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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals

                                    No. 18-10644
                                                                        Fifth Circuit

                                                                      FILED
                                                                  July 21, 2020

UNITED STATES OF AMERICA,                                        Lyle W. Cayce
                                                                      Clerk
             Plaintiff - Appellee

v.

HERMAN SANDERS, also known as "Pooh"; DEMARCUS DAVIS, also
known as Zigg; PIERRE LAGRONE, also known as "P", also known as
"Pedro",

             Defendants - Appellants




                Appeals from the United States District Court
                     for the Northern District of Texas


Before JOLLY, GRAVES, and DUNCAN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      A jury convicted Pierre Lagrone, Demarcus Davis, and Herman Sanders
for several offenses related to the sex trafficking of underage females. On
appeal, Davis and Lagrone contend that it was error to join them in the same
indictment, asserting that the only connection between their offenses was a
common victim—Jane Doe 2.            Sanders challenges his conviction for the
production of child pornography, arguing that the district court impermissibly
allowed the government to constructively amend the allegations in the
indictment. We affirm Lagrone’s and Davis’s convictions. But, because there
was a constructive amendment of the production of child pornography count
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                                 No. 18-10644
against Sanders, we reverse and vacate his conviction for the production of
child pornography and remand for further proceedings not inconsistent with
this opinion.
                                      I.
      The following facts are taken from the allegations in the third
superseding indictment and Jane Doe 2’s testimony at trial. Pierre Lagrone
and Demarcus Davis were rival pimps who profited from trafficking underage
females to engage in sex acts.     Herman Sanders is Lagrone’s friend and
assisted Lagrone in his trafficking of underage females.
      Although Lagrone and Davis did not work together, they had at least one
underage victim in common—Jane Doe 2. When Jane Doe 2 was seventeen,
she ran away from home along with her sixteen-year-old friend Jane Doe 4.
Jane Doe 2 then called her friend Jane Doe 6 and asked her if she knew of a
place where Jane Does 2 and 4 would be welcome. Jane Doe 6 gave Jane Doe
2 Lagrone’s contact information and explained that, if the girls went with him,
they would be required to perform commercial sex acts. After Jane Does 2 and
4 contacted Lagrone, he sent Sanders to pick them up. Sanders then took Jane
Does 2 and 4 to a Super 8 motel. On their way to the motel, Jane Does 2 and
4 lied to Sanders about their ages and told him that they were eighteen. After
arriving at the motel, Sanders informed the teenagers that he needed to take
nude photos of them to advertise their services on Backpage.com. Once he took
the pictures of Jane Does 2 and 4, Sanders had sex with them.
      Jane Doe 4 left the motel and returned to her family before Lagrone
advertised her for commercial sex. But, several days after Jane Doe 2 arrived
at the Super 8, Lagrone began to advertise her on Backpage. Jane Doe 2 then
began seeing customers, whom she refers to as “tricks,” and gave most of the
money she earned to Lagrone, whom she considered her pimp. At some point,
Jane Doe 2’s sixteen-year-old friend, Jane Doe 5, joined her at the Super 8.
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Lagrone began to advertise Jane Does 2 and 5 as “a two-girl show” on Backpage
with the idea that they “would do a trick together.” Jane Does 2 and 5 ended
up taking one call together. Following that call, Jane Doe 5’s sister located the
girls, took Jane Doe 5 home, and called the police. The police arrested Jane
Doe 2 and took her into custody for thirty days due to an outstanding juvenile
warrant. Several weeks after she was released from custody, Jane Doe 2 went
back to Lagrone. Jane Doe 2 then began seeing around five customers a day.
      Lagrone was rarely violent with Jane Doe 2. But on one occasion, Jane
Doe 2 called Lagrone a name, and he responded by hitting her on the side of
her face. Soon after this incident, Jane Doe 2 left Lagrone to work for Davis.
Davis advertised Jane Doe 2 on his Backpage account and arranged for her to
see customers. After three days with Davis, Jane Doe 2 left him to go back to
Lagrone. Jane Doe 2 then went back-and-forth from Lagrone to Davis at least
four times in a period of six weeks.
      When Jane Doe 2 was with Davis, he was violent on several occasions.
