United States v. Doss

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50334
Plaintiff-Appellee, D.C. No.
v.  CR-05-00627-
JUAN RICO DOSS, SGL-01
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding

Argued and Submitted
March 9, 2009—Pasadena, California

Submission Vacated March 24, 2009
Resubmitted August 20, 2009

Submission Vacated January 4, 2010
Resubmitted December 1, 2010

Filed January 14, 2011

Before: Michael Daly Hawkins, Marsha S. Berzon and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Hawkins

727
 UNITED STATES v. DOSS 731

COUNSEL

Davina T. Chen (briefed and argued), Office of the Federal
Public Defender, Los Angeles, California, for the defendant-
appellant.

Anne Voigts (argued) and Tammy C. Spertus (briefed), Office
of the United States Attorney, Los Angeles, California, for the
plaintiff-appellee.
732 UNITED STATES v. DOSS
OPINION

HAWKINS, Circuit Judge:

Juan Rico Doss (“Doss”) appeals his conviction and life
sentence for sex trafficking of children, transportation of
minors into prostitution, conspiracy to commit those offenses,
and two counts of witness tampering. The issue before us is
whether one can be convicted for witness tampering under 18
U.S.C. § 1512 by encouraging a witness to withhold testi-
mony when that witness possesses a legal right or privilege
not to testify. Doss also contends that the district court erred
in applying Taylor’s1 modified categorical approach to find he
had a qualifying prior sex offense involving a child under the
age of 17, thus requiring a life sentence pursuant to 18 U.S.C.
§ 3559(e). For the reasons that follow, we largely affirm, but
the reversal of one count and an error in sentencing require
vacatur and re-sentencing.

FACTS AND PROCEDURAL HISTORY

Doss was indicted in 2005, along with his wife Jacquay
Ford (“Ford”), for numerous counts of sex trafficking of chil-
dren and transportation of minors into prostitution. At Doss’s
first trial, the government called a minor victim, C.F., as a
witness, and she refused to testify. The government did not
call Ford as a witness. A mistrial resulted when the jury was
unable to reach a verdict.

A grand jury then issued a superseding indictment against
Doss, adding three charges of witness tampering, involving
C.F., Doss’s wife, and a fellow prisoner, Mark Cohn. Count
7 alleged that Doss had tampered with juvenile witness C.F.:

Between on or about April 11, 2006 and April 13,
2006 . . . defendant Juan Rico Doss knowingly used
1
See Taylor v. United States, 495 U.S. 575 (1990).
 UNITED STATES v. DOSS 733
intimidation, threatened and corruptly persuaded,
and attempted to intimidate, threaten and corruptly
persuade C.F., with the intent to influence and pre-
vent the testimony of C.F. in an official proceeding,
and with the intent to cause and induce C.F. to with-
hold testimony from an official proceeding, namely,
United States v. Juan Rico Doss, CR 05-627 (A) –
ER.

In so attempting, defendant Juan Rico Doss did
things that were substantial steps toward intimidat-
ing, threatening and corruptly persuading C.F.,
including among other things, between on or about
April 11, 2006 and April 13, 2006 when defendant
Juan Rico Doss was transported with C.F. to or from
the official proceeding he told C.F., words to the
effect that (1) if C.F. testified, everyone would get in
trouble; and (2) if C.F. testified, it would be bad for
C.F.

Count 8 alleged that Doss also tampered with his wife, Jac-
quay Ford:

Between on or about May 16, 2006 and May 21,
2006, . . . defendant Juan Rico Doss knowingly cor-
ruptly persuaded, and attempted to corruptly per-
suade, Jacquay Quinn Ford with the intent to
influence and prevent the testimony of Jacquay
Quinn Ford in an official proceeding and with the
intent to cause and induce Jacquay Quinn Ford to
withhold testimony from an official proceeding,
namely, United States v. Juan Rico Doss, CR 05-
627(B) – SGL.

In so attempting, defendant Juan Rico Doss did
things that were substantial steps toward intimidat-
ing, threatening and corruptly persuading Jacquay
Quinn Ford, including among other things: (1) in a
734 UNITED STATES v. DOSS
letter dated May 16, 2006, defendant Juan Rico Doss
encouraged Jacquay Quinn Ford to refuse to testify
against him at trial by stating “Believe me if I got to
go back to trial which is most likely I will if I don’t
get a 5 year deal, they are going to try you again to
come testify which they made clear against me and
if and when that time comes, I would expect you to
hold strong and say NO that you won’t even get on
the stand period”; and (2) in letters dated May 16,
18, 21, 2006, defendant Juan Rico Doss encouraged
Jacquay Quinn Ford to refuse to testify against him
based on their marital status.

Doss moved to dismiss the witness tampering charges, con-
tending they did not allege a crime because there was nothing
inherently corrupt about urging someone not under a compul-
sion to testify to exercise their right not to testify. He also
filed a motion to sever the tampering charges from the
remaining counts. The district court denied both motions.

At Doss’s second trial, C.F. testified against Doss, as did
Doss’s wife, Ford. As evidence of Count 8, the Government
offered three letters written by Doss to his wife. The letters
were written while both were in custody on the charges in the
present case; all references to Doss’s first trial were redacted
from the versions presented to the jury. At the time Doss
wrote these letters, he was unaware that Ford had entered into
a cooperation agreement with the Government; it appears that,
at most, Ford had told Doss that she had agreed to plead
guilty. The relevant language from the first of these letters is
quoted in the indictment, above.

In a second letter, Doss notified Ford of his anticipated trial
date, then wrote, “I sure wish you were going to trial with me.
You know the decision is yours to fire your attorney and take
your plea back.” In the third letter, Doss wrote, “Jacquay as
husband [and] wife we go through certain things and we
 UNITED STATES v. DOSS 735
sometimes have to make [and] take sacrifices for one another
and remain strong together as one because we are one.”

