                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 14 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10402

              Plaintiff-Appellee,                DC No. CR 12-0056 AWI

 v.

RICKY DAVIS, AKA Rick Dog, AKA                   MEMORANDUM*
Ricky Loks,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                     Argued and Submitted February 16, 2017
                            San Francisco, California

Before:      TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,**
             District Judge.

      Ricky Davis appeals his convictions and sentence for sexual exploitation and

attempted sex trafficking of a minor. We have jurisdiction pursuant to 28 U.S.C. §


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
1291. In this disposition we affirm Davis’ conviction for sexual exploitation of a

minor under 18 U.S.C. § 2251(a), reject his insufficiency of the evidence challenge

to his conviction for attempted sex trafficking under 18 U.S.C. §§ 1591(a), 1594,

and remand.1

      1.     At the close of the government’s case-in-chief, Davis unsuccessfully

moved for acquittal of Count 2, see Fed. R. Crim. P. 29. Davis challenges the

district court’s denial of his Rule 29 motion on the ground that the government

failed sufficiently to prove each of § 1591(a)’s elements. This argument is

unpersuasive.

      We review de novo the denial of a motion for acquittal under Rule 29. See

United States v. Somsamouth, 352 F.3d 1271, 1274 (9th Cir. 2003). In doing so,

we “review the evidence presented against the defendant in the light most

favorable to the government” in order to determine whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. at 1274–75 (emphasis added) (citations and internal quotation marks

omitted).


      1
             In a concurrently filed opinion, we reverse Davis’ conviction for
attempted sex trafficking of a minor in violation of 18 U.S.C. §§ 1591(a), 1594,
and remand for further proceedings. We do not reach Davis’ arguments
challenging his now-vacated sentence. The facts are sufficiently set forth in our
opinion and we do not repeat them here.
                                          2
      Here, the evidence presented at trial, when viewed in the light most

favorable to the government, established that:

      •      prior to September 17, 2011, Davis and Bianca had sex in an
             apartment into which they had to sneak “because,” according to
             Bianca, “[she] look[ed] too young”;

      •      Bianca initially requested a “Hello Kitty” tattoo;

      •      on the night of September 17, 2011, Bianca told Davis she was “about
             16 or 17” years old;

      •      Davis instructed Bianca on “a way to get money” by going on dates;

      •      Davis encouraged Bianca to get naked for the photographs because “it
             would be sexier for the guys”;

      •      Davis made clear he intended to post these photographs on the
             Redbook website;

      •      after taking the photographs, Davis and Bianca had sex;

      •      Davis facilitated Bianca’s Redbook dates by first having potential
             customers text him and only then providing the customer with
             Bianca’s phone number; and

      •      Davis actually did facilitate a connection between Bianca and at least
             one individual with whom Bianca subsequently had sex in exchange
             for money.

Based on this evidence, a rational trier of fact could conclude that the government

carried its burden with respect to each of § 1591(a)’s essential elements, including




                                          3
the provision’s mens rea and actus reus requirements. Accordingly, Davis’

sufficiency of the evidence challenge fails.

       2.     Davis’ challenge to his conviction under § 2251(a) is precluded by our

precedent, United States v. U.S. Dist. Court for Cent. Dist. of Cal., 858 F.2d 534

(9th Cir. 1988). There, we expressly rejected the argument that § 2251(a) “should

be interpreted to require the government to prove scienter as to age in its prima

facie case.” Id. at 536; see also id. at 537–38. And we went on to hold that “[t]he

defendant’s awareness of the subject’s minority is not an element of the offense.”

Id. at 538.

       Davis argues that the Supreme Court’s subsequent decision in Eloni v.

United States, 135 S.Ct. 2001 (2015), requires the government to prove, at a

minimum, that he acted recklessly or negligently with respect to Bianca’s minority

status. Elonis, however, does not stand for this proposition. Rather, it affirmed the

continued soundness of United States v. X-Citement Video, Inc., 513 U.S. 64

(1994), and concluded that, with respect to the federal threats statute, a defendant

must know that the transmitted communication contains a threat. See Elonis, 135

S.Ct. at 2011. Accordingly, we reject this challenge to Davis’ conviction for

sexual exploitation of a minor in violation of § 2251(a).

                                      •   !    •


                                           4
      For the reasons set forth herein and in our concurrently filed opinion, we

affirm Davis’ conviction under § 2251, but reverse his conviction under § 1591(a),

not for insufficiency of the evidence, but because the indictment on this count was

constructively amended, and remand to the district court for further proceedings.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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