United States v. Brian Weiss

Case: 12-13498 Date Filed: 02/26/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13498
Non-Argument Calendar
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D.C. Docket No. 8:11-cr-00477-VMC-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN WEISS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 26, 2013)
Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
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Appellant Brian Weiss appeals his conviction for attempting to entice a
minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The
indictment stated that Weiss “did knowingly attempt to persuade, induce, entice
and coerce an individual who had not attained the age of eighteen years to engage
in a sexual act.” On appeal, Weiss argues that: (1) the evidence was insufficient to
support his conviction; and (2) the indictment was constructively amended in
violation of his Fifth Amendment rights. Each of these arguments is addressed in
turn below.
I.
On appeal, Weiss argues that there was insufficient evidence to support his
conviction because the indictment charged him with attempting to entice an actual
minor, not just an individual representing themselves as a minor, and the
government presented no evidence that an actual minor was involved.
We review the sufficiency of the evidence de novo. United States v.
Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). In determining whether sufficient
evidence exists, we view the evidence in the light most favorable to the
government, and ask whether a reasonable fact finder could have concluded
beyond a reasonable doubt that the defendant was guilty. Id.To obtain a conviction for attempt under 18 U.S.C. § 2422(b), the
government must prove: (1) that the defendant “acted with the kind of culpability
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required for the crime he was charged with attempting, and (2) that he engaged in
conduct constituting a substantial step toward its commission.” United States v.
Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). An actual minor victim need not
exist to support a conviction under § 2422(b). United States v. Lanzon, 639 F.3d
1293, 1299 (11th Cir.), cert. denied, ___ U.S. ___, 132 S. Ct. 333 (2011). If a
defendant arranges through an adult intermediary to have sex with a supposed
minor, that conduct is sufficient to support a conviction. Id. In Lanzon, the
defendant chatted online with an undercover agent about having sex with a 14
year-old girl who was ostensibly the agent’s girlfriend’s daughter. Id. at 1296.
Although no such girl existed, we affirmed the defendant’s conviction under
§ 2422(b). Id. at 1298–99.
The only argument Weiss raises concerning the sufficiency of the evidence
is that the indictment charged him with attempted enticement of an actual minor,
but the government presented no evidence that an actual minor was involved.
However, the indictment mirrored the language of 18 U.S.C. § 2422(b), which
prohibits the enticement of “any individual who has not attained the age of 18
years.” 18 U.S.C. § 2422(b). The language of § 2422(b) does not require the
existence of an actual minor, but merely requires the defendant to believe that a
minor was involved. United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002)
(holding that an “actual minor victim is not required for an attempt conviction
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under 18 U.S.C. § 2422(b),” and that defendant’s “belief that a minor was involved
is sufficient to sustain an attempt conviction”), superseded by Guideline
amendment on other grounds, as recognized in United States v. Jerchower, 631
F.3d 1181, 1186-87 (11th Cir. 2011). Therefore, the indictment