     Case: 15-50596   Document: 00513811659        Page: 1   Date Filed: 12/23/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                    No. 15-50596                        FILED
                                                                 December 23, 2016
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

             Plaintiff - Appellee

v.

DEION DEE LOCKHART, also known as Memphis, also known as Deion
Lockhart; RICHARD CHARLES GRAY, also known as Crenshaw, also known
as Richard Gray; TIMOTHY KEITH MCCULLOUCH, JR., also known as TJ,
also known as Timothy McCullough, Jr., also known as Timothy Keith
McCullough, Jr.; EMMANUAL LOCKHART, also known as E. Jay,

             Defendants - Appellants




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


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Following a Federal Bureau of Investigation (“FBI”) inquiry into a child
sex trafficking ring, a jury found Defendants-Appellants guilty of various crimes
charged in an eleven-count indictment. All four appeal the jury’s guilty verdicts.
We AFFIRM each conviction, with one exception. Finding that the district
court’s jury instructions regarding 18 U.S.C. § 1591 (Sex Trafficking of
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Children) constructively amended the indictment, we VACATE and REMAND
Appellant McCullouch’s conviction as to that count.
                     I. Background and Procedural History 1
        Between May 1, 2012 and March 31, 2013, Appellants prostituted
underage girls, ranging from fifteen- to seventeen-years-old. After the National
Center for Missing and Exploited Children discovered a suspicious advertisement
featuring a sixteen-year-old girl on Backpage.com, a website notorious for
facilitating prostitution, the FBI began collecting Appellants’ hotel, phone,
Facebook, and e-mail records. Through its investigation, the FBI learned that
Appellants were pooling their money together to rent hotel rooms, solicit johns over
the Internet, and transport underage girls to and from hotel rooms, in some cases
crossing state lines to do so.
        The conspiracy began when Appellants Deion Lockhart (“D. Lockhart”),
Emmanual Lockhart (“E. Lockhart”), and Richard Gray (“Gray”) 2—all
members of the Folk Nation Gangster Disciples (“Folk Nation”) gang—decided
to begin prostituting teenage girls instead of dealing drugs. After meeting the
victims—SH, KB, LA, AG, and ANJ—and convincing them to “work” for them,
the men used prepaid credit cards to post advertisements for escort services on
Backpage.com. The men would then rent adjoining hotel rooms, using one
room for “meeting dates” and the other for “hanging out.”
        Timothy McCullouch (“McCullouch”), another member of Folk Nation,
became part of the conspiracy after he and Gray met ANJ and LA in a hotel room
in June 2012. ANJ initially met Gray at a downtown club. She and Gray
corresponded over Facebook, and eventually ANJ invited Gray and McCullouch to


   1  All relevant facts produced at trial and discussed herein are taken in the light most
favorable to the jury’s verdict. See United States v. Haines, 803 F.3d 713, 734–35 (5th Cir. 2015).
    2 The indictment also charged Brandon Shapiro and Tai Von Lynch, both of whom pleaded

