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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13831
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN JENKINS,
a.k.a. Rei,
a.k.a. Reithe 8th,
a.k.a. Dani Domo,
a.k.a. Sluttyrose123,
a.k.a. Heiwa7340,
a.k.a. Poetic Justice,
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2 Opinion of the Court 20-13831
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cr-00181-MLB-CMS-1
____________________
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Benjamin Jenkins appeals his convictions and total sentence
for producing and distributing child pornography. He contends
that the district court should have dismissed the charges against
him because the indictment failed to provide sufficient notice of the
charged conduct or to protect against double jeopardy, and that the
court constructively amended the indictment by permitting the
jury to find him guilty based on images that were not necessarily
shown to the grand jury. He also challenges his sentence, arguing
that the district court improperly counted certain uncharged con-
duct as “relevant conduct” under the Sentencing Guidelines. After
careful review, we affirm.
I.
In September 2015, a federal grand jury returned a second
superseding indictment charging Jenkins with nine counts of pro-
duction or attempted production of child pornography, in violation
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20-13831 Opinion of the Court 3
of
18 U.S.C. § 2251(a) and (e) (Counts 1, 2, 4, 5, 7, 8, 9, 10, 12), and
three counts of distribution of child pornography, in violation of
18
U.S.C. § 2252(a)(2) and (b)(1) (Counts 3, 6, 11).
Each of the production counts charged in the indictment
identified a minor victim’s initials, a date or date range when the
offense occurred, and the following language alleging that Jenkins
did knowingly attempt to, and did knowingly, em-
ploy, use, persuade, induce, entice, and coerce a mi-
nor female, [minor’s initials], to engage in sexually ex-
plicit conduct for the purpose of producing a visual
depiction of such conduct, knowing and having rea-
son to know that said visual depiction would be trans-
ported and transmitted using any means and facility
of interstate commerce, including by computer and
cellular telephone, and said visual depiction was
transported and transmitted using any means and fa-
cility of interstate commerce, including by computer
and cellular telephone, in violation of Title 18, United
States Code, Sections 2251(a) and 2251(e).
Similarly, each of the distribution counts identified a minor
victim’s initials, a date, and the following language alleging that
Jenkins
did knowingly distribute at least one visual depiction
of a minor female, [minor’s initials], engaging in sex-
ually explicit conduct, as defined in Title 18, United
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4 Opinion of the Court 20-13831
States Code, Section 2256(2), using any means and fa-
cility of interstate and foreign commerce, said depic-
tions having been (a) produced using minors engag-
ing in sexually explicit conduct, and (b) shipped and
transported in and affecting interstate and foreign
commerce, by any means, including by computer and
cellular telephone, all in violation of Title 18, United
States Code, Sections 2252(a)(2) and (b)(1).
The distribution counts identified a specific date for the offense,
while the production counts identified a month or range of
months. The indictment did not otherwise describe the factual
grounds for each charge.
Before trial, Jenkins filed a motion to dismiss the indictment
or, in the alternative, for a bill of particulars. He contended that,
given the volume of images disclosed in discovery and the indict-
ment’s barebones allegations, it was impossible to determine
which image was at issue for each count or how he allegedly com-
mitted the offenses of production, attempted production, or distri-
bution. Jenkins also raised concerns that the indictment was not
particular enough to prevent conviction on theories not presented
to the grand jury, to protect him from being placed in double jeop-
ardy, or to ground a unanimous jury verdict as to each count. In
the alternative, Jenkins asked the district court to order the govern-
ment to identify the images and alleged criminal conduct for each
charged offense.
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20-13831 Opinion of the Court 5
The district court denied the motion to dismiss but ordered
the government to file a response under seal containing much of
the requested information. In a response and supplemental re-
sponse, the government identified the images at issue for the pro-
duction counts and the images at issue and means of distribution
for the distribution counts.
Then, one day before trial, Jenkins filed a renewed motion
to dismiss the indictment after the government produced the grand
jury testimony of the case agent, the only witness to testify to the
grand jury, as Jencks material. Jenkins argued this testimony
showed that the charges in the indictment were not properly pre-
sented to the grand jury because the case agent “made no effort to
identify to the grand jury which individual photo(s) or video(s) was
the subject of each count.” He further contended that the govern-
ment could not remedy that defect through its supplemental filings
or at trial without impermissibly amending the indictment. The
district court denied the renewed motion to dismiss.
The trial evidence, in brief, showed that Jenkins, who was in
his early 20s at the time, coerced several minor girls whom he met
online to send him sexually explicit images of themselves over the
internet. When some girls refused to send more pictures, Mr. Jen-
kins threatened to send their sexually explicit pictures to friends or
family, or to post them online. He sometimes carried through on
those threats. The jury convicted him on all counts.