On one such occasion, Davis drove Jane Doe 2 to a church near the Motel 6
where they were staying, pulled out a gun, and forced Jane Doe 2 to take off
her clothes and stand outside the car. Jane Doe 2 also witnessed Davis and
Lagrone be violent towards each other. During one of the incidents when Jane
Doe 2 left Davis for Lagrone, Lagrone, and several of his associates, came to
retrieve Jane Doe 2 from the motel where she was staying with Davis. Davis
caught wind of Jane Doe 2’s plans and, according to Jane Doe 2, started
“skipping” towards Lagrone’s car. Lagrone then started shooting at Davis, who
responded by grabbing Jane Doe 2 and running inside the motel.
                                       II.
      On October 10, 2017, a criminal complaint was filed in the Northern
District of Texas against, among others, Lagrone, Davis, and Sanders. An
original indictment was filed in December 2017. On March 21, 2018, two days
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                                 No. 18-10644
before trial, the government obtained a third superseding indictment against
Lagrone, Davis, and Sanders.      This indictment, which was the operative
indictment at trial, had nine counts. The indictment charged Lagrone and
Sanders with one count of conspiracy to engage in sex trafficking of children
(Count One). Lagrone was also charged with sex trafficking Jane Does 2, 4, 5,
and 6 (Counts Two–Five) and with possessing child pornography (Count Six).
Davis was charged with one count of sex trafficking Jane Doe 2 (Count Seven).
In addition to the conspiracy charge, Sanders was charged with one count of
producing child pornography (Count Eight) and one count of possessing child
pornography (Count Nine).      Notably, unlike in previous indictments, the
government did not charge Davis with conspiring with Lagrone and Sanders.
      The defendants were arraigned on the third superseding indictment
immediately before jury selection began. Following the rearraignment and
jury selection, the defendants’ trial was held and continued for four days. Jane
Doe 2, who was able to testify about most of the events that gave rise to the
defendants’ criminal charges, was the government’s star witness. At the time
of trial, Jane Doe 2 was facing armed robbery charges in Louisiana. Because
of the pending armed robbery charges, Jane Doe 2 was kept in a holding cell
before she met with prosecutors to prepare for the trial. Jane Doe 2 testified
that, while in the holding cell, she encountered the defendants, who tried to
talk to her about this case. If the defendants were attempting to intimidate
Jane Doe 2 into silence, they appear to have been unsuccessful because at trial
she provided extensive testimony about how she was sex trafficked.
      After the government rested its case, Sanders moved for a judgment of
acquittal on both the child pornography production and child pornography
possession counts against him, arguing that the government had failed to
prove that he knew Jane Does 2 and 4 were under the age of eighteen when he
took the nude photos of them.       With respect to the production of child
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                                 No. 18-10644
pornography count, Sanders noted that the government had charged that he
“did knowingly employ, use, persuade, induce, entice or coerce two minor
females . . . to engage in sexually explicit conduct” but that Jane Doe 2 had
testified that she and Jane Doe 4 had lied to Sanders about their ages. The
district court denied the motion. The district court also denied Sanders’s
request that the jury be instructed that the government had to prove that he
knew that Jane Does 2 and 4 were minors to convict him of the production of
child pornography. Instead, the district court instructed the jury that the
government did “not have to prove that Sanders knew Jane Doe 2 or Jane Doe
4 were under the age of 18 at the time he is alleged to have taken the
[photographs].”
      After the trial concluded, the jury found Lagrone guilty of conspiring to
engage in sex trafficking under Count One of the indictment. The jury also
found Lagrone guilty of sex trafficking Jane Does 2, 4, and 5.         The jury
acquitted Lagrone of sex trafficking Jane Doe 6 and of possessing child
pornography. The jury convicted Davis of sex trafficking Jane Doe 2. The jury
convicted Sanders of the production of child pornography but acquitted him of
the possession charge. The government agreed to dismiss the conspiracy to
engage in sex trafficking count against Sanders because he had previously pled
guilty to a similar charge in a different charging document.
      At sentencing, the district court sentenced Lagrone to four concurrent
terms of life imprisonment. The district court sentenced Davis to a term of life
imprisonment. The district court sentenced Sanders to serve a term of 420
months’ imprisonment. This timely appeal followed.