guilty to Count Nine of the second superseding indictment prior to trial and are not a party
to this appeal.
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meet her and LA in ANJ’s hotel room. When McCullouch entered the room, ANJ
and LA both recognized him as an officer from the juvenile facility where they had
been previously confined.    After this meeting, ANJ began living with and
prostituting for McCullouch, and LA began prostituting for Gray.
      To ensure that the girls continued working for them, Gray regularly beat
LA while his coconspirators and the other victims watched. The men controlled
the girls’ movements and forced them to give all of the money they earned to
Appellants.   The victims testified that they felt they had no choice but to
prostitute for the men.
      Before trial, the district court denied E. Lockhart’s motion to sever and
Appellants’ joint motion to exclude evidence of their gang affiliation. The court
also ruled that it would not admit evidence of the victims’ prior or subsequent
prostitution. At trial, the Government solicited testimony from Officer Robert
Ontiveros. Through his testimony, Officer Ontiveros explained to the jury what
his job as a gang investigator entails, the specialized training he had received,
and his particular knowledge of Folk Nation. After the court accepted him as a
gang expert, he testified that all four of Appellants are confirmed Folk Nation
members.
      At the close of the Government’s case-in-chief, all four Appellants moved
for a Rule 29 judgment of acquittal as to each count against them, which the
court denied. At the close of the evidence, each Appellant renewed his motion,
which the court again denied.
      After deliberating, the jury found D. Lockhart guilty of Sex Trafficking
by Force, Fraud or Coercion; Aiding and Abetting Sex Trafficking of Children;
and Conspiracy to Sex Traffic Persons. The jury acquitted Gray on Count
Three, Sex Trafficking by Force, Fraud or Coercion with respect to KB, but
found him guilty of Sex Trafficking by Force, Fraud or Coercion with respect
to LA; Sex Trafficking of Children; Conspiracy to Sex Traffic Persons; and
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Transportation for Prostitution. The jury found McCullouch guilty of Sex
Trafficking of Children and Conspiracy to Sex Traffic Persons, and found E.
Lockhart guilty of Conspiracy to Sex Traffic Persons.
      On May 6, 2015, E. Lockhart filed a motion seeking an evidentiary
hearing, as the jury found him guilty of only Count Nine, the conspiracy count,
but had not specified on which object offense(s) it had based his guilt, as
U.S.S.G. § 1B1.2 requires. The district court denied that motion. The court
thereafter sentenced E. Lockhart to 240 months’ imprisonment to be followed
by five years’ supervised release and sentenced Gray to life imprisonment,
among other, lesser sentences to be served concurrently.          In determining
Gray’s sentence, the court applied U.S.S.G. § 2A3.1(b)(1), thereby increasing
his base offense level by four.
                                  II. DISCUSSION
      Appellants raise a host of arguments on appeal. They first challenge the
sufficiency of the evidence as to each of their convictions, and relatedly, the
district court’s denial of their motions for judgment of acquittal. They next
assert that the district court erred in excluding evidence of the victims’ prior-
and post-indictment prostitution and in including evidence of their shared
gang affiliation. E. Lockhart contends that the district court erred in denying
his motion to sever and in applying U.S.S.G. § 1B1.2 to his sentence.
McCullouch argues that the district court’s jury instructions regarding 18
U.S.C. § 1591 constructively amended the indictment. Finally, Gray avers that
the district court misapplied U.S.S.G. § 2A3.1(b)(4)(B) when it added a four-
point enhancement to his offense level. We address each argument in turn.