Jenkins’s presentence investigation report (“PSR”) calcu-
lated his offense level under U.S.S.G. § 2G2.1. For purposes of
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6 Opinion of the Court 20-13831
applying § 2G1.1, the distribution offenses were treated as a group,
while the production offenses were counted separately. See
U.S.S.G. § 3D1.2. Ultimately, the total offense levels were as fol-
lows: level 38 for five of the production counts (Counts 4, 7, 9, 10,
& 12); level 40 for the other four production counts (Counts 1, 2,
5, & 8), and level 40 for the grouped distribution counts (Counts 3,
6, & 11). The PSR also calculated offense levels of 40 and 36 for
two uncharged production offenses involving minor victims J.H.
and V.D. Then, using the multiple-count adjustment rules, see
U.S.S.G. § 3D1.4, the PSR added five levels to the highest offense
level to arrive at a combined offense level of 45. Finally, the PSR
applied a five-level enhancement for engaging in a pattern of activ-
ity involving prohibited sexual conduct, see U.S.S.G. § 4B1.5(b),
which yielded a total offense level of 50. Because that exceeded the
maximum offense level of 43, the total offense level was treated as
43. See U.S.S.G. ch. 5, pt. A, cmt. n.2. With a criminal-history cat-
egory of I, Jenkins’s recommended guideline range was life.
At sentencing, the district court adopted the PSR’s factual
findings, which were undisputed by the parties. It also overruled
Jenkins’s objection to including victims J.H. and V.D. as relevant
conduct, and it adopted the PSR’s guideline calculations. Ulti-
mately, the court sentenced Jenkins to a total term of 40 years, con-
sisting of 360 months on the production counts and a consecutive
120 months on the distribution counts, which was between the
government’s request of 80 years and Jenkins’s request of 268
months. This timely appeal followed.
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20-13831 Opinion of the Court 7
II.
Jenkins first argues that the indictment was legally deficient
because it failed to identify the images at issue or to describe the
conduct that constituted production or distribution of those im-
ages. He further contends that the indictment was constructively
amended because its general and vague allegations permitted the
jury to find him guilty on a basis that was not necessarily presented
to the grand jury.
The sufficiency of an indictment is a legal question we re-
view de novo. United States v. Bobo,
344 F.3d 1076, 1083 (11th Cir.
2003). Likewise, we review de novo whether an indictment has
been constructively amended. United States v. Sanders,
668 F.3d
1298, 1309 n.9 (11th Cir. 2012).
A.
“An indictment is sufficient when it charges a crime with suf-
ficient precision to inform the defendant of the charges he must
meet and with enough detail that he may plead double jeopardy in
a future prosecution based on the same set of events.” United
States v. Stavroulakis,
952 F.2d 686, 693 (11th Cir. 1992); see also
United States v. Jordan,
582 F.3d 1239, 1245 (11th Cir. 2009). Ordi-
narily, “an indictment need do little more than to track the lan-
guage of the statute charged and state the time and place (in ap-
proximate terms) of the alleged crime.” Stavroulakis, 952 F.2d at
693 (quotation marks omitted); see also United States v. Critzer,
951 F.2d 306, 308 (11th Cir. 1992).
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8 Opinion of the Court 20-13831
“It is not necessary for an indictment . . . to allege in detail
the factual proof that will be relied upon to support the charges.”
United States v. Sharpe,
438 F.3d 1257, 1263 n.3 (11th Cir. 2006)
(quotation marks omitted). Rather, more detailed information, “if
essential to the defense, can be obtained by a motion for a bill of
particulars” or through pretrial discovery. Id.; Stavroulakis, 952
F.2d at 693 (“When an indictment delineates the elements of a
charged offense, however concisely, the underlying concerns of
proper pleading . . . may be further promoted by a bill of particulars
or pre-trial discovery.”). Such information may alleviate any dou-
ble-jeopardy concerns about the indictment because “the court
may refer to the entire record of the prior proceeding and [will] not
be bound by the indictment alone.” United States v. Steele,
178
F.3d 1230, 1235 (11th Cir. 1999).
