

and Families, might take S.A. away.

      After another fight with Anderson, Roberts called the Fort Lauderdale Police

Department. He told an officer that “his ex-girlfriend [Anderson] was trying to

encourage his little sister [S.A.] to sell her body for money.” Doc. 178 at 34. Law

enforcement responded to the Crossland Hotel, where Roberts and S.A. were living

and where S.A. was working.

      There, a police officer interviewed S.A. outside Roberts’s presence. S.A.

explained that she was not Roberts’s sister and that she was a minor. Recognizing

that S.A. may have been prostituted, the officer called in support from the Federal

Bureau of Investigation’s Crimes Against Children Task Force. The FBI agent

who responded noted that S.A. “appeared to be young.” Doc. 180 at 32. He

interviewed Roberts outside S.A.’s presence. In that interview, Roberts accurately




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told FBI agents that S.A. was “a 14-year-old girl” born in November 2001. Doc.

180 at 18.

      The police then arrested Roberts. He later called Anderson from jail,

referring to S.A. as “that little girl” in his phone calls. Doc. 179 at 135.

      At Roberts’s trial, the parties submitted competing jury instructions about

the mens rea element of the charged crime. Roberts proposed an instruction

stating that the government had to prove he knew of and recklessly disregarded

S.A.’s minor status. The government asserted that it could obtain a conviction if it

proved that Roberts knew or recklessly disregarded S.A.’s minor status. But the

government submitted an instruction indicating that it could also obtain a

conviction by proving in the alternative that Roberts had a reasonable opportunity

to observe S.A. Roberts argued that this proposed instruction was improper

because the indictment alleged that he had acted either knowingly or in reckless

disregard of S.A.’s minor status, not because he had had a reasonable opportunity

to observe her. Roberts contended that the government’s instruction was improper

because it would “allow the jury to essentially convict [him] on a basis that’s not

alleged in the indictment.” Doc. 181 at 6. The district court adopted the

government’s proposed instruction over Roberts’s objection.




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      The next day Roberts again objected to the instruction, arguing that giving it

would amount to a constructive amendment. The district court again overruled

Roberts’s objection and instructed the jury as follows:

      It is a federal crime for anyone, in or affecting commerce, to recruit,
      entice, harbor, transport, provide, obtain, or maintain by any means a
      person, knowing or in reckless disregard of the fact that the person has
      not attained the age of 18 years and will be caused to engage in a
      commercial sex act.

      The defendant can be found guilty of this crime only if all the following
      facts are proved beyond a reasonable doubt:

      (1) [t]he defendant knowingly recruited, enticed, harbored,
      transported, provided, obtained, or maintained by any means S.A.;

      (2) [t]hat the defendant did so knowing or in reckless disregard of
      the fact that the person had not attained the age of 18 years and would
      be cause[d] to engage in a commercial sex act; and

      (3) [t]hat the defendant’s acts were in or affected interstate
      commerce. . . .

      If the government proves beyond a reasonable doubt that the defendant
      had a reasonable opportunity to observe the person recruited, enticed,
      harbored, transported, provided, obtained, or maintained, then the
      government does not have to prove that the defendant knew, or
      recklessly disregarded the fact, that the person had not attained the age
      of 18 years.

Doc. 182 at 44-46.

      After the government had rested its case, Roberts moved for a judgment of

acquittal pursuant to Federal Rule of Criminal Procedure Rule 29(a), arguing that

the government had presented insufficient evidence to convict him under § 1591.


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The district court denied the Rule 29(a) motion and submitted the case to the jury.

The jury found Roberts guilty of sex trafficking of a minor, and the district court

imposed a sentence of 292 months of imprisonment.

      This is Roberts’s appeal.

                        II.    STANDARDS OF REVIEW

      We review de novo whether a district court’s jury instructions amounted to a

constructive amendment of the indictment. See United States v. Sanders, 668 F.3d

1298, 1309 n.9 (11th Cir. 2012).

