FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50343
Plaintiff-Appellee,
D.C. No.
v. 3:15-cr-01201-
BTM-1
WILLIE DWAYNE MICKEY, AKA
Ace,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, Chief Judge, Presiding
Argued and Submitted February 15, 2018
Pasadena, California
Filed July 30, 2018
Before: M. Margaret McKeown and Kim McLane
Wardlaw, Circuit Judges, and James Donato, * District
Judge.
Opinion by Judge McKeown
*
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
2 UNITED STATES V. MICKEY
SUMMARY **
Criminal Law
The panel affirmed convictions for two counts of sex
trafficking by force, threats of force, fraud, or coercion in
violation of 18 U.S.C. §§ 1591(a) and (b)(1).
The panel held that the district court did not err by
refusing to give a specific unanimity instruction regarding
which precise combination of means the defendant used to
cause the victim to engage in a commercial sex act. The
panel rejected the defendant’s contention that force, threats
of force, fraud, and coercion are separate elements of the
crime.
The panel held that although the prosecution technically
erred in failing to include the statutory phrase “or any
combination of such means” in the indictment, inclusion of
that phrase in the jury instructions and Special Verdict Form
did not constitute a constructive amendment of the
indictment. The panel wrote that the defendant cannot show
prejudice, and concluded that there was no plain error.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MICKEY 3
COUNSEL
Marc X. Carlos (argued), Bardsley & Carlos LLP, San
Diego, California, for Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney;
Helen H. Hong, Chief, Appellate Section, Criminal
Division; United States Attorney’s Office, San Diego,
California; for Plaintiff-Appellee.
OPINION
McKEOWN, Circuit Judge:
The lesson from this case is that the devil is in the
details—from the language of the statute to the recitation of
the crime in the indictment, in the jury instructions, and the
special verdict form. After a five-day jury trial, Willie
Dwayne Mickey was convicted of two counts of sex
trafficking by force, threats of force, fraud, or coercion in
violation of 18 U.S.C. §§ 1591(a) and (b)(1). Mickey
challenges the district court’s refusal to give a specific
unanimity instruction with respect to the means that he used
to traffic his victims, and claims the government
constructively amended the indictment by including the
phrase “or any combination of such means” of force, threats
of force, fraud, or coercion in the jury instructions and on the
Special Verdict Form. 1 We affirm.
1
We address Mickey’s remaining challenges to an evidentiary issue
and his sentencing in a memorandum disposition filed
contemporaneously with this Opinion.
4 UNITED STATES V. MICKEY
Background
Willie Mickey is, according to both parties in this appeal,
“a pimp.” Over the course of a several-year-long career, at
least ten female prostitutes worked for him in some capacity.
In 2010, at age 25, Mickey married 21-year-old Lasasha
Ray, a member of the United States Navy. Mickey told Ray
soon after they married that he intended to continue seeing
other women; needless to say, their relationship was
tumultuous. Between 2010 and 2013, Mickey lived in the
same house with Ray, together with two or three prostitutes
at various times. Still, Ray and Mickey remained
romantically involved and remained married at least until
Mickey’s trial in 2016.
Soon after his marriage to Ray, Mickey met 19-year old
K.I. at Southwestern College. Even before she met Mickey,
K.I. had worked as a prostitute, advertising herself on
Craigslist and also working on the streets. Within two years
of their meeting, K.I. moved in with Mickey and they began
a romantic relationship. Mickey, Ray, and K.I. lived
together for over a year, though Ray was sometimes gone for
extended periods on military deployment. While K.I. was
living with Mickey, she continued to work as a prostitute,
posting advertisements of herself on “Backpage.com,” a
classified advertisement site.
K.I. lived with Mickey for several years, remaining in
the house when additional prostitutes moved in. The
relationship between the women in the house was at times
“fine” and at times violent. At trial, K.I. denied that Mickey
was her pimp and claimed he never forced her to be a
prostitute. But the government introduced substantial
evidence to the contrary, including that K.I.’s “Backpage”
ads linked to email addresses and phone numbers belonging
UNITED STATES V. MICKEY 5
to Mickey. Ray and another of Mickey’s prostitutes, A.P.,
also testified that Mickey drove both A.P. and K.I. to “out-
calls,” after which both of them gave their proceeds to
Mickey.