With respect to witness tampering in Count 7, witness C.F.
and a fellow prisoner, Mark Cohn, testified in substantially
similar detail regarding a conversation that occurred between
Doss and C.F. C.F. testified that one day she was transported
back from the courthouse on the same van as Doss. She was
placed in the front of the van, but separated from the male
inmates by a metal divider and could not see who was speak-
ing. She testified she could not recognize the voice and that
she could not remember many specifics of the conversation.
She did testify that the person had stated he knew she was
there “to lie on them,” and that he had said something “about
a guy named Broham,” saying “Broham did it” repeatedly.
Broham was the name of C.F.’s pimp at the time she had met
Doss.

Mark Cohn, another inmate who was transported from the
courthouse during the same time frame for an unrelated mat-
ter, testified about overhearing a similar conversation. He
described the layout of the van and accurately described
C.F.’s appearance. Stating that he had been seated on the
same side of the metal divider as Doss, Cohn identified Doss
as the speaker. Cohn recalled the following about the conver-
sation:

It starts by ‘Hey, girl, how old are you? and her
response is, ‘Hell young; 15.’ His response is, ‘I
didn’t know you were that young.’

He proceeded to talk about, ‘Are you going to tes-
tify?’ and she says ‘Yeah. That’s why they brought
me up here.’ ‘Well, you don’t have to testify.’

She says, ‘Well, that’s why I’m here. ‘Well, nobody
has to testify. You don’t testify. You don’t talk.
736 UNITED STATES v. DOSS
Nobody talks.” And then he said something like,
‘It’s all Broham.”

And that was repeated.

Doss moved for acquittal on all counts at the close of the
government’s case and again at the close of trial, and the dis-
trict court reserved ruling on the motion pursuant to Fed. R.
Crim. P. 29(b). The jury convicted Doss on all counts except
for tampering with witness Mark Cohn.2 The court denied
Doss’s renewed motion for judgment of acquittal.

Doss agreed to a bench trial on the issue of whether he had
a “prior sex conviction in which a minor was the victim”
under 18 U.S.C. § 3559(e)(3)(1), which would qualify him for
a mandatory life sentence. Applying the modified categorical
approach, the district court determined that Doss’s prior
Nevada conviction for pandering a child qualified for the
enhancement. Doss received a life sentence on four of the
prostitution counts, 480 months on another child prostitution
count, and 120 months on the witness tampering counts, all to
be served concurrently.

DISCUSSION

I. Witness Tampering

A. Factual/Legal Overview

[1] Doss argues that the district court erred by denying his
motion to dismiss two witness tampering counts for failing to
state a violation of 18 U.S.C. § 1512(b)(1), (2)(A) and/or by
denying his motion for acquittal of these counts. We review
2
Count 9 had charged Doss with attempting to influence Cohn’s testi-
mony after overhearing the conversation between Doss and C.F. in the
transport van, asking him to say that Doss did not initiate conversation
with “that girl” and did not talk to “that girl.”
 UNITED STATES v. DOSS 737
questions of statutory interpretation de novo. United States v.
Horvath, 492 F.3d 1075, 1077 (9th Cir. 2007). To evaluate
Doss’s claims, we must first consider exactly what sort of
conduct is prohibited by this statute. These provisions crimi-
nally punish:

(b) Whoever knowingly uses intimidation, threatens,
or corruptly persuades another person, or attempts to
do so, or engages in misleading conduct toward
another person, with intent to—

(1) influence, delay, or prevent the testi-
mony of any person in an official proceed-
ing;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a
record, document, or other object, from an
official proceeding;

18 U.S.C. § 1512(b)(1), (2)(A) (emphasis added).

[2] The principal debate is over the meaning of the term
“corruptly persuades.” All courts considering the issue have
found this phrase to be ambiguous. United States v. Bal-
dridge, 559 F.3d 1126, 1142 (10th Cir. 2009). There is cur-
rently a circuit split over the type of conduct that falls within
the ambit of this phrase. Two of our sister circuits conclude
that persuasion with an “improper purpose” qualifies (such as
self-interest in impeding an investigation), while another con-
cludes there must be something more inherently wrongful
about the persuasion (such as bribery or encouraging someone
to testify falsely). Compare United States v. Thompson, 76
F.3d 442, 452 (2d Cir. 1996), and United States v. Shotts, 145
F.3d 1289, 1300-01 (11th Cir. 1998), with United States v.
Farrell, 126 F.3d 484, 488 (3d Cir. 1997).
738 UNITED STATES v. DOSS
In United States v. Khatami, we recognized the circuit split,
but ultimately decided not to resolve the issue there because
the circuits were in agreement that, at a minimum, persuading
a witness to affirmatively lie to investigators would violate
§ 1512(b). 280 F.3d 907, 913-14 (9th Cir. 2002).3 This case,
however, squarely presents the issue left open in Khatami and
requires us to explore the boundaries of conduct covered by
§ 1512(b). We begin by considering the history of § 1512(b)
and the relevant case law to date.

Prior to 1982, federal witness tampering was covered only
by 18 U.S.C. § 1503, a general obstruction of justice provi-
sion, which applied to persons who “corruptly, or by threats
or force, or by any threatening letter or communication,
endeavor[ed] to influence, intimidate, or impede” any grand
juror, witness or court officer. In 1982, § 1512 was added to
provide additional protection to witnesses in federal cases.
Victim and Witness Protection Act of 1982, Pub. L. No. 97-
291, § 4, 96 Stat. 1248, 1249-50 (1982).

As initially enacted, § 1512 did not include the words “cor-
ruptly persuade,” and courts thus concluded the section did
not criminalize non-misleading, non-threatening, non-
intimidating attempts to have a person give false information
to the government. See Khatami, 280 F.3d at 912 (discussing
history). In 1988, Congress attempted to close this gap by
including the phrase “corruptly persuades.” Id. (citing Anti-
Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat.
4181).

The Second Circuit has construed “corruptly” to have the
3
The Tenth Circuit also recently confronted the issue, but likewise
decided it need not resolve whether persuading a witness to exercise a
Fifth Amendment right could support a § 1512 conviction, because, even
assuming error, the evidence revealed that the defendant asked witnesses
to lie. United States v. Weiss, ___ F.3d ___, 2010 WL 2911718, *7-8 (10th
Cir. July 27, 2010).
 UNITED STATES v. DOSS 739
same meaning it did in § 1503 (the general obstruction stat-
ute), relying on prior cases that had interpreted the term to
mean “motivated by an improper purpose.” Thompson, 76
F.3d at 452. It approved jury instructions that defined “cor-
ruptly” as “to act deliberately for the purpose of improperly
influencing or obstructing, or interfering with the administra-
tion of justice.” Id. at 453.