      We review the district court’s denial of a defendant’s motion for judgment

of acquittal de novo. United States v. Chafin, 808 F.3d 1263, 1268 (11th Cir.

2015). In reviewing the sufficiency of the evidence presented at trial, we decide

whether a reasonable jury could have found the defendant guilty beyond a

reasonable doubt, viewing the evidence in the light most favorable to the

government and making all reasonable inferences and credibility choices in the

government’s favor. United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011).

                                  III.   ANALYSIS

      Roberts argues on appeal that the district court’s jury instructions

constructively amended the indictment. He further contends that he cannot be

retried for his crime because the evidence presented at trial was insufficient to

convict him. We address each argument in turn.


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A.    The District Court Constructively Amended the Indictment.

      The Fifth Amendment protects a defendant’s right to be tried only on the

charges returned by the grand jury. See Stirone v. United States, 361 U.S. 212

(1960). Under the Fifth Amendment, “a court cannot permit a defendant to be

tried on charges that are not made in the indictment against him.” Id. at 217. A

district court constructively amends an indictment if its jury instructions broaden

the possible grounds for conviction beyond those alleged in the indictment. See id.

at 218-19; United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). A

constructive amendment is per se reversible error. United States v. Figueroa, 666

F.2d 1375, 1379 (11th Cir. 1982).

      On appeal, Roberts argues that a constructive amendment occurred because

the trial court’s instructions broadened the possible grounds for conviction beyond

what was charged in the indictment. The government concedes error.

      We readily conclude that the district court constructively amended the

indictment. The indictment alleged that Roberts sex trafficked a minor, S.A.,

“knowing, and in reckless disregard of the fact, that S.A. had not attained the age

of 18 years,” in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), and 2. Doc. 7 at 1.

The indictment contained no allegation that Roberts violated §1591(c) by having

had a reasonable opportunity to observe his minor victim. See 18 U.S.C.

§ 1591(c). Yet, in its jury instructions, the district court explained that“[i]f the


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government prove[d] beyond a reasonable doubt that [Roberts] had a reasonable

opportunity to observe” S.A., then the government did “not have to prove that

[Roberts] knew, or recklessly disregarded the fact, that [S.A.] had not attained the

age of 18 years.” Doc. 182 at 46. Because a constructive amendment is per se

reversible error, Figueroa, 666 F.2d at 1379, Roberts’s conviction for sex

trafficking of a minor must be reversed.

B.    The Government Presented Sufficient Evidence to Convict Roberts.

      Roberts contends that the Double Jeopardy Clause of the Fifth Amendment

bars his retrial. It is well established that if a conviction is set aside based on error

in the trial process, the Double Jeopardy Clause does not preclude the government

from retrying the defendant. See Burks v. United States, 437 U.S. 1, 15-16 (1978).

Roberts nonetheless asserts that he cannot be retried because at trial the

government failed to introduce sufficient evidence of his mens rea. If the

government indeed failed to offer sufficient evidence, double jeopardy principles

would bar the government from retrying Roberts. See id. But, upon review of the

record, we conclude that the government presented sufficient evidence to convict

Roberts of sex trafficking of a minor in violation of 18 U.S.C. § 1591.

      To convict Roberts under § 1591, the government had to prove that he: (1)

knowingly recruited, enticed, harbored, transported, provided, obtained, or

maintained his victim by any means; (2) knew, or recklessly disregarded the fact,


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that his victim was a minor and would be caused to engage in a commercial sex

act; and (3) acted in or affecting interstate or foreign commerce. See 18 U.S.C.

§ 1591(a); see also United States v. Mozie, 752 F.3d 1271, 1286 (11th Cir. 2014).

Roberts challenges only the second prong on appeal, contending that the

government presented insufficient evidence from which the jury reasonably could

conclude that he (1) knew S.A. was a minor, or (2) acted with reckless disregard of

the fact that S.A. was a minor.