On Valentine’s Day, 2012, Mickey and K.I. got into a
fight. K.I. and Mickey “exchanged words.” K.I. testified
that she threw an object at Mickey, that he “threw an object
back at [her],” and that K.I. “got hit.” When Ray went
outside, she saw K.I. “bleeding from the back of [her] head.”
Ray had also seen Mickey hit K.I. at least three times in the
past. Mickey pled guilty to assault with a deadly weapon in
violation of California Penal Code § 245 and spent 270 days
in jail. K.I. continued to live with Mickey and act as a
prostitute for him for several years after this incident.
Sometime in 2012 or 2013, Mickey began a romantic
relationship with G.S., who eventually moved in with
Mickey, Ray, and K.I. Mickey told G.S. that she would have
to “hustle” if she was going to live with him, and she began
working as a prostitute. Mickey exerted considerable
control over her prostitution activities, setting prices,
arranging calls with paying male customers, and giving G.S.
guidelines on how to respond to inbound customer calls.
G.S. also saw Mickey get violent with K.I.
In 2013, Mickey met 18-year-old A.P. on the social
media site Tagged. After a period of friendship, the
relationship became romantic, and A.P. moved in with
Mickey after graduating from high school. At first, Mickey
told A.P. that he worked security at a navy base, but
eventually indicated that he was a pimp. Over time, he
expressed his wish that A.P. work as a prostitute for him, and
began posting images of A.P. to Backpage.com.
6 UNITED STATES V. MICKEY
Mickey also exercised considerable control over A.P.’s
prostituting activities, setting prices, deciding when
encounters would take place, reserving hotel rooms,
transporting A.P., and enforcing time limits. Mickey picked
the names that A.P. was listed under in her advertisements
and helped arrange logistics for commercial sex acts.
Mickey also took a substantial amount of the money A.P.
received in exchange for performing sex acts. Mickey
prohibited A.P. from talking to family members or other
men. The relationship between Mickey and A.P. was violent
at times, as the two had “physical altercation[s].” A.P.
testified that Mickey punched her repeatedly, “below the
neck,” for “many, many different reasons.”
In late September 2014, A.P. decided that she wanted to
leave Mickey. Mickey prevented her from leaving by
punching and slapping her. He also threw a stool at A.P.,
hitting her in the back of the head. After Mickey forced her
to spend the night, she fled the next day and called her
parents, who came with police.
Mickey was eventually arrested, and the government
filed a second superseding indictment charging him with
three counts of sex trafficking in violation of 18 U.S.C.
§ 1591. 2 That provision punishes anyone who “recruits,
entices, harbors, transports, provides, obtains, advertises,
maintains, patronizes, or solicits by any means a person,”
knowing or in reckless disregard of the fact that “means of
force, threats of force, fraud, coercion . . . or any
combination of such means” will be used to cause the person
to engage in a commercial sex act. 18 U.S.C. § 1591(a)
2
Count 1 related to K.I. and count 2 to A.P. Count 3 was dropped
when a third prostitute was unavailable for trial.
UNITED STATES V. MICKEY 7
(emphasis added). However, the prosecution’s indictment
omitted the phrase “or any combination of such means.”
After a five-day trial, the jury returned a guilty verdict.
With respect to count 1, the jury unanimously found that
Mickey used “any combination of such means” of force,
threats of force, fraud, or coercion in causing K.I. to engage
in a commercial sex act. With respect to count 2, the jury
unanimously found that Mickey used force, threats of force,
coercion, and any combination of such means in causing
A.P. to engage in a commercial sex act. The district court
sentenced Mickey to the lower end of the guidelines range,
204 months in prison for counts 1 and 2, to run concurrently,
followed by 10 years of supervised release.
Analysis
The government created more heat than light in this case
by submitting a Special Verdict Form that separately listed
the individual means Mickey may have used to traffic his
victims—force, threats of force, fraud, coercion, or any
combination of such means. See 18 U.S.C. §§ 1591(a),
(b)(1). The jury was asked five separate questions regarding
whether Mickey used each of these methods rather than
simply if Mickey trafficked his victims using any of these
means, which was the actual issue at trial. Neither the statute
nor our precedent requires such specificity. The government
also committed a minor technical error by omitting the
phrase “or any combination of such means” from the
indictment, but that error did not rise to the level of a
constructive amendment. Mickey had ample notice of the
charges against him and the jury was properly instructed on
the nature of those charges.