                         A. Sufficiency of the Evidence
      We review the denial of a motion for judgment of acquittal de novo.
United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003). Still, this court’s
review of a jury’s verdict is “highly deferential.” United States v. McNealy, 625
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F.3d 858, 870 (5th Cir. 2010). Thus, the relevant question is whether, “viewing
the evidence and the inferences that may be drawn from it in the light most
favorable to the verdict, a rational jury could have found the essential elements
of the offenses beyond a reasonable doubt.” United States v. Clark, 577 F.3d
273, 284 (5th Cir. 2009) (internal quotation marks omitted); see Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
      At trial, three of Appellants’ victims and two coconspirators who had
already pleaded guilty testified against Appellants. These witnesses explained
how the men decided to prostitute young girls instead of selling drugs, took
turns posting advertisements to Backpage.com and shared the profits, and that
Gray would regularly beat AG in front of the other coconspirators and victims.
The Government also presented physical evidence that linked Appellants to
Backpage.com through e-mail and cell phone records, showed that Gray
transported LA across state lines for the purpose of prostitution, and
corroborated the witnesses’ testimony with hotel rental receipts and Facebook
conversations. Finally, the victims’ testimony demonstrated that Appellants
knew, or at the least recklessly disregarded the fact that, their victims had not
yet attained the age of eighteen. Viewing this evidence “and all inferences to
be drawn from it in the light most favorable to the verdict,” United States v.
Burton, 126 F.3d 666, 669 (5th Cir. 1997), a rational jury could find all four
Appellants guilty beyond a reasonable doubt of the crimes for which the jury
convicted them.
      B. Evidence of Prior and Post-Indictment Acts of Prostitution
      Appellants argue that the district court erred when it barred admission
of evidence showing the victims’ prior and subsequent acts of prostitution.
They aver that Rule 412 applies primarily to rape cases, and that even if the
Rule does apply to this case, barring the evidence violated their Fifth and Sixth
Amendment rights.       We review the district court’s limitation of cross-
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examination for an abuse of discretion. United States v. Davis, 393 F.3d 540,
548 (5th Cir. 2004) (citing United States v. Gordon, 780 F.2d 1165, 1175 (5th
Cir. 1986)).   When a defendant alleges that the district court’s limitation
violated a constitutional right, however, this court reviews that limitation de
novo. See United States v. Hitt, 473 F.3d 146, 156 (5th Cir. 2006); Gochicoa v.
Johnson, 118 F.3d 440, 445 (5th Cir. 1997).
      In a “criminal proceeding involving alleged sexual misconduct,” Rule 412
prohibits evidence offered “to prove that a victim engaged in other sexual
behavior,” as well as evidence offered “to prove a victim’s sexual predisposition.”
Fed. R. Evid. 412(a).     Further, Rule 412(a) prohibits a defendant from
introducing or eliciting evidence of the victim’s “other sexual behavior,” even if
it is offered “as substantive evidence or for impeachment.” Fed. R. Evid. 412
(1994 Advisory Committee Notes). Forced prostitution undoubtedly involves
sexual misconduct. Moreover, Appellants offer evidence of the victims’ pre-
and post-indictment acts of prostitution to prove their predisposition and to
impeach their credibility. Thus, Rule 412 applies here.
      One exception to Rule 412, however, allows a defendant to introduce
otherwise inadmissible evidence if the “exclusion would violate the defendant’s
constitutional rights.” Fed. R. Evid. 412(b)(1)(C). In this case, Appellants
allege that the district court’s refusal to admit evidence of the victims’ prior
and subsequent prostitution violated their Fifth Amendment right to present
a defense and their Sixth Amendment right to confront the witnesses against
them. We address each argument in turn.
                             1. Due Process Clause
      The Fifth Amendment’s Due Process Clause guarantees a defendant’s
right “to present evidence favorable to himself on an element that must be
proven to convict him.” Clark v. Arizona, 548 U.S. 735, 769 (2006) (emphasis
added). In this case, the Government must prove, inter alia, that Appellants
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recruited, enticed, harbored, transported, provided, obtained, advertised,
maintained, patronized, or solicited each of the victims, while knowing or
recklessly disregarding the fact “that means of force, threats of force, fraud,
coercion . . . or any combination of such means [would] be used to cause” the
victims “to engage in a commercial sex act.” 18 U.S.C. § 1591(a).
      Section 1591 defines “coercion” as, inter alia, “any scheme, plan, or
pattern intended to cause a person to believe that failure to perform an act
would result in serious harm to or physical restraint against any person.” Id.
§ 1591(e)(2)(B). The statute further defines “serious harm” as “any harm . . .
that is sufficiently serious . . . to compel a reasonable person of the same
background and in the same circumstances to perform or to continue
performing commercial sexual activity in order to avoid incurring that harm.”
Id. § 1591(e)(4) (emphasis added). Thus, evidence of the victims’ pre- and post-
indictment acts of prostitution would be irrelevant to this case as it does not
“make . . . more or less probable” the fact that Appellants caused their victims
to engage in a commercial sex act during the time period alleged in the
indictment. Fed. R. Evid. 401; see United States v. Elbert, 561 F.3d 771, 777
(8th Cir. 2009) (finding evidence of the victims’ prior prostitution “would only
prove other people may be guilty of similar offenses of . . . causing the[] victims
to engage in a commercial sex act”); United States v. Cephus, 684 F.3d 703, 708
(7th Cir. 2012) (finding that prior prostitution evidence is irrelevant, as “the
fact that [the victim had] been a prostitute before does not suggest that [the
defendant] didn’t beat and threaten her”).
