Reported / Citable
Background
Desnique Deshawn Herndon organized and led a prostitution ring involving girls as young as 13, 15, and 16. A jury convicted him of six counts of sex trafficking children under 18 U.S.C. § 1591(a) and one count of conspiracy to traffic children for sex under 18 U.S.C. § 1594(c). He received a life sentence.
The indictment alleged that Herndon knew or recklessly disregarded that the victims were minors. It did not invoke § 1591(c), under which the government need not prove knowledge or reckless disregard of age if the defendant had a reasonable opportunity to observe the victim. At trial, however, the court instructed the jury that it could convict under either theory. Herndon did not object, so the Fifth Circuit reviewed the constructive amendment of the indictment for plain error.
The Court’s Holding
The Fifth Circuit affirmed. The parties agreed that including the “reasonable opportunity to observe” theory in the instructions plainly and constructively amended the indictment, but the court held that the error did not affect Herndon’s substantial rights. The government had repeatedly disclosed its intent to rely on § 1591(c), beginning 18 months before trial, and Herndon had numerous opportunities to object.
The court also concluded that the trial evidence supported findings that Herndon knew or recklessly disregarded each victim’s minority. Evidence included his failure to verify ages, instructions to victims to lie about their ages or dress to look older, victims’ disclosures to him, and his own statements showing knowledge of particular victims’ ages. Because the evidence supported conviction under the mental-state theory actually charged, the instructional error was not prejudicial.
Even if the requirements for plain-error relief had otherwise been met, the court held that discretionary reversal was unwarranted. Given the substantial evidence against Herndon, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.
Key Takeaways
- A jury instruction constructively amends an indictment when it supplies an alternative basis for criminal liability that the indictment did not allege.
- An unpreserved constructive-amendment claim does not justify reversal unless the defendant shows that the plain error affected substantial rights.
- Extensive advance notice and strong evidence supporting the theory actually charged can defeat a claim of prejudice and weigh against discretionary plain-error relief.
Why It Matters
The decision illustrates that a constructive amendment is not automatically reversible when the defendant failed to object at trial. On plain-error review, the defendant must establish prejudice, and an appellate court retains discretion to leave the conviction intact when the evidence supporting the charged offense is substantial.
For trial counsel, the opinion underscores the importance of comparing proposed jury instructions with the indictment and promptly objecting when an instruction introduces an uncharged statutory theory.