8 UNITED STATES V. MICKEY
I. Specific Unanimity
The key issue on appeal is whether the district court was
required to give a specific unanimity instruction for Count 1
regarding which precise combination of means Mickey used
to cause K.I. to engage in a commercial sex act. Although
Mickey did not object to the original instructions and did not
ask for a specific unanimity instruction at the initial
instruction conference, he made such a request after the jury
came back with questions about the instructions. In light of
this sequence, Mickey did not forfeit his request and thus we
review for abuse of discretion the denial of a specific
unanimity instruction. United States v. Kim, 196 F.3d 1079,
1082 (9th Cir. 1999).
Two jury instructions and the Special Verdict Form are
the basis for Mickey’s challenge. Instruction 15 3 set out the
3
Jury Instruction 15 provided, in its entirety:
“The defendant is accused in the indictment on counts
1 and 2 as follows:
COUNT 1:
Beginning from at least August 1, 2013, and
continuing through on or about April 9, 2015, in the
Southern District of California, defendant WILLIE
DWAYNE MICKEY, aka ‘ACE,’ in and affecting
interstate and foreign commerce, knowingly and
intentionally recruited, enticed, harbored, transported,
provided, obtained and maintained K.I., knowing and
in reckless disregard of the fact that means of force,
threats of force, fraud, and coercion would be used to
cause K.I. to engage in a commercial sex act, in
violation of Title 18, United States Code, Sections
1591(a) and (b)(1).
UNITED STATES V. MICKEY 9
counts in the indictment while Instruction 17 4 outlined the
second element of the crime with respect to the mens rea
COUNT 2:
On or about and between August 1, 2013, through on
or about September 30, 2014, in the Southern District
of California, defendant WILLIE DWAYNE
MICKEY, aka ‘Ace,’ in and affecting interstate and
foreign commerce, knowingly recruited, enticed,
harbored, transported, provided, obtained and
maintained A.P., knowing and in reckless disregard of
the fact that means of force, threats of force, fraud, and
coercion would be used to cause A.P. to engage in a
commercial sex act[,] in violation of Title 18, United
States Code, Sections 1591(a) and (b)(1).
In order for a defendant to be found guilty of that
charge, the government must prove each of the
following elements beyond a reasonable doubt:
(1) On or about the dates alleged in the indictment, the
defendant knowingly recruited, enticed, harbored,
transported, provided, obtained, or maintained a
person, that is, K.I . . . and/or A.P. . .
(2) The defendant knew, or was in reckless disregard
of the fact that means of force, threats of force, fraud,
coercion or any combination of such means would be
used to cause K.I. and/or A.P. to engage in commercial
sex acts, and
(3) The defendant’s actions were in or affecting
interstate or foreign commerce.” (emphasis added).
4
Jury Instruction 17 stated, in its entirety:
“The second element of the crime of sex trafficking by
force, fraud, or coercion requires that the government
prove beyond a reasonable doubt that the defendant
10 UNITED STATES V. MICKEY
requirements and the means of sex trafficking. The court
gave the standard Ninth Circuit Model Criminal Instruction
on unanimity: “Your verdict, whether guilty or not guilty,
must be unanimous.” However, the Special Verdict Form
contained specific questions regarding the means used to
knew, or was in reckless disregard of the fact [that]
means of force, threats of force, fraud, or coercion
would be used against the person to cause them to
engage in a commercial sex act.
The term ‘coercion’ means:
(1) Threats of serious harm to, or physical restraint
against the person; or
(2) 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.
The term ‘serious harm’ means any harm, whether
physical or nonphysical, including psychological,
financial, or reputational harm, that is sufficiently
serious, under all of the surrounding circumstances, 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.
The term ‘commercial sex act’ means any sex act, on
account of which anything of value is given to or
received by any person.
‘Force’ means ‘any form of power, violence, or
physical pressure directed against another person.’
‘Fraud’ means ‘any deliberate act of deception,
trickery, or misrepresentation’” (emphasis added).
UNITED STATES V. MICKEY 11
violate the statute. That form, with the jury’s answers to the
questions, read:
“We, the jury in the above-captioned case,
return the following unanimous verdict:
1. As to the charge in Count 1 that:
Beginning from at least August 1, 2013,
and continuing through on or about April 9,
2015, in the Southern District of California,
defendant WILLIE DWAYNE MICKEY,
aka “ACE,” in and affecting interstate and
foreign commerce, knowingly and
intentionally recruited, enticed, harbored,
transported, provided, obtained and
maintained K.I., knowing and in reckless
disregard of the fact that means of force,
threats of force, fraud, and coercion would be
used to cause K.I. to engage in a commercial
sex act; in violation of Title 18, United States
Code, Section 1591(a) and (b)(1).