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                                      No. 18-10644
                                            III.
       On appeal, Davis and Lagrone allege that they were misjoined. 1 Sanders
asserts that the district court erred by permitting the jury to convict him of the
production of child pornography count regardless of his knowledge of Jane
Does 2 and 4’s ages.        According to Sanders, the discrepancy between the
allegation that he acted “knowingly” and the government’s proof at trial
amounted to a constructive amendment of the indictment.                     Sanders also
contends that the district court erred in denying his motion for judgment of
acquittal with respect to the production of child pornography count.
                                            A.
       We first consider Davis and Lagrone’s misjoinder argument under
Federal Rule of Criminal Procedure 8(b).             That Rule provides that “[t]he
indictment or information may charge 2 or more defendants if they are alleged
to have participated in the same act or transaction, or in the same series of
acts or transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8(b).
“Whether joinder is proper is normally determined from the allegations in the
indictment.”     United States v. McRae, 702 F.3d 806, 820 (5th Cir. 2012)
(quoting United States v. Posada-Rios, 158 F.3d 832, 862 (5th Cir. 1998)).
Although the parties dispute the standard of review for this issue, we would
reach the same result under any standard of review, so we will review Davis
and Lagrone’s misjoinder argument de novo. Under de novo review, “we may
affirm if we find that misjoinder occurred but that the error was harmless.” Id.




       1 Davis also has filed a pro se motion requesting that we relieve his court-appointed
counsel, appoint him new counsel, suspend the appeal, and provide him with a copy of the
record. We deny Davis’s motion. To the extent that Davis seeks to assert an ineffective
assistance of counsel claim, we lack the factual record to adjudicate this claim on direct
appeal. See United States v. Miller, 406 F.3d 323, 335–36 (5th Cir. 2005). Thus, if Davis
wishes to proceed with such a claim, he will need to file a motion to vacate, set aside, or
correct his sentence in the district court. See 28 U.S.C. § 2255.
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                                     No. 18-10644
      We question whether Davis and Lagrone were misjoined. Although the
indictment did not charge the two men with participating in the same acts or
being members of the same conspiracy, the indictment alleged a greater
connection between Davis and Lagrone than simply that they both victimized
Jane Doe 2. The indictment also included allegations that Davis and Lagrone
“were rival pimps, who competed for certain underage girls” and described the
incident when Lagrone attempted to shoot Davis in a dispute over control of
Jane Doe 2. These allegations may well have been sufficient to establish that
Davis and Lagrone participated in the same series of acts or transactions. See
Posada-Rios, 158 F.3d at 862 (“Rule 8 is construed liberally in favor of initial
joinder.”).
       But even assuming that the district court erred, reversal is warranted
“only if the misjoinder result[ed] in actual prejudice because it had substantial
and injurious effect or influence in determining the jury’s verdict.” See United
States v. Lane, 474 U.S. 438, 449 (1986) (internal quotations and citations
omitted). As we will explain, Davis and Lagrone have failed to persuade us
that their joint trial had a “substantial and injurious effect” on the verdict. See
id. We discuss the potential prejudice suffered by each defendant in turn.
                                            1.
       We turn first to Davis. Davis argues that the alleged misjoinder resulted
in actual prejudice for two reasons: (1) there was a risk of a spillover effect from
Jane Doe 2’s testimony, and (2) the testimony about the holding cell incident
made it appear that he was working with Lagrone and Sanders. 2 Although
Davis and Lagrone were charged with committing similar offenses against
Jane Doe 2, we are not convinced that any spillover effect influenced the


