United States Court of Appeals
For the First Circuit
No. 09-2549
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE M. RODRÍGUEZ-RODRÍGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Stahl and Howard,
Circuit Judges.
Chauncey B. Wood, with whom Wood & Nathanson, LLP was on
brief, for appellant.
Jenifer Y. Hernandez-Vega, Assistant United States Attorney,
with whom Rosa Emilia Rodriguez-Velez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division and Luke Cass, Assistant United States Attorney,
were on brief, for appellee.
December 13, 2011
HOWARD, Circuit Judge. After a four-day trial, a jury in
the District of Puerto Rico convicted Jose Rodríguez-Rodríguez of
using an interstate commerce facility or means in attempting to
persuade a minor to engage in illegal sexual activity, in violation
of 18 U.S.C. § 2422(b).1 He presses two arguments in support of
his appellate claims that the district court erroneously denied his
post-trial motion for judgment of acquittal or for a new trial.
First, he asserts that the indictment actually charged him with
attempting to persuade a minor to engage in sexual activity not
with him, but with another minor, a charge which he says was
unsupported by the evidence. Second, he argues that the district
court constructively amended the indictment in two ways: by
instructing the jury in accordance with the government's theory
that the indictment charged him with attempting to persuade a minor
to have sexual relations with him, and also by instructing the jury
in such a way that he may have been convicted based on uncharged
conduct. Although the indictment is not a model of clarity, we
reject Rodríguez's reading of it, find nothing improper about the
jury instructions, and accordingly affirm his conviction.
1
The statute also proscribes attempts to "induce, entice or
coerce" a minor. As the specific definitions of these words are
not at issue, we use the terms interchangeably throughout this
opinion.
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I.
We set forth the facts in the light most favorable to the
jury's verdict. United States v. Mitchell, 596 F.3d 18, 20 (1st
Cir. 2010). On April 2, 2008, Rodríguez was logged into an on-line
chat room known as "Latin Chat," where he struck up a virtual
"conversation" with a person using the screen name "Patsychula 14"
("Patsy"). Rodríguez soon disclosed that he was a forty-year-old
man, and Patsy identified herself as a fourteen-year-old girl. At
Rodríguez's request, she also described her height, weight and
general appearance. Only a few minutes into the conversation,
Rodríguez steered the subject towards sex. After making numerous
sexually explicit comments and suggestions, Rodríguez asked Patsy
if she would like to have sex, told her where he lived and gave her
his phone number.
The virtual conversation then moved from the chat room to
the more private confines of one-on-one instant messaging, a form
of communication that Rodríguez and Patsy used on roughly a dozen
days between April 2 and May 22, 2008. In addition, Rodríguez and
Patsy spoke by telephone on five occasions during the same
timespan. The conversations revolved around sex, and in
particular, Rodríguez's stated desire to have sex with Patsy. On
May 21, the two agreed to meet two days later at a sandwich shop,
from which Rodríguez would take Patsy to a hotel.
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Unbeknownst to Rodríguez, the person he thought was a
fourteen-year-old girl named Patsy was in fact Agent Christine
Segarra of the FBI's "cyber squad," working undercover to apprehend
online predators.2 Rodríguez was arrested when he arrived at the
sandwich shop.
II.
In February 2009, a grand jury returned a one-count
superceding indictment with the following charge:
From in or about April, 2008, and continuing
through in or about May, 2008, in the District
of Puerto Rico, and within the jurisdiction of
this Court, Jose Rodríguez Rodríguez, the
defendant herein, did use a facility and means
of interstate or foreign commerce to attempt
to knowingly persuade, induce and/or entice an
individual who represented herself to be and
who the defendant believed to be under the age
of eighteen, that is, a fourteen year old
female, to engage in sexual activity, that is,
sexual intercourse with a person less than
sixteen years of age, for which he could be
charged with a criminal offense in Puerto
Rico. All in violation of Title 18, United
States Code, Section 2422(b).
At trial, the government proffered the testimony of
Segarra and another FBI agent, transcripts of the virtual
conversations and recordings of the phone calls, as well as
evidence linking Rodríguez to the phone, email, and instant message
accounts involved in those conversations. Counsel for Rodríguez,
who deferred making an opening statement, did not cross-examine any
2
Segarra testified that she used a voice-altering device in
order to sound younger on the phone.