We find, WILLIE DWAYNE MICKEY:
Guilty
If you find the defendant guilty on Count 1,
answer the following paragraphs below:
A. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that
means of force would be used to cause K.I. to
engage in a commercial sex act?
12 UNITED STATES V. MICKEY
YES X NO
B. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that
threats of force would be used to cause K.I.
to engage in a commercial sex act?
YES X NO
C. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that fraud
would be used to cause K.I. to engage in a
commercial sex act?
YES X NO
D. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that
coercion would be used to cause K.I. to
engage in a commercial sex act?
YES X NO
E. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that any
combination of such means of force, threats
of force, fraud, or coercion would be used to
cause K.I. to engage in a commercial sex act?
X YES NO
UNITED STATES V. MICKEY 13
2. As to the charge in Count 2 that:
On or about between August 1, 2013,
through on or about September 30, 2014, in
the Southern District of California, defendant
WILLIE DWAYNE MICKEY, aka “ACE,”
in and affecting interstate and foreign
commerce, knowingly recruited, enticed,
harbored, transported, provided, obtained and
maintained A.P., knowing and in reckless
disregard of the fact that means of force,
threats of force, fraud, and coercion would be
used to cause A.P. to engage in a commercial
sex act; in violation of Title 18, United States
Code, Section 1591(a) and (b)(1).
We find, WILLIE DWAYNE MICKEY:
Guilty
If you find the defendant guilty on Count 2,
answer the following paragraphs below:
A. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that
means of force would be used to cause A.P.
to engage in a commercial sex act?
X YES NO
B. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that
14 UNITED STATES V. MICKEY
threats of force would be used to cause A.P.
to engage in a commercial sex act?
X YES NO
C. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that fraud
would be used to cause A.P. to engage in a
commercial sex act?
YES X NO
D. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that
coercion would be used to cause A.P. to
engage in a commercial sex act?
X YES NO
E. Does the jury unanimously find beyond a
reasonable doubt that the defendant knew or
was in reckless disregard of the fact that any
combination of such means of force, threats
of force, fraud, or coercion would be used to
cause A.P. to engage in a commercial sex act?
X YES NO” (emphases added).
During deliberations, the jury submitted this handwritten
note to the court:
“Court Instruction #15 and the Special
Verdict form lists the factors of ‘force, threats
UNITED STATES V. MICKEY 15
of force, fraud, AND coercion would be used
. . .’ However, Court Instruction #17 lists
‘force, threats of force, fraud, OR coercion
would be used . . .’ The question is, ‘do we
need to find ALL the above factors to satisfy
the second element or AT LEAST ONE of the
factors to satisfy the second element? Also, if
no one single factor is found to be beyond a
reasonable doubt, can the combination of two
or more factors be used to find beyond a
reasonable doubt to satisfy the second
element?”
The district court discussed the jury’s note with counsel
and decided that the jury needed to agree on only one factor
(i.e., force, threats of force, fraud, coercion, or any
combination of such means) to satisfy the second element of
the crime. The court also determined that the jury did not
have to be unanimous with respect to the specific means, or
combination of means, that Mickey used to traffic K.I. or
A.P. The court instructed the jury that it could convict
Mickey of either count based on a “combination” of means
“as long as the combination [was] of the means of force,
threats of force, fraud or coercion.” In other words, the jury
did not need to be unanimous on the specific combination of
such means. Over Mickey’s objection, the court declined to
give a further unanimity instruction.
The jury’s question was astute. So astute, in fact, that
the identified issue was the subject of two Supreme Court
cases. In Schad v. Arizona, the Court held that jurors are not
“required to agree upon a single means of commission” to
return a guilty verdict in a criminal case. 501 U.S. 624, 631–
32 (1991). The Court reiterated that principle in Richardson
v. United States: “a federal jury need not always decide
16 UNITED STATES V. MICKEY
unanimously which of several possible sets of underlying
brute facts make up a particular element” of a crime, or
“which of several possible means the defendant used to
commit an element of the crime.” 526 U.S. 813, 817 (1999).
Hence, the Court has created a distinction between the
“elements” of a crime and the “means” that a defendant uses
to commit that crime. We have further clarified that
“elements [are] those circumstances on which the jury must
unanimously agree, while . . . means [are] those
circumstances on which the jury may disagree yet still
convict.” Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir.