In Thompson, there was evidence that the defendant had
urged his co-conspirators to conceal information and testify
falsely to minimize his role in the offense. Later, however, the
Second Circuit expanded the reach of its holding, concluding
that one could violate § 1512 by suggesting to a co-
conspirator that he invoke his Fifth Amendment privilege
because the defendant had a self-interested “improper pur-
pose” in making the suggestion — to ensure the witness did
not implicate him. United States v. Gotti, 459 F.3d 296, 342-
43 (2d Cir. 2006).

The Eleventh Circuit has embraced the Second Circuit’s
approach, concluding it is reasonable to interpret “corruptly”
in § 1512 as a scienter requirement in the same manner as it
had been in § 1503. Shotts, 145 F.3d at 1300-01. The Elev-
enth Circuit thus affirmed a witness tampering conviction of
a defendant who was engaged in a shady bail bond business
and attempted to persuade his secretary not to talk to law
enforcement agents. Id. at 1301. The court concluded the jury
could reasonably have inferred that Shotts “was attempting
with an improper motive to persuade [the secretary] not to
talk to the FBI.” Id.

[3] The Third Circuit, however, takes a different tack. In
United States v. Farrell, the defendant was charged under
§ 1512 for attempting to dissuade a co-conspirator from pro-
viding information to USDA investigators regarding a con-
spiracy to sell adulterated meat. See 126 F.3d at 486. The
court reasoned that the phrase “corruptly persuades” cannot
mean simply “persuades with the intent to hinder communica-
740 UNITED STATES v. DOSS
tion to law enforcement” because such an interpretation
would render the word “corruptly” meaningless, as the statute
already requires an intent to hinder an investigation or pro-
ceeding. Id. at 487. The court pointed out that the House
Report gave two examples of “culpable corrupt persuasion”
— if a defendant offered to financially reward a co-
conspirator’s silence (a bribe) or attempted to persuade a co-
conspirator to lie to law enforcement about the defendant’s
involvement in the conspiracy. Id. at 488 (citing H.R. Rep.
No. 100-169 at 12 & n.25 (1987)); see also Baldridge, 559
F.3d at 1142 (approvingly quoting Farrell).

[4] The Third Circuit thus read “the inclusion of ‘cor-
ruptly’ in § 1512(b) as necessarily implying that an individual
can ‘persuade’ another not to disclose information to a law
enforcement official with the intent of hindering an investiga-
tion without violating the statute, i.e., without doing so ‘cor-
ruptly.’ ” Farrell, 126 F.3d at 489. It concluded that the
statute did not reach “a noncoercive attempt to persuade a co-
conspirator who enjoys a Fifth Amendment right not to dis-
close self-incriminating information about the conspiracy to
refrain, in accordance with that right, from volunteering infor-
mation to investigators.” Id. at 488. The court commented,
however, without expressly deciding the issue, that in “the
absence of a privilege, society has the right to the information
of citizens regarding the commission of crime,” and thus per-
suasion of those without a privilege might well have the req-
uisite degree of culpability or corruptness. Id. at 489 n.3.

Finally, the Third Circuit expressly rejected the reasoning
of Thompson because it did not find the use of “corruptly” in
§ 1503 sufficiently analogous to its use in § 1512(b) to justify
construing the terms identically. Id. at 490. The court noted
that “corruptly” in § 1503 had consistently been interpreted to
provide the intent element of that section, which would other-
wise have no mens rea element. Id. In contrast, § 1512
requires both “knowing” conduct and also specifically
describes the necessary intent within the various subsections
 UNITED STATES v. DOSS 741
(e.g., with intent to influence, delay or prevent testimony, or
with intent to cause a person to destroy evidence). Id.

As we consider which of these two competing approaches
we should adopt, the Supreme Court’s 2005 decision in
Arthur Andersen LLP v. United States, 544 U.S. 696 (2005),
offers some guidance. In Arthur Andersen, an accounting firm
had been convicted under § 1512 for destruction of docu-
ments in connection with the Enron investigation. Id. at 698.
Although factually a very different case, the Court made a
number of observations about § 1512 with potential implica-
tions for this decision.

The Court focused its attention on what it means to “know-
ingly . . . corruptly persuade.” The Court commented that:

the act underlying the conviction— “persua[sion]”—
is by itself innocuous. Indeed, “persuad[ing]” a per-
son “with intent to . . . cause” that person to “with-
hold” testimony or documents from a Government
proceeding or Government official is not inherently
malign. Consider, for instance, a mother who sug-
gests to her son that he invoke his right against com-
pelled self-incrimination, see U.S. Const., Amdt. 5,
or a wife who persuades her husband not to disclose
marital confidences, see Trammel v. United States,
445 U.S. 40 (1980).

Id. at 703-04 (emphasis added) (internal footnote omitted).4

Arthur Andersen explained that to convict the accounting
company, the government had to prove the company “know-
ingly . . . corruptly persuaded” its employees to destroy the
4
Trammel held that apart from confidential communications (a privilege
held by the accused spouse), a witness spouse holds the privilege to refuse
to testify adversely and “may be neither compelled to testify nor fore-
closed from testifying.” 445 U.S. at 53.
742 UNITED STATES v. DOSS
documents, as opposed to instructing its employees to comply
with a valid document retention policy. Although the parties
relied on interpretations of “corrupt” in §§ 1503 and 1505, the
Supreme Court found these provisions lacked the modifier
“knowingly,” making any analogy “inexact.” Id. at 706 n.9.
“Knowingly,” the Court explained, is associated with “aware-
ness, understanding or consciousness,” and “corruptly” is
associated with “wrongful, immoral, depraved, or evil”;
together they require “conscious[ness] of wrongdoing.” Id. at
705-06. Finally, the Court rejected the jury instructions,
which permitted the jury to convict if it found the company
intended to “subvert, undermine, or impede” governmental
factfinding, noting that under this definition there was no dis-
honesty required and that “anyone who innocently persuades
another to withhold information from the Government” will
impede the Government’s progress. Id. at 707.