      2   Davis makes no misjoinder argument specific to Sanders. Thus, the focus of our
analysis is on Davis being jointly tried with Lagrone. But our reasoning applies with equal
force to the joinder of Davis and Sanders.
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                                 No. 18-10644
outcome of the trial or verdict. As detailed above, Jane Doe 2 testified that
Davis advertised her for commercial sex on his Backpage account, arranged
her appointments with customers, and set the rates that she was to charge
customers.     This testimony, which Davis does not challenge, provided
overwhelming evidence that Davis was guilty of sex trafficking Jane Doe 2.
      Further, the evidence against Lagrone and Sanders was “distinct and
easily segregated from evidence relating to” Davis. Lane, 474 U.S. at 450 n.13.
Jane Doe 2’s testimony provided a coherent narrative of the events that gave
rise to the charges in this case and carefully distinguished the acts of Lagrone
and Sanders from the acts of Davis. Moreover, it is improbable that the jury
attributed Lagrone’s trafficking of Jane Does 4 and 5 to Davis when there was
no allegation that Davis ever interacted with these two victims or worked in
partnership with Lagrone.
      And, even if the spillover effect did present some risk of prejudice, we are
confident that the prejudice was sufficiently cured by the district court’s
limiting instructions. The district court instructed the jury that “[t]he case of
each defendant should be considered separately and individually” and that the
jury “must give separate consideration to the evidence as to each defendant.”
We are to presume that the jury followed these instructions when reaching its
decision. See United States v. Nieto, 721 F.3d 357, 371 (5th Cir. 2013). The
jury’s mixed verdict, which acquitted Lagrone of sex trafficking Jane Doe 6 and
acquitted Lagrone and Sanders of the possession of child pornography, gives
us good reason to believe that the jury did follow these instructions when
deliberating. We thus conclude that Davis suffered no actual prejudice from a
spillover effect.
      We also fail to see how Jane Doe 2’s testimony about the holding cell
incident demonstrates that the alleged misjoinder actually prejudiced Davis.
Jane Doe 2 testified that during this incident, Davis talked to her about this
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                                    No. 18-10644
case and told her that he would “plead guilty to the pimp part but . . . not . . .
to the gun charge.” 3 This evidence, which could suggest that Davis tried to
interfere with Jane Doe 2’s testimony, would have been admissible against him
even if Lagrone and Sanders had not been his codefendants. Although Jane
Doe 2 also testified that Sanders said that she should deny that he took the
nude pictures of her, the district court’s instruction that the jury separately
consider the evidence against each defendant sufficiently minimized the risk
that this statement would prejudice Davis. See United States v. Mitchell, 484
F.3d 762, 775–76 (5th Cir. 2007). Finally, we disagree that the holding cell
incident caused the jury to think that Davis acted in concert with Lagrone
when he trafficked Jane Doe 2. Jane Doe 2 testified that Davis and Lagrone
worked independently. We have been given no reason to believe that the jurors
rejected this testimony, much less that they rejected it because of Jane Doe 2’s
testimony about what they told her in the holding cell. Consequently, Davis
has failed to demonstrate that he suffered actual prejudice from the alleged
misjoinder.
                                           2.
      We next turn our attention to whether the alleged misjoinder prejudiced
Lagrone. Like Davis, Lagrone argues that he was prejudiced by a spillover
effect of the evidence against Davis and, in particular, the testimony about the
holding cell incident. He further argues that he was prejudiced by Jane Doe
2’s testimony about Davis’s violence towards her.
      As with Davis, there is overwhelming evidence that Lagrone sex
trafficked Jane Doe 2. Jane Doe 2 testified that Lagrone advertised her on
Backpage, collected most of the money she received from customers, and, at