2014). Courts must make a “threshold inquiry” whether the
“listed items” in an “alternatively phrased” statute are
“elements or means.” Mathis v. United States, 136 S. Ct.
2243, 2256 (2016).
Mickey’s argument that force, threats of force, fraud, and
coercion are separate elements of the crime is unavailing.
The statute on its face indicates that the listed alternatives—
“means of force, threats of force, fraud, coercion . . . or any
combination of such means”—are not elements but rather
possible means to commit the crime of human trafficking.
18 U.S.C. §§ 1591(a), (b)(1) (emphasis added). The word
“means” appears twice in the relevant statutory text, once
before referring to each of the named alternatives, and once
when describing the “combination of such means.”
18 U.S.C. §§ 1591(a), (b)(1). None of the alternatives
carries a different punishment. See Mathis, 136 S. Ct. at
2256; Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
And the statute does not identify each alternative as an
element of the crime. See Mathis, 136 S. Ct. at 2256.
The title of the statute, “Sex trafficking . . . by force,
fraud, or coercion,” also supports the conclusion from the
statutory language that the listed alternatives are means of
UNITED STATES V. MICKEY 17
committing the crime. 18 U.S.C. § 1591. Parsing the title
indicates that the crime—sex trafficking—occurs by any one
of a group of means, “force, [threats of force], fraud, or
coercion,” to cause a person to engage in a commercial sex
act. “Although statutory titles are not part of the legislation,
they may be instructive in putting the statute in context.”
United States v. Todd, 627 F.3d 329, 335 (9th Cir. 2010) (M.
Smith, J., concurring) (citation omitted).
In line with the general unanimity instruction, the jurors
unanimously agreed that Mickey knew or was in reckless
disregard of the fact that “any combination of such means”
of force, threats of force, fraud or coercion would be used to
traffic K.I. The jury did not need to “unanimously agree on
a [more] specific classification of [Mickey’s] conduct.”
Kim, 196 F.3d at 1083. And with respect to A.P., the jury
did unanimously agree that Mickey used four of the five
prohibited, underlying means to traffic her—force, threats of
force, coercion, and any combination of such means.
Although we affirm the district court’s denial of a
specific unanimity instruction under the circumstances of
this case, we observe that the government introduced
considerable, and unnecessary, risk of error by asking the
jury to decide which means Mickey used to traffic his
victims. Subdividing a particular element of a crime into
possible component means on a special verdict form is likely
to garner an appeal. Not only might it confuse the jury and
require further instructions, as happened here, but depending
on the nature of the individual means included, the jury may
lose sight of what facts it is meant to find. The risk could
deepen further where the specific means included are
mutually exclusive. Here, force, threats of force, fraud, and
coercion are compatible with one another—Mickey could
have used any or all of these tactics to commit his crime. But
18 UNITED STATES V. MICKEY
one can imagine other circumstances where the individual
means are incompatible. See Schad, 501 U.S. at 651 (Scalia,
J., concurring) (“We would not permit, for example, an
indictment charging that the defendant assaulted either X on
Tuesday or Y on Wednesday. . . .”). The important lessons
from this case are that the prosecution is required to prove
every element of the crime beyond a reasonable doubt—
without a requirement to subdivide the inquiry to the atomic
level—and that jury instructions should not only match the
statutory language but should be internally consistent. See
also Apprendi, 530 U.S. at 477.
II. Constructive Amendment Challenge
We next consider whether the inclusion of the statutory
phrase “or any combination of such means” in the jury
instructions and Special Verdict Form constituted a
constructive amendment in view of the fact that the phrase
was omitted from the operative indictment. The grand jury
requirement of the Fifth Amendment provides that “[n]o
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury.” U.S. Const. amend. V. Hence, “the crime and
the elements of the offense that sustain the conviction [must
be] fully and clearly set out in the indictment.” United States
v. Miller, 471 U.S. 130, 136 (1985). For this reason, a
constructive amendment violates the Fifth Amendment.
Such an amendment occurs when “the charging terms of the
indictment are altered, either literally or in effect, by the
prosecutor or a court after the grand jury has last passed upon
them.” United States v. Davis, 854 F.3d 601, 603 (9th Cir.
2017) (citation omitted).