B. Count 8 (Witness Tampering re Doss’s wife)

Relying on the Third Circuit’s approach and the Supreme
Court’s dicta in Arthur Andersen, Doss argues there was noth-
ing “corrupt” about persuading his wife to exercise her mari-
tal privilege not to testify, and that therefore the district court
should have granted his motion for acquittal.5 The govern-
ment, however, asks this court to follow the Second and Elev-
enth Circuits’ decisions, based on the “statutory language and
the longstanding construction of similar terms in Section
1503(a).” The government also argues that although Arthur
Andersen suggests that persuading a spouse not to testify is
5
Doss also argues that the district court should have dismissed the
indictment against him as to Counts 7 and 8. However, the indictment ade-
quately tracked the statutory language, set forth the necessary elements of
the offense, and included sufficient facts to inform Doss of the specific
offense with which he was charged and to enable him to plead acquittal
or prior conviction of the same offense. See United States v. Bailey, 444
U.S. 394, 414 (1980); United States v. Davis, 336 F.3d 920, 922 (9th Cir.
2003). The district court was required to accept the government’s allega-
tions as true. United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002).
 UNITED STATES v. DOSS 743
not inherently malign, it does not necessarily preclude finding
that, in some situations, such persuasion can still be corrupt
— i.e., if done for an improper purpose (such as self-interest)
and with consciousness of wrongdoing.

[5] Although the language of § 1512 is ambiguous, we find
the Third Circuit’s reasoning the more persuasive and the
most consistent with the Supreme Court’s later analysis of
§ 1512 in Arthur Andersen. Although the Second and Elev-
enth Circuits relied heavily on prior interpretations of the
word “corrupt” in § 1503, the Supreme Court found analogies
to this section unhelpful because it did not also contain the
modifier “knowingly.” 544 U.S. at 706 n.9. This analysis is
quite similar to the Third Circuit’s observation that, unlike
§ 1503, § 1512 already has a mens rea element, “knowingly,”
and thus “corruptly persuades” must have an additional mean-
ing. Farrell, 126 F.3d at 489-90.

Further, the Third Circuit recognized that construing “cor-
ruptly” to mean “for an improper purpose”—especially if that
improper purpose is to hinder an investigation or prosecution
(which is already required by the statute) — is circular, essen-
tially rendering the term “corruptly” surplusage. Id. at 489.
The Supreme Court echos this concern in Arthur Andersen,
pointing out that persuading someone with intent to cause
them to withhold testimony is not “inherently malign,” and,
significant here, the Court specifically referred to the marital
privilege as an example. 544 U.S. at 703-04 (citing Trammel
v. United States, 445 U.S. 40 (1980)).

In addition, as the Third Circuit points out, the examples of
non-coercive “corrupt” persuasion cited by the House Report
were bribery and attempting to persuade a witness to lie, both
actions easy to characterize as inherently wrong or immoral,
and not actions which could be considered otherwise innocent
persuasion. See Farrell, 126 F.3d at 488. The Supreme Court
similarly noted that the term “corrupt” and “corruptly” are
normally associated with “wrongful, immoral, depraved, or
744 UNITED STATES v. DOSS
evil,” and, when coupled with “knowingly” in § 1512, the
government must show the defendant acted with “conscious-
ness of wrongdoing.” Arthur Andersen, 544 U.S. at 705-06.
If it is not, as the Supreme Court indicates, “inherently
malign” for a spouse to ask her husband to exercise the mari-
tal privilege (even though made with the intent to cause that
person to withhold testimony), id. at 703-04, then a defendant
could not be shown to act with “consciousness of wrongdo-
ing” merely by asking a spouse to withhold testimony (that
may properly be withheld under the marital privilege) absent
some other wrongful conduct, such as coercion, intimidation,
bribery, suborning perjury, etc. Id. at 706.

[6] We therefore conclude that the district court erred by
failing to grant Doss’s motion for acquittal of Count 8. In
reviewing claims of sufficiency of the evidence, we review
the evidence in the light most favorable to the government to
determine “whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” Khatami, 280 F.3d at 910 (emphasis in original) (quo-
tation omitted). The evidence at trial established only that
Doss appealed to his wife to exercise her marital privilege not
to testify against him.6 As Doss’s wife, Ford had the legal
option not to testify, and thus Doss’s request, without more,
was insufficient to establish “corrupt” as opposed to innocent
persuasion. Cf. Arthur Andersen, 544 U.S. at 703-04; id. at
706-07. Accordingly, we reverse Doss’s conviction as to
Count 8.

C. Count 7 (Witness Tampering with C.F.)

Doss argues that the district court also erred by failing to
grant his motion for acquittal on Count 7, contending again
that, consistent with the Third Circuit’s approach, there was
nothing inherently corrupt in persuading a co-conspirator to
6
The government did not argue that Doss had threatened or intimidated
Ford, which would of course otherwise violate § 1512.
 UNITED STATES v. DOSS 745
exercise a Fifth Amendment right validly possessed at the
time of their encounter. Nonetheless, the indictment in this
case alleges, and the evidence supports a finding, that Doss
did more than innocently suggest C.F. exercise her constitu-
tional rights.

[7] The indictment alleged Doss had made statements to
the effect that “if C.F. testified, it would be bad for C.F.,”
which could be construed as a threat or attempt to intimidate
C.F. (especially in light of the prior pimp/prostitute relation-
ship between C.F. and Doss). Although there was no specific
testimony that Doss made the statement “it would be bad for
C.F.,” both C.F. and Mark Cohn testified to a conversation in
the transport van in which Doss repeatedly suggested to C.F.
“it’s all Broham.” From their testimony and the context of
Doss’s statements, a rational jury could have inferred that
Doss was attempting to persuade C.F. to lie in her testimony
and to blame her former pimp, Broham, instead of him.7 As
discussed above, under our decision in Khatami, non-coercive
attempts to persuade a witness to lie are clearly covered by
§ 1512(b). 280 F.3d at 913-14; see also Weiss, 2010 WL
2911718 *7-8 (rejecting claim that defendant only encouraged
witnesses to exercise their Fifth Amendment right because
evidence indicated defendant asked witnesses to lie).