      3There was no gun charge filed against Davis in this case. Thus, it is unclear what
he meant when he told Jane Doe 2 that he was “not pleading guilty to the gun charge.”
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times, had her seeing five customers a day. Although Lagrone argues that
Jane Doe 2 lacks credibility because she is no stranger to the criminal justice
system, he has not pointed us to any evidence that contradicts her testimony.
To be sure, there was less substantial evidence that Lagrone trafficked Jane
Does 4 and 5. But Lagrone has failed to explain how his joint trial with Davis
caused the jury to convict him of trafficking Jane Does 4 and 5. Further, as
explained above, the testimony presented at trial was not particularly complex
or susceptible to jury confusion.    We are thus skeptical that there was a
spillover effect that “had substantial or injurious effect” on the jury’s decision
to convict Lagrone. Lane, 474 U.S. at 449. And, even if there were a risk that
Lagrone would be prejudiced by a spillover effect, the limiting instructions that
we have discussed were sufficient to cure that prejudice.
      We also conclude that the holding cell testimony did not result in actual
prejudice to Lagrone.    The only difference between Lagrone’s and Davis’s
holding cell incident arguments is that Lagrone contends that he was
prejudiced because he never attempted to influence Jane Doe 2’s testimony.
As Lagrone notes, the only specific statement that Jane Doe 2 alleged he made
during the holding cell incident was that “I forgive you for everything that you
are doing . . . .” At sentencing, the district court concluded that this statement
was insufficient to support an obstruction of justice sentencing enhancement
against Lagrone. We agree that there was little to no evidence that Lagrone
made this statement in an attempt to influence Jane Doe 2’s testimony.
      But, even though certain portions of Jane Doe 2’s holding cell incident
testimony lumped all three defendants together, we are unconvinced by
Lagrone’s argument that this testimony resulted in actual prejudice to him.
We reach this result because the amount of time Jane Doe 2’s testimony was
devoted to discussing the holding cell incident pales in comparison to the time
she spent providing specific and detailed testimony about Lagrone’s sex
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                                  No. 18-10644
trafficking of her. In the light of the overwhelming evidence of Lagrone’s guilt,
it seems clear to us that the holding cell incident was not foremost in the jurors’
minds when convicting him.        And, in any event, the most incriminating
statement alleged to have been made during the holding cell incident came
from Sanders, explicitly asking Jane Doe 2 to lie. Lagrone concedes that he
was properly joined with Sanders, so even if Lagrone and Davis had not been
joined in the same indictment, Lagrone would have had to contend with
Sanders’s holding cell comment at trial. It is implausible that the additional
testimony about Davis’s statement, which contained a more subtle attempt to
influence Jane Doe 2’s testimony than Sanders’s comment, affected the jury’s
view of this incident or changed the outcome of the proceedings against
Lagrone.
      We additionally conclude that Jane Doe 2’s testimony about Davis’s
violence was not so prejudicial to Lagrone that it had a “substantial and
injurious effect or influence on the jury’s verdict.” Lane, 474 U.S. at 449. To
be sure, Jane Doe 2 testified that Lagrone was rarely violent, but that Davis
often acted aggressively. And, because Lagrone and Davis were both accused
of trafficking Jane Doe 2, there was some risk that Davis’s violence would be
attributed to Lagrone. But the district court’s jury instructions adequately
mitigated this risk. In addition to its general instruction that the jury “must
give separate consideration to the evidence as to each defendant,” the district
court also specifically instructed the jury that the testimony about Davis’s
violence should be considered only against Davis. The giving of this specific
instruction, combined with the fact that there was overwhelming evidence that
Lagrone trafficked Jane Doe 2, convinces us that the testimony about Davis’s
violence did not result in actual prejudice to Lagrone.
      In sum, the district court “ably parsed” the evidence and took measures
“to assure a fair trial for all parties and to minimize any spillover effect from
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                                        No. 18-10644
the . . . joint trial.” Posada-Rios, 158 F.3d at 865. Thus, even if Davis and
Lagrone were misjoined, that error was harmless. We therefore affirm Davis’s
and Lagrone’s convictions. 4
                                               B.
       We now turn to Sanders’s argument that the district court, in rulings we
subsequently discuss, allowed the government to constructively amend the
production of child pornography count in the third superseding indictment. We
review this preserved argument de novo. See United States v. Bennett, 874
F.3d 236, 256 (5th Cir. 2017).
        Section 2251 of title 18 makes it a crime when “[a]ny person . . . employs,
uses, persuades, induces, entices, or coerces any minor to engage in . . ., with
the intent that such minor engage in, any sexually explicit conduct for the
purpose of producing any visual depiction of such conduct . . . .” See 18 U.S.C.
2251(a). This crime thus includes no requirement that a defendant know his
victims’ ages. See United States v. Crow, 164 F.3d 229, 236 (5th Cir. 1999).
Accordingly, in discussing the production of child pornography count against
Sanders, the district court instructed the jury that “[t]he Government does not
have to prove that Sanders knew Jane Doe 2 or Jane Doe 4 were under the age
of 18 at the time he is alleged to have taken the [photographs].”
       But, the terms of the statute aside, the indictment itself specifically
charged that Sanders “did knowingly employ, use, persuade, induce, entice or


