United States v. Wilfredo Lopez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10017
Plaintiff-Appellee,
D.C. No.
v. 17-cr-00053-1

WILFREDO LOPEZ,
Defendant-Appellant. OPINION

On Appeal from the United States District Court
for the District of Guam
Tydingco-Gatewood, Chief Judge, Presiding

Argued and Submitted October 20, 2020
Honolulu, Hawaii

Filed July 6, 2021

Before: J. Clifford Wallace, Carlos T. Bea, and
Mark J. Bennett, Circuit Judges.

Opinion by Judge Bea
Partial Dissent by Judge Bennett
2 UNITED STATES V. LOPEZ

SUMMARY *

Criminal Law

The panel affirmed the district court’s judgment in a case
in which Wilfredo Lopez was convicted of attempt to entice
a minor to engage in prohibited sexual activity (18 U.S.C.
§ 2422(b)) and attempt to transfer obscenity to a minor under
sixteen years of age (18 U.S.C. § 1470).

Lopez, who served as a member of the U.S. Army in the
Territory of Guam, worked at Andersen Air Force Base, a
federal enclave within the special maritime and territorial
jurisdiction of the United States, but lived off-base in
territory subject to both federal law and the laws of Guam.

The panel held that the district court, which admitted into
evidence edited video clips of Lopez’s post-arrest
interrogation, abused its discretion and violated Fed. R.
Evid. 106 (the rule of completeness) by categorically
excluding the entirety of the remaining interrogation footage
as inadmissible hearsay despite the risk that the
Government’s selective editing would mislead the jury. The
panel concluded, however, that the error was harmless.

The panel held that it was not error, let alone plain error,
for the district court to enter a judgment of conviction as to
the Section 2422(b) attempted enticement charge on this
record. Lopez asked this court to interpret Section 2422(b)
as requiring the Government to charge a predicate offense

*
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. LOPEZ 3

and to prove Guam would have had jurisdiction to prosecute
him for said predicate offense. As a matter of first
impression, the panel held that Lopez’s reading of Section
2422(b) is inconsistent with the statute’s text and how the
statute has been interpreted. The panel held that Section
2422(b) does not require the Government to allege a specific
predicate offense or to prove that the relevant court would
have jurisdiction over the defendant for the commission of
such offense, so long as the Government proved the
defendant’s sexual conduct would have constituted “a
criminal offense” under the laws of an applicable territorial
jurisdiction. The panel concluded that under this reading of
Section 2422(b), the Government presented sufficient
evidence to allow the jury to conclude Lopez attempted to
entice “Brit” to engage in sexual conduct that is criminal in
Guam.

Lopez relied on his reading of Section 2422(b) as
requiring a specific predicate offense to argue that the
district court violated his due process rights by failing to
instruct on the elements of the Guam criminal sexual
penetration statute cited in the indictment. Reviewing for
plain error, the panel concluded that, although the district
court should have instructed the jury on the applicable “laws
of Guam,” Lopez cannot meet his burden of establishing the
error affected his substantial rights. Rejecting again Lopez’s
core argument that Section 2422(b) requires the indictment
and proof of a specific predicate offense, the panel held that
the district court nevertheless erred in failing to define the
“laws of Guam” against which Lopez’s proposed sexual
conduct was to be evaluated. The panel did not need to
decide whether the error was plain or seriously undermined
the integrity or reputation of judicial proceedings because
there is no question that Lopez cannot meet his burden of
demonstrating prejudice to his substantial rights, as Lopez
4 UNITED STATES V. LOPEZ

failed to identify a reasonable probability that the jury would
have come to a different decision had the district court
instructed that 9 G.C.A. §§ 13.10, 13.60(a), and 25.15(a)(1)
criminalize attempts to engage in sexual penetration of a
minor under fourteen years of age.

The panel held that there was no error, let alone plain
error, in the district court’s denial of Lopez’s motions for
acquittal under Fed. R. Evid. 29 and entry of judgment of
conviction on the charge under Section 1470 for attempted
transfer of obscenity to a minor under sixteen. The panel
wrote that the indictment did not charge completed transfer
of obscenity rather than an attempt. The panel wrote that
Lopez waived objections to the jury instructions and jury
verdict form as to the Section 1470 charge.

Dissenting in part, Judge Bennett dissented from the
Majority’s affirmance of Lopez’s conviction for attempted
enticement of a minor in violation of Section 2422(b). He
wrote that Lopez could not have been charged with or
committed First Degree Criminal Sexual Conduct in
violation of 9 G.C.A. § 25.15(a)(1) as the predicate for his
Section 2422(b) violation, because the sexual activity he
proposed was to take place on Anderson Air Force Base, a
place within the Special Maritime and Territorial
Jurisdiction of the United States, and that crime is not
assimilated under the Assimilative Crime Act, 18 U.S.C.
§ 13. Judge Bennett also wrote that by sua sponte amending
the indictment on appeal, to find that the government had
proven a crime with which the grand jury had never charged
Lopez, the Majority usurped the function of the grand jury,
in violation of the Fifth Amendment.
 UNITED STATES V. LOPEZ 5

COUNSEL

Joshua D. Weiss (argued), Deputy Federal Public Defender;
Cuauhtemoc Ortega, Interim Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.

Rosetta L. San Nicolas (argued), Assistant United States
Attorney; Shawn N. Anderson, United States Attorney;
United States Attorney’s Office, Hagatna, Guam; for
Plaintiff-Appellee.

OPINION

BEA, Circuit Judge:

Wilfredo Lopez was convicted in the U.S. District Court
for the District of Guam of an attempt to entice a minor to
engage in prohibited sexual activity and an attempt to
transfer obscenity to a minor under sixteen years of age in
violation of 18 U.S.C. §§ 2422(b) and 1470. On appeal,
Lopez argues the district court erred by admitting into
evidence edited video clips of his post-arrest interrogation,
thereby creating the misleading impression that Lopez
confessed to key elements of the charges, and further erred
by denying his trial motions for acquittal under Federal Rule
of Criminal Procedure 29. For the following reasons, we
reject Lopez’s claim of prejudicial error, deny relief with
respect to additional contentions that the district court
committed plain error, and affirm the judgment of
conviction.
6 UNITED STATES V. LOPEZ

I. BACKGROUND

Wilfredo Lopez served as a member of the U.S. Army in
the Territory of Guam. Lopez worked at Andersen Air Force
Base (AAFB), a federal enclave within the special maritime
and territorial jurisdiction of the United States, but lived off-
base in territory subject to both federal law and the laws of
Guam.

In November 2017, the U.S. Air Force Office of Special
Investigations (OSI) identified Lopez as a potential child
predator. An OSI agent had posted an advertisement on a
classifieds website in which he posed as a thirteen-year-old
girl named “Brit” seeking friends among “other mil brats”
living on-base. Lopez responded to the advertisement under
the alias “Chris Bain” with an email that invited “Brit” to
“chill by the lookout on base” and “do whatever if you know
what I mean.” When “Brit” replied that she was thirteen
years old, Lopez responded “I’m 29, I can get in trouble for
this.” Nevertheless, Lopez continued to communicate with
“Brit” by email, asked for her phone number, and offered to
message her using a Facebook account he operated under the
alias “Blake Johnson.”

In the email exchanges that followed, Lopez repeatedly
asked “Brit” to do “naughty things” and offered to “teach
[her] how to kiss, have sex, suck a dick.” Lopez escalated
the conversation by sending “Brit” a photograph of his erect
penis and requesting nude photographs in return. “Brit”
responded with photographs of a female law enforcement
agent that appeared to depict a teenage girl in a sweater and
in a dress. Lopez then sent “Brit” a second photograph of
his erect penis and a video depicting the same. All told,
Lopez asked to meet “Brit” on four separate occasions at
different locations within AAFB. The first and second
invitation involved proposed meetings at the Base Exchange
 UNITED STATES V. LOPEZ 7

and at an on-base Burger King, neither of which
materialized. Lopez then proposed meeting “Brit” at the on-
base library. Lopez appeared at the library, waited for some
time, and left when “Brit” failed to arrive. Finally, Lopez
arranged to meet “Brit” at her supposed on-base residence.
OSI agents arrested Lopez when he arrived at the agreed-
upon location.

After his arrest, Lopez consented to a video-recorded
interview with two OSI agents and a special agent from the
Federal Bureau of Investigation. During the eighty-minute
interrogation, Lopez admitted to communicating online with
a person claiming to be an underage girl. However, Lopez
maintained that he knew “Brit” was an undercover agent
because of the suspicious timing and content of the messages
sent from her account. Lopez noted, for example, that many
of the messages were sent during the middle of the day when
school-aged girls would be in class and lack access to email.
Lopez also described in some detail the process by which he
checked the photographs received from “Brit” for evidence
of law enforcement involvement. When asked why he
continued the email and text message exchanges after “Brit”
told him she was underage, Lopez claimed that he hoped to
obtain a discharge from the military to avoid the automatic
deduction of child support and alimony payments from his
military wages for the benefit of his estranged wife.

In December 2017, a grand jury in the U.S. District Court
for the District of Guam indicted Lopez on two counts of sex
crimes against children. The first count alleged Lopez
violated 18 U.S.C. § 2422(b) by an attempt to entice a minor
“to engage in sexual activity for which a person can be
charged with a criminal offense, to wit: First Degree
Criminal Sexual Conduct, in violation of 9 [G.C.A.]
§ 25.15(a)(1), all in violation of Title 18, United States Code,
8 UNITED STATES V. LOPEZ

Sections 2422(b) and 2.” The Guam statute cited in the
indictment punishes the sexual penetration of a minor under
fourteen years of age as a first-degree felony. Notably,
Guam law also punishes an attempt to the same grade and
degree as a completed offense. 9 G.C.A. §§ 13.10, 13.60(a).
The second count alleged Lopez violated 18 U.S.C. § 1470
by an attempt to transfer obscene materials to a minor under
sixteen years of age.

At a pretrial hearing, the Government moved to
introduce into evidence eleven video clips of the post-arrest
interrogation in which Lopez appeared to confess he
believed “Brit” was an underage girl. With few exceptions,
the video clips were about ten seconds long, omitted the
agents’ questions, and presented only portions of Lopez’s
complete statements. Lopez immediately objected on the
ground that the rule of completeness codified in Federal Rule
of Evidence 106 required either excluding the clips or
admitting the entire recording. The district court reserved
decision and invited written motions from Lopez and the
Government. The Government subsequently filed a motion
in limine arguing that, although prosecutors could introduce
the video clips into evidence as admissions by a party
opponent, the hearsay bar prohibited Lopez from introducing
additional footage of the interrogation because the footage
contained self-serving statements about his conduct and
good character.

The district court considered the motion in limine prior
to jury selection on the morning of trial. Lopez renewed his
objection that the video recording should be admitted in full
or not at all. Lopez explained through counsel that, although
he believed that the Ninth Circuit precedents cited by the
Government appeared to cut against his position, the Federal
Rules of Evidence are nevertheless best read to require his
 UNITED STATES V. LOPEZ 9

requested ruling. The court overruled Lopez’s objection and
admitted into evidence the video clips proffered by the
Government after concluding that they were not misleading
and that the additional footage was inadmissible hearsay.

The case proceeded to trial. At the close of the
Government’s evidence, Lopez moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29.
Lopez predicated his Rule 29 motion exclusively on the
argument that no reasonable jury could conclude Lopez
believed “Brit” was an underage girl as required by the mens
rea element of both charged offenses. The district court
summarily denied the motion.

Lopez then took the stand in his own defense to testify
that he believed “Brit” was a law enforcement agent all
along. Lopez claimed to have spotted the ruse because of his
familiarity with the tactics of sex offender sting operations
and because the timing of the messages was inconsistent
with the schedule of a school-aged girl. Lopez claimed he
continued the conversation only because he sought discharge
from the military to circumvent the garnishment of his wages
for child support and alimony payments. Lopez further
explained that the clips presented by the Government
inaccurately portrayed the lengthy post-arrest interrogation
by omitting footage in which he repeatedly denied believing
“Brit” was underage. After the defense rested, Lopez
renewed his Rule 29 motion on the same basis as the original
motion. The district court found the record contained
sufficient evidence to support conviction, denied the motion
once again, and proceeded to instruct the jury using a written
script agreed upon by both parties.

The jury returned a verdict of guilty on both counts. The
court sentenced Lopez to concurrent 120-month sentences to
be followed by 36 months of supervised release, including
10 UNITED STATES V. LOPEZ

special conditions of supervised release, as well as
registration under the terms of the Sex Offender Registration
and Notification Act. Lopez timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

On appeal, Lopez argues the district court prejudiced his
defense by admitting into evidence isolated excerpts of the
post-arrest interrogation recording and denying his motion
to introduce the remaining footage. Lopez also challenges
the evidence and jury instructions supporting his attempt
conviction pursuant to 18 U.S.C. § 2422(b) as well as the
indictment, jury instructions, and jury verdict form
supporting his attempt conviction pursuant to 18 U.S.C.
§ 1470 on several theories never raised below. We consider
each argument in turn under the applicable standard of
review.

A. Evidentiary Challenge

Lopez challenges his convictions on the ground that the
district court violated Federal Rule of Evidence 106 by
allowing the Government to introduce excerpts of the
recorded post-arrest interrogation while excluding the
remaining interrogation footage as inadmissible hearsay.
We review challenged evidentiary rulings for an abuse of
discretion. United States v. Vallejos, 742 F.3d 902, 905 (9th
Cir. 2014). We will not reverse a conviction on account of
trial error if the Government shows the erroneous decision
 UNITED STATES V. LOPEZ 11

more likely than not had no material impact on the verdict.
United States v. Bailey, 696 F.3d 794, 803 (9th Cir. 2012). 1

We hold the district court abused its discretion and
violated Rule 106 by categorically excluding the entirety of
the remaining interrogation footage as inadmissible hearsay
despite the risk that the Government’s selective editing of
the interrogation footage would mislead the jury. However,
we agree with the Government that the district court’s
evidentiary ruling was harmless error.

1. The Rule of Completeness—Rule 106

This is not the first case in which we have addressed the
intersection of Federal Rule of Evidence 106 and the bar to
the admission of hearsay evidence codified in Federal Rule
of Evidence 802. In United States v. Collicott, 92 F.3d 973
(9th Cir. 1996), we explained that the rule of completeness
codified in Rule 106 renders additional portions of a
complete document or recording relevant when the opposing
party distorts the meaning of the document or recording by
introducing misleading excerpts into evidence. Id. at 983
(citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172

1
The Government argues that Lopez withdrew his evidentiary
objection by failing to file a written response to the Government’s
motion in limine and by acknowledging contrary circuit precedent. We
reject these contentions. Defense counsel objected to the Government’s
initial motion to introduce the excerpts of the interrogation recording.
Counsel renewed the objection prior to the district court’s ruling on the
Government’s written motion while candidly acknowledging potential
weaknesses in his argument. Timely and specific oral objections are
sufficient to preserve an evidentiary ruling for appellate review. Cf.
United States v. Alvirez, 831 F.3d 1115, 1122 (9th Cir. 2016) (“When the
district court judge makes a definitive ruling admitting evidence, there is
no need to renew the objection to preserve the claimed error.” (citation
and quotation marks omitted)).
12 UNITED STATES V. LOPEZ

(1988)). At the same time, we also held that the rule of
completeness does not compel the admission of inadmissible
hearsay evidence simply because such evidence is relevant
to the case. Id.