      Thus, evidence of the victims’ pre- and post-indictment prostitution is not
relevant to prove an element necessary to convict Appellants, see Clark, 548 U.S.
at 769, and therefore, the district court did not violate the Fifth Amendment when
it excluded such evidence pursuant to Rule 412. See Taylor v. Illinois, 484 U.S.
400, 410 (1988) (“The accused does not have an unfettered right to offer
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testimony that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.”).
                             2. Confrontation Clause
      The Confrontation Clause guarantees a defendant the opportunity for
effective cross-examination. Delaware v. Fensterer, 474 U.S. 15, 19–20 (1985)
(per curiam).    That right, however, is not without limitations, and cross-
examination limited on the basis of a Federal Rule of Evidence “do[es] not abridge
an accused’s right to present a defense so long as [the rule is] not ‘arbitrary’ or
‘disproportionate to the purposes [it is] designed to serve.’” United States v.
Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56
(1987)); see Kittelson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005).
      The Advisory Committee has noted that, although prior convictions are
normally admissible to impeach a witness under Rule 609, Rule 412 trumps that
rule to the extent that the witness has previous convictions for prostitution. Fed.
R. Evid. 412 (1994 Advisory Committee Notes). A defendant may, however,
impeach victim-witnesses with other inculpatory evidence.
      In the instant case, Appellants questioned the victims about their prior
drug use, their possible bias against Appellants, whether they consented to
prostitute for Appellants during the timeframe alleged in the indictment, and
whether they were coerced into prostitution or motivated by money. Because
Appellants were permitted to impeach the victims with this other inculpatory
evidence, Rule 412’s application to this case was “not ‘arbitrary’ or
‘disproportionate to the purposes [it is] designed to serve.’” Scheffer, 523 U.S. at
308 (quoting Rock, 483 U.S. at 56).
      Finally, because the Confrontation Clause guarantees only “an opportunity
for effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish,” Fensterer, 474 U.S. at 20,
the district court’s refusal to admit evidence of the victims’ prior and subsequent
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prostitution under Rule 412 did “not abridge [Appellants’] right to present a
defense.” Scheffer, 523 U.S. at 308 (quoting Rock, 483 U.S. at 56). Accordingly, the
district court did not err in excluding the evidence.
                         C. Evidence of Gang Affiliation
      Appellants raise several issues regarding the district court’s decision to
allow evidence of their gang affiliation to come before the jury. First, Appellants
argue that Officer Ontiveros’s testimony prevented them from confronting the
witnesses against them, as he based his testimony on inadmissible hearsay in
violation of the Fifth Amendment. Next, Appellants argue that admitting
Officer Ontiveros as an expert was an abuse of discretion. In support of this
claim, Appellants assert that Officer Ontiveros was not qualified to be an
expert. They further contend that, because the subject area is one of common
knowledge, there was no need for expert testimony on gang affiliation. Finally,
Appellants argue that the court abused its discretion in admitting any evidence
of their gang affiliation, as it was irrelevant to the instant matter and
constituted inadmissible “other bad acts” evidence in violation of Rule 404(b).
                            1. Confrontation Clause
      When the district court’s ruling violates a criminal defendant’s Sixth
Amendment right to confrontation, reversal is required unless “the beneficiary
of [the] constitutional error [can] prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.” Chapman v.
California, 386 U.S. 18, 24 (1967); see Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986). That said, before this court applies such an exacting standard of
review, it must first find a constitutional violation.
      In this case, Appellants rely on Crawford v. Washington, 541 U.S. 36, 68
(2004) in asserting that Officer Ontiveros was merely a conduit for testimonial
hearsay. They point to the fact that during voir dire, Officer Ontiveros testified
that some of his expertise is based on his participation in custodial
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interrogations and events where other officers detailed their experiences
during interrogations. This argument is without merit.
      The record reflects that Officer Ontiveros’s testimony was “not procured
with [the] primary purpose of creating an out-of-court substitute for trial
testimony.”    Michigan v. Bryant, 562 U.S. 344, 358 (2011).           “Although
‘Crawford forbids the introduction of testimonial hearsay as evidence in itself,’
. . . ‘it in no way prevents expert witnesses from offering their independent
judgments merely because those judgments were in some part informed by
their exposure to otherwise inadmissible evidence.’” United States v. Palacios,
677 F.3d 234, 243 (4th Cir. 2012) (quoting United States v. Johnson, 587 F.3d
625, 635 (4th Cir. 2009)). Therefore, “the admissibility of a statement is the
concern of state and federal rules of evidence, not the Confrontation Clause.”
Bryant, 562 U.S. at 359. Rule 703 allows an expert to base his testimony on
otherwise inadmissible hearsay evidence. Fed. R. Evid. 703. An expert’s
opinion may be based on both the evidence in the case and his education and
experience. United States v. Williams, 447 F.2d 1285, 1290 (5th Cir. 1971) (en
banc). “Thus, when the expert witness has consulted numerous sources, and
uses that information, together with his own professional knowledge and
experience, to arrive at his opinion, that opinion is regarded as evidence in its
own right and not as hearsay in disguise.” Id.
      The interrogations and conferences Officer Ontiveros attended were part
of his education as a gang expert, and he properly based his testimony on these
experiences.   Therefore, Officer Ontiveros did not serve as a conduit for
inadmissible testimonial hearsay.     Finding no constitutional violation, we