Doss argues that even if there was sufficient evidence for
a conviction under § 1512 on Count 7, there was a fatal vari-
ance between the proof at trial and the facts alleged in the
7
Doss argues that the evidence showed Cohn was not transported the
day Doss and C.F. were in the van together. However, there was conflict-
ing testimony on this point; although the U.S. Marshals recalled only one
time that Doss and C.F. were transported in the van together, believing
C.F. was otherwise transported by car, C.F. testified the van transport
occurred twice. The Marshals’ records reveal only who was transported on
what day, not the manner of transport. In reviewing sufficiency of the evi-
dence, we must view the evidence in the light most favorable to the gov-
ernment, and a rational juror could have resolved the competing testimony
in favor of C.F., especially in light of the corroboration by Cohn.
746 UNITED STATES v. DOSS
indictment. We review a variance claim de novo. United
States v. Sullivan, 522 F.3d 967, 980 (9th Cir. 2008). A vari-
ance occurs where the facts presented at trial materially differ
from those alleged in the indictment. United States v. Mont-
gomery, 384 F.3d 1050, 1060 (9th Cir. 2004). However, a
variance requires reversal only if it affects the defendant’s
substantial rights. Id.

[8] Here, there was no material variance. The indictment
and proof at trial both described the encounter between Doss
and C.F. on the transport van on the dates alleged. See United
States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986)
(“Insofar as the language of an indictment goes beyond alleg-
ing elements of the crime, it is mere surplusage that need not
be proved.”). The indictment alleged that Doss had “among
other things” told C.F. “words to the effect that” if C.F. testi-
fied, everyone would get in trouble and that it would be bad
for C.F. C.F. did not specifically recall this part of the conver-
sation, but she did recall hearing an individual telling her that
“Broham did it,” and Mark Cohn testified to hearing Doss
make such remarks. The jury may have found, as it apparently
did, that such remarks were intended to encourage C.F. to lie
when she was to provide testimony.

Doss’s argument appears to be that the government proved
only that he had encouraged C.F. to provide false testimony,
while the indictment only charged threats to influence her not
to testify. He argues his defense was prejudiced because he
intended to argue that stating “it would be bad for C.F.” to
testify was not actually a threat, and thus that there was noth-
ing wrong with the conduct alleged in the indictment. But
even if this distinction constituted a material variance, Doss’s
defense would have been substantially the same regardless of
the specific “corrupt” remarks alleged. For example, Doss
attempted to show that Cohn could not have been in the van
with C.F. and Doss to have overheard the statements, that
C.F. could not have heard Doss clearly through a metal barrier
in the transport van, and that C.F. lacked a vivid memory of
 UNITED STATES v. DOSS 747
the conversation and was generally not a good witness. This
tactic would apply regardless of the specific statements
alleged in the indictment.

Doss relies on United States v. Adamson, 291 F.3d 606,
610, 616 (9th Cir. 2002), in which the government alleged a
single misrepresentation but proved a different one, after
affirmatively representing that the conduct alleged in the
indictment was the sole basis for the prosecution. See also
United States v. Tsinhnahijinnie, 112 F.3d 988, 989-90 (9th
Cir. 1997) (fatal variance where indictment alleged 1992 sex-
ual abuse on Indian reservation, but trial testimony placed
abuse off the reservation in 1994). But the indictment lan-
guage in this case is more forgiving, suggesting there could
be other statements beyond those alleged. See Adamson, 291
F.3d at 616 (“If the indictment had not specified a different
particular misrepresentation, one might say the variance was
benign.”).

The indictment also sufficiently identified the time and
place of the conversation to give Doss notice of what evi-
dence might be presented at trial. See United States v.
Antonakeas, 255 F.3d 714, 722 (9th Cir. 2001) (no fatal vari-
ance where the evidence at trial covered the facts and time
frame alleged in indictment); see also United States v.
Momeni, 991 F.2d 493, 495 (9th Cir. 1993) (no fatal variance
where evidence showed defendant fraudulently used credit
card at hotels in addition to the one charged in indictment in
order to satisfy statutory minimum of $1000).

[9] In sum, the evidence at trial was sufficient to sustain a
conviction on Count 7. Doss did more than merely ask his co-
conspirator to exercise her Fifth Amendment right not to tes-
tify. Viewing the evidence in the light most favorable to the
government, a rational juror could have inferred from the con-
versation in the transport van that Doss had asked C.F. to lie
on the stand by blaming her former pimp instead of him. Per-
748 UNITED STATES v. DOSS
suading a witness to lie clearly runs afoul of § 1512, and we
therefore affirm Doss’s conviction of Count 7.

II. Motion to Sever

Doss argued to the district court that he would be preju-
diced from joinder of the witness tampering counts with the
sex trafficking counts because the jury would become aware
of his first trial. The court denied the motion but ordered the
parties to refer to the first trial as an “official proceeding,” and
held that any potential prejudice could also be mitigated
through jury instructions.

[10] We review the denial of a severance motion for an
abuse of discretion. United States v. Lewis, 787 F.2d 1318,
1320 (9th Cir. 1986). A defendant must show that the failure
to sever rendered the trial “manifestly prejudicial” so that the
defendant’s right to a fair trial was violated. Id. at 1321.

On appeal, Doss contends the district court’s precautions
did not ensure a fair trial. He claims that even though any
written references to the former trial were redacted and both
sides consistently referred to the former trial as an “official
proceeding,” the jury must have been able to glean that the
prior proceeding was a trial. Doss then further argues that
even though the jury’s knowledge of a prior trial would be
only minimally prejudicial, the jury must have also discerned
that there was some reason it was not supposed to know of the
former trial, and that the conclusion the jury must have drawn
was that Doss had tampered with witnesses at that trial.