       4 Davis and Lagrone have alternatively appealed the district court’s denial of their
motions to sever under Federal Rule of Criminal Procedure 14(a), which provides that “[i]f
the joinder of . . . defendants in an indictment . . . appears to prejudice a defendant . . . the
court may . . . sever the defendants’ trials . . . .” Fed. R. Crim. P. 14(a). “To demonstrate that
the court abused its discretion in denying [a] motion for severance, the defendant bears the
burden of showing specific and compelling prejudice that resulted in an unfair trial, and such
prejudice must be of the type against which the trial court was unable to afford protection.”
Mitchell, 484 F.3d at 775 (internal quotations and citations omitted). As explained above,
Davis and Lagrone have failed to make this showing.

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                                 No. 18-10644
coerce two minor females . . . to engage in sexually explicit conduct for the
purpose of producing any visual depiction of such conduct.” (emphasis added).
Sanders argues, quite sensibly, that the government must prove the crime
charged in the indictment. Therefore, he says that the district court erred
when it did not require the government to prove that he knew Jane Does 2 and
4 were minors. On the other hand, the government contends that the term
“knowingly,” as asserted in the indictment, has no application to the charge
that Sanders’s victims were “two minor females.”            Alternatively, the
government asserts that the difference between the indictment and the proof
offered at trial did not amount to a constructive amendment of the indictment
but instead constituted only a variance between the indictment and the proof.
                                           1.
      We first consider how the indictment should be interpreted. Both the
government and Sanders agree that it is natural to read the term “knowingly”
in the indictment as modifying the verbs “employ, use, persuade, induce, entice
or coerce.” But we cannot stop there. It is grammatically significant to observe
that the phrase “two minor females” is the direct object of these transitive
verbs. See The American Heritage Dictionary 373 (New College Ed. 1981)
(defining “direct object” as “the word or words in a sentence designating the
person or thing receiving the action of a transitive verb”). And “where a
transitive verb [such as, employ, use, persuade, induce, entice or coerce] has
an object [here, two minor females], listeners in most contexts assume that an
adverb (such as knowingly) that modifies the transitive verb tells the listener
how the subject performed the entire action, including the object as set forth
in the sentence.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009).
      Accordingly, an objective reader would understand the statement that
Sanders “did knowingly . . . persuade . . . two minor females . . . to engage in
sexually explicit conduct” to mean that Sanders knew that the individuals he
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                                  No. 18-10644
was persuading were minor females. We reach this conclusion because it
makes little sense to read the indictment as alleging that Sanders knew he had
engaged in persuasion but had no knowledge of whom he had persuaded.            To
be sure, an allegation of persuasion with no object of that persuasion states no
crime. That is particularly true under this child pornography statute where
the victim must be a minor to state an offense. See 18 U.S.C. § 2251(a). Indeed,
we have interpreted language similar to the indictment’s charge that Sanders
“did knowingly employ, use, persuade, induce, entice or coerce two minor
females” to require the government to prove that the defendant thought that
he was dealing with a minor. For example, we have held that 18 U.S.C.
§ 2422(b), which makes it a crime to “knowingly persuade[ ], induce[ ], entice[
], or coerce[ ] any individual who has not attained the age of 18 years, to engage
in prostitution,” requires the government “to prove beyond a reasonable doubt
that [the defendant] intended to ‘persuade, induce, entice, or coerce’ a person
whom he believed to be a minor into illegal sexual contact.” See United States
v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009) (cleaned up) (emphasis added).
We can see no reason why we should apply a different interpretation to the
comparable language in the indictment. Consequently, our understanding of
the ordinary English usage of the adverb “knowingly” leads us to conclude that
the most natural reading of the charges is that Sanders knew the objects of his
persuasion were minor females.
      The   government,     however,   suggests    that     we   should   interpret
“knowingly” as referring to Sanders’s intent to create a sexually explicit visual
depiction. The government concedes, as it must, that if we were to read the
term “knowingly” in its suggested manner, as referencing the intent to create
a sexually explicit image, we would render the indictment’s allegation that
Sanders acted “for the purpose of producing any visual depiction of such
conduct” redundant since those words (“for the purpose”) are allegations of
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                                No. 18-10644
intent. We see no reason that such intent should be twice alleged especially
when it is far more natural to read “knowingly” as referring to Sanders’s
knowledge that he had persuaded two minor females to engage in sexually