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                                   No. 15-50596
review this issue for abuse of discretion. Carlson v. Bioremedi Therapeutic
Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016).
                      2. Officer Ontiveros’s Qualifications
      Officer Ontiveros testified that he worked for the El Paso Police
Department for twelve years and within the gang unit for nearly six years. He
has special training related to gangs generally and Folk Nation in particular.
Even if some jurors previously had a general understanding of gangs, Officer
Ontiveros’s testimony regarding Folk Nation specifically was helpful to the jury,
and the district court did not abuse its discretion in admitting him as an expert.
See, e.g., United States v. Griffith, 118 F.3d 318, 322–23 (5th Cir. 1997) (finding a
DEA agent with eight-and-one-half years and fifty investigations’ worth of
experience qualified to interpret drug jargon); United States v. Garcia, 86 F.3d
394, 400 (5th Cir. 1996) (holding that the district court did not abuse its discretion
in qualifying a federal agent to explain a large drug operation).
                                   3. Rule 404(b)
      This court reviews a district court’s decision to admit or exclude evidence
for abuse of discretion. United States v. Yi, 460 F.3d 623, 631 (5th Cir. 2006)
(citing United States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999)). “In a
criminal case, Rule 404(b) evidence must ‘be strictly relevant to the particular
offense charged.’” Id. (quoting United States v. Hernandez-Guevara, 162 F.3d
863, 869 (5th Cir. 1998)). If, however, the admission of the 404(b) evidence did
not prejudice the defendant, this court will uphold the conviction. Id. (citing
United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996)). The applicability of
Rule 404(b) to this case depends upon whether evidence of Appellants’ gang
membership is intrinsic or extrinsic to the crimes charged. If the evidence is
intrinsic, it is not other bad acts evidence at all, but rather additional facts
surrounding the charge at issue. See United States v. Sumlin, 489 F.3d 683,
689 (5th Cir. 2007); see also United States v. Manning, 79 F.3d 212, 218 (1st
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Cir. 1996) (stating that Rule 404(b) only limits the admissibility of extrinsic
evidence).
      Because in an alleged conspiracy the existence of a joint venture and the
nature of the members’ relationship are at issue, evidence of defendants being
members of the same gang is intrinsic to the crime of conspiracy. United States
v. Westbrook, 125 F.3d 996, 1007 (7th Cir. 1997). In this case, gang evidence
serves to complete the story as to why Appellants would work together, deciding
to “leave the dope game alone” and take up prostituting women instead. See
United States v. Lugo-Lopez, 833 F.3d 453, 461 (5th Cir. 2016) (citing United
States v. Chavful, 100 F. App’x 226, 231 (5th Cir. 2004)) (“[The defendant’s]
alleged cartel involvement was also probative of his association with the other
members of the conspiracy.”). Therefore, the district court did not err in allowing
this evidence to come before the jury.
                               D. Motion to Sever
      E. Lockhart contends that because the district court did not sever his
trial from that of his codefendants’, he was denied a fair trial. This court
reviews a district court’s denial of a motion to sever for abuse of discretion.
United States v. Clay, 408 F.3d 214, 219 (5th Cir. 2005). A district court should
grant a motion to sever defendants who were charged in the same indictment
only if there is a serious risk that a joint trial would compromise a defendant’s
specific trial right, or if the jury would be unable to make a reliable assessment
about guilt or innocence. Zafiro v. United States, 506 U.S. 534, 539 (1993);
United States v. Nguyen, 493 F.3d 613, 625 (5th Cir. 2007). Finding that E.
Lockhart failed to show the requisite prejudice to warrant severance, we affirm
the district court’s judgment as to this issue. See United States v. Cortinas,
142 F.3d 242, 249 (5th Cir. 1998) (affirming district court’s denial of a motion
to sever because defendants (1) were members of the same gang as