Here, we conclude that the indictment, though spare, was
legally sufficient. For each count, the indictment alleged the essen-
tial elements of either a child pornography production or distribu-
tion offense, the date or date range when the offense allegedly oc-
curred, and the initials of the minor victim involved. While the
indictment did not describe Jenkins’s conduct in detail or identify
the particular images at issue, it was nonetheless sufficient “to in-
form [Jenkins] of the charges he must meet.” Stavroulakis, 952 F.2d
at 693. Further, the record shows that the government identified
“in detail the factual proof that [it was to rely] upon to support the
charges,” Sharpe,
438 F.3d at 1263 n.3, such as the particular images
at issue and the means of distribution, in its responses to Jenkins’s
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20-13831 Opinion of the Court 9
motion for a bill of particulars. And that additional information,
along with the evidence presented at trial, permit Jenkins to “plead
double jeopardy in a future prosecution based on the same set of
events,” Stavroulakis, 952 F.2d at 693, and otherwise alleviate any
double-jeopardy concerns arising from the lack of detailed infor-
mation in the indictment, see Steele,
178 F.3d at 1235. For these
reasons, the district court did not err in denying the motion to dis-
miss the indictment.
B.
“It is well settled that a defendant enjoys a Fifth Amendment
right to be tried on felony charges returned by a grand jury indict-
ment and that only the grand jury may broaden the charges in the
indictment once it has been returned.” Sanders,
668 F.3d at 1309.
“A constructive amendment to the indictment occurs where the
jury instructions so modify the elements of the offense charged that
the defendant may have been convicted on a ground not alleged by
the grand jury’s indictment.”
Id. (quotation marks omitted); see
United States v. Keller,
916 F.2d 628, 633 (11th Cir. 1990) (“When
a defendant is convicted of charges not included in the indictment,
an amendment of the indictment has occurred.”).
“If, however, the evidence produced at trial differs from
what is alleged in the indictment, then a variance has occurred.”
Keller,
916 F.2d at 633. An amendment to the indictment, where
the error is preserved, is per se reversible error, but a variance “re-
quires the defendant to show that his rights were substantially prej-
udiced by the variance in order to be entitled to a reversal.”
Id.
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10 Opinion of the Court 20-13831
Here, no constructive amendment of the indictment oc-
curred. Nothing in the government’s trial evidence or its responses
to Jenkins’s motion for a bill of particulars modified the elements
of the offenses charged. See Sanders,
668 F.3d at 1309. The trial
evidence and jury instructions make clear that Jenkins’s convic-
tions rested on the exact same charges as alleged in the indictment.
Jenkins offers no authority for his assertion that the government
was required to show the grand jury the specific images it intended
to rely on to prove those elements at trial. Even assuming that an
error occurred, it is better understood as a variance in factual proof
rather than a constructive amendment of the charges, and Jenkins
has not shown, or even attempted to show, that he was prejudiced.
See Keller,
916 F.2d at 633.
In sum, Jenkins has not shown that the district court con-
structively amended the indictment by permitting the jury to find
him guilty of producing and distributing child pornography based
on images that may not have been presented to the grand jury.
III.
Finally, Jenkins maintains that the district court erred in cal-
culating his guideline range when it included as “relevant conduct”
certain uncharged conduct relating to victims J.H. and V.D. See
U.S.S.G. § 1B1.3 (defining relevant conduct). The PSR contained
facts indicating that Jenkins engaged in the production of child por-
nography involving these victims.
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20-13831 Opinion of the Court 11
We need not address this argument because, as Jenkins
acknowledges, any error in this regard “did not affect the guideline
range.” That’s because Jenkins scored well above the maximum
offense level of 43. Even if victims J.H. and V.D. were excluded
from the guideline calculations, Jenkins’s total offense level would
remain 43. As a result, any error resulting from including these
uncharged victims as relevant conduct was harmless. See United
States v. Sarras,
575 F.3d 1191, 1220 n.39 (11th Cir. 2009) (“[A]ny
alleged error in applying the two-level enhancement was harmless
because Sarras’s total offense level would have remained the
same.”).
As a fallback position, Jenkins asserts that the error may have
influenced the district court’s ultimate sentencing decision because
the court observed that “more victims ought to equate to more
time.” But the claim that these two additional victims made a dif-
ference to the outcome, when the charged conduct involved nine
different victims, is wholly speculative.
And in any event, Jenkins makes no claim that the district
court was not permitted to consider this conduct when weighing
the
18 U.S.C. § 3553(a) factors, which include the “history and char-
acteristics of the defendant.”
18 U.S.C. § 3553(a)(1); see
18 U.S.C.
§ 3661(“No limitation shall be placed on the information concern-
ing the background, character, and conduct of a person convicted
of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.”).
That the uncharged conduct may not have been relevant conduct
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12 Opinion of the Court 20-13831
for purposes of calculating the guideline range does not necessarily
mean it was not relevant to sentencing more generally. Im-
portantly, Jenkins does not dispute the facts presented in the PSR
regarding these victims. Accordingly, Jenkins has not established
error in his sentence.
IV.
In sum, we affirm Jenkins’s convictions and total sentence.
AFFIRMED.