Because Mickey failed to raise the constructive
amendment issue at trial, we review for plain error. United
States v. Cotton, 535 U.S. 625, 631 (2002). Indeed, neither
UNITED STATES V. MICKEY 19
Mickey nor the prosecution even noticed the omission of the
“any combination of such means” language from the
operative indictment until the district court pointed it out a
full five months after the trial concluded. We may reverse
only “if there has been (1) error; (2) that was plain; (3) that
affected substantial rights; and (4) that seriously affected the
fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Cannel, 517 F.3d 1172, 1176
(9th Cir. 2008).
We have distinguished between a constructive
amendment and a minor technical change or correction, and
we must do so again here. The correction of an “obvious
clerical error” does not result in a constructive amendment.
United States v. Pazsint, 703 F.2d 420, 423 (9th Cir. 1983).
In other words, a “defendant is not denied his or her right to
a grand jury when the jury instructions and proof at trial
diverge insignificantly from the indictment.” United States
v. Hugs, 384 F.3d 762, 767 (9th Cir. 2004). This is exactly
what happened in Mickey’s case.
Although, as a technical matter, the prosecution erred in
failing to include the statutory phrase “or any combination
of such means” in the indictment, the error did not
“substantially alter[]” the charged violation. See United
States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002).
Critically, the grand jury indictment returned against Mickey
listed the various means under 18 U.S.C. §§ 1591(a) and
(b)(1) conjunctively. In other words, the grand jury charged
Mickey with trafficking in knowing or reckless disregard of
the fact that “means of force, threats of force, fraud and
coercion would be used to cause K.I. to engage in a
commercial sex act.” (emphasis added); see also 18 U.S.C.
§§ 1591(a), (b)(1). The language in the indictment for count
20 UNITED STATES V. MICKEY
2, concerning A.P., also listed “force, threats of force, fraud,
and coercion” conjunctively.
Because the indictment charged Mickey with all four
means, it logically follows that the grand jury also found that
Mickey used “any combination” of those means. The
specific language in the indictment meant that Mickey was
given notice that he would have to defend against all four
means—force, threats of force, fraud, and coercion. See
United States v. Jingles, 702 F.3d 494, 500–01 (9th Cir.
2012). By the same token, the prosecution established
probable cause for the precise conduct in which Mickey was
alleged to have engaged. Id.
Our conclusion that no constructive amendment took
place here is strengthened by contrasting Mickey’s case with
that of the defendant in Davis, 854 F.3d at 601. Davis was
charged with trafficking a minor under 18 U.S.C. § 1591,
while knowing or recklessly disregarding that the victim was
under the age of 18. Id. at 604. But a jury instruction stated
that the jury could convict if it found that Davis merely had
a “reasonable opportunity to observe” the victim. Id. That
instruction fundamentally altered the nature of the charges
against Davis by changing the mens rea required for
conviction. The instruction constructively amended the
indictment by “transforming the offense . . . into a strict
liability offense.” Id. at 605 (citation omitted). The omitted
language in Mickey’s case did no such thing. Davis had no
notice that he could be convicted merely if he had a
reasonable opportunity to observe his victim. Nor was it
possible to know whether a grand jury would have indicted
Davis for the crime he was ultimately convicted of. The
same cannot be said for Mickey.
Still further, Mickey’s constructive amendment claim
fails because he cannot show prejudice. The terms of the
UNITED STATES V. MICKEY 21
statute were well known and there is not a credible argument
that Mickey would have approached his defense any
differently had the “or any combination of such means”
phrase been included in the indictment. The inclusion of the
phrase in the jury instructions and on the Special Verdict
Form correctly stated the law, and Mickey’s counsel
affirmatively accepted the instructions and the form. During
the court’s Federal Rule of Criminal Procedure 30
conference, counsel for Mickey stated: “We’re fine with
[jury instruction 15].” When the court asked if there were
“any . . . objections to the Government’s proposed special
verdict form,” counsel for Mickey replied: “No[.]” Mickey
also did not object when the court read instruction 15 and the
Special Verdict Form to the jury before it began deliberating.
The evidence at trial that Mickey used force, threats of
force, fraud, and coercion in trafficking his victims was
voluminous and overwhelming. The omission in the
indictment did not seriously affect the integrity of the
proceedings. Despite the lack of prejudice to Mickey, in the
future the government should take care to get the statutory
language in its indictments exactly correct and should cross
reference that language with the text of the jury instructions.
Nonetheless, including the correct statutory phrase—“or any
combination of such means”—in the jury instructions here
was not plain error.
AFFIRMED.