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                                   No. 15-50596
coconspirators and (2) the timing of their involvement coincided with the
gang’s involvement).
                                 E. U.S.S.G. § 1B1.2
      E. Lockhart argues that because neither the jury nor the district court
specified which of the charged offenses was the object of the conspiracy on
which the jury based his guilt, this court should partially reverse and remand
his conviction for resentencing.
      This court reviews the application of U.S.S.G. § 1B1.2(d) de novo; factual
findings underlying its application are reviewed for clear error. United States
v. Sylvester, 143 F.3d 923, 931 (5th Cir. 1998). A sentence will be upheld unless
it was imposed in violation of the law, which occurs either as a result of an
incorrect application of the Guidelines, or if the sentence is outside the range
of the applicable Guideline and is unreasonable. United States v. Wyjack, 141
F.3d 181, 183 (5th Cir. 1998).
      Under U.S.S.G. § 1B1.2(d), “[a] conviction on a count charging a
conspiracy to commit more than one offense shall be treated as if the defendant
had been convicted on a separate count of conspiracy for each offense that the
defendant conspired to commit.”       Further, “[i]n such cases, subsection (d)
should only be applied with respect to an object offense alleged in the
conspiracy count if the court, were it sitting as a trier of fact, would convict the
defendant of conspiring to commit that object offense.” Id. (cmt. n.4). Findings
can be either explicit or implicit based on the record as a whole. United States
v. Manges, 110 F.3d 1162, 1179 (5th Cir. 1997); United States v. Fisher, 22 F.3d
574, 577 (5th Cir. 1994).
      Here, although neither the district court nor the jury specified from
which of the base offenses E. Lockhart’s guilt stems, it is implicit from the
record. See Fisher, 22 F.3d at 577 (affirming the district court’s sentence
because there was “‘more than sufficient’ evidence” of the defendant’s guilt on
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the record). At sentencing, the court concluded that E. Lockhart “provided the
tools that would enable the other coconspirators to engage in the conduct that
resulted in the convictions on each case as to each co-defendant.” The court
further noted that Lockhart “helped pool money for the securing of hotels. He
helped participate in encouraging individuals to engage in the activity” and
that “much of what he did was significant to the accomplishment of the
continued activities of the conspiracy that resulted in the pimping of young
individuals.”   Finding “ample evidence to support the requisite implicit
findings,” we affirm E. Lockhart’s sentence. See id.
                         F. Constructive Amendment
      Title 18 U.S.C. § 1591 allows the Government to prosecute anyone who
knowingly forces an underage person into prostitution. 18 U.S.C. § 1591.
Although § 1591 allows the Government to prove scienter by showing that the
defendant (1) knew the victim was underage, (2) recklessly disregarded that
fact, or (3) had a reasonable opportunity to observe the victim, McCullouch
argues that because the “reasonable opportunity to observe” language was not
included in the indictment, but was included in the jury instructions, the court
constructively amended the indictment.
      We review constructive amendment claims de novo.         United States v.
Thompson, 647 F.3d 180, 183 (5th Cir. 2011). If we conclude that there has been
a constructive amendment, we must reverse the defendant’s conviction. United
States v. Chambers, 408 F.3d 237, 241 (5th Cir. 2005) (citing United States v.
Adams, 778 F.2d 1117, 1123 (5th Cir. 1985)). A constructive amendment occurs
“when the jury is permitted to convict the defendant upon a factual basis that
effectively modifies an essential element of the offense charged” in the
indictment. Adams, 778 F.2d at 1123.
      The seminal case on this issue is Stirone v. United States, 361 U.S. 212
(1960). In Stirone, the U.S. Supreme Court considered whether there had been
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a constructive amendment of the indictment in a Hobbs Act prosecution. The
indictment charged the defendant with using his union position to “unlawfully
obstruct, delay [and] affect interstate commerce . . . and movement of [sand]
by extortion.” Id. at 213–14. Over defense counsel’s objection, the district court
allowed the Government to bring “evidence of an effect on interstate commerce
not only in sand . . . but also in interference with steel shipments.” Id. at 214.
The trial court’s jury instructions allowed the jury to convict the defendant on
either basis. Id. Assuming there was sufficient evidence on the record to convict
the defendant under either theory and that the evidence did not surprise the
defendant, the Third Circuit affirmed the conviction. United States v. Stirone,
262 F.2d 571, 574 (3d Cir. 1958).
      The Supreme Court reversed, concluding that “when only one particular
kind of commerce is charged to have been burdened[,] a conviction must rest
on that charge and not another, even though it be assumed that under an
indictment drawn in general terms a conviction might rest upon a showing that
commerce of one kind or another had been burdened.” Stirone, 361 U.S. at 218.
Therefore, even assuming there was sufficient evidence on the record to prove a
Hobbs Act violation pertaining to sand and steel, because the indictment alleged
only that the violation related to sand, the court constructively amended the
indictment when it broadened it to include steel. Id. at 215; 218–19.
      We have interpreted Stirone many times. When the indictment alleges
a particular set of facts as forming the basis for the defendant’s violation of a
statute, but the trial court allows evidence of other facts not alleged in the
indictment to form the basis of the jury’s guilty verdict, this court finds a
constructive amendment. E.g., United States v. Hoover, 467 F.3d 496, 502 (5th
Cir. 2006) (alleging one false statement in indictment but proving another at
trial was constructive amendment); United States v. Doucet, 994 F.2d 169,
170–73 (5th Cir. 1993) (finding constructive amendment where indictment
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                                  No. 15-50596
charged with “assembled” gun, but was potentially convicted for possessing a
“combination of parts from which a machine gun can be assembled”); Adams,
778 F.2d at 1123–24 (vacating because indictment listed “false name” but
Government proved both “false name” and “false address,” and the court
allowed conviction on either basis); United States v. Davis, 461 F.2d 83, 91 (5th
Cir. 1972) (“Since the Government chose to charge a section 1708 violation in
a particular manner, we hold that in any conviction pursuant to that
indictment the prosecution is bound by the particular allegations contained
therein and it cannot obtain a conviction by proof of a violation of the same
statute in a manner not alleged.”).
      In United States v. Chambers, for example, the indictment alleged that
the defendant possessed “rounds” distributed by a particular manufacturer.
408 F.3d at 238–39. At trial, however, the Government presented evidence of
the defendant’s possessing ammunition components, rather than completed
rounds. Notably, the statute cited in the indictment allowed for conviction
under either theory.     This court, in concluding that the trial court had
constructively amended the indictment, pointed out that:
      [I]n Stirone there was no departure from the indictment in respect to
      what the defendant did, or when, where or to whom he did it, or what
      his conduct immediately threatened . . . . Nor was there any departure
      from the indictment so as to allow conviction under any different
      language segment or portion of the statute alleged in the indictment.