Doss’s conclusions are quite speculative. For example,
Doss argues that the government equated official proceedings
with trials in its opening statement. The government argued
in its opening that “the defendant tampered with witnesses in
official proceedings connected with this case” and that “one
of the official proceedings is this very trial.” The government
correctly notes that because a trial is a type of official pro-
 UNITED STATES v. DOSS 749
ceeding does not mean that all official proceedings are trials;
they could also be hearings or grand jury appearances.

As the district court also noted below with respect to the
redacted letters, “a seasoned attorney or a prosecutor would
be able to fill in the blank” but the jurors were just as likely
to think the deleted phrases were expletives. Finally, Doss’s
ultimate conclusion — that he was prejudiced because the
jury must have not only discerned there was a prior trial, but
also concluded that it ended in mistrial because of defendant’s
tampering — heaps on even more speculation.

[11] The district court did not abuse its discretion by deny-
ing Doss’s motion to sever and implementing precautions to
prevent the jury from learning of the previous trial. There is
no allegation that the government or witnesses failed to com-
ply with the court’s orders. There is thus no reason to think
that the joinder was manifestly prejudicial or prevented Doss
from having a fair trial. We affirm the district court’s denial
of the motion to sever.

III. Vouching

[12] Doss alleges that the government improperly vouched
for the credibility of its witnesses and its case in closing argu-
ment. “Vouching consists of placing the prestige of the gov-
ernment behind a witness through personal assurances of the
witness’s veracity or suggesting that information not pre-
sented to the jury supports the witness’s testimony.” United
States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005)
(quotation omitted). The inherent danger is that “the prosecu-
tor’s opinion carries with it the imprimatur of the Government
and may induce the jury to trust the Government’s judgment
rather than its own view of the evidence.” Id. at 1148 (quoting
United States v. Young, 470 U.S. 1, 18-19 (1985)).

Because Doss did not object to the government’s closing
argument, we review his claim of improper vouching for plain
750 UNITED STATES v. DOSS
error. United States v. Williams, 989 F.2d 1061, 1071-72 (9th
Cir. 1993). We will reverse for plain error only if an error was
obvious, affected substantial rights, and a miscarriage of jus-
tice would otherwise result. United States v. Sayetsitty, 107
F.3d 1405, 1411-12 (9th Cir. 1997).

Doss objects to two passages. The first occurred in the gov-
ernment’s initial closing argument, in which the government
was discussing the testimony of Mark Cohn:

Now there’s no question you have to consider
Mark Cohn’s testimony carefully. He’s a convicted
felon. The Government knows that. He’s a fraudster,
the Government knows that. The Government prose-
cuted him and convicted him of fraud. The Govern-
ment is investigating, and he’s cooperating with that
investigation, but you heard him say he’s going to be
pleading guilty to certain charges and he’s going to
be prosecuted again in connection with fraud.
There’s no question that Mark Cohn’s testimony has
to be considered carefully.

But think of it this way: That’s why the Govern-
ment has prosecuted and convicted him, and that’s
why the Government is going to be charging him
again. But that’s also why he was uniquely situated
to be where he was, and to see and hear what he did.
Because that’s who was in the transport van:
inmates.

Doss characterizes this argument as telling the jurors that
the government knew when Mr. Cohn was lying and when he
was not. Doss also argues that it conveyed the impression that
the government investigates and prosecutes people who are
guilty, implying that the very fact Doss was on trial was evi-
dence of his guilt.

[13] This characterization reads too much into the govern-
ment’s argument. Cohn’s credibility at trial had been attacked
 UNITED STATES v. DOSS 751
on cross-examination and by the defense in its opening state-
ments. The government’s argument acknowledged that Cohn
was not a perfect witness and that he had a history of lying
and fraud. However, the government then pointed out that it
was because of Cohn’s crimes that he was in a position to
overhear the conversation between Doss and C.F., while
being transported in an inmate van. Nothing in this passage
vouched for Cohn’s credibility. Compare United States v.
Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (prosecutor
described witnesses as “very candid” and “honest”).

The second passage to which Doss objects occurred during
the government’s rebuttal:

Wow, what a Government conspiracy!

The Government has nothing better to do than to
pressure people to get all on the same page and to
make them come into a courtroom and lie just so that
we can convict an innocent person.

....

I won’t address every single point that defense
counsel made. But for you to believe the defense in
this case, you have to believe that the Government
just wants to pressure witnesses to get up on the
stand and all get in line on the same story to convict
an innocent man, and that the government wants to
pull in this fraudster, this completely unrelated indi-
vidual in jail, to come in and lie to you as well.

However, Doss omits a substantial portion of the argument
in between these two passages, in which the government
argued:

For you to believe the defense, you have to
believe that Tamica, Candace, and Jacquay are all
752 UNITED STATES v. DOSS
lying to you. They are not the perfect witnesses. But
they are the perfect victims. And the defense can’t
have it both ways. They point to their inconsistencies
and tell you, ‘they can’t possibly be telling you the
truth.’ But when the tales of what happened to them
and how the defendant transported them for purposes
of prostitution match up consistently and match up
with the corroborating evidence, then it’s a govern-
ment conspiracy to get these people in here and put
pressure on all of these other people to lie to you so
that we can convict an innocent man.

Ask yourselves if that makes any sense. Ask your-
selves if it makes any sense for these two girls to
come in here and testify and just make up this story.
And supposedly, it’s to protect their own pimp.

You heard from Detective Haight. Yes, it’s true,
initially sometimes girls on the street, the prostitutes
that are working on the tracks, don’t readily identify
their pimps. And you heard from him that oftentimes
they do. But this case is not just resting on the testi-
mony of Tamica and Candice in connection with
what they told you about how the defendant trans-
ported them between states to work as prostitutes for
him. There’s all of the corroborating evidence in the
case. And the defense just dismisses it.

[14] Viewed in context and in their entirety, the govern-
ment’s comments were therefore responsive to the defense’s
closing argument, in which counsel argued “Ms. Doss is here
today because of lies. And those lies have three sources: the
pimp’s game, the government’s pressure, and one con man’s
depravity.” (emphasis added). Defense counsel had also
argued:

Now, the pressure in this case was tremendous.
The power of the United States Attorney’s office has
 UNITED STATES v. DOSS 753
few boundaries. And in this case, its tentacles reach
into the relationship between a husband and his wife;
between a 15-year-old girl and her freedom; and it
even tried to convert a known con man into a star
witness.