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of the government's witnesses. At the close of the government's
case, Rodríguez moved for a judgment of acquittal. He argued that
the indictment -- by using the phrase "that is, sexual intercourse
with a person less than 16 years of age" -- charged Rodríguez with
attempting to entice Patsy to have sex with another minor, a charge
for which there was no supporting evidence. After a lengthy
colloquy, the trial court agreed with the government that the
phrase, combined with the subsequent phrase "for which he could be
charged with a criminal offense," alleged that Rodríguez sought to
entice the girl to have sex with him, which would qualify as sexual
assault under Puerto Rico law.3
The defense consisted of testimony from Rodríguez and his
spouse. Two main themes were presented. The first was that,
because of various details and inconsistencies during the
conversations, Rodríguez never actually believed that Patsy was a
fourteen-year-old-girl. Second, both Rodríguez and his wife
testified that he suffered from erectile dysfunction when in the
presence of women, and therefore he could not have intended to
complete the act specified in the indictment.
The trial court instructed the jury that a conviction
would require the jury to find, among other things, that Rodríguez
"attempted to knowingly persuade . . . an individual to engage in
3
See Article 142 of the Puerto Rico Penal Code, P.R. Laws.
Ann. tit. 33, § 4770(a)(2008).
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sexual activity," that he believed the individual to be younger
than sixteen years old, and that if the attempted sexual activity
took place, it would have been a criminal offense in Puerto Rico.
The court also read to the jury the pertinent text of Article 142
of the Puerto Rico Penal Code, which criminalizes "sexual
penetration be it vaginal, anal, oral, digital or instrumental" if
the victim is under sixteen years old. After deliberating for
roughly three hours, the jury convicted Rodríguez.
After his conviction, Rodríguez filed a motion for
judgment of acquittal or for a new trial. See Fed. R. Crim. P.
29(c) and 33. He first argued that the government failed to prove
that he had tried to persuade a minor to have sexual intercourse
with another minor, which is what he alleged that the indictment
charged. He further argued that the court's jury instruction
improperly amended the indictment by broadening the possible bases
for his conviction because the indictment specified "sexual
intercourse," while the jury instruction used the term "sexual
activity" and referenced the Puerto Rico statute's list of various
types of illegal sexual activity. The district court denied
Rodríguez's motion and subsequently sentenced him to 120 months in
prison. This timely appeal followed.
III.
We review the denials of Rodríguez's post-trial motions
de novo. United States v. Rivera-Rodríguez, 617 F.3d 581, 596 (1st
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Cir. 2010). Because both motions depend in large part on the
precise allegations lodged against Rodríguez, we turn first to the
language of the indictment.
The critical language at issue in the indictment is that
Rodríguez attempted to "knowingly persuade . . . an individual . .
. who [he] believed to be . . . a fourteen year old female, to
engage in sexual activity, that is, sexual intercourse with a
person less than sixteen years of age, for which he could be
charged with a criminal offense in Puerto Rico." We reject
Rodríguez's interpretation that he was charged with trying persuade
Patsy to engage in sexual intercourse with another minor. In our
view, the appropriate reading of the paragraph that essentially
begins with "Jose Rodríguez Rodríguez" and ends with "sexual
intercourse with a person less than sixteen years of age, for which
he could be charged with a criminal offense" is that Rodríguez was
charged with persuading Patsy to have sex with him. This
interpretation is consistent with the "rule of the last
antecedent," the hoary canon of construction pursuant to which
qualifying phrases are usually to be applied to the words or phrase
immediately preceding. Coffin v. Bowater, Inc., 501 F.3d 80, 94-95
(1st Cir. 2007) (citing Barnhart v. Thomas, 540 U.S. 20, 26
(2003)); see also United States v. Guild, No. 07cr404 (JCC), 2008
WL 1901724, at *4 (E.D. Va. Apr. 25, 2008) (applying last
antecedent rule in sexual abuse case to define alleged target of
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abuse). Here, the phrase "for which he could be charged" modifies
the immediately preceding phrase, "sexual intercourse with a person
less than sixteen years of age."4 To sum up, we can do no better
than did the district court in denying Rodríguez's motion:
The indictment, fairly read, charges Defendant
with enticing a minor to engage in sexual
activity with him, and not with anyone else.
The last few lines of the indictment simply
clarify what type of sexual activity Defendant
is accused of, rather than, as Defendant
understands it, introducing a new character
(another minor) into the action.
IV.
Rodríguez's other argument is that the district court's
jury instructions impermissibly amended his indictment by
broadening the potential bases for his conviction from "sexual
intercourse" to the larger assortment of sexual activities with a
minor criminalized under Puerto Rico law.5 A constructive
4
Rodríguez also fails to demonstrate that enticing two minors
to engage in sexual intercourse with each other is a crime in
Puerto Rico. In his Rule 29 argument below, Rodríguez pointed to
subsection (g) of Article 142, P.R. Laws. Ann. tit. 33, § 4770(g),
which includes as sexual assault "[i]f the victim is forced or
induced by means of abuse or physical or psychological violence
into participating or becoming involved in unwanted sexual
relations with third parties." First of all, the indictment does
not allege violence or abuse. Second, the indictment does mention
the age of the victim, which is an element of subsection (a), but
not subsection (g).
