            Case: 12-13498   Date Filed: 02/26/2013   Page: 1 of 5

                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13498
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:11-cr-00477-VMC-TBM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

BRIAN WEISS,

                                                          Defendant-Appellant.

                       ________________________

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

                             (February 26, 2013)

Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
              Case: 12-13498    Date Filed: 02/26/2013   Page: 2 of 5

      Appellant Brian Weiss appeals his conviction for attempting to entice a

minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The

indictment stated that Weiss “did knowingly attempt to persuade, induce, entice

and coerce an individual who had not attained the age of eighteen years to engage

in a sexual act.” On appeal, Weiss argues that: (1) the evidence was insufficient to

support his conviction; and (2) the indictment was constructively amended in

violation of his Fifth Amendment rights. Each of these arguments is addressed in

turn below.

                                         I.

      On appeal, Weiss argues that there was insufficient evidence to support his

conviction because the indictment charged him with attempting to entice an actual

minor, not just an individual representing themselves as a minor, and the

government presented no evidence that an actual minor was involved.

      We review the sufficiency of the evidence de novo. United States v.

Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). In determining whether sufficient

evidence exists, we view the evidence in the light most favorable to the

government, and ask whether a reasonable fact finder could have concluded

beyond a reasonable doubt that the defendant was guilty. Id.

      To obtain a conviction for attempt under 18 U.S.C. § 2422(b), the

government must prove: (1) that the defendant “acted with the kind of culpability


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required for the crime he was charged with attempting, and (2) that he engaged in

conduct constituting a substantial step toward its commission.” United States v.

Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). An actual minor victim need not

exist to support a conviction under § 2422(b). United States v. Lanzon, 639 F.3d

1293, 1299 (11th Cir.), cert. denied, ___ U.S. ___, 132 S. Ct. 333 (2011). If a

defendant arranges through an adult intermediary to have sex with a supposed

minor, that conduct is sufficient to support a conviction. Id. In Lanzon, the

defendant chatted online with an undercover agent about having sex with a 14

year-old girl who was ostensibly the agent’s girlfriend’s daughter. Id. at 1296.

Although no such girl existed, we affirmed the defendant’s conviction under

§ 2422(b). Id. at 1298–99.

      The only argument Weiss raises concerning the sufficiency of the evidence

is that the indictment charged him with attempted enticement of an actual minor,

but the government presented no evidence that an actual minor was involved.

However, the indictment mirrored the language of 18 U.S.C. § 2422(b), which

prohibits the enticement of “any individual who has not attained the age of 18

years.” 18 U.S.C. § 2422(b). The language of § 2422(b) does not require the

existence of an actual minor, but merely requires the defendant to believe that a

minor was involved. United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002)

(holding that an “actual minor victim is not required for an attempt conviction


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under 18 U.S.C. § 2422(b),” and that defendant’s “belief that a minor was involved

is sufficient to sustain an attempt conviction”), superseded by Guideline

amendment on other grounds, as recognized in United States v. Jerchower, 631

F.3d 1181, 1186-87 (11th Cir. 2011). Therefore, the indictment’s language

similarly required that the defendant believed that a minor was involved, not that

an actual minor was involved. As such, the government did not need to offer proof

of the involvement of an actual minor to support Weiss’s conviction.

                                         II.

      Next, Weiss argues that the indictment was constructively amended because,

while the indictment charged Weiss with attempted enticement of an actual minor,

the government and district court repeatedly informed the jury that the defendant

could be convicted without the existence of an actual minor.

      We review claims of constitutional error de novo. United States v. Williams,

527 F.3d 1235, 1239 (11th Cir. 2008). Constructive amendment occurs “when the

essential elements of the offense contained in the indictment are altered to broaden

the possible bases for conviction.” United States v. Keller, 916 F.2d 628, 634

(11th Cir. 1990). In determining whether an indictment was constructively

amended, we look at whether the prosecutor’s actions or the court’s instructions,

“viewed in context,” literally or effectively expanded the indictment. United States

v. Behety, 32 F.3d 503, 508-09 (11th Cir. 1994). Constructive amendment


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constitutes per se reversible error because it violates a defendant’s Fifth

Amendment right to be tried only on charges presented to the grand jury and

creates the possibility that the defendant may have been convicted on grounds that

the indictment did not allege. Id. at 508; U.S. Const. amend. V.

      Here, we conclude from the record that no constructive amendment occurred

when the government and court indicated that the existence of an actual minor was

not needed because, as discussed above, the indictment did not require that Weiss

attempted to entice an actual minor. It did not include the words “actual,” but

stated that Weiss had attempted to entice an “individual who had not attained the

age of” 18. It simply required that Weiss believed a minor was involved. See

Root, 296 F.3d at 1227 (holding that 18 U.S.C. § 2242(b) does not require

existence of actual minor, but merely requires the defendant to believe a minor was

involved). Thus, informing the jury that an actual minor was not needed in no way

broadened the possible bases for conviction. Keller, 916 F.2d at 634.

Accordingly, we affirm Weiss’s conviction.


      AFFIRMED.




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