(emphasis added). And again:

There’s another kind of pressure that’s going on in
this case, which is the pressure that the government
puts on itself to win. And that pressure led to the
very unfortunate decision to enlist a con man to con-
vict Mr. Doss, to prop up baseless accusations of
witness tampering, accusations that are not sup-
ported by the supposed victims of the tampering.

(emphasis added).

[15] “[A] prosecutor may respond substantially to a
defense counsel’s attack in order to right the scale.” United
States v. Parker, 991 F.2d 1493, 1498 n.1 (9th Cir. 1993)
(internal quotation marks and citation omitted). When the
government’s rebuttal remarks are placed in context, both
within its own argument and the closing arguments as a
whole, it is apparent that the government was responding to
the defense’s allegations that the government had “cooked”
the case in order to win. See, e.g., Sayetsitty, 107 F.3d at 1409
(closing argument appropriate response to defense counsel’s
characterization that case was “web of deception”). In addi-
tion, rather than arguing that the jury should trust the govern-
ment witnesses (as in United States v. Sanchez, 176 F.3d
1214, 1224 (9th Cir. 1999)), the government asked the jury to
exercise its own judgment and determine the plausibility of
the defense’s explanation in light of the substantial corrobora-
tion among the various witnesses.

[16] The government concedes that its sarcastic comment
“the government has nothing better to do than to pressure peo-
754 UNITED STATES v. DOSS
ple to get all on the same page” could have been better
phrased, but, in context, we agree these words were merely
“rhetorical emphasis for the inferences the prosecutor was
urging the jury to draw rather than a meaningful personal
assurance that the [defendant was] guilty.” Williams, 989 F.2d
at 1072. We are also mindful that we should not assume the
prosecutor means a remark to have its most damaging mean-
ing, “or that a jury, sitting through a lengthy exhortation, will
draw that meaning from the plethora of less damaging inter-
pretations.” United States v. Leon-Reyes, 177 F.3d 816, 822-
23 (9th Cir. 1999) (internal quotation omitted).

Finally, even if some of the government’s comments were
improper vouching, these unobjected-to comments do not rise
to the level of plain error resulting in a miscarriage of justice.
There was extensive evidence in support of the child prostitu-
tion counts, including the testimony of the two victims and
Doss’s wife, which was also independently corroborated by
numerous telephone, motel and car records. As discussed
above, C.F. and Cohn corroborated one another regarding
Count 7 witness tampering, and this testimony was also inde-
pendently supported by prison transport records. There was
no reversible error in the closing argument.

IV. Sentencing

[17] Under 18 U.S.C. § 3559(e)(1) a “person who is con-
victed of a Federal sex offense in which a minor is the victim
shall be sentenced to life imprisonment if the person has a
prior sex conviction in which a minor was the victim. . . .”
The statute defines a “minor” as “an individual who has not
attained the age of 17 years.” Id. § 3559(e)(2)(D).

The district court applied the enhancement to Doss and sen-
tenced him to life in prison because of a prior child pandering
conviction in Nevada. Nev. Rev. Stat. § 201.300(1)(a).8 The
8
The state court information alleged a violation of 201.300(1)(a), which
applies to pandering both adults and children. However, the crime carries
 UNITED STATES v. DOSS 755
court acknowledged that the crime did not categorically qual-
ify for the federal enhancement because Nevada law defines
a child as “a person less than 18 years of age,” Nev. Rev. Stat.
§ 201.295(2), whereas federal law defines a minor as under 17
years of age. The court thus turned to the modified categorical
approach set forth in Taylor v. United States, 495 U.S. 575
(1990), and Shepard v. United States, 544 U.S. 13 (2005), and
examined the charging documents, plea agreement and plea
colloquy from Doss’s state court conviction. The court con-
cluded that Doss had admitted to pandering a child who was
16 years of age,9 and that the state conviction thus satisfied
the requirements of § 3559(e).

At the time of the district court’s decision in 2006, its mod-
ified categorical analysis was likely correct. However, several

different penalties based on whether a child or adult is involved, and Doss
pled guilty to “pandering a child (Category B felony),” which is consistent
with the penalties for pandering someone under 18 in Nevada. Nev. Rev.
Stat. § 201.300(2)(b).
9
Count I of the state information alleged that Doss “did . . . wilfully,
unlawfully and feloniously, induce, persuade, encourage, inveigle, entice
or compel a child under the age of 18 years, to wit: [A.D.], being 16 years
of age, and/or [Z.C.], to become a prostitute and/or to engage in or con-
tinue to engage in prostitution.” Count II alleged similar conduct with two
additional 17 year olds. In the plea agreement, Doss pled guilty to both
counts “as more fully alleged in the charging document” and indicated he
understood that “by pleading guilty I admit the facts which support all the
elements of the offense(s) to which I now plead as set forth in Exhibit “1”
[the charging instrument].”
At the plea colloquy, Doss admitted, “I enticed four juveniles in this
Complaint to continue to act as prostitutes.” His attorney then spelled the
names of the two girls from count one for the court reporter (A.D. and
Z.C.), and the court clarified: “As to Count I, you enticed these two young
ladies to work as prostitutes, is that correct?” Doss responded, “Yes, to
continue to work, yes.” Based on all of this information, the district court
concluded that although the information charged in the alternative, at the
plea colloquy Doss admitted pandering both girls, including A.D., who
was alleged to be 16 at the time of the crime, and that therefore the convic-
tion qualified under § 3559(e).
756 UNITED STATES v. DOSS
subsequent cases have called the approach into question. As
a preliminary matter, when making a generic crime determi-
nation, even under the modified categorical approach, our cur-
rent law precludes the use of Doss’s factual admissions
regarding the age of one child because it was not necessary
to the conviction under Nevada state law. See Navarro-Lopez
v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc)
(explaining that analogous admissions could not be used “to
modify the crime because they were not necessary for a con-
viction”); see also Aguilar-Turcios v. Holder, 582 F.3d 1093,
1097-98 (9th Cir. 2009); Estrada-Espinoza v. Mukasey, 546
F.3d 1147, 1159-60 (9th Cir. 2008) (en banc) (modified cate-
gorical approach is only available in divisible statute to deter-
mine under which section defendant was convicted); United
States v. Jennings, 515 F.3d 980, 992 (9th Cir. 2008).