5
Rodríguez also argues that the indictment was constructively
amended because the jury instructions did not reflect his reading
of the indictment, i.e., that he was charged with trying to induce
Patsy to have sex with another minor. Given our conclusion in
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amendment occurs when the charging terms of an indictment are
effectively altered by the prosecution or court after the grand
jury has last passed upon them. United States v. Brandao, 539 F.3d
44, 57 (1st Cir. 2008). "[A] court cannot permit a defendant to be
tried on charges that are not made in the indictment against him."
Stirone v. United States, 361 U.S. 212, 217 (1960). To do
otherwise would fail "to preserve the defendant's Fifth Amendment
right to indictment by grand jury, to prevent re-prosecution for
the same offense in violation of the Sixth Amendment, and to
protect the defendant's Sixth Amendment right to be informed of the
charges against him." Brandao, 539 F.3d at 57 (citing United
States v. Pierre, 484 F.3d 75, 81 (1st Cir. 2007)). Where, as
here, the objection was preserved below, a finding of constructive
amendment requires reversal. United States v. Bucci, 525 F.3d 116,
131 (1st Cir. 2008).
Rodríguez's brief also makes a somewhat less developed
alternative argument that the jury instruction resulted in a
prejudicial variance, which would also entitle him to reversal. A
variance occurs "'when the charging terms remain unchanged but when
the facts proved at trial are different from those alleged in the
indictment.'" United States v. Fornia-Castillo, 408 F.3d 52, 66
(1st Cir. 2005) (quoting United States v. Fisher, 3 F.3d 456, 463
(1st Cir. 1993)). Unlike the per se prejudice of a constructive
Section III, we reject this claim.
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amendment, a variance is grounds for reversal only if the defendant
has been prejudiced. See id. (observing that as long as "the
statutory violation remains the same, the jury can convict even if
the facts found are somewhat different than those charged -- so
long as the difference does not cause unfair prejudice").6
Here, there was neither constructive amendment of the
indictment nor variance in the proof. The indictment made
reference to "sexual activity" that "violated Puerto Rico law." In
order for the jury to determine whether the government had met its
burden -- i.e., whether it proved that Rodríguez attempted to
entice Patsy and whether the intended sexual activity was illegal
-- it had to be instructed on Puerto Rico law, in this case Article
142. As noted, Article 142 prohibits various forms of sexual
penetration with an individual under age sixteen, including
"vaginal, anal, oral-genital, digital or instrumental." Article
142 thus arguably covers a number of acts in addition to the
6
The doctrines of constructive amendment and prejudicial
variance are related, United States v. Fornia-Castillo, 408 F.3d
52, 66 (1st Cir. 2005), and we have observed that the two "are
closer to a continuum than exclusive categories." United States v.
Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006). "The line between
'the crime charged' and 'the facts charged' is inherently fuzzy."
Id.; Haines v. Risley, 412 F.3d 285, 291 (1st Cir. 2005) ("Save at
either end of the spectrum, it is far from clear what distinguishes
a permissible variance . . . from an impermissible constructive
amendment."); see also, 3 Charles Alan White & Sarah N. Welling,
Federal Practice and Procedure § 516 (4th ed. 2011) ("The
distinction between variances and constructive amendments is a
matter of degree, and the distinction is rather shadowy.")
(footnotes omitted).
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particular proposal made by the defendant, but the statute clearly
includes his alleged conduct. In the absence of a clear-cut
objection and significant risk of prejudice, it is commonplace to
read to the jury a single statutory sequence that criminalizes
various related acts, without excising portions that a jury would
disregard anyway as not directly pertinent. That is what was done
here.7 Accordingly, we conclude that the court's instruction
neither amounts to an amendment of the indictment nor condones a
prejudicial variance in the proof.
V.
Finding no error in the district court's denial of
Rodríguez's post-trial motions, the judgment of conviction is
affirmed.
7
We also note that several leading medical dictionaries
include among their definitions of "sexual intercourse" -- the
specific act included in the indictment -- descriptions fully
consistent with the language of the state law. See e.g., Dorland's
Medical Dictionary 961 (31st ed. 2007) ("any physical contact
between two individuals involving stimulation of the genital organs
of at least one"); Miller-Keane Encyclopedia and Dictionary of
Medicine, Nursing and Allied Health 943 (7th ed. 2003) (same); The
American Heritage Medical Dictionary 749 (Rev. ed. 2007) ("sexual
union between humans involving genital contact other than vaginal
penetration by the penis").
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