Id. at 242. Because the Government established an essential element of the
offense on the basis of facts wholly different from those particularized in the
indictment, we vacated the jury’s guilty verdict. Id. at 247.
      The essential element at issue here is § 1591’s scienter requirement. See
United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013) (stating
that the defendant’s mens rea is an essential element under § 1591).
Subsection (c) states that “[i]n a prosecution under subsection (a)(1) in which the
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                                         No. 15-50596
defendant had a reasonable opportunity to observe the person . . . the Government
need not prove that the defendant knew, or recklessly disregarded the fact, that
the person had not attained the age of 18 years.” 18 U.S.C. § 1591(c).
         The indictment alleged in pertinent part that McCullouch “kn[ew] and .
. . reckless[ly] disregard[ed] . . . the fact that . . . A.N.J., had not attained the
age of eighteen years (18) . . . in violation of Title 18, United States Code,
Sections 1591(a)(1),(2), and (b)(2),” but did not include the “reasonable
opportunity” language found in subsection (c). Thus, we must ask whether the
district court constructively amended the indictment when it instructed the
jury that McCullouch could be convicted under § 1591
         IF THE GOVERNMENT PROVES BEYOND A REASONABLE
         DOUBT THAT [MCCULLOUCH] HAD A REASONABLE
         OPPORTUNITY TO OBSERVE THE PERSON [HE] RECRUITED,
         ENTICED,    HARBORED,   TRANSPORTED,     PROVIDED,
         OBTAINED, OR MAINTAINED, [EVEN IF] THE GOVERNMENT
         [DID NOT] PROVE THAT THE DEFENDANT KNEW THAT
         [ANJ] HAD NOT ATTAINED THE AGE OF 18 YEARS.