However, these cases are not outcome-determinative here
because a recent Supreme Court decision further alters the
legal landscape. In Nijhawan v. Holder, the Supreme Court
analyzed a list of aggravated felonies under immigration law,
categorizing as an aggravated felony “an offense that involves
fraud or deceit in which the loss to the victim or victims
exceeds $10,000.” 129 S. Ct. 2294, 2298 (2009) (emphasis in
original); 8 U.S.C. § 1101(a)(43)(M)(I). The Court distin-
guished between generic crimes (in which a court would look
to the offense statute to determine if there was an appropriate
monetary threshold as an element of the underlying offense)
and “circumstance-specific” crimes, which would instead
look to the facts and circumstances underlying an offender’s
conviction. Id. at 2298-99. The Court concluded that subpara-
graph (M)(I) was the latter, noting that:

The language of the provision is consistent with a
circumstance-specific approach. The words “in
which” (which modify “offense”) can refer to the
conduct involved “in” the commission of the offense
of conviction, rather than to the elements of the
offense.
 UNITED STATES v. DOSS 757
Id. at 2301.

The sentencing enhancement at play here, 18 U.S.C.
§ 3559(e)(1), contains similar language. It provides for a man-
datory minimum life sentence for a federal sex offense of the
type of which Doss was convicted if the defendant has a
“prior sex conviction in which a minor was the victim.” As in
Nijhawan, the clause “in which a minor was the victim” mod-
ifies “prior sex conviction” but is not necessarily an element
of that prior offense.10 Instead, the language suggests we are
to consider “the specific circumstances surrounding an
offender’s commission of [that crime] on a specific occasion.”
Nijhawan, 129 S. Ct. at 2302.

In Nijhawan, the Court also looked to the remainder of the
statute, noting that the language of various other provisions
“almost certainly does not refer to generic crimes but refers
to specific circumstances.” Id. at 2300-01. Likewise,
§ 3559(e) has other indications that it too is circumstance-
dependent. For example, it provides that an otherwise qualify-
ing felony cannot serve as the basis for sentencing if the
defendant establishes that the sexual activity “was consensual
and not for the purpose of commercial or pecuniary gain”—
something that could not be determined by a mere comparison
of generic elements or even under the modified categorical
approach.

As the government argued to the district court, § 3559(e)
presents a “hybrid” situation. The first portion of the sentenc-
ing enhancement—whether defendant has a prior “sex
offense” conviction—involves the traditional Taylor approach
and a comparison of generic elements. However, in light of
Nijhawan, we conclude that Congress intended courts apply-
ing § 3559(e) to then look to the specific circumstances of
that conviction to determine whether it involved a minor (and
10
Doss does not otherwise dispute that his prior sex offense would qual-
ify as a “prior sex conviction” except for the victim’s age.
758 UNITED STATES v. DOSS
whether the defendant’s defenses described above might also
apply given the particular circumstances of the prior convic-
tion).

[18] Nonetheless, we also recognize that Nijhawan was an
immigration case, and although we believe its reasoning is
equally applicable to § 3559(e), the constitutional ramifica-
tions are decidedly different. Because we conclude that “in
which a minor was the victim” is not an element of “prior sex
conviction,” a factual determination that a minor was
involved necessarily falls outside the “fact of a prior convic-
tion” exception of Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). Thus, if this fact increases the penalty Doss would
face above the statutory maximum, it must be proven to a
factfinder beyond a reasonable doubt. Id.; see also Nijhawan,
129 S. Ct. at 2302 (government conceding that in a criminal
proceeding for illegal reentry the loss amount would need to
be submitted to a jury).

The mandatory life sentence enhancement pursuant to
§ 3559(e) was applied to Doss’s convictions on Counts 4, 5,
and 6 for violations of 18 U.S.C. § 2423. Although § 2423
currently provides for a maximum term of life in prison, at the
time of Doss’s crime, the statute provided a statutory maxi-
mum of 30 years in prison, 18 U.S.C. § 2423 (2000), amended
by Adam Walsh Child Protection and Safety Act of 2006,
Pub. L. 109-248, § 204, 120 Stat. 587, 613, and thus Apprendi
applies.

[19] In this case Doss waived a jury determination and
proceeded to a “bench trial” for sentencing. However, our
review of the proceeding makes it clear that although the gov-
ernment sought a factfinding sentencing trial and wished to
introduce evidence in that proceeding, such as birth certifi-
cates of the two victims from the Nevada conviction, the dis-
trict court instead based its decision entirely on legal grounds
—application of the Taylor/Shepard modified categorical
approach—and did not undertake any specific factfinding (an
 UNITED STATES v. DOSS 759
approach that was perfectly understandable given the law at
the time). Under these circumstances, especially considering
the significant change in law since the sentencing, we believe
the fairest approach would be to remand Counts 4, 5, and 6
for a new sentencing proceeding to determine, applying a
beyond-a-reasonable-doubt standard, whether Doss’s prior
sex conviction indeed involved a minor under the federal defini-
tion.11

CONCLUSION

Doss’s convictions are AFFIRMED, except for Count 8,
which is REVERSED. Doss’s life sentences on Counts 4, 5
and 6 are VACATED and REMANDED for further proceed-
ings in accordance with this Opinion.

11
We note that, because this determination is outside the Taylor/Shepard
framework, the factfinder’s determination of whether the prior conviction
involved a minor under the age of 17 need not be limited to the documents
involved in a generic offense inquiry, but that the court or jury may con-
sider any competent evidence that may be introduced under the Federal
Rules, as with any other sentencing enhancement that increases the statu-
tory maximum. Cf. Nijhawan, 129 S. Ct. at 2302-03.