explicit conduct. Further, even if “knowingly” is read to apply to Sanders’s
intent to create a visual depiction, the government has failed to explain why
we should not also read “knowingly” as applying to the victims’ minor status,
which appears much closer to the term “knowingly” in the sentence than the
allegations related to the production of visual depictions. For these reasons,
we read the production of child pornography count as alleging that Sanders
knew Jane Does 2 and 4 were minors.
                                           2.
      This conclusion brings us to consider the differences between
constructive amendments and variances when comparing the government’s
proof with the indictment. “[A] constructive amendment . . . is reversible per
se,” but “a variance between the indictment and proof [is examined] for
harmless error.” Bennett, 874 F.3d at 256. “A constructive amendment occurs
when it permits the defendant to be convicted upon a factual basis that
effectively modifies an essential element of the offense charged or permits the
government to convict the defendant on a materially different theory or set of
facts than that with which [he] was charged.” United States v. McMillan, 600
F.3d 434, 451 (5th Cir. 2010) (internal quotations and citations omitted).
Otherwise, the amendment is a variance, “and the defendant must show how
the variance in the language between the jury charge and the indictment so
severely prejudiced his defense that it requires reversal under harmless error
review.” Bennett, 874 F.3d at 256.
      We think that disregarding the indictment’s allegation that Sanders
knew that his victims were minors constitutes a constructive amendment—not
a mere variance.    Our previous analysis established that the indictment
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                                 No. 18-10644
charges Sanders with knowing that the females were minors, and yet, Sanders
was convicted with no proof that he knew that Jane Does 2 and 4 were
underage. Thus, by instructing the jury that Sanders could be convicted even
if he did not know that Jane Does 2 and 4 were minors, the district court
permitted Sanders to be convicted under facts different from those charged in
the indictment.     That is to say, the district court allowed Sanders to be
convicted of the offense of production of child pornography generally and not
in accord with the indictment’s specific accusation that he knew his victims
were minors. In similar circumstances, we have concluded that “substantial
factual difference[s]” between the allegations in the indictment and proof
offered at trial constructively amended the indictment. See United States v.
Nuñez, 180 F.3d 227, 232–34 (5th Cir. 1999) (finding constructive amendment
where indictment charged the defendant with “resisting arrest by means of a
firearm” but jury convicted defendant of merely “resisting arrest”); see also
United States v. Salinas, 654 F.2d 319, 324–25 (5th Cir. 1981) (finding
constructive amendment where defendant charged with aiding and abetting
bank director’s misappropriation of funds but jury instructed that defendant
could be convicted for aiding and abetting any of the bank’s officers), overruled
on other grounds by United States v. Adamson, 700 F.2d 953, 965 n.18 (5th Cir.
1983) (en banc).
      And, in a case in sync with our case, the Eleventh Circuit has found a
constructive amendment when the district court disregarded the indictment’s
word “willfully” in two money laundering counts, even though willfulness is
not an element of money laundering. See United States v. Cancelliere, 69 F.3d
1116, 1121–22 (11th Cir. 1995). As the Eleventh Circuit reasoned, “changing
the requirement from proof of ‘knowingly and willfully’ to ‘knowingly’
impermissibly broadened the bases for Cancelliere’s conviction, even though
willfulness is not required under the money laundering statute.” Id. at 1121.
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                                       No. 18-10644
The difference between a defendant who knows that he is creating a sexually
explicit image of a minor and, on the other hand, one who is able to assume
that he is producing adult, not child, pornography is significant enough to
conclude that the charges against Sanders were similarly broadened. 5 We thus
conclude that Sanders was convicted “on a materially different theory or set of
facts than that with which [he] was charged.” McMillan, 600 F.3d at 451.
Accordingly, we reverse Sanders’s conviction for the production of child
pornography.
                                             C.
       We finally turn to the district court’s denial of Sanders’s motion for
judgment of acquittal. Because we have reversed Sanders’s conviction for the
production of child pornography, we need not further address whether
insufficient evidence sustained his conviction. The sufficiency of the evidence
argument is relevant, however, in at least one important respect.
       If an indictment is “constructively amended by prosecution evidence
wholly outside the proper scope of the indictment and/or by a jury charge
authorizing a verdict of guilty thereon, but there is evidence within the proper
scope of the indictment which supports the verdict, then the normal remedy is
to reverse for a new trial.” United States v. Chambers, 408 F.3d 237, 247 n.6
(5th Cir. 2005). But if there is no evidence to support the factual basis for
conviction alleged in the indictment, we are required to reverse the defendant’s