         By including the language found in § 1591(c), the district court
materially modified an essential element of the indictment by transforming the
offense with which the indictment charged McCullouch 3 from one requiring a
specific mens rea into a strict liability offense. See United States v. Copeland,
820 F.3d 809, 813 (5th Cir. 2016) (concluding that under § 1591(c), “the



   3  Although a reversal of McCullouch’s conviction on this count also implicates Gray’s
conviction for the same offense, because Gray did not object to the jury instruction in the
district court, the standard of review differs as to him, requiring that Gray show plain error,
which he cannot. See United States v. Scher, 601 F.3d 408, 411 (5th Cir. 2010). Review under
plain error requires reversal only if “(1) there is an error, (2) that is clear or obvious, and (3)
that affects [the defendant’s] substantial rights.” Id. (quoting United States v. Ferguson, 211
F.3d 878, 886 (5th Cir. 2000)). Even if Gray demonstrates these factors, “the decision to
correct the forfeited error is within the sound discretion of the court, and the court will not
exercise that discretion unless the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (citing Ferguson, 211 F.3d at 886). Given the
substantial evidence against him, we decline to exercise our discretion here.
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                                      No. 15-50596
Government ‘need not prove any mens rea with regard to the defendant’s
awareness of the victim’s age.’” (quoting United States v. Robinson, 702 F.3d
22, 34 (2d Cir. 2012))). Given the district court’s inclusion of subsection (c), it
is possible that the jury “convict[ed McCullouch] based on an alternative basis
permitted by the statute, but not charged in the indictment,” United States v.
Partida, 385 F.3d 546, 557 (5th Cir. 2004) (citing United States v. Daniels, 252
F.3d 411, 414 (5th Cir. 2001)), a possibility that constructively amended the
indictment, see Partida, 385 F.3d at 557 (stating that constructive amendment
occurs when jury instructions make it possible for the jury to convict on an
alternative basis not alleged in the indictment).
         It is conceivable that someone could recklessly disregard a person’s age
without having a reasonable opportunity to observe him or her. 4 Therefore,
although McCullouch was ANJ’s juvenile detention officer, it is possible that
the jury believed ANJ looked so different from when she was detained that
McCullouch did not recognize her, thus he did not know she was underage.
Further, the jury could have concluded that, although he spent time with her,
McCullouch’s disregard for her youth was not “reckless.” In that way, it is
plausible that the jury convicted McCullouch on a theory that even though he
did not know her age or recklessly disregard it, he did have a reasonable
opportunity to observe her. The Government’s closing argument makes this
possibility especially true:
         We don’t have to prove knowledge. If they come up here and say,
         “You have to acquit because they didn’t know that these girls were
         under 18,” remember, that’s not what the law says. You can also
         prove it by reckless disregard. But it goes even further. If the
         government proves beyond a reasonable doubt that the defendant
         had a reasonable opportunity to observe the person . . . then the


   4 For example, in United States v. Phea, 755 F.3d 255, 260 (5th Cir. 2014), the defendant,
having never seen the victim, recklessly disregarded her age when he discovered that she did
not have identification sufficient to allow her to fly on an airplane.
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                                   No. 15-50596
      government does not have to prove that the defendant knew that the
      person had not attained the age of 18. Beyond reckless disregard.
      Beyond knowledge. If these gentlemen had contact or a reasonable
      opportunity to observe these girls, we don’t have to prove that they
      were—that they knew that they were under the age of 18. So when
      they come up here and talk to you about, “Well, he didn’t know she
      was under age,” remember this provision of the law that is before
      you in the jury charge.

(emphasis added).      Accordingly, because the district court’s instructions
allowed the jury to “convict [McCullouch] based on an alternative basis
permitted by the statute, but not charged in the indictment,” Partida, 385 F.3d
at 557 (citing Daniels, 252 F.3d at 414), we vacate and remand McCullouch’s
guilty verdict as to this count.
                            G. U.S.S.G. § 2A3.1(b)(4)(b)
      Gray argues that the district court plainly erred when it added a four-point
enhancement to his offense level, asserting that the facts stated in his PSR were
erroneous. He also argues that his sentence is unreasonable.
      We review the district court’s sentencing decisions for reasonableness,
United States v. Anderson, 559 F.3d 348, 354 (5th Cir. 2009), and its interpretation
of the sentencing guidelines de novo, United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). “A sentence will be upheld so long as it results from a
correct application of the guidelines to factual findings that are not clearly
erroneous.” United States v. Medina-Saldana, 911 F.2d 1023, 1024 (5th Cir.
1990).   Section 2A3.1(b)(1) provides for a four-level enhancement “[i]f the
offense involved conduct described in 18 U.S.C. § 2241(a) or (b).” U.S.S.G §
2A3.1(b)(1). 18 U.S.C. § 2241(a) pertains to “[w]hoever . . . knowingly causes
another person to engage in a sexual act (1) by using force against that other
person; or (2) by threatening or placing that other person in fear that any
person will be subjected to . . . serious bodily injury.” 18 U.S.C. § 2241(a)(1)–
(2). The record and the PSR contain multiple examples of Gray’s viciously
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                                No. 15-50596
beating LA. These incidents are sufficient to show that Gray used force against
LA and placed her in fear that she would be subjected to serious bodily injury.
Both the beatings and the fear of future harm caused LA to engage in
commercial sex acts. Therefore, the district court did not err in applying
U.S.S.G § 2A3.1 to Gray. Gray’s sentence, which falls within the Guideline
range, is presumptively reasonable, see United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006), and he has presented no evidence sufficient to rebut that
presumption. Therefore, we affirm his sentence.
                             III. CONCLUSION
      In summary, we AFFIRM in part, and VACATE and REMAND in part.
We AFFIRM each of Appellants’ convictions, except McCullouch’s conviction
for Sex Trafficking of Children in violation of 18 U.S.C. § 1591(a). We VACATE
and REMAND McCullouch’s conviction and sentence as to that count.




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