Fifth Circuit Finds IAC for Failure to Object to Court’s Jury Instructions that Constructively Amended Indictment by Lowering Government’s Burden of Proof
The U.S. Court of Appeals for the Fifth Circuit ruled on March 31, 2020, that the district court’s constructive amendment to an indictment that allowed the Government to prove its case with an alternative, lower standard constituted ineffective assistance of counsel (“IAC”) where trial counsel failed to object to the error.
The Tagged.com profile said she was 18, so Brian Phea made arrangements for the teen to come to Texas and engage in prostitution. He was charged with the prostitution of a minor — because the girl, K.R., was actually 14. Count one of the indictment charged Phea “knowingly recruited ... Jane Doe knowing that Jane Doe had not attained the age of 18 years and that Jane Doe would be caused to engage in a commercial sex act.” 18 U.S.C. § 1591(a). Count two charged aiding and abetting the promotion of a business enterprise involving prostitution.
Phea took his case to trial, where the district court gave this jury instruction: “If the government proves beyond a reasonable doubt that the defendant had a reasonable opportunity to observe the person recruited ... then the government does not have to prove that the defendant knew that the person had not attained the age of eighteen (18) years.”
Phea’s lawyer never objected to this instruction.
The jury convicted Phea of both counts, and he was sentenced to a total of 26 years in federal prison without parole and 25 years of supervised release. He appealed, arguing that the district court’s jury instruction was really a constructive amendment to the indictment because it allowed the Government to prove the “knowing” element with a lower burden of proof. But because Phea’s trial lawyer didn’t object to the jury instruction, review on appeal was limited to only plain error. The Fifth Circuit concluded that because no controlling case law in the circuit existed on whether § 1591 allows a conviction “based solely on finding that the defendant had a reasonable opportunity to observe the victim,” the error “could not have been plain.” The Court affirmed Phea’s conviction, and the Supreme Court denied certiorari.
Phea then filed a pro se motion to vacate his conviction under 28 U.S.C. § 2255, claiming ineffective assistance of counsel (“IAC”) based on trial counsel’s failure to object to the district court’s jury instruction that constructively amended the charge in the indictment. To prove IAC, Phea had to show (1) “counsel’s representation fell below an objective standard of reasonableness” and (2) “any such deficiency was prejudicial to the defense” — the familiar standard under Strickland v. Washington, 466 U.S. 668 (1984).
A constructive amendment to an indictment occurs when the trial court, through its instructions to the jury, allows proof of an essential element of the crime on an alternative basis provided by the statute that was not charged in the indictment. That’s what happened here. While § 1591(c) does allow the Government to prove a defendant knew the victim’s age if “the defendant had a reasonable opportunity to observe the person,” that was not what the indictment charged in Phea’s case.
Was trial counsel ineffective if circuit precedent didn’t directly address the error? The Fifth Circuit said counsel was. “The absence of directly controlling precedent does not preclude a finding of deficient performance,” the Court said, citing one of its decisions that found IAC “for failing to raise a defense not previously considered by this Court” when the defense would have been “plausible.” The Court also noted that it had previously held in a different context that a district court’s altering of the “knowing” element of an offense “plainly modified as essential element of the charged offense.”
Counsel’s failure to object prejudiced Phea, the Court said, because there was a “reasonable probability the jury would have had reasonable doubt that Phea knew K.R. was under 18.” The Court cited at least six facts that supported the jury would have had reasonable doubt: (1) K.R.’s online profile said she was 18; (2) K.R. testified at trial Phea thought she was 18, and she only told him she wasn’t after the offense; (3) Phea testified at trial K.R. told him she was 18 and was a stripper; (4) transcripts of the Tagged.com messages made no mention of her age; (5) K.R. originally told law enforcement she was 19; and (6) her apparent “autonomy and willingness/ability to engage in adult activities” supported an inference she was over 18.
All of this “undermines our confidence in the outcome of the verdict,” the Court concluded.
Accordingly, the Court itself vacated Phea’s conviction on count one and remanded to the district court. See: United States v. Phea, 953 F.3d 838 (5th Cir. 2020).
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