       5  Of course, we recognize that disregarding surplus facts in the indictment is
permissible. See United States v. Griffin, 800 F.3d 198, 202–03 (5th Cir. 2015). But that is
not what occurred here. Instead of narrowing the crime alleged in the indictment, the district
court impermissibly allowed the circumstances for Sanders’s conviction to be broadened
beyond the facts alleged in the indictment. Indeed, the indictment specifically accused
Sanders of acting with knowledge that Jane Does 2 and 4 were minors. But by stating that
the jury could disregard whether Sanders knew Jane Does 2 and 4 were underage, the district
court broadened the indictment to include allegations that Sanders acted with any mens rea
that the jury found applicable. “It is this very type of ‘broadening’ that” constitutes a
constructive amendment. See Nuñez, 180 F.3d at 233.
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                                 No. 18-10644
conviction and order dismissal of the relevant count on remand. See id.; see
also United States v. Adams, 778 F.2d 1117, 1125 n.13 (5th Cir. 1985)
(concluding that retrial was permissible because “the evidence would have
been sufficient to convict [the defendant] as charged in the indictment”). Here,
Jane Doe 2 testified that she and Jane Doe 4 told Sanders that they were
eighteen. The government has pointed to no evidence that contradicts her
testimony or that otherwise indicates that Sanders knew that the two
teenagers were minors. Thus, because there is no evidence to support the
charge of the indictment that Sanders knew that the victims were minors, the
district court, on remand, is directed to dismiss with prejudice the production
of child pornography count against Sanders.
                                      IV.
      In this opinion we have held: Even if the district court erred in allowing
the government to join Davis and Lagrone in the same indictment, that error
was harmless. We therefore AFFIRM the convictions of Davis and Lagrone.
We have further held that the district court impermissibly permitted the
government to constructively amend the production of child pornography
charge against Sanders. We therefore REVERSE and VACATE Sanders’s
conviction for the production of child pornography. As we have explained,
there is no evidence in the record to support the indictment’s charge that
Sanders knew his victims were minors. This case is thus REMANDED for the
district court to dismiss with prejudice the production of child pornography
count against Sanders and for such further proceedings not inconsistent with
this opinion.
AFFIRMED in part; REVERSED and VACATED in part; and REMANDED.




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