When Rule 106 and Rule 802 collide, the critical inquiry
for the trial court is the purpose for which the evidence is
offered. Portions of a document or recording are admissible
under Rule 106 notwithstanding the bar on hearsay evidence
when offered “to correct a misleading impression in the
edited statement” introduced by an opposing party. Vallejos,
742 F.3d at 905 (citation and quotation marks omitted). In
the interrogation context, for example, we have held that
Rule 106 provides for the admission of additional portions
of a defendant’s statement when the prosecution offers a
redacted version that “distorts the meaning of the statement,”
“excludes information substantially exculpatory of the
declarant,” or “excludes portions of a statement that are . . .
explanatory of [or] relevant to the admitted passages.”
United States v. Dorrell, 758 F.2d 427, 435 (9th Cir. 1985)
(citations and quotation marks omitted). By contrast,
hearsay evidence is evidence offered “to prove the truth of
the matter asserted.” Fed. R. Evid. 801(c)(2). There is no
conflict between evidence introduced under the rule of
completeness and the bar on inadmissible hearsay because
the former serves the purpose of correcting a distortion
created by an opposing party’s misleading proffer of part of
a document or recording, while the latter serves the purpose
of barring introduction of hearsay evidence proffered for its
truth.

The district court abused its discretion by categorically
excluding the entirety of the remaining interrogation footage
as inadmissible hearsay. The first step in the district court’s
error was the erroneous conclusion that the Government’s
 UNITED STATES V. LOPEZ 13

selectively edited excerpts accurately presented the content
of Lopez’s statements. On a fair review of the interrogation
recording, it should have been apparent that the excerpts
risked misleading the jury by making it seem as though
Lopez confessed during interrogation to believing “Brit”
was underage when, in reality, the full recording conveys a
different impression.

For example, one clip shown at trial depicts an isolated
moment in which Lopez stated: “Um, I was just bored at
first, and was on Gmail, and that’s when she told me she was
15, [sic] and I was like oh shit.” However, the Government’s
editing truncated Lopez’s explanation that he believed the
“Brit” persona was a scam:

Um, I was just bored at first, and was on
Gmail, and that’s when she told me she was
15, and I was like oh shit, but then that’s
when the thing started happening in my life
and I was like you know what, this can get me
into trouble, and then I knew that [the “Brit”
persona] was a scam from the beginning.

In another clip, the Government presented Lopez’s
affirmative answer to an agent’s statement “You’re 29. 29
and a 13-year-old.” as if it were an admission. In fact, the
exchange took place during a colloquy in which Lopez
attempted to explain why he believed “Brit” was a law
enforcement agent:

Lopez: If it was a regular 13 year-old, that 13
year-old girl would not keep messaging a 29
year-old guy, especially calling him the
“boyfriend” and herself “girlfriend,” when do
you see that? You don’t see that at all.
14 UNITED STATES V. LOPEZ

Agent: Yea, that’s crazy right?

Lopez: So I already know.

Agent: How old are you?

Lopez: I’m 29.

Agent: You’re 29. 29 and a 13-year-old.

Lopez: Yeah. So from there I was like, ok,
it’s someone, that’s watching me, and then
that’s when you guys came out and then I was
like ok, that’s the OSI.

Yet another clip followed the same pattern by presenting
Lopez in what appears to be an agitated state admitting “I
wasn’t talking to you guys, I was talking to a minor.” In
context, Lopez was cajoling the interrogating agents to expel
him from the military:

Lopez: Come on now, sir, can you just get
me out of the army?

Agent: [Laughs] Listen, my job isn’t to get
people out of the army, my job is to, to
investigate federal crimes. So, um. . .

Lopez: No, I wasn’t talking to you guys, I
was talking to a minor.

Agent: [Pause] I mean, in your frame of
mind, what you attempted to do, what were
you attempting to do?
 UNITED STATES V. LOPEZ 15

Lopez: Get kicked out of the army.

Agent: Ok. So, were you or were you not
trying to have sex with a 13 year-old?

Lopez: No, I promise you that. I wasn’t.

The potentially misleading impact of the Government’s clips
means they should not, in fairness, have been considered in
isolation from Lopez’s related statements at other points in
the interrogation.

This case is a far cry from Dorrell and Vallejos, in which
we found the excluded portions of the defendants’
confessions fell outside the ambit of Rule 106 because they
did not serve to correct misapprehensions created by the
partial introduction of a document or recording. In Dorrell,
we affirmed the exclusion of portions of a confession in
which the defendant explained the political and religious
motivations behind his attempted sabotage of a missile
factory. Removing these details “did not change the
meaning of the portions of his confession submitted to the
jury” because his expressions of ideological zeal during the
confession were presented as justifications for his criminal
conduct, not to contradict evidence of the conduct to which
he had confessed. 758 F.2d at 435. Similarly, in Vallejos,
we approved the redaction of a confession to remove details
meant to “humanize” the defendant by bringing out his
character and personal history, which were irrelevant to his
factual admissions regarding the commission of the crime.
742 F.3d at 905. Here, the Government’s excerpts created
the misleading impression that Lopez confessed to the mens
rea required for conviction: knowledge or mistaken belief
that “Brit” was underage. The excluded footage contained
information directly qualifying statements which the
16 UNITED STATES V. LOPEZ

Government’s editing cut off prematurely and, at times, at
mid-sentence. Under these circumstances, at least some
additional footage would have been admissible under the
rule of completeness codified in Rule 106.

The district court compounded this error by ruling
categorically that all remaining portions of the interrogation
recording would be inadmissible hearsay if Lopez moved to
introduce them into evidence. To be sure, Rule 106 does not
obligate a district court to grant a party’s motion to introduce
an entire document or recording to correct the misleading
impression created by the opposing party’s partial
introduction. We have long recognized that “[a]pplication
of the rule of completeness is a matter for the trial judge’s
discretion.” Dorrell, 758 F.2d at 434 (citing United States v.
Burreson, 643 F.2d 1344, 1349 (9th Cir. 1981)). Here, at
least some excluded portions of the interrogation recording
contained self-serving statements about Lopez’s own
character that were properly kept from the jury. But other
portions contained statements that bore directly on the
meaning of the excerpts presented by the Government at
trial. By ruling that the remainder of the recording would be
inadmissible hearsay if proffered by the defense, the district
court denied Lopez the opportunity to proffer limited
selections of additional footage that would serve to correct
the misleading impression created by the Government’s
excerpts.

In response to Lopez’s objection, the district court could
have excluded the video clips offered by the Government or
admitted the Government’s clips subject to Lopez’s ability
to proffer additional portions of the recording under Rule
106. The only course foreclosed by the Federal Rules of
Evidence was the one taken here: admitting portions of a
document or recording that risked misleading the jury while
 UNITED STATES V. LOPEZ 17

foreclosing the admission of any additional portions of the
same document or recording. 2

2. Harmless Error Review

Nevertheless, we hold that remand for a new trial is
unwarranted because the district court’s misapplication of
Rule 106 was harmless error. Throughout the proceedings
below, Lopez’s defense focused on disputing the knowledge
element of both charged offenses by attempting to persuade
the jury that he believed “Brit” was an adult law enforcement
agent. Given the extensive circumstantial evidence
presented at trial of Lopez’s belief that “Brit” was underage,
the probative value of the wrongfully excluded interrogation
footage, and the mitigating effect of Lopez’s trial testimony
on any prejudice resulting from admission of the
interrogation excerpts, we conclude “it is more probable than
not that the error did not materially affect the verdict.”
Bailey, 696 F.3d at 803 (citation omitted).

It is well established that the strength of the
Government’s case can render trial errors harmless by
reducing the likelihood that tainted evidence impacted the

2
Lopez also argues for the first time on appeal that showing the
interrogation excerpts at trial violated his Fifth Amendment right against
self-incrimination and his due process right to a fair trial even if the
excerpts were admissible under the Federal Rules of Evidence. Because
we hold the district court abused its discretion and violated Rule 106 by
admitting the evidence, we need not pass on the contention that Rule 106
violated the Constitution as applied in this case. In any event, harmless
error review would be equally applicable to such a violation. Lopez does
not argue the district court’s erroneous evidentiary ruling amounts to a
structural constitutional error requiring automatic reversal. Nor does
Lopez argue the district court violated his Fifth Amendment right not to
testify at trial by putting him in a position where taking the stand was the
only way to rebut the Government’s misleading evidence.
18 UNITED STATES V. LOPEZ

verdict. See United States v. Gonzalez-Flores, 418 F.3d
1093, 1102 (9th Cir. 2005); United States v. Gonzalez-
Sandoval, 894 F.2d 1043, 1049 (9th Cir. 1990). Here, the
Government introduced reams of sexually explicit messages
which Lopez sent to “Brit” after she repeatedly claimed to
be thirteen years old. Lopez referenced “Brit’s” sexual
inexperience by offering to teach her how to perform various
sexual acts and continued to send her explicit emails and
obscene materials after receiving photographs from “Brit”
depicting an underage girl. Throughout the
communications, Lopez expressed a fear of getting in
trouble because “Brit” was underage. Investigating agents
explained at trial that Lopez attempted to meet “Brit” to
engage in sexual acts and repeatedly solicited nude
photographs from her. Given the strength of the evidence
that Lopez believed “Brit” was underage, the jury likely
would have voted to convict even if the district court had
excluded the Government’s video clips or admitted the entire
interrogation recording into evidence as Lopez requested.

Lopez’s trial testimony also served to mitigate any
prejudice resulting from the improper admission of the
misleading excerpts. Lopez took the stand to explain his
state of mind when communicating with “Brit.” Lopez told
the jury he communicated with “Brit” despite knowing the
persona was a law enforcement trap because he hoped to
obtain a discharge from the military and thus avoid paying
child support and alimony. Lopez specifically testified
about the interrogation, noting that it lasted almost two hours
and that the clips presented by the Government were
misleading. Taken together, the Government’s evidence and
Lopez’s trial testimony left the jury in substantially the same
position to judge the credibility of Lopez’s mens rea defense
as it would have been absent the district court’s erroneous
 UNITED STATES V. LOPEZ 19

evidentiary ruling. A new trial is not required under these
circumstances.

B. Attempted Enticement of a Minor

Next, Lopez challenges the sufficiency of the evidence
supporting his attempted enticement conviction pursuant to
18 U.S.C. § 2422(b). The indictment alleged Lopez violated
Section 2422(b) by attempting to entice a minor to engage in
sexual activity criminalized by Guam’s First Degree
Criminal Sexual Conduct statute, 9 G.C.A. § 25.15(a)(1).
Lopez twice moved for acquittal under Federal Rule of
Criminal Procedure 29 on the ground that the Government
failed to prove the mens rea required for conviction by
showing Lopez believed “Brit” was underage. The district
court denied both motions after concluding the evidence was
sufficient to allow a reasonable jury to find all elements of
the charged offense, including that Lopez believed “Brit”
was underage.

On appeal, Lopez challenges the denials of his Rule 29
motions on the ground that the Government failed to prove
a different element of the Section 2422(b) offense: that the
sexual activity in which he sought to entice “Brit” to engage
was “sexual activity for which any person can be charged
with a criminal offense.” According to Lopez, this statutory
language means “the Government had to prove that
Mr. Lopez attempted to entice a minor to engage in sexual
activity that would have violated a criminal offense for
which he actually could have been prosecuted.” Because the
indictment cited a Guam law criminalizing the sexual
penetration of a minor under fourteen, Lopez argues the jury
“had to find that Mr. Lopez attempted to entice a minor to
engage in ‘sexual penetration,’ as is required to violate the
Guam statute.” In other words, Lopez asks us to interpret
Section 2422(b) as requiring the Government to charge a
20 UNITED STATES V. LOPEZ

predicate offense and to prove Guam would have had
jurisdiction to prosecute him for said predicate offense.
Because the Government failed to prove Guam or another
governmental entity would have had jurisdiction to
prosecute violations of the Guam statute cited in the
indictment that were to occur on AAFB, a federal enclave,
accepting Lopez’s argument would require us to reverse the
Section 2422(b) conviction and remand for acquittal. See
United States v. Audette, 923 F.3d 1227, 1238 (9th Cir.
2019).

As an initial matter, we conclude Lopez forfeited this
statutory argument by failing to raise it before the district
court. While Rule 29 motions need not specify grounds for
acquittal, it is well established that Rule 29 motions raising
particular grounds fail to preserve appellate review of other
grounds not raised. United States v. Hussain, 972 F.3d 1138,
1146 (9th Cir. 2020); United States v. Graf, 610 F.3d 1148,
1166 (9th Cir. 2010). We review forfeited challenges to the
sufficiency of the evidence for plain error. United States v.
Garcia-Guizar, 160 F.3d 511, 516–17 (9th Cir. 1998). To
establish plain error, the defendant must at least demonstrate
an error, that the error was plain, and that the error prejudiced
his substantial rights. United States v. Depue, 912 F.3d
1227, 1234–35 (9th Cir. 2019) (en banc); see also United
States v. Olano, 507 U.S. 725, 733–36 (1993). We may
overturn a conviction for plain error resulting in insufficient
evidence only “to prevent a miscarriage of justice or to
preserve the integrity and the reputation of the judicial
process.” Garcia-Guizar, 160 F.3d at 516 (citing Olano,
507 U.S. at 736). 3

Our decisions in Hussain and Graf used the term “waiver” rather
3

than “forfeiture” to describe arguments for acquittal not properly
 UNITED STATES V. LOPEZ 21

We conclude it was not error, let alone plain error, for
the district court to enter a judgment of conviction as to the
Section 2422(b) attempted enticement charge on this record.
We hold as a matter of first impression that Lopez’s reading
of Section 2422(b) to require charging a specific predicate
offense is inconsistent with the statute’s text and how the
statute has been interpreted. Instead, Section 2422(b)’s
“sexual activity for which any person can be charged with a
criminal offense” element requires the Government to prove
the defendant proposed sexual conduct that would have
constituted any criminal offense in one or more relevant
territorial jurisdictions. Under this reading of Section
2422(b), the Government presented sufficient evidence to
allow the jury to conclude Lopez attempted to entice “Brit”
to engage in sexual conduct that is criminal in Guam.

1. Meaning of “any sexual activity for which any person
can be charged with a criminal offense” in 18 U.S.C.
§ 2422(b)

“As always, we begin with the text of the statute.”
Friends of Animals v. U.S. Fish & Wildlife Serv., 879 F.3d

preserved before the district court. See Hussain, 972 F.3d at 1146; Graf,
610 F.3d at 1166. But “waiver” is “the ‘intentional relinquishment or
abandonment of a known right’” and entirely precludes appellate review,
while “forfeiture” is “the failure to make the timely assertion of a right”
and subjects an argument to plain error review. Olano, 507 U.S. at 733
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Our circuit law
is clear that waiver requires “evidence that the defendant was aware of
the right he was relinquishing and relinquished it anyway.” Depue,
912 F.3d at 1233 (citing United States v. Perez, 116 F.3d 840, 845 (9th
Cir. 1997) (en banc)). Because there is no evidence that Lopez
considered including the argument for acquittal now pressed on appeal
but declined to do so, the argument was forfeited, not waived.
22 UNITED STATES V. LOPEZ

1000, 1003 (9th Cir. 2018) (quoting Limtiaco v. Camacho,
549 U.S. 483, 488 (2007)). 18 U.S.C. § 2422(b) provides:

Whoever, using the mail or any facility or
means of interstate or foreign commerce, or
within the special maritime and territorial
jurisdiction of the United States knowingly
persuades, induces, entices, or coerces any
individual who has not attained the age of
18 years, to engage in prostitution or any
sexual activity for which any person can be
charged with a criminal offense, or attempts
to do so, shall be fined under this title and
imprisoned not less than 10 years or for life.