       We disagree. The government presented sufficient evidence from which the

jury could find one, if not both, of those alternatives. 3 The government’s best

evidence of Roberts’s knowledge of S.A.’s minor status was that at the time of his

arrest, Roberts accurately told FBI agents that S.A. was “a 14-year-old girl.” Doc.

180 at 18. Roberts also accurately reported S.A.’s birth month and year—

November 2001—to the FBI agents. From this evidence, a reasonable jury could

infer Roberts’s knowledge of S.A.’s age.




       3
         The government contends that it also presented sufficient evidence from which a
reasonable jury could find Roberts guilty under the jury instruction at issue, that he had a
reasonable opportunity to observe his minor victim. See 18 U.S.C. § 1591(c). Roberts responds
that we may look only to whether the government presented sufficient evidence to prove the two
types of mens rea charged in the indictment: knowledge and reckless disregard. Because the
government presented sufficient evidence to establish that Roberts acted with knowledge or
reckless disregard of his minor victim’s age, however, we need not reach the issue of whether, in
conducting a sufficiency analysis after a constructive amendment, we may consider instead
whether the government presented sufficient evidence to support the verdict the court rendered
under the constructive amendment.
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      Roberts argues that these statements made at the time of his arrest do not

establish that he knew S.A.’s age at the time of the offense. But a jury could infer

from these statements he knew of S.A.’s age at the time that he engaged in the

offense. On the day of his arrest when Roberts told law enforcement S.A’s correct

age, S.A. was still living in his hotel room and engaging in prostitution. Given the

temporal overlap between Roberts’s trafficking activities and the time of his

statement about S.A.’s age, a reasonable jury certainly could find that he knew her

age at the time of the offense.

      In addition, plenty of other evidence supports an inference that Roberts

knew of or recklessly disregarded S.A.’s age. The jury heard recorded phone calls

from jail in which Roberts referred to S.A. as “that little girl.” Doc. 179 at 135.

The jury examined Roberts’s text messages, sent during the offense period, in

which he referred to the possibility of “Child Net” taking S.A. away. The jury

learned that Roberts had posted online advertisements in which he described S.A.

as “young.” And Anderson described how she warned Roberts more than once

that she believed S.A. was underage. In addition, Anderson testified that S.A.

seemed young because she did not know how to use a tampon and did not know

what orange juice was, and the FBI agent testified that S.A. “appeared to be

young” based on her physical appearance. Doc. 180 at 32. From this combination

of evidence, a reasonable jury could conclude that Roberts knew, or at least


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recklessly disregarded, that S.A. was not 18 years old, as she initially had claimed

to be.

         Some evidence supported Roberts’s contentions that he did not know, or did

not recklessly disregard, S.A.’s minor status. For example, S.A. testified that she

told Roberts she was 18 years old. In addition, a Fort Lauderdale police officer

tasked with investigating whether S.A. was a minor engaging in prostitution

testified that he believed S.A. was 18 years old after meeting and speaking to her.

But we do not infer that the evidence was insufficient to support the jury’s verdict

from the fact that some evidence was contrary to that verdict. See, e.g., United

States v. Brown, 415 F.3d 1257, 1271 (11th Cir. 2005).

         Viewing the evidence in the light most favorable to the government, a

reasonable jury could find that the evidence established Roberts’s guilt beyond a

reasonable doubt under the original, rather than the constructively amended,

indictment. Thus, double jeopardy does not bar Roberts’s retrial on remand. See

Burks, 437 U.S. at 15-16.4

                                   IV.    CONCLUSION

         For these reasons, we vacate Roberts’s conviction and sentence. We remand

to the district court for further proceedings consistent with this opinion.



         4
        Roberts also argues that the district court erred in applying a sentencing enhancement.
Because we vacate Roberts’s conviction and sentence, that issue is moot.
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VACATED AND REMANDED.




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