By its plain language, Section 2422(b) criminalizes
communications that persuade, induce, entice, or coerce a
minor to engage in sexual activity regarded as criminal. For
the reasons that follow, we hold Section 2422(b) requires
proof that the defendant’s persuasive communications
described sexual conduct that could be charged in at least
one relevant territorial jurisdiction but does not require the
Government to indict a specific predicate offense or to prove
a governmental entity would have had jurisdiction to
prosecute the defendant for such predicate offense.

First, the phrase “any person” in the clause “for which
any person can be charged with a criminal offense” indicates
Congress deliberately chose to divorce criminal liability
under Section 2422(b) from the actual or attempted
commission of a predicate offense. By using the phrase “any
person” rather than “the defendant,” Section 2422(b) sets out
an objective inquiry that asks whether a person could be
charged in an applicable territorial jurisdiction for the sexual
conduct proposed in the defendant’s communications. See,
 UNITED STATES V. LOPEZ 23

e.g., United States v. Saldaña-Rivera, 914 F.3d 721, 724 (1st
Cir. 2019) (“Nothing in the language of [S]ection 2422(b)
requires the [G]overnment to show that Saldaña himself
could have been charged . . . . Rather, criminal liability
arises under [S]ection 2422(b) if . . . any adult who engages
in the sexual activity in which Saldaña attempted to engage
could be charged.”). For this reason, a defendant can be
convicted of attempted enticement pursuant to Section
2422(b) based on communications with an adult undercover
agent he believed to be a minor even if the criminal laws of
the relevant jurisdiction cover only completed sex crimes
with a minor. See id. The question is whether “any person”
who proposes engaging in the sexual acts proposed by the
defendant would be committing a crime, not whether the
defendant himself could have been charged had the conduct
come to fruition with the actual person with whom he was
communicating.

Second, Congress knows how to impose a predicate
offense requirement; it did not do so in Section 2422(b).
Consider the differences between Section 2422(b) and the
Racketeer Influenced and Corrupt Organizations Act
(RICO), which imposes criminal liability on “[w]hoever . . .
commits . . . or threatens to commit a crime of violence
against any individual in violation of the laws of any State
or the United States, or attempts or conspires so to do.”
18 U.S.C. § 1959(a). The same word imposing criminal
liability under RICO, “[w]hoever,” also modifies the phrase
“a crime of violence . . . in violation of the laws of any State
or the United States.” Thus, the defendant must have
committed or threatened to commit a particular predicate
offense to be convicted under RICO. By contrast in Section
2422(b), the word “[w]hoever” modifies the act of criminal
enticement while “any person” modifies the “can be charged
with a criminal offense” element. The defendant must have
24 UNITED STATES V. LOPEZ

committed the enticement but need not necessarily be
chargeable with a particular predicate offense. Lopez does
not cite, nor are we aware of, any statute similar to Section
2422(b) in which Congress used this structure to impose a
predicate offense requirement.

Third, Section 2422(b)’s use of the indefinite article “a”
is further evidence that the “can be charged with a criminal
offense” element is not tethered to the defendant or to
limitations imposed elsewhere in the statute. Whereas
definite articles like “the” restrict the noun that follows as
particularized in scope or previously specified by context,
the indefinite “a” has generalizing force. See Nielsen v.
Preap, 139 S. Ct. 954, 965 (2019) (citing The, Merriam-
Webster’s Collegiate Dictionary 1294 (11th ed. 2005)); In
Re Cardelucci, 285 F.3d 1231, 1234 (9th Cir. 2002) (citing
The, Black’s Law Dictionary 1477 (6th ed. 1990)). This
distinction matters because “the ‘rules of grammar govern’
statutory interpretation ‘unless they contradict legislative
intent or purpose.’” Preap, 139 S. Ct. at 965 (quoting A.
Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 140 (2012)). Courts should hesitate before
imposing constraints on the scope of criminal liability not
evident in the statute’s text or context. See United States v.
Shill, 740 F.3d 1347, 1352 (9th Cir. 2014) (declining to limit
the phrase “a criminal offense” in Section 2422(b) to
felonies because the plain meaning of the statute supports no
such limitation).

Finally, Section 2422(b)’s repeated use of the word
“any” (“any facility,” “any sexual activity,” “any person”)
suggests the class of communications covered by the statute
should be construed broadly. Unless limited by context, the
word “any” bears the “expansive meaning” of “one or some
indiscriminately of whatever kind.” Ali v. Fed. Bureau of
 UNITED STATES V. LOPEZ 25

Prisons, 552 U.S. 214, 219 (2008) (quoting United States v.
Gonzales, 520 U.S. 1, 5 (1997)). The text and context of
Section 2422(b) contain none of the limiting factors that
sometimes counsel against the broad reading of “any.” The
breadth of Section 2422(b)’s language is intentional, and we
must take Congress at its word by declining artificially to
narrow the scope of predatory communications subject to the
statute. See Shill, 740 F.3d at 1354 (“Congress’s repeated
use of the word ‘any,’ combined with the expansive list of
unlawful acts listed in [Section 2422(b)] . . . strongly
suggests that Congress intended the statute to carry its literal
meaning.”).

Lopez fails to identify any contrary words in the text or
context of Section 2422(b) that support his reading of the
statute to require the Government to indict a specific
predicate offense and prove hypothetical jurisdiction over
the same. 4 Instead, Lopez relies on our decisions in United
States v. Dhingra, 371 F.3d 557 (9th Cir. 2004), and United
States v. Tello, 600 F.3d 1161 (9th Cir. 2010), both of which
affirmed Section 2422(b) convictions against challenges to
the element Lopez now contests on appeal. Lopez believes
Dhingra and Tello required the Government to prove the
defendant could be charged with one or more specific
criminal offenses cited in the indictment had he followed
through with the sexual conduct proposed. Neither case
supports Lopez’s reading of Section 2422(b) to require a
specific predicate offense as an essential element of the
enticement charge.

4
Nor does our dissenting colleague, who repeatedly asserts Section
2422(b) requires the Government to charge a predicate offense, without
offering a single word in the text of the statute on which to anchor his
assertion. See, e.g., Dissenting Op. 48–49, 52 n.6, 55, 59–60.
26 UNITED STATES V. LOPEZ

In Dhingra, a defendant convicted pursuant to Section
2422(b) for engaging in explicit online conversations with a
fourteen-year-old girl argued the statute violated the First
and Tenth Amendments by incorporating all state and local
laws, thereby subjecting defendants to far-flung local
standards of conduct and usurping the states’ police power
over sex crimes. 371 F.3d at 564. We avoided these
challenges by holding Section 2422(b) applies only “to
situations in which an individual could actually be
prosecuted” for the proposed sexual conduct consistent with
“the jurisdiction and venue restrictions of state and federal
law.” Id. at 565. By specifying “an individual,” Dhingra
kept faith with the statute’s use of “any person” to indicate
the defendant himself need not be prosecutable for the
proposed sexual acts. See id. at 564 (“[A] [Section] 2422(b)
violation is its own offense subject to prosecution
independent of other underlying offenses.”). We further
explained in Dhingra that Section 2422(b)’s “can be charged
with a criminal offense” requirement is similar to the
community standards element of judicial review of an
obscenity statute in that both require the jury to evaluate the
defendant’s conduct against local rather than national
standards. See id. at 565 (“As would be the case in the
speech context, . . . ‘a juror applying community standards
will inevitably draw upon personal knowledge of the
community or vicinage from which he comes.’” (quoting
Ashcroft v. ACLU, 535 U.S. 564, 576–77 (2002))). That is,
Section 2422(b) requires the jury to evaluate the defendant’s
conduct against local standards so that “the defendant would
be judged in accordance with the community in which he is
 UNITED STATES V. LOPEZ 27

prosecuted, i.e., the venue and jurisdiction flowing from the
commission of the [Section] 2422(b) violation.” Id. 5

In Tello, another Section 2422(b) case, an Arizona
resident entered California with the intent to pick up a
purported minor with whom he had been communicating
online and to return to Arizona to have sex with her.
600 F.3d at 1162–63. On appeal, the Arizonan argued there
was insufficient evidence to support his conviction because
the indictment cited only California statutes and not Arizona
statutes in describing the unlawful nature of the intended
sexual conduct. Id. at 1165. The Government argued the
conviction should be affirmed because California law
permitted criminal jurisdiction over persons who committed
part of any crime within the state or, in the alternative,
because the intended sexual conduct in Arizona could have
been charged under several Arizona statutes not cited in the
indictment. See id.; United States v. Tello, Gov’t Br. at 20,
33, 2009 WL 5836124 (Oct. 14, 2009). Because we agreed
with the Government that California could have exercised
criminal jurisdiction over the defendant based on his
communications and physical entry into the state, we
declined to pass on “the various alternate grounds on which
the [G]overnment ask[ed] us to affirm.” Tello, 600 F.3d
at 1167 & n.6. Thus, our decision did not require the
Government to procure indictment of a specific predicate

5
Our dissenting colleague argues we “misread[] our decision in
Dhingra,” which “never discusse[d] the actual issue presented here—
whether the [G]overnment is limited to proving the offense charged by
the grand jury.” Dissenting Op. at 55 (emphasis in original). But as
explained below, that is not the issue here. Rather, the issue here is
whether Dhingra requires the Government to charge and to prove a
specific predicate offense as an essential element of Section 2422(b)
enticement charge. Dhingra did not so hold, and the dissent offers no
argument to the contrary.
28 UNITED STATES V. LOPEZ

offense or to prove the relevant court would have had
jurisdiction over the defendant for said predicate offense.
Rather, we affirmed the Section 2422(b) conviction based on
our reading of California law and said nothing about the
propriety of the indictment’s citations to certain state laws
over others. 6

In sum, Lopez identifies no prior decision in which our
court has inferred from the text of Section 2422(b) that the
Government must set out a particular predicate offense in the
indictment. We have consistently resolved sufficiency of the
evidence challenges to Section 2422(b) convictions by
assessing whether the conduct proposed by the defendant
would have been illegal in the relevant state or territory and
have not required the Government to prove the relevant court
would have had jurisdiction over a particular predicate
offense charged in the indictment alongside the Section
2422(b) offense. See id.; United States v. Goetzke, 494 F.3d
1231, 1235 (9th Cir. 2007) (per curiam); United States v.
Meek, 366 F.3d 705, 717–20 (9th Cir. 2004). Similarly,
every one of our decisions to consider a constitutional
challenge to Section 2422(b) has given full effect to the plain
meaning of the statute without adopting a specific predicate

6
Our dissenting colleague insists that we misread Tello because the
court in that case “understood that it was limited to the California
predicate offenses charged in the indictment.” Dissenting Op. 57
(emphasis in original). But the Tello court said no such thing. Rather,
the Tello court resolved the appeal on the narrow ground that the
appellant was incorrect about the jurisdictional scope of California law.
Because we agree with the dissent that Guam’s jurisdictional statute
would not extend to completed sexual conduct occurring solely within
AAFB (a federal enclave), this narrower ground is unavailable here.
That is why we address, as a matter of first impression, whether Section
2422(b) requires the Government to charge a predicate offense and prove
here that Guam would have had jurisdiction over said predicate offense.
 UNITED STATES V. LOPEZ 29

offense requirement or imposing other atextual narrowing
constructions. See Shill, 740 F.3d at 1351–55 (rejecting
vagueness challenge to the requirement that the defendant’s
communications relate to “a criminal offense”); Dhingra,
371 F.3d at 564 (rejecting First and Tenth Amendment
challenges to the use of state and local law to define criminal
sexual activity). We now join several other circuits in
holding Section 2422(b) does not require the Government to
allege a specific predicate offense or to prove that the
relevant court would have had jurisdiction over the
defendant for the commission of such offense, so long as the
Government proved the defendant’s proposed sexual
conduct would have constituted “a criminal offense” under
the laws of an applicable territorial jurisdiction. See, e.g.,
United States v. Jockisch, 857 F.3d 1122, 1131–32 (11th Cir.
2017); United States v. Hart, 635 F.3d 850, 855–56 (6th Cir.
2011). 7

7
The Sixth and Eleventh Circuits have concluded Section 2422(b)
does not require proof that the defendant could have been prosecuted
under a particular law so long as the jury may reasonably conclude the
defendant’s communications proposed a criminal sexual act. See
Jockisch, 857 F.3d at 1131–32; Hart, 635 F.3d at 855–56. The First,
Second, and Eighth Circuits have declined to read a predicate offense
requirement into Section 2422(b) without definitively rejecting the
possibility. See United States v. Berk, 652 F.3d 132, 138–39 (1st Cir.
2011); United States v. Spurlock, 495 F.3d 1011, 1014 n.2 (8th Cir.
2007); see also United States v. Brand, 467 F.3d 179, 182 (2d Cir. 2006)
(evaluating sufficiency of the evidence without asking whether the
indictment charged a predicate offense). Only the Seventh Circuit has
embraced the view that Section 2422(b) liability “depends on the
defendant’s having violated another statute, and the elements of the
offense under that other statute must therefore be elements of the federal
offense.” United States v. Mannava, 565 F.3d 412, 415 (7th Cir. 2009).
We agree with the Sixth Circuit that Mannava reached the wrong
conclusion by analogizing to inapposite statutory schemes. See Hart,
635 F.3d at 855–56.
30 UNITED STATES V. LOPEZ

2. Plain Error Review

Next, we determine whether the district court plainly
erred by entering a judgment of conviction on the Section
2422(b) count. Conviction for attempted enticement under
Section 2422(b) requires proof that the defendant
“knowingly (1) attempted to (2) persuade, induce, entice, or
coerce (3) a person under 18 years of age (4) to engage in
sexual activity that would constitute a criminal offense.”
Goetzke, 494 F.3d at 1234–35. Lopez contests only the
“sexual activity that would constitute a criminal offense”
element of the Section 2422(b) charge, which requires proof
that the defendant’s communications sought to induce a
minor to engage in conduct that would be criminal in at least
one relevant territorial jurisdiction.

To determine whether the sexual conduct proposed
would have been criminal, we look to the criminal and
jurisdictional laws of the territorial jurisdictions in question.
See Tello, 600 F.3d at 1165. This case involves conduct
within the Territory of Guam, in which Lopez resided, as
well as conduct that occurred or was intended to occur within
AAFB. Guam authorizes criminal jurisdiction over
individuals whose conduct within the Territory constitutes at
least one element of an offense under territorial law. 8
Federal prosecutors exercise exclusive criminal jurisdiction

8
Guam’s territoriality statute provides for criminal jurisdiction over
“conduct which is an element of the offense or the result which is such
an element occurs within this Territory.” 9 G.C.A. § 1.16(a)(1); see also
Model Penal Code § 1.03. Judicial construction of the Guam statute is
limited, but jurisdictions with identical statutory language similarly
require at least one element of the crime be committed in-state to
authorize a criminal prosecution. See, e.g., State v. Sumulikoski,
110 A.3d 856, 862 (N.J. 2015); State v. Wagner, 596 N.W.2d 83, 87
(Iowa 1999).
 UNITED STATES V. LOPEZ 31

over AAFB because the base is a federal enclave within the
special maritime and territorial jurisdiction of the United
States. See 18 U.S.C. § 7; United States v. Smith, 925 F.3d
410, 415–16 (9th Cir. 2019).

The district court did not err, let alone plainly err, by
entering a judgment of conviction for the Section 2422(b)
offense. The Government adduced sufficient evidence at
trial to prove Lopez proposed to engage in unlawful sexual
activity with a person he believed to be a minor. Under
Guam law, an attempt to engage in sexual penetration of a
minor under fourteen is a felony in the first degree
punishable to the same extent as the completed offense. See
9 G.C.A §§ 25.15(a)(1) (First Degree Criminal Sexual
Conduct), 13.60(a) (Attempt). An attempt conviction
requires proof of the defendant’s “intent to engage in
conduct which would constitute such crime” and “a
substantial step toward commission of the crime.” Id.
§ 13.10; see People v. Flores, 2004 Guam 18 ¶ 12.

That is exactly what happened here when Lopez
intentionally communicated with “Brit” from within the
Territory of Guam in furtherance of his goal of sexual
penetration. The Government introduced records of email
communications in which Lopez discussed sex with “Brit”
and sought to persuade “her” to have sex when they met in
person. Lopez acknowledged at trial that he used online
classifieds forums on prior occasions to invite others to visit
him “off base, because that’s where I live.” A reasonable
jury could conclude some of the communications with “Brit”
were sent from off-base locations, including from Lopez’s
home, where he spent substantial time and likely formed the
intent sexually to penetrate a minor. It is well established
that communications intended to groom a victim to engage
in sexual activity in the future constitute substantial steps
32 UNITED STATES V. LOPEZ

toward the completion of a crime. See, e.g., Tello, 600 F.3d
at 1165–66 (finding substantial step where defendant sought
to persuade minor victim to engage in sexual acts and to
agree to travel with him from California to Arizona);
Goetzke, 494 F.3d at 1236 (finding substantial step where
defendant sent letters to the victim proposing sexual
activities at an unspecified future date). 9

This is not the first Section 2422(b) case in which we
have recognized that substantial steps toward the completion
of a crime in another jurisdiction gave rise to criminal
liability in the forum where the substantial steps occurred.
In Tello, we rejected the argument that California could not
have prosecuted the defendant for sexual acts which were to
take place in Arizona because we concluded that California
law authorized prosecution of intentional conduct
undertaken in the state in partial execution of a crime to be
completed within or without the State. By driving into
California for a criminal purpose, the defendant took a
substantial step toward committing an act that would have
violated California law even though the completed crime
was planned to take place in Arizona. See 600 F.3d at 1165–
66. The analysis in Tello applies here because Guam has

9
Our dissenting colleague states that he cannot understand why this
particular offense should support the conviction and seeks to brand our
analysis as allowing prosecution for “attempting to entice to attempt.”
Dissenting Op. 49–50 & nn.4–5. But the dissent’s tongue-twister
misunderstands Section 2422(b). Lopez has not been charged with
attempted sexual penetration of a minor or any other violation of Guam
law, and need not be for this federal prosecution to succeed. The
question here is whether “any person can be charged with a criminal
offense” for engaging in the sexual conduct proposed by the defendant.
18 U.S.C. § 2422(b). The answer is yes, because Guam could have
charged a person in Lopez’s position for attempted sexual penetration of
a minor based on substantial steps taken within the Territory.
 UNITED STATES V. LOPEZ 33

adopted the California attempt and criminal jurisdiction
standards that informed our decision in that case. Compare
Cal. Penal Code § 778a(a), with 9 G.C.A. § 1.16(a)(1);
People v. Quintanilla, 2019 Guam 25 ¶¶ 12–15 (adopting the
substantial step standard in People v. Johnson, 303 P.3d 379,
384 (Cal. 2013)). Like California in Tello, Guam could have
prosecuted an individual in Lopez’s position for an attempt
to engage in sexual penetration of a minor based on
substantial steps taken within the Territory of Guam.

Lopez argues the Government failed to prove the Section
2422(b) offense because the indictment specified that he
engaged “in sexual activity for which a person can be
charged with a criminal offense, to wit: First Degree
Criminal Sexual Conduct, in violation of 9 [G.C.A.]
§ 25.15(a)(1), all in violation of Title 18, United States
Code, Sections 2422(b) and 2.” The indictment did not
specify Guam’s attempt statute, and so the only potential
predicate offense in the indictment was 9 G.C.A.
§ 25.15(a)(1), which criminalizes the completed sexual
penetration of a minor under fourteen. It is undisputed that
Guam would have lacked jurisdiction to prosecute an offense
taking place exclusively within AAFB territory, and the
evidence adduced at trial indicated Lopez proposed to meet
“Brit” only at locations within AAFB. Thus, the argument
goes, the Government proved Lopez could have been
charged with completed sexual penetration of a minor under
Guam law only if the United States could have prosecuted
that offense on AAFB territory under the Assimilated
Crimes Act, 18 U.S.C. § 13. 10

10
The Assimilated Crimes Act authorizes federal authorities to
prosecute violations of state law taking place within federal enclaves.
Assimilation of state law offenses into federal law is appropriate only
34 UNITED STATES V. LOPEZ

Because Section 2422(b) does not contain a predicate
offense requirement, however, the indictment’s citation to
Guam’s First Degree Criminal Sexual Conduct statute was
mere surplusage. Gratuitous language in an indictment
cannot bind the Government to proving elements not
required for conviction pursuant to the applicable criminal
statute. In United States v. Garcia-Paz, 282 F.3d 1212 (9th
Cir. 2002), we addressed a similar sufficiency challenge to a
conviction based on an indictment that alleged the defendant
“knowingly import[ed] and br[ought] into the United States
certain merchandise, to wit, marijuana, contrary to law.” Id.
at 1215 (emphasis added). The defendant argued the
indictment required the Government to prove that he knew
he was smuggling marijuana and not just “merchandise”
more generally. We looked to the requirements of the statute
to determine the elements the Government was required to
prove, not the language in the indictment. Because the
statute prohibited knowingly smuggling “any merchandise
contrary to law,” we held the Government needed to prove
knowledge only as to the smuggling of merchandise without
regard to its contents. Id. at 1217 (quoting 18 U.S.C. § 545)
(emphasis added). The “to wit” clause in the charging
document “was mere surplusage and did not cause the
indictment to allege that [the defendant] had knowledge of
the marijuana.” Id. at 1216. Here, too, the Government
proved the essential elements of the Section 2422(b) offense
by adducing evidence that Lopez engaged in “sexual activity
for which any person can be charged with a criminal
offense.” The indictment’s “to wit” citation to a particular
Guam statute was not compelled by Section 2422(b) and
stated merely one means (but not the only means) by which

when the state law covers criminal conduct not already punished by a
federal offense. See Lewis v. United States, 523 U.S. 155 (1998).
 UNITED STATES V. LOPEZ 35

the jury could find Lopez proposed sexual conduct that
would be criminal in a relevant territorial jurisdiction. 11, 12

To be sure, the Government complicated this case by
citing an inapt example of applicable law. Lopez
perpetuated this difficulty by failing to object to the
indictment, failing to seek a bill of particulars, and seeming
to agree that the conduct alleged would have been
chargeable in Guam until filing this appeal. But the question
presented by Lopez’s sufficiency of the evidence challenge
is whether the Government adduced sufficient evidence at
trial for the jury to conclude Lopez committed each element
of the Section 2422(b) offense. See Hussain, 972 F.3d at
1146; Graf, 610 F.3d at 1166. Because Section 2422(b)
requires that the jury conclude a person in Lopez’s position
could have been charged with a criminal offense in a relevant
territorial jurisdiction for engaging in the conduct Lopez

11
Our dissenting colleague argues Garcia-Paz is “a far cry from this
case” because the “any sexual activity for which any person can be
charged with a criminal offense” element of the Section 2422(b) charge
“requires statutes to give it meaning.” Dissenting Op. 66. But here
again, our colleague assumes without any basis in ordinary principles of
statutory interpretation that Section 2422(b) defines this element of the
offense by reference to a particular predicate offense that must be
charged in the federal indictment. Garcia-Paz dealt with the same legal
question presented here: Whether the insertion of an illustrative “to wit”
clause in an indictment obligates the Government to prove the particular
conduct alleged in the illustrative clause. It does not.
12
Our dissenting colleague further argues Garcia-Paz differs from
this case because “here the jury was specifically instructed that the
government must prove beyond a reasonable doubt a predicate crime that
Lopez did not commit.” Dissenting Op. 66 n.21. This argument is
curious given that Lopez asks us to reverse his Section 2422(b)
conviction on the ground that the court failed to instruct the jury as to the
elements of the Guam First Degree Criminal Sexual Conduct statute
cited in the indictment. See infra, Part II.C.
36 UNITED STATES V. LOPEZ

proposed, the Government carried its burden of proof. The
district court did not err, let alone plainly err, by entering a
judgment of conviction on this record. 13

Our dissenting colleague believes this case does not
involve a question of statutory interpretation at all and turns
instead on the question whether “a court [can] amend the
indictment returned by the grand jury to excise the charged
predicate offense and substitute a different predicate
offense.” Dissenting Op. 60. But this view of the case
simply assumes and asserts that Section 2422(b) requires the
Government to charge a particular predicate offense without
engaging in the statutory interpretation required to justify
such a conclusion. Looking to the statute at issue here is not
a needlessly “abstract inquiry.” Dissenting Op. 58 n.14.
Rather, it is the first step in evaluating Lopez’s argument that
the jury lacked sufficient evidence to convict him under
Section 2422(b). Only by construing the requirements of the
statute of conviction can our court determine whether the
Government offered sufficient proof at trial to support the
jury’s verdict. That is what it means to “begin with the text
of the statute.” Friends of Animals, 879 F.3d at 1003
(quoting Limtiaco, 549 U.S. at 488).

As explained above, Congress did not structure Section
2422(b) like other statutes in which the federal criminal
offense is explicitly defined by proof of a predicate offense.
Rather, Section 2422(b) extends criminal liability to those
persons who violate local standards of conduct by enticing

13
Because Guam could have prosecuted a person in Lopez’s
position for attempted sexual penetration of a minor, we need not decide
whether the Guam offense cited in the indictment could have been
assimilated into and prosecuted under federal law pursuant to the
Assimilated Crimes Act.
 UNITED STATES V. LOPEZ 37

or attempting to entice a minor to engage in “any sexual
activity for which any person can be charged with a criminal
offense.” See Dhingra, 371 F.3d at 565 (comparing Section
2422(b)’s “any person can be charged” element with the
local standards requirement of obscenity prosecutions). Our
dissenting colleague is correct that the Fifth Amendment’s
grand jury requirement is an important protection for liberty
guaranteed to all federal criminal defendants. See
Dissenting Op. 77–78. But this case presents no violation of
that right in need of vindication, and the dissent errs by
asserting the existence of atextual barriers in the way of
prosecuting the predatory conduct toward minors that
Congress sought to punish by enacting Section 2422(b).

By incorrectly assuming that Section 2422(b) requires
the Government to charge a predicate offense, our dissenting
colleague confuses the distinction between the constructive
amendment of an indictment, which typically requires
reversal, and a variance in proof, which requires reversal
only upon a showing of prejudice. See United States v.
Ward, 747 F.3d 1184, 1189 (9th Cir. 2014). “An amendment
of the indictment 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.” Id. (quoting United States v. Von Stoll, 726 F.2d 584,
586 (9th Cir. 1984)). Discrepancies between an indictment
and evidence presented at trial amount to a constructive
amendment in two general situations: first, when “there is a
complex set of facts distinctly different from those set forth
in the charging instrument” such that the defendant lacked
notice; and second, when “the crime charged was
substantially altered at trial, so that it was impossible to
know whether the grand jury would have indicted for the
crime actually proved.” Von Stoll, 726 F.2d at 586 (citation
and quotation marks omitted).
38 UNITED STATES V. LOPEZ

Here, there is no question that the Government proved at
trial the same criminal behavior alleged in the indictment by
adducing evidence that Lopez used online profiles to engage
in lewd and predatory conversations in an attempt to engage
in sexual relations with a person he believed to be an
underage girl. Nor is there any question that the Section
2422(b) attempted enticement offense indicted by the grand
jury was ultimately proved at trial. Whether the behavior in
which Lopez engaged could have been charged under one
Guam offense or another is irrelevant to the culpability of his
conduct under federal law. Section 2422(b) was enacted to
punish those who engage in predatory communications with
minors, and the grand jury was fully appraised of the
relevant allegations when it made its decision to indict Lopez
for violating this prohibition. See id. at 587 (holding “the
divergence between the indictment and proof did not affect
the sufficiency of the complaint or alter the crime charged”
because the culpable conduct proved at trial was the same as
the conduct alleged in the indictment). Indeed, we have
never found a constructive amendment where “the
indictment simply contains superfluously specific language
describing alleged conduct irrelevant to the defendant’s
culpability under the applicable statute.” Ward, 747 F.3d
at 1191; see also Garcia-Paz, 282 F.3d at 1216–17 (rejecting
challenge based on an indictment’s gratuitous specification
of “to wit, marijuana” for a smuggling offense that covered
“any merchandise”); United States v. Antonakeas, 255 F.3d
714, 721–22 (9th Cir. 2001) (rejecting challenge where the
evidence failed to prove the indictment’s specific claim that
the defendant conspired to distribute cocaine in Hawaii
because a nexus to Hawaii “was in no way essential to the
offense on which the jury convicted” (citation omitted)).

Similarly, in United States v. D’Amelio, 683 F.3d 412
(2d Cir. 2012), the defendant appealed his Section 2422(b)
 UNITED STATES V. LOPEZ 39

conviction on the ground that the indictment alleged he
attempted to entice a minor “us[ing] a facility and means of
interstate commerce . . . to wit, . . . a computer and the
Internet,” whereas the evidence at trial included analogue
telephone conversations. Id. at 414–15. The Second Circuit
affirmed the conviction after concluding the divergence
between the indictment and the proof at trial did not alter the
“core of criminality” set out in the indictment or modify an
“essential element” of the crime. Id. at 417. Without such
an impact, the divergence did not constructively modify the
indictment in violation of the defendant’s Fifth Amendment
rights. Id. at 422–24. The circumstances in D’Amelio are on
all fours with this case, and the Second Circuit’s analysis is
consistent with our circuit’s approach. Whether a “to wit”
clause in an indictment offers surplus content to the
interstate jurisdictional element or the “for which any person
can be charged with a criminal offense” element of the
Section 2422(b) offense, an indictment is not constructively
amended by proof at trial of a different means unless the
divergence otherwise prejudices the defendant’s substantial
rights.

Contrary to the view of our dissenting colleague, this
case has little in common with Howard v. Daggett, 526 F.2d
1388 (9th Cir. 1975) (per curiam). See Dissenting Op. 67.
The defendant in Howard was charged with inducing two
specific women to engage in interstate prostitution. Id.
at 1389. At trial however, the evidence and the jury
instructions also referred to the defendant’s conduct toward
other alleged prostitutes not named in the indictment. Id.
We found this change constituted an impermissible
amendment of the indictment because the criminal conduct
charged under the statute was different from the conduct for
which the defendant was convicted. Id. at 1390. Howard
was a case in which the evidence at trial involved “a complex
40 UNITED STATES V. LOPEZ

set of facts distinctly different from those set forth in the
charging instrument.” Von Stoll, 726 F.2d at 586 (citation
omitted); see Ward, 747 F.3d at 1190–91 (citing Howard as
following “a similar pattern” of cases in which a defendant
was impermissibly convicted “for conduct not alleged in the
indictment”). But that is not what happened here. Neither
Lopez nor the dissent argue that the indictment alleged a
complex set of facts different from the Government’s proof
at trial. The facts alleged in the grand jury’s indictment were
identical to the facts on which the petit jury convicted Lopez
at trial, namely, that Lopez used online personas to lure
“Brit,” who he believed to be an underage girl, into sexual
encounters. There was no last-minute switch of “Brit” for
some other person at trial, and Lopez was well aware
throughout these proceedings of the specific conduct on
which the Government based the Section 2422(b) charge.

This case involves, at most, a variance in which “the
charging terms of the indictment are left unaltered, but the
evidence offered at trial proves facts materially different
from those alleged in the indictment.” Ward, 747 F.3d
at 1189 (quoting Von Stoll, 726 F.2d at 586). The indictment
proposed that the Government might prove Lopez attempted
to entice a minor to engage in “sexual activity for which a
person can be charged with a criminal offense” by reference
to one Guam statute which required proof of sexual
penetration. But the Government proved at trial that Lopez’s
proposed conduct would have been unlawful under another
Guam statute which requires proof of an attempt to engage
in sexual penetration. Lopez never argued, and cannot fairly
argue, that this variance prejudiced his defense in any
manner warranting relief on appeal. The charge against him
was always attempted “enticement” of illegal sexual activity,
not the actual commission of the acts about which he
communicated with a person he believed to be a minor. He
 UNITED STATES V. LOPEZ 41

was not misled. See Von Stoll, 726 F.2d at 587 (“A variance
between indictment and proof does not require reversal
unless it affects the substantial rights of the parties.” (citation
omitted)). As to the challenge before us, we conclude the
district court did not err by entering a judgment of
conviction.

C. Jury Instructions

Lopez also raises a due process challenge to the jury
instructions given for the Section 2422(b) charge. Prior to
deliberations, the district court read the indictment to the jury
and instructed the jury on all elements of the Section 2422(b)
offense using a script expressly approved by both parties. As
to the “sexual activity for which any person can be charged
with a criminal offense” element, the court instructed the
jury that to reach a guilty verdict, it must conclude:

[I]f the sexual activity had occurred, the
defendant would have been charged with a
criminal offense under the laws of Guam. . . .
It is not necessary for the [G]overnment to
prove that the individual was actually
persuaded, induced and enticed to engage in
sexual activity charge[d] in the indictment.
. . . But it is necessary for the [G]overnment
to prove that the defendant intended to
engage in some form of unlawful sexual
activity with the individual and knowingly
and willfully took some action that was a
substantial step toward bringing about or
engaging in sexual activity charged in the
indictment.

On appeal, Lopez for the first time relies on his reading
of Section 2422(b) as requiring a specific predicate offense
42 UNITED STATES V. LOPEZ

to argue that the district court violated his due process rights
by failing to instruct the jury on the elements of the Guam
criminal sexual penetration statute cited in the indictment.
We review forfeited objections to jury instructions for plain
error, meaning the defendant must identify an error that was
plain, affected his substantial rights, and seriously
undermined the integrity or reputation of judicial
proceedings. United States v. Peterson, 538 F.3d 1064, 1070
(9th Cir. 2008). 14 We conclude that, although the district
court should have instructed the jury on the applicable “laws
of Guam,” Lopez cannot meet his burden of establishing the
error affected his substantial rights.

“It is a violation of due process for a jury instruction to
omit an element of the crime.” Evanchyk v. Stewart,
340 F.3d 933, 939 (9th Cir. 2003); see also United States v.
Gaudin, 515 U.S. 506, 509–10 (1995). The district court
complied with this requirement by instructing the jury on the
elements of the Section 2422(b) offense using model jury
instructions for the Eighth Circuit, which separate out each
element and provide additional detail not included in
analogous model jury instructions for the Ninth Circuit.15

14
The Government declined to argue that Lopez waived objection
to the jury instructions on the Section 2422(b) charge when he consented
to their form and substance despite knowing the indictment cited the
Guam statute. Because the Government waived any argument for waiver
it may have had, we need not decide whether Lopez’s consent to these
instructions constituted relinquishment of a known right. See United
States v. Pridgette, 831 F.3d 1253, 1258–59 (9th Cir. 2016).

15
Although similar in most respects, the model jury instructions for
the Eighth and Ninth Circuits differ slightly when describing the “sexual
activity for which any person can be charged” element. Compare
Manual of Model Criminal Jury Instructions for the District Courts of
the Eighth Circuit § 6.18.2422B (2017 ed.) (“[T]hat [if the sexual
activity had occurred] . . . the defendant could have been charged with a
 UNITED STATES V. LOPEZ 43

Because Section 2422(b) requires the Government to prove
only that “any person” engaging in the sexual conduct
proposed by the defendant could be charged under federal,
state, or territorial law, the district court was not required to
instruct the jury on the elements of a particular predicate
offense as if they were elements of the Section 2422(b)
offense. See Garcia-Paz, 282 F.3d at 1215–16 (rejecting
jury instruction challenge where surplusage in the
indictment did not constitute an essential element of the
charged offense). We once again reject Lopez’s core
argument that Section 2422(b) requires the indictment and
proof of a specific predicate offense.

The district court nevertheless erred in failing to define
the “laws of Guam” against which Lopez’s proposed sexual
conduct was to be evaluated. Generally, trial courts need not
define terms to the jury that are obvious, in common use, or
“have plain and ordinary meanings within the statute.”
Dhingra, 371 F.3d at 567; see also United States v.
Chambers, 918 F.2d 1455, 1460 (9th Cir. 1990). However,
“where a federal prosecution hinges on an interpretation or
application of state law, it is the district court’s function to
explain the relevant state law to the jury.” United States v.
Davila-Nieves, 670 F.3d 1, 8 (1st Cir. 2012) (citation
omitted). The average juror may not know the boundaries
of Guam’s criminal law with respect to sexual conduct. In
this case, the Guam offense implicated by the evidence
offered by the Government at trial criminalizes attempted

criminal offense under the laws of [the United States] (identify the
state)].”), with Manual of Model Criminal Jury Instructions for the
District Courts of the Ninth Circuit § 8.192A (2010 ed., updated May
2020) (requiring the jury conclude the defendant enticed a minor to
engage in “any sexual activity for which someone could be charged with
an offense, that is [insert title of sexual offense]”).
44 UNITED STATES V. LOPEZ

sexual penetration of a minor under fourteen. See 9 G.C.A.
§§ 13.10, 13.60(a), 25.15(a)(1). Without a working
definition of applicable Guam law, the jury may have lacked
the requisite knowledge to evaluate whether the sexual
conduct Lopez proposed to “Brit” was criminal in Guam.

To be clear, the burden was on the district court, not the
Government, to instruct the jury on the requirements of
applicable federal, state, and territorial laws. Federal courts
may take judicial notice of matters of public record,
including statutes. See Fed. R. Evid. 201(b); Lee v. City of
Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Once the
Government adduced evidence that Lopez proposed sexual
conduct to a minor, the jury was required to determine
whether the sexual conduct was considered criminal in
Guam or another territorial jurisdiction. Prior to jury
deliberations, it was incumbent upon the district court to
ensure the jury possessed the requisite background
knowledge to evaluate the sufficiency of the Government’s
evidence against applicable criminal laws. The failure to do
so was error.

We need not decide whether the error was plain or
seriously undermined the integrity or reputation of judicial
proceedings because there is no question that Lopez cannot
meet his burden of demonstrating prejudice to his substantial
rights. Because jury instruction error is nonstructural, a
misstatement or omission in jury instructions affects a
defendant’s substantial rights only when prejudice results.
See United States v. Alghazouli, 517 F.3d 1179, 1190 (9th
Cir. 2008). To demonstrate prejudice, the defendant must
show “a reasonable probability” that “the result of the
proceeding would have been different” but for the alleged
error. Id. (quoting United States v. Dominguez Benitez,
 UNITED STATES V. LOPEZ 45

542 U.S. 74, 81–82 (2004)); see also Depue, 912 F.3d
at 1234.

Lopez fails to identify a reasonable probability that the
jury would have come to a different decision had the district
court instructed that 9 G.C.A. §§ 13.10, 13.60(a), and
25.15(a)(1) criminalize attempts to engage in sexual
penetration of a minor under fourteen years of age. The jury
necessarily concluded that Lopez believed “Brit” was
underage when it decided to convict on the Section 2422(b)
and Section 1470 charges because the offenses require proof
that the defendant knew or mistakenly believed the victim
was under eighteen or sixteen years of age, respectively.
Every piece of evidence capable of supporting the jury’s
verdict in this regard indicated “Brit” was thirteen, including
her statements in the chat transcripts, Lopez’s reactions to
those statements, and photographs sent from “Brit” to Lopez.
The jury clearly credited the Government’s documentary
evidence over Lopez’s trial testimony that he never believed
“Brit” was underage, and this credibility decision would not
likely have changed based on the missing instruction. Nor
did Lopez contest the fact that he proposed to engage in
sexual penetration with “Brit” as opposed to other forms of
sexual conduct that would not have violated this particular
territorial law. After all, Lopez admitted to sending the
emails that the Government presented at trial and instead
relied on a mens rea defense that the jury disregarded.

We can envision a different Section 2422(b) case in
which the definition of applicable federal or state offenses
would influence the jury’s evaluation of whether the
defendant proposed sexual conduct that would have been
criminal in at least one relevant jurisdiction. The jury’s
verdict may well come down to distinctions in state law
where the victim’s age places the victim within the
46 UNITED STATES V. LOPEZ

protections of the criminal laws of certain jurisdictions but
not others. This, however, is not such a case.

D. Attempted Transfer of Obscenity to a Minor

Finally, Lopez raises a sufficiency of the evidence
challenge to his conviction under 18 U.S.C. § 1470 for
attempted transfer of obscenity to a minor under sixteen. In
his Rule 29 motions, Lopez argued unsuccessfully that the
Government failed to prove he had knowledge of “Brit’s”
age as to the Section 1470 charge by showing he believed
“Brit” was under sixteen. On appeal, Lopez argues the
Government was obligated to prove Lopez transmitted
obscene materials to an actual minor because the indictment,
jury instructions, and jury verdict form all indicate that he
was charged and convicted for completed transfer of
obscenity rather than attempt. We review this challenge for
plain error because Lopez failed to raise it below. See
Hussain, 972 F.3d at 1146; Garcia-Guizar, 160 F.3d at 516.
We hold there was no error, let alone plain error, in the
district court’s denial of the Rule 29 motions and entry of
judgment of conviction on the attempted transfer charge.

Lopez is simply incorrect that the indictment charged
completed transfer of obscenity rather than an attempt. His
argument rests solely on the caption preceding the relevant
count in the indictment, which read “Transfer of Obscenity
to a Minor.” However, the operative text of the indictment
charged Lopez with “attempt[ing] to transfer obscene matter
. . . by sending a girl he believed was thirteen years old two
images and a video which depicted an adult male exposing
his erect penis.” This language defeats Lopez’s argument
because “it is well established that the caption is completely
surplusage and does not control the body of the indictment.”
United States v. Pazsint, 703 F.2d 420, 423 (9th Cir. 1983)
 UNITED STATES V. LOPEZ 47

(citing United States v. Dawson, 516 F.2d 796, 804 (9th Cir.
1975)).

Further, although our overall review is for plain error, we
agree with the Government that Lopez waived objection to
the jury instructions and jury verdict form as to the Section
1470 charge. When the record demonstrates the defendant
knowingly relinquished an objection, including an objection
to particular jury instructions, the issue is unreviewable on
appeal. See Depue, 912 F.3d at 1233; United States v.
Kaplan, 836 F.3d 1199, 1217 (9th Cir. 2016). Lopez
reviewed the jury instructions at the request of the district
court and approved a script that included a substantial step
instruction for the Section 2422(b) count but not the Section
1470 count. In doing so, Lopez was fully aware that the
indictment charged an attempt to violate Section 1470 and
knew that the attempt charge under Section 2422(b)
warranted a substantial step instruction. This knowledge is
sufficient to establish waiver and foreclose consideration of
the argument on appeal.

Lopez also waived objection to the jury verdict form by
approving a draft that described the Section 1470 charge as
“Transfer of Obscenity” without reference to attempt. Jury
verdict forms are generally considered a type of jury
instruction, and the same waiver standard applies. See
United States v. Stinson, 647 F.3d 1196, 1218 (9th Cir.
2011). Challenges to the content of trial documents
expressly approved by a defendant with full knowledge of
his rights are waived and cannot support the reversal of a
conviction on appeal.
48 UNITED STATES V. LOPEZ

III. CONCLUSION

Lopez failed to demonstrate the district court committed
prejudicial error or plain error warranting relief. We
therefore AFFIRM the judgment of conviction.

BENNETT, Circuit Judge, dissenting in part:

I respectfully dissent from the Majority’s affirmance of
Wilfredo Lopez’s conviction on count one—attempted
enticement of a minor in violation of 18 U.S.C. § 2422(b). 1
The grand jury charged Lopez with attempting to “entice[] a
person who the defendant believed to be under eighteen
years of age[] to engage in sexual activity for which a person
can be charged with a criminal offense, to wit: First Degree
Criminal Sexual Conduct, in violation of 9 [Guam Code
Annotated (“GCA”)] § 25.15(a)(1).” 2 As I explain below,
Lopez could not have been charged with or committed First
Degree Criminal Sexual Conduct in violation of 9 GCA
§ 25.15(a)(1) as the predicate offense for his § 2422(b)
violation, because the sexual activity he proposed was to
take place on Anderson Air Force Base (AAFB), a place
within the Special Maritime and Territorial Jurisdiction of
the United States, and that crime is not assimilated under the

1
I concur in the remainder of the majority opinion.

2
9 GCA § 25.15(a)(1) provides: “A person is guilty of criminal
sexual conduct in the first degree if he or she engages in sexual
penetration with the victim and if any of the following circumstances
exists: (1) the victim is under fourteen (14) years of age . . . .”
 UNITED STATES V. LOPEZ 49

Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. 3 Thus,
Lopez could not have committed and did not commit the
crime with which he was charged in the indictment. Per
force, the government presented insufficient evidence of his
guilt. The Majority convicts the defendant for a different,
uncharged crime—attempting to “entice[] a person who the
defendant believed to be under eighteen years of age[] to
engage in sexual activity for which a person can be charged
with a criminal offense, to wit: attempted First Degree
Criminal Sexual Conduct, in violation of 9 GCA §§ 13.10,
13.60(a), & 25.15(a)(1).” 4 See Majority at 31. Though I

3
“Whoever within or upon [the Special Maritime or Territorial
Jurisdiction of the United States], . . . is guilty of any act or omission
which, although not made punishable by any enactment of Congress,
would be punishable if committed or omitted within the jurisdiction of
the State, Territory, Possession, or District in which such place is
situated, by the laws thereof in force at the time of such act or omission,
shall be guilty of a like offense and subject to a like punishment.”
18 U.S.C. § 13(a).

4
The government’s arguments as to the Guam offense that Lopez
could have been convicted of are unclear. The government argued:
“Lopez could be prosecuted for violation of Guam law because from his
off-base home, he used the internet to send e-mail messages to Brit.
Lopez could actually be prosecuted for violation of Guam law.” The
government also argued: “Lopez’[s] acts advanced and verified the
existence of his purpose—to gain Brit’s assent to engage in sexual
activity. Lopez could actually be charged with attempting to persuade
Brit to engage in sexual activity as defined by Guam law—the law of the
venue that had jurisdiction over the defendant.” But the government
never argued in its answering brief that the conviction should be affirmed
because the defendant was guilty of “attempting to entice to attempt.”
Neither did the government cite either GCA § 13.10 or § 13.60(a), relied
upon by the Majority. Nor did the jury instructions, either directly or
indirectly, inform the jury of any predicate offense other than 9 GCA
§ 25.15(a)(1), which was the only predicate offense specified in the
indictment. And nothing in Lopez’s reply brief suggests that he thought
attempting to entice to attempt had been raised by the government or was
50 UNITED STATES V. LOPEZ

harbor serious doubts about whether such a crime
(attempting to entice to attempt) could even exist, 5 Lopez
was neither charged with nor convicted of that theoretical
offense, nor was the jury instructed as to that theoretical
offense. Thus, I dissent.

I.

To successfully convict Lopez for attempted enticement
of a minor under § 2422(b), the government had to prove that
Lopez knowingly “(1) attempted to (2) persuade, induce,
entice, or coerce (3) a person under 18 years of age (4) to
engage in sexual activity that would constitute a criminal
offense.” United States v. Goetzke, 494 F.3d 1231, 1234–35

otherwise at issue in the case. Because of a question at oral argument—
“whether, under Guam law, one can commit the completed crime of First
Degree Criminal Sexual Conduct (‘CSC’) without also committing its
attempt,”—Lopez submitted a Rule 28(j) letter noting that, under Guam
law, a defendant can commit the completed crime without also
committing its attempt. Appellant’s Citation of Suppl. Authorities at 1,
United States v. Lopez, No. 19-10017 (Oct. 21, 2020), ECF No. 55. The
letter also stated: “The Government did not charge the attempted object
offense, which is codified separately ([9 GCA] § 13.10) and involves
distinct elements (specific intent).” Id. at 2. The government filed no
response.

5
I don’t understand why the Majority discusses this particular
uncharged predicate offense. As Lopez himself acknowledged at oral
argument, the government could have charged him with enticement in
violation of § 2422(b), with the predicate offense of sexual abuse of a
minor within the Special Maritime and Territorial Jurisdiction of the
United States, in violation of 18 U.S.C. § 2243(a). Oral Arg. at 2:22–
2:33, https://cdn.ca9.uscourts.gov/datastore/media/2020/10/20/19-
10017.mp3. Lopez was clearly trying to induce someone who he
believed was under sixteen to engage in on-base sexual acts. But while
that uncharged predicate offense would not have suffered from a possible
attempting to entice to attempt flaw, a conviction based on it would still
suffer from the flaws I identify here.
 UNITED STATES V. LOPEZ 51

(9th Cir. 2007) (per curiam). We “read § 2422(b) to
incorporate only the laws ‘for which a person could be
charged with a criminal offense,’ i.e., the law of the venue
that would have jurisdiction over the defendant.” United
States v. Dhingra, 371 F.3d 557, 564 (9th Cir. 2004).

The indictment charged Lopez as follows:

Between on or about October 30, 2017, and
on or about November 22, 2017 in the
District of Guam, the defendant WILFREDO
LEE LOPEZ, used the mail or any facility or
means of interstate or foreign commerce, that
is, a cellphone and the Internet, to knowingly
attempt to persuade, induce, and entice[] a
person who the defendant believed to be
under eighteen years of age, to engage in
sexual activity for which a person can be
charged with a criminal offense, to wit: First
Degree Criminal Sexual Conduct, in
violation of 9 GCA § 25.15(a)(1), all in
violation of Title 18, United States Code,
Sections 2422(b) and 2.

(emphasis added).

First Degree Criminal Sexual Conduct, in violation of
9 GCA § 25.15(a)(1), is the charged predicate offense for
Lopez’s attempted enticement of a minor. Because the
indictment lists only this offense, this offense is the only
offense we can consider in determining whether the
government presented sufficient evidence of the defendant’s
52 UNITED STATES V. LOPEZ

guilt. 6 See United States v. Ward, 747 F.3d 1184, 1189 (9th
Cir. 2014). Once a grand jury has determined the charges,
“neither a prosecutor nor a judge can change the charging
part of an indictment to suit [his or her] own notions of what
it ought to have been, or what the grand jury would probably
have made it if their attention had been called to suggested
changes.” 7 Id. (alteration in original) (citation omitted).

This rule is an old one. As Lord Mansfield noted in
1770: “[T]here is a great difference between amending
indictments and amending informations. Indictments are
found upon the oaths of a jury, and ought only to be amended
by themselves; but informations are as declarations in the
6
The Majority misreads my dissent, stating that it “assumes and
asserts that Section 2422(b) requires the Government to charge a
particular predicate offense without engaging in the statutory
interpretation required to justify such a conclusion.” Majority at 36
(emphasis in original). But I neither assume nor assert that Section
2422(b) requires the government to charge a particular predicate. See
infra n.17. I simply take the indictment the grand jury returned as it
comes to us—an indictment that does list a specific predicate offense.
And so I need not address whether the Majority’s attempt to distinguish
Section 2422(b) from the RICO statute to support its conclusion, see
Majority at 22–25, is sound statutory construction, or instead interpretive
legerdemain.

7
We said in Ward:

“If an indictment could be so lightly departed from,
then the great importance which the common law
attaches to an indictment by a grand jury, as a
prerequisite to a prisoner’s trial for a crime, and
without which the Constitution says ‘no person shall
be held to answer,’ [might] be frittered away until its
value is almost destroyed . . . .”

747 F.3d at 1189 (alterations in original) (quoting United States v.
Leichtnam, 948 F.2d 370, 376 (7th Cir. 1991)).
 UNITED STATES V. LOPEZ 53

king’s suit. An officer of the crown has the right of framing
them originally; he may, with leave, amend in like manner
as any plaintiff may do.” 8 Ex parte Bain, 121 U.S. 1, 6
(1887) (quoting Rex v. Wilkes, 4 Burr., 2527, 2569, 98 Eng.
Rep. 327 (1770) (Lord Mansfield)). 9

Federal Rule of Criminal Procedure 7, “The Indictment and the
8

Information,” states: “AMENDING AN INFORMATION. Unless an
additional or different offense is charged or a substantial right of the
defendant is prejudiced, the court may permit an information to be
amended at any time before the verdict or finding.” Fed. R. Crim. P. 7(e)
(emphasis added). There is, of course, no such rule covering the
amendment of an indictment.

9
The Department of Justice Criminal Resource Manual provides
that:

The general rule is that indictments cannot be
amended in substance. “An amendment to an
indictment occurs when the charging terms of an
indictment are altered.” United States v. Cancelliere,
69 F.3d 1116, 1121 (11th Cir. 1995). This follows
from the fundamental distinction between the
information and the indictment . . . which must be
returned by a grand jury. If the indictment could be
changed by the court or by the prosecutor, then it
would no longer be the indictment returned by the
grand jury. Indeed, in Russell v. United States,
369 U.S. 749, 769 (1962), the Court pointed out that a
consequence of amending the indictment is that the
defendant “could then be convicted on the basis of
facts not found by, and perhaps not even presented to,
the grand jury which indicted him.” “Thus, the Fifth
Amendment forbids amendment of an indictment by
the Court, whether actual or constructive.” United
States v. Wacker, 72 F.3d 1453, 1474 (10th Cir. 1995).

U.S. Dep’t of Just., Criminal Resource Manual § 236 (2020).
54 UNITED STATES V. LOPEZ

A.

In amending the indictment, the Majority invades the
province of the grand jury and takes upon itself a role that
the Constitution specifically and exclusively carves out for
the grand jury. Ward, 747 F.3d at 1189; see also U.S. Const.
amend. V (“No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury . . . .”). As the district court
properly instructed the jury: “You are here only to determine
whether the defendant is guilty or not guilty of the charges
in the indictment. The defendant is not on trial for any
conduct or offense not charged in the indictment.” 10 Courts
give this instruction because “[a] defendant in a felony trial
can only be convicted of charges upon which a grand jury
has returned an indictment.” United States v. Arreola,
467 F.3d 1153, 1162 (9th Cir. 2006). 11

10
This is Ninth Circuit Model Criminal Jury Instruction 3.10. In
one of the government’s proposed jury instructions to the district court,
it stated that “it is necessary for the government to prove that the
defendant intended to engage in some form of unlawful sexual activity
with the individual and knowingly and willfully took some action that
was a substantial step toward bringing about or engaging in sexual
activity charged in the Indictment.” (emphases added).

The court also instructed the jury, at the request of the
11

government:

The defendant, WILFREDO LEE LOPEZ, is charged
in Count 1 of the indictment with attempted
enticement of a minor in violation of Section 2422(b)
of Title 18 of the United States Code. In order for the
defendant to be found guilty of that charge, the
government must prove each of the following
elements beyond a reasonable doubt:
 UNITED STATES V. LOPEZ 55

The Majority misreads our decision in Dhingra, to
conclude that the government need not prove that the
charged predicate offense(s) “could actually be prosecuted”
against the defendant, but instead can present evidence on
any predicate crime it wishes, regardless of what the grand
jury charged. See Majority at 26–27. The Majority tries to
frame the issue as “whether Dhingra requires the
Government to charge and prove a specific predicate offense
as an essential element of [the] Section 2422(b) enticement
charge.” Majority at 27 n.5. But Dhingra never discusses
the actual issue presented here—whether the government is
limited to proving the predicate offense charged by the grand
jury. 12 See Dhingra, 371 F.3d 557.

The Majority also misreads our decision in United States
v. Tello, 600 F.3d 1161 (9th Cir. 2010), to further support its

First, the defendant knowingly used the mail, a
computer, or any means of interstate or foreign
commerce, that is, a cellphone and the Internet, to
attempt to persuade, induce, and entice, an individual
under the age of eighteen (18) years of age to engage
in sexual activity for which a person can be charged
with a criminal offense, to wit: First Degree Criminal
Sexual Conduct, in violation of 9 Guam Code
Annotated Section 25.15(a)(1) . . . .

12
The Majority extracts the phrase “a § 2422(b) violation is its own
offense subject to prosecution independent of other underlying offenses”
to support its argument. See Majority at 26 (quoting Dhingra, 371 F.3d
at 564) (cleaned up). However, the sentence in full reads: “Similarly,
because a § 2422(b) violation is its own offense subject to prosecution
independent of other underlying offenses, the state’s power to prosecute
criminal sexual conduct under state law is in no way abrogated.”
Dhingra, 371 F.3d at 564. This has nothing to do with whether the
government could prove a § 2422(b) violation based on the facts of a
hypothetical offense never charged in the indictment (much less a
hypothetical offense on which the petit jury was never instructed).
56 UNITED STATES V. LOPEZ

conclusion. The Majority concludes that Tello “did not
require the Government to procure indictment of a specific
predicate offense or to prove the relevant court would have
had jurisdiction over the defendant for said predicate
offense.” Majority at 27–28. But that conclusion is
unrelated to what the Tello court considered. The indictment
alleged very specific predicate California offenses. 13 600
F.3d at 1165. Tello lived in Arizona and arranged over the
internet to meet in California with someone he thought was
a thirteen-year-old California resident. Id. at 1162–63. He
told “her” that he would drive to California to pick her up
and return with her to Arizona “where she could live with
him and have sex.” Id. He drove from Arizona to the
prearranged meeting place in Los Angeles and was then
arrested. Id. at 1163. Though sex between adults and
children was illegal in Arizona, see Ariz. Rev. Stat. § 13-
1405, the government did not charge the obvious Arizona
crime as the predicate offense. So, the similarities between
this case and Tello are clear. And Tello made the exact same
argument Lopez makes:

Tello argues that the evidence showed only
that he intended to pick up a thirteen-year-old
girl in California and return to Arizona,
where he would engage in sexual activity
with her. Because the government did not
plead that Tello could be charged with a
criminal act under Arizona law, where the

13
“The criminal indictment alleged that Tello ‘could be charged
with a criminal offense under California law, namely: Lewd Act Upon a
Child Under the Age of 14 Years, a violation of California Penal Code
Section 288; Oral Copulation, a violation of California Penal Code
Section 288a; and Unlawful Sexual Intercourse with a Person Under the
Age of 18 Years, a violation of California Penal Code Section 261.5.’”
Tello, 600 F.3d at 1165.
 UNITED STATES V. LOPEZ 57

intended sexual activity was to occur, Tello
contends that there was insufficient evidence
to support his conviction as pleaded. He
concludes that his drive to Los Angeles to
pick up what he thought was a thirteen[-
]year[-]old to take to Arizona for sex does not
show a crime under California law.

600 F.3d at 1165. The court did not, however, treat the
California predicate offenses listed in the indictment as
irrelevant; nor did it find that the evidence obviously
supported that Tello was enticing the person he thought was
a thirteen-year-old girl to have sex in Arizona in violation of
Arizona law, see id. at 1165–67, even though, as the
Majority points out, the government made this argument in
the alternative, see Majority at 27.

The Tello court, which did not look to the low-hanging
fruit (the Arizona offense) that the government could have
charged as the predicate offense, understood that it was
limited to the California predicate offenses charged in the
indictment. Tello, 600 F.3d at 1165–66. The court correctly
examined whether California could properly exercise
territorial jurisdiction as to the predicate offenses charged in
the indictment, because if not, the conviction could not
stand. See id. Of course, in so doing, it looked to relevant
California territorial jurisdiction statutes to answer that
58 UNITED STATES V. LOPEZ

question. 14 Because California Penal Code § 778a 15 extends
the reach of California’s jurisdiction to circumstances where
the defendant performs an act in furtherance of his criminal
intent in California, Tello was properly subject to
jurisdiction for the predicate offenses actually charged in the
indictment. Id. at 1166–67. Because, as discussed below,
Guam has no comparable jurisdictional statute, Tello does
not help the government here. 16

14
The Majority claims that the difference in the scope of the
California and Guam territorial jurisdiction statutes is the reason that it
addresses, “as a matter of first impression, whether Section 2422(b)
requires the Government to charge a predicate offense and prove here
that Guam would have had jurisdiction over said predicate offense.”
Majority at 28 n.6. But the Majority addresses the wrong question. The
issue presented here is whether, after the grand jury returns an indictment
charging a particular predicate offense, the court can thereafter replace
that charged offense with a different offense. This case is not about the
abstract inquiry of whether a predicate offense need be charged.

15
“Whenever a person, with intent to commit a crime, does any act
within this state in execution or part execution of that intent, which
culminates in the commission of a crime, either within or without this
state, the person is punishable for that crime in this state in the same
manner as if the crime had been committed entirely within this state.”
Cal. Penal Code § 778a(a).

16
The government argues, that Tello supports its position because
the California jurisdictional statute is supposedly similar to 9 GCA
§ 1.16(a)(1). But they are not similar. California’s jurisdictional statute
allows prosecution where a defendant performs an act in furtherance of
his criminal intent within California, whereas Guam’s statute allows
prosecution only if “the conduct which is an element of the offense or
the result which is such an element” occurs off base. The government
cites to nothing in the record to demonstrate that any element of the
substantive predicate offense—penetration involving a child under
fourteen—was contemplated to occur off-base. Instead, it argues that
“Lopez engaged in substantial steps toward the commission of the
 UNITED STATES V. LOPEZ 59

The Majority’s reliance on United States v. Shill,
740 F.3d 1347 (9th Cir. 2014), is similarly unavailing.
There, we considered only whether § 2422(b) “should be
construed narrowly to preclude prosecution where the
predicate ‘criminal offense’ is a misdemeanor under state
law.” Id. at 1349. We relied on § 2422(b)’s use of the term
“any” in the clause “any sexual activity for which any person
can be charged with a criminal offense” to hold that there
was no textual basis to “exclude misdemeanor conduct from
the statute’s ambit.” Id. at 1354. We said nothing, for
example, about whether having charged a particular
predicate misdemeanor, the government could prove an
entirely different predicate misdemeanor. And the Majority
cites no case where any court has even addressed the
question of whether the government can charge a particular
predicate crime but prove an uncharged predicate crime (and
I have found no such case). Instead, the Majority attempts
to use inapposite cases to reach the conclusion that “Section
2422(b) does not require the Government to allege a specific
predicate offense or to prove that the relevant court would

§ 2422 offense from off-base.” Lopez indeed took substantial steps off-
base, but that is irrelevant under 9 GCA § 1.16(a)(1). As Lopez correctly
argues in his Reply Brief:

Here, the emails Lopez sent to “Brit” constituted an
element of the attempted enticement charge, but not of
the object offense of Guam’s First Degree Criminal
Sexual Conduct. That statute criminalizes “sexual
penetration” where “the victim is under fourteen (14)
years of age.” 9 GCA § 25.15(a)(1). There is no
evidence Lopez attempted to entice “Brit” to commit
any element of this offense within Guam’s territory;
instead, as the Government agrees, to the exten[t]
Lopez attempted to entice “Brit” to engage in sexual
activity, that sexual activity would have occurred on
the federal base, out of the reach of Guam’s laws.
60 UNITED STATES V. LOPEZ

have had jurisdiction over the defendant for the commission
of such offense.” Majority at 29.

Because the Majority asks the wrong question, its answer
to that question is irrelevant. The right question is: Can a
court amend the indictment returned by the grand jury to
excise the charged predicate offense and substitute a
different predicate offense. And the correct answer to that
question is “no.”

The Majority tries to avoid this by wrongly holding that
this case “involves, at most, a variance in which the charging
terms of the indictment are left unaltered, but the evidence
offered at trial proves facts materially different from those
alleged in the indictment.” Majority at 40 (quotation marks
omitted) (quoting Ward, 747 F.3d at 1189). But how have
the charging terms been left unaltered? As I wrote at the
beginning of my dissent, the indictment returned by the
grand jury charged Lopez with attempting to “entice[] a
person who the defendant believed to be under eighteen
years of age[] to engage in sexual activity for which a person
can be charged with a criminal offense, to wit: First Degree
Criminal Sexual Conduct, in violation of 9 GCA
§ 25.15(a)(1).” This is a predicate offense Lopez did not
commit. The indictment, as amended by the Majority, now
charges a different predicate offense. And this amendment
not only changes the charging terms of the indictment, but
changes them materially, as Lopez did not commit the
offense with which he was actually charged. See United
States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984) (“An
amendment of the indictment 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.” (quoting United States v. Cusmano,
 UNITED STATES V. LOPEZ 61

659 F.2d 714, 718 (6th Cir. 1981))). 17 Where an indictment
is constructively amended and a conviction is based on the
newly amended indictment, that conviction must be
reversed. 18 See Ward, 747 F.3d at 1189.

This case does not involve an insignificant or harmless
“variance.” United States v. Bolzer, 556 F.2d 948 (9th Cir.
1977), is an instructive variance case. There, the defendants,
17
The government does not make the argument that no predicate
offense need be specified in the indictment. And here, the indictment
did so specify, and it specified a crime for which the defendant could not
be convicted. So it is unnecessary to determine whether the government
could have omitted the predicate offense (though I note that the
indictment here and the indictments in all but one of the Ninth Circuit
cases cited by the Majority do list predicate offenses). But even if the
Majority is correct, a court would likely order, on motion, a bill of
particulars specifying the possible predicate offenses given that a
defendant is “entitled to know . . . the theory of the government’s case.”
United States v. Ryland, 806 F.2d 941, 942 (9th Cir. 1986) (emphasis
omitted); see Fed. R. Crim. P. 7(f); see also United States v. Mannava,
565 F.3d 412, 414 (7th Cir. 2009) (illustrating how the government
responded to the defendant’s motion for a bill of particulars by
specifying the predicate offenses). And in such a case, we would
certainly not allow a post-trial amendment of the bill to completely
change the specified predicate offense or offenses, as it would run
contrary to the bill’s functions. See United States v. Giese, 597 F.2d
1170, 1180 (9th Cir. 1979) (noting that two functions of the bill of
particulars are “to inform the defendant of the nature of the charge[s]
against him with sufficient precision to enable him to prepare for trial
[and] to avoid or minimize the danger of surprise at the time of trial”
(citation omitted)).

18
The Majority states that “[w]hether the behavior in which Lopez
engaged could have been charged under one Guam offense or another is
irrelevant to the culpability of his conduct.” Majority at 38. I agree.
However, in our criminal justice system, even the most “culpable”
defendants are not convicted based on what the government could have
charged; they are convicted based only on what the government did
charge.
62 UNITED STATES V. LOPEZ

who were charged with armed mail robbery and conspiracy,
argued that the conspiracy count should have been dismissed
because of a fatal variance. Id. at 949. The evidence
demonstrated that the defendants had been surveilling a
different postal facility than the one described in the
indictment. Id. at 950. Because the surveillance was “only
one of four overt acts alleged to have been committed by the
defendants in furtherance of the conspiracy,” and because
the government presented sufficient evidence of the other
overt acts, we held that the variance was harmless. Id. at
950–51. Unlike here, the charging terms in the Bolzer
indictment remained unaltered.

The variance cases the Majority cites are inapposite. In
United States v. Antonakeas, 255 F.3d 714 (9th Cir. 2001),
the defendant claimed that the trial court constructively
amended the indictment in response to a jury question. Id.
at 718–19. The indictment charged conspiracy to distribute
cocaine in Hawaii. Id. at 718. The court instructed the jury
that it could find the defendant guilty even if the defendant
did not have knowledge that the drugs would ultimately be
sold in Hawaii. Id. We first noted that “[a]n indictment is
amended when it is so altered as to charge a different offense
from that found by the grand jury.” Id. at 721 (quoting
United States v. Miller, 471 U.S. 130, 144–45 (1985)). We
also quoted Miller’s reasoning that the key is whether “the
proof” on which the conviction is based “corresponds to an
offense that was clearly set out in the indictment.” Id.
(quoting Miller, 471 U.S. at 136). We reasoned both that the
supposed removal of the Hawaii nexus was in no way
essential to the conspiracy offense on which the jury
convicted the defendant (indeed the jury was correctly
instructed as to the actual elements of conspiracy, id. at 718),
and that the government did connect the defendant to a
Hawaii conspiracy. Id. at 722. This case bears no
 UNITED STATES V. LOPEZ 63

resemblance to ours, where the Majority is post-hoc
amending the predicate offense charged in the indictment
(and post-hoc finding sufficient evidence to support its
amendment). Indeed, the Majority is doing just what Miller
says a court cannot do—amending the indictment to charge
a different offense from that found by the grand jury.
471 U.S. at 142–43.

United States v. D’Amelio, 683 F.3d 412 (2d Cir. 2012),
is also not “on all fours with this case.” See Majority at 39.
D’Amelio was a § 2422(b) case in which the government was
permitted to introduce evidence at trial that the defendant
used the internet and telephone conversations to
communicate with the supposed underage victim, even
though the indictment referred only to the internet as a means
of communication. 683 F.3d at 414–15.

The government’s proof at trial did not
modify an “essential element” of the alleged
crime. The essential element at issue is
D’Amelio’s use of a “facility or means of
interstate . . . commerce,” 18 U.S.C.
§ 2422(b), not the particular means that were
used. Neither the indictment nor proof at trial
showed that D’Amelio committed this crime
by means of, for example, use of force, which
would have modified an “essential element”
of the crime. Whether D’Amelio used the
Internet or a telephone makes no difference
under the relevant statute . . . .

Id. at 422 (first alteration in original) (footnote omitted).

The example provided by the Second Circuit of what
would be improper—changing “use of a ‘facility or means
64 UNITED STATES V. LOPEZ

of interstate . . . commerce’” to “use of force”—is precisely
what the Majority has done here.

I agree with the Majority that § 2422(b) allows for a wide
range of offenses to serve as predicate offenses. See
Majority at 24–25. This, however, allows the government a
wide range of choices to present to the grand jury. And
perhaps it allows the government to take the substantial risk
of not specifying a predicate offense. 19 But after the grand
jury has returned an indictment listing a predicate offense or
offenses; absent a superseding indictment, the government is
bound by the indictment the grand jury returned.

The Majority labels the predicate offense returned by the
grand jury “[g]ratuitous language,” and insists that it is
“mere surplusage,” Majority at 34, despite the fact that the
government has never made this argument—not before the
district court, not in its briefs, and not at oral argument. The
Majority is incorrect. Surplusage is language that “goes
beyond alleging elements of the crime.” United States v.
Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986). 20

19
The Majority states that the holdings of the Sixth and Eleventh
Circuits are that “Section 2422(b) does not require proof that the
defendant could have been prosecuted under a particular law so long as
the jury may reasonably conclude the defendant’s communications
proposed a criminal sexual act.” Majority at 29 n.7. But I have found
no case (and the Majority cites none) in which an indictment has charged
a specific predicate offense or offenses, the government claims to have
proved a completely different predicate offense, and the court upholds
the conviction.
20
A court, for example, can exercise its discretion to strike
surplusage “to protect a defendant against prejudicial or inflammatory
allegations that are neither relevant nor material to the charges.” United
 UNITED STATES V. LOPEZ 65

Section 2422(b) states that “[w]hoever, using . . . any . . .
means of interstate or foreign commerce . . . knowingly
persuades, induces, entices, or coerces any individual who
has not attained the age of 18 years, to engage in prostitution
or any sexual activity for which any person can be charged
with a criminal offense, or attempts to do so” is guilty of a
crime. Thus, “any sexual activity for which any person can
be charged with a criminal offense” is an essential element
of § 2422(b). See Jenkins, 785 F.2d at 1392. The
government’s specification of “First Degree Criminal
Sexual Conduct, in violation of 9 GCA § 25.15(a)(1)” in the
indictment gives meaning to this essential element and is
therefore both relevant and material to the charged offense.
Cf. United States v. Terrigno, 838 F.2d 371, 373 (9th Cir.
1988).

United States v. Garcia-Paz, 282 F.3d 1212 (9th Cir.
2002), on which the Majority relies, is inapposite. The
defendant was charged with violating 18 U.S.C. § 545—
“fraudulently or knowingly import[ing] or bring[ing] into
the United States, any merchandise contrary to law.”
Garcia-Paz, 282 F.3d at 1217. The indictment alleged that
Garcia-Paz “did knowingly import and bring into the United
States certain merchandise, to wit, marijuana, contrary to
law.” Id. at 1215. Garcia-Paz was an emergency medical
technician and translator in an ambulance that brought both
a critically ill patient and approximately 1,000 pounds of
marijuana into California from Mexico. Id. at 1213. Garcia-
Paz’s defense was that while he knew he was being paid to
illegally transport “medicine” across the border, he didn’t
know the ambulance had marijuana. Id. He requested a jury
instruction that would have required the jury to find that he

States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988) (quotation marks
and citation omitted).
66 UNITED STATES V. LOPEZ

knowingly imported marijuana (as opposed to merchandise)
in order to convict. Id. at 1215. The district court refused
the instruction, and we affirmed. Id. at 1215–17. We found
that a plain reading of the indictment showed “that the phrase
‘to wit’ did not “speak to Garcia-Paz’s knowledge, but rather
was there to inform the jury what ‘merchandise’ the
government would prove was smuggled.” Id. at 1215. Thus,
the government had to prove that Garcia-Paz knowingly
smuggled something that qualified as merchandise under the
statute (marijuana so qualified), and separately had to prove
that the merchandise was actually transported across the
border. Id. at 1217. “Consequently, the removal of the
reference to marijuana from the jury instruction did not alter
the charge against Garcia-Paz.” Id. at 1216 (emphasis
added).

The issue in the case was whether the “knowingly”
element extended to the marijuana, i.e., whether the
indictment “allege[d] that Garcia-Paz had knowledge of the
marijuana” such that relieving the government of proving
knowledge of marijuana, as opposed to knowledge of
merchandise, would alter the indictment. Id. at 1215–16.
We held it did not.

Garcia-Paz is a far cry from this case, including because
“any sexual activity for which any person can be charged
with a criminal offense” is an element that requires statutes
to give it meaning. And the possible predicate offenses have
different elements and require different facts to prove those
elements, which facts would need to be presented to the
grand jury. 21

21
Garcia-Paz also differs from this case because here the jury was
specifically instructed that the government must prove beyond a
 UNITED STATES V. LOPEZ 67

This case is more akin to Howard v. Daggett, 526 F.2d
1388 (9th Cir. 1975) (per curiam), where we held that an
indictment for the promotion of prostitution that listed the
names of two specific women who had been induced to
engage in prostitution could not be altered by jury
instructions to allow for a conviction regarding other
women. Id. at 1390. We explained:

The grand jury might have indicted appellant
in a general allegation, without specifying the
women to whom his alleged illegal acts or
purposes related. But it did not do so. To
allow the jury to consider the evidence
respecting the other alleged prostitutes was to
allow the jury to convict of a charge not
brought by the grand jury. The supplemental
instruction constituted an impermissible
amendment of the indictment that destroyed
the defendant’s substantial right to be tried
only on charges presented in an indictment
returned by a grand jury.

Id. (quotation marks and citation omitted). 22

reasonable doubt a predicate crime that Lopez did not commit, that is,
“First Degree Criminal Sexual Conduct, in violation of 9 Guam Code
Annotated Section 25.15(a)(1).”

22
Howard makes clear that the Majority’s claim that “[b]ecause
Section 2422(b) does not contain a predicate offense requirement, . . . the
indictment’s citation to Guam’s First Degree Criminal Sexual Conduct
statute was mere surplusage” is incorrect. Majority at 34. The statute
need not require that a predicate offense be listed in order for the
government to be held to what is actually charged by the grand jury. In
addition, the Majority’s claim that Lopez “perpetuated” the complexity
68 UNITED STATES V. LOPEZ

Permitting Lopez’s conviction to stand on a predicate
offense not charged in the indictment permits the very thing
we prohibited in Howard as violative of the Fifth
Amendment.

B.

Having first addressed arguments the government never
makes, I now move to arguments that the government does
make—first, that Guam could have prosecuted a violation of
9 GCA § 25.15(a)(1) here, 23 and second, that “[t]he Guam
Offense was properly assimilated.” 24 The indictment listed
9 GCA § 25.15(a)(1) 25 as the predicate offense for the

of this case by “failing to seek a bill of particulars” makes no sense.
Majority at 35. Since the grand jury specified a particular predicate
offense, Lopez had no need to ask a question that the grand jury had
already answered.

23
The Majority never addresses this argument; it states only that
Guam could have prosecuted Lopez for the attempt offense discussed
above: “Guam could have prosecuted an individual in Lopez’s position
for an attempt to engage in sexual penetration of a minor based on
substantial steps taken within the Territory.” Majority at 33.

The Majority sidesteps the government’s assimilation argument:
24

“Because Guam could have prosecuted a person in Lopez’s position for
attempted sexual penetration of a minor, we need not decide whether the
Guam offense cited in the indictment could have been assimilated into
and prosecuted under federal law.” Majority at 36 n.13.
25
“A person is guilty of criminal sexual conduct in the first degree
if he or she engages in sexual penetration with the victim and . . . the
victim is under fourteen (14) years of age . . . .” 9 GCA § 25.15(a)(1).
For purposes of this statute, “[s]exual [p]enetration means sexual
intercourse, cunnilingus, fellatio, anal intercourse or any other intrusion,
however slight, of any part of a person’s body or of any object into the
genital or anal openings of another person’s body, but emission of semen
is not required.” Id. § 25.10(a)(9).
 UNITED STATES V. LOPEZ 69

§ 2422(b) violation. This offense could properly serve as the
predicate offense only if either Guam had the authority to
prosecute the completed offense or, if not, the offense can be
assimilated under the ACA.

As the Majority correctly states, “[i]t is undisputed that
Guam would have lacked jurisdiction to prosecute an offense
taking place exclusively within AAFB territory.” Majority
at 33. It is also undisputed that the planned completed
offense of sexual penetration would have occurred on
AAFB. 26 With some exceptions that do not apply, Guam
allows prosecution only for “conduct which is an element of
the offense or the result which is such an element [if it]
occurs within [its] Territory.” 9 GCA § 1.16(a)(1). Thus,
Guam would have had no jurisdiction over the planned
predicate offense charged here. While I have found no cases
interpreting this Guam provision, other states have
interpreted their own jurisdictional provisions, and those
cases offer some guidance here.

In Arizona, there is territorial jurisdiction to prosecute an
offense “when the ‘effect’ or ‘result’ of such crime occurs in
[the state].” State v. Flores, 188 P.3d 706, 713 (Ariz. Ct.

26
Lopez asked to meet “Brit” on four separate occasions
at different locations within AAFB. The first and
second invitation involved proposed meetings at the
Base Exchange and at an on-base Burger King, neither
of which materialized. Lopez then proposed meeting
“Brit” at the on-base library. Lopez appeared at the
library, waited for some time, and left when “Brit”
failed to arrive. Finally, Lopez arranged to meet “Brit”
at her supposed on-base residence. [Air Force Office
of Special Investigations] agents arrested Lopez when
he arrived at the agreed-upon location.

Majority at 6–7.
70 UNITED STATES V. LOPEZ

App. 2008) (noting that if the defendant’s “conduct had a
direct effect in Arizona, Arizona can assert jurisdiction”). 27
Because the defendant’s criminal activity in Flores
“intended to and did direct harm within Arizona,”—the
defendant “sought and obtained illegal entry into Arizona,
and he subsequently was illegally transported and present
within th[e] state”—Arizona could validly exercise
territorial jurisdiction. Id. at 714; see also State v. Meyers,
825 P.2d 1062, 1064–65 (Haw. 1992) (finding it proper to
exercise jurisdiction over a threatening call made from
California to Hawaii because “a telephone call constitutes
conduct in the jurisdiction in which the call is received”). 28

In addition, in interpreting jurisdictional provisions like
Guam’s, states have held that there is no territorial
jurisdiction where no element of the crime is committed
within the state. See, e.g., State v. Sumulikoski, 110 A.3d
856, 864 (N.J. 2015) (per curiam) (holding that the state
lacked jurisdiction to prosecute the offense where all
conduct that constituted elements of the offense occurred
outside the state and further holding that “status or ‘attendant
circumstances’ cannot provide a basis for jurisdiction”); 29
State v. Wagner, 596 N.W.2d 83, 87 (Iowa 1999) (finding
that Iowa could not exercise territorial jurisdiction over a

27
Arizona authorizes prosecution for “[c]onduct constituting any
element of the offense or a result of such conduct [if it] occurs within
[the] state.” Ariz. Rev. Stat. Ann. § 13-108(A)(1).

28
Hawaii authorizes prosecution for “conduct or the result [of
conduct] which is an element of the offense [if it] occurs within [the]
State.” Haw. Rev. Stat. § 701-106(1)(a).
29
New Jersey authorizes prosecution for “conduct which is an
element of the offense or the result which is such an element [if it] occurs
within this State.” N.J. Rev. Stat. § 2C:1–3(a)(1).
 UNITED STATES V. LOPEZ 71

convict’s escape from custody in another state despite the
convict having been originally prosecuted in Iowa and
housed at the Iowa State Penitentiary because that was not
an element of the escape offense). 30

Here, neither the effects nor the result of the charged
predicate offense could support Guam’s territorial
jurisdiction over that offense because there is no evidence
that Lopez attempted to meet “Brit” other than on base, or
that penetration was even contemplated at an off-base
location. That Lopez initiated communications off base does
not mean that Guam could have prosecuted a crime that
would clearly have occurred only on base. 31

Furthermore, Lopez did not engage in (or even
contemplate) conduct off-base that could constitute one or
more elements of First Degree Criminal Sexual Conduct, in
violation of 9 GCA § 25.15(a)(1). Guam law requires “the
following relevant elements . . . be met: (1) the person
engages in sexual penetration with the victim, and (2) the
victim is under fourteen (14) years of age.” Guam v.
Campbell, 2006 Guam 14 ¶ 37. Because no sexual
penetration occurred here (or was contemplated to occur off
base), none of the elements of this charged predicate offense
occurred off base (or were contemplated to occur off base).
Thus, Guam would have had no territorial jurisdiction over

30
Iowa authorizes prosecution if “conduct which is an element of
the offense, or a result which constitutes an element of the offense,
occurs within this state.” Iowa Code § 803.1(2).
31
Because again, the predicate crime the indictment specified was
not solicitation of a minor, it was penetration of a minor.
72 UNITED STATES V. LOPEZ

the charged predicate offense. 32 In that way, this case is akin
to Sumulikoski and Wagner.

Because Guam could never have prosecuted Lopez for a
violation of 9 GCA § 25.15(a)(1), it is necessary to address
whether that provision is assimilated under the ACA. If
assimilated, then there is no defect in the indictment or
mismatch between the indictment and the evidence. Lopez
(despite his claims to the contrary) was communicating with
someone he believed to be under the age of fourteen. Lopez
was trying to entice this person into an act involving sexual
penetration on-base, a place within the Special Maritime and
Territorial Jurisdiction of the United States. Thus, if 9 GCA
§ 25.15(a)(1) is assimilated, we must reject Lopez’s
sufficiency argument.

To determine whether the charged Guam offense is
assimilated under the ACA, we ask two questions. First,
“[i]s the defendant’s ‘act or omission . . . made punishable
by any enactment of Congress[?]’” Lewis v. United States,
523 U.S. 155, 164 (1998) (alteration in original) (emphasis
omitted) (quoting 18 U.S.C. § 13(a)). If the answer to this
question is “no,” the statute will be assimilated. See id.
Second, “[i]f the answer to [the first question] is ‘yes,’ . . .
the court must ask . . . whether the federal statutes that apply
to the ‘act or omission’ preclude application of the state law
in question.” Id. Here, courts are concerned with whether
the state law’s application “would interfere with the
achievement of a federal policy,” whether it “would
effectively rewrite an offense definition that Congress
carefully considered,” or whether the federal statutes

32
The Majority appropriately concedes this point. Majority at 28
n.6.
 UNITED STATES V. LOPEZ 73

“occupy so much of a field as would exclude use of the
particular state statute at issue.” Id.

With respect to the first inquiry, the government
concedes that conduct punishable under 9 GCA
§ 25.15(a)(1) is also punishable under the federal sexual
abuse of a minor statute, 18 U.S.C. § 2243(a). 33 With
respect to the second inquiry, the Supreme Court has said
that “it seems fairly obvious that the [ACA] will not apply
where both state and federal statutes seek to punish
approximately the same wrongful behavior.” Lewis, 523
U.S. at 165. Assimilation will generally be improper “where
differences amount only to those of name, definitional
language, or punishment.” Id.

Here, as Lopez points out, Guam and the federal
government sought to “punish approximately the same
wrongful behavior, [thus] counseling against application of
the . . . [Guam] statute through the ACA.” United States v.
Rocha, 598 F.3d 1144, 1150 (9th Cir. 2010). Both statutes
target the sexual penetration of minors, and application of
both the Guam statute and the federal sexual abuse statutes

33
18 U.S.C. § 2243(a) provides:

Whoever, in the special maritime and territorial
jurisdiction of the United States . . . knowingly
engages in a sexual act with another person who—

(1) has attained the age of 12 years but has not attained
the age of 16 years; and

(2) is at least four years younger than the person so
engaging;

or attempts to do so, shall be fined under this title,
imprisoned not more than 15 years, or both.
74 UNITED STATES V. LOPEZ

“would rewrite distinctions carefully considered by
Congress and would attempt to fill a gap in the federal
enclave law where no gap exists.” 34 United States v. Waites,
198 F.3d 1123, 1129 (9th Cir. 2000). Moreover, much like
in Rocha where we observed that assimilation was improper
because of the comprehensive nature of the assault statutory
scheme at issue, see 598 F.3d at 1149–52, child sex offenses
are also comprehensively covered by federal statutes. This
shows a congressional intent to occupy the field, and thus the
Guam statute cannot be assimilated. 35 We recently reached
a similar conclusion for similar reasons in holding an Oregon
weapon statute (which punished shooting at another person)
was not assimilated notwithstanding greater possible
punishment, because the conduct was also prohibited by the
federal assault statute, and because Congress intended the

34
Guam law punishes “sexual penetration” involving children under
the age of fourteen with a minimum sentence of fifteen years and a
maximum sentence of life imprisonment. See 9 GCA § 25.15(a)(1), (b).
Federal law punishes “sexual acts” with children aged between twelve
and sixteen with a sentence of up to fifteen years, 18 U.S.C. § 2243(a),
and “sexual acts” includes those acts that constitute penetration under
Guam law, 18 U.S.C. § 2246(2). Section 2241(c) imposes terms of life
imprisonment or imprisonment for thirty years to life when the “sexual
acts” are accompanied by force, threat of serious bodily injury or death,
or use of drugs rendering the victim unconscious, or when the victim is
under twelve years. 18 U.S.C. § 2241(c). But Lewis dictates that
distinctions in punishment don’t trigger assimilation, 523 U.S. at 165,
and here, Congress clearly considered the circumstances that warrant
higher punishment.

35
I have not been able to find a single case in which a child sex
offense has been charged as an assimilated crime. And, at oral argument,
the government’s attorney conceded that she was not familiar with any
child sex offense being prosecuted under the ACA. Oral Arg. at 23:55.
 UNITED STATES V. LOPEZ 75

federal statute to occupy the field. See United States v. Do,
994 F.3d 1096, 1100–02 (9th Cir. 2021). 36

II.

Because Lopez did not raise this particular sufficiency
challenge below, I agree with the Majority that we review
for plain error. But “plain-error review of a sufficiency-of-
the-evidence claim is only ‘theoretically more stringent’
than the standard for a preserved claim.” United States v.
Flyer, 633 F.3d 911, 917 (9th Cir. 2011) (citation omitted).37
“We say ‘theoretically’ because, while plain-error review
appears more stringent in theory, it is hard to comprehend
how a standard can be any more stringent in actuality than
that ordinarily applied to sufficiency-of-the-evidence
challenges.” United States v. Cruz, 554 F.3d 840, 844 (9th
Cir. 2009).

“Plain error is (1) error, (2) that is plain, and (3) that
affects substantial rights. If all three conditions are met, we
may then exercise our discretion to notice a forfeited error,

36
Lopez argues in the alternative that he is entitled to a new trial on
Count 1 because the jury instructions never informed the jury of the
actual elements of 9 GCA § 25.15(a)(1). Lopez never raised this claim
below, and affirmatively agreed to the instructions that were given,
though as the Majority notes, the government doesn’t argue waiver. See
Majority at 42 n.14. I do not need to reach this issue because of the error
I find did occur, but I note that the Majority correctly states that “the
district court should have instructed the jury on the applicable ‘laws of
Guam.’” Majority at 42.

37
“[I]t is difficult to imagine just what consequences flow from [the]
application of the plain error standard or to envision a case in which the
result would be different because of the application of one rather than
the other of the standards.” United States v. Cruz, 554 F.3d 840, 845
(9th Cir. 2009) (citation and alterations omitted).
76 UNITED STATES V. LOPEZ

but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015)
(quotation marks, alterations, and citation omitted).

The district court erred because First Degree Criminal
Sexual Conduct cannot serve as the predicate offense for the
reasons discussed above. Therefore, prong one is met.

As to prong two, the error need only be “clear” or
“obvious.” United States v. Olano, 507 U.S. 725, 734
(1993). Because binding case law is consistent and clear that
the government is limited to charges listed in the indictment,
see Ward, 747 F.3d at 1189, and because the indictment does
not state a crime that Lopez could have been convicted of in
the circumstances here, I believe the error is both clear and
obvious. Cf. Cruz, 554 F.3d at 851 (finding an error clear
and obvious where the government failed to show sufficient
evidence of one of the essential elements of the offense).
Indeed, as in Cruz, “no rational trier of fact could have found
that the government proved” the offense charged in the
indictment. See id.

It is also noteworthy that “we have expressed our
reluctance, regardless of the standard of review, to affirm a
conviction and send a defendant to prison . . . if the record
clearly showed that the evidence was insufficient.” United
States v. Garcia-Guizar, 160 F.3d 511, 517 (9th Cir. 1998)
(quotation marks and citation omitted). Here, Lopez stands
convicted of the crime with which he was charged by the
grand jury, but the evidence was insufficient to convict him
of that crime. Indeed, given the undisputed facts, the
evidence could never have been sufficient.

“When a conviction is predicated on insufficient
evidence, the last two prongs of the [plain-error] test will
 UNITED STATES V. LOPEZ 77

necessarily be satisfied . . . .” Cruz, 554 F.3d at 845. “A
defendant’s ‘substantial rights,’ as well as the ‘fairness’ and
‘integrity’ of the courts, are seriously affected when
someone is sent to jail for a crime that, as a matter of law, he
did not commit.” Id.

III.

The grand jury dates to the Assizes of Clarendon in 1166.
Hurtado v. California, 110 U.S. 516, 529 (1884).

The grand jury is an integral part of our
constitutional heritage which was brought to
this country with the common law. The
Framers, most of them trained in the English
law and traditions, accepted the grand jury as
a basic guarantee of individual liberty;
notwithstanding periodic criticism, much of
which is superficial, overlooking relevant
history, the grand jury continues to function
as a barrier to reckless or unfounded charges.
Its adoption in our Constitution as the sole
method for preferring charges in serious
criminal cases shows the high place it held as
an instrument of justice. Its historic office
has been to provide a shield against arbitrary
or oppressive action, by [e]nsuring that
serious criminal accusations will be brought
only upon the considered judgment of a
representative body of citizens acting under
oath and under judicial instruction and
guidance.

United States v. Mandujano, 425 U.S. 564, 571 (1976)
(quotation marks and citation omitted).
78 UNITED STATES V. LOPEZ

In our criminal justice system, “[t]he Fifth Amendment’s
grand jury requirement establishes the ‘substantial right to
be tried only on charges presented in an indictment returned
by a grand jury.’” Antonakeas, 255 F.3d at 721 (quoting
United States v. Miller, 471 U.S. 130, 140 (1985)). It is
entirely within the government’s control as to the charges in
the indictment it presents to the grand jury for its
consideration. The government made its choice here and did
not prove the offense the grand jury charged. While the
Majority’s substantive analysis of the defendant’s conduct
under Guam law is incorrect, that is not its gravest error. In
contravention of the Constitution, it has taken on the role of
the prosecutor (in its charging decision) and the grand jury
(in performing its mandatory role under the Fifth
Amendment). I therefore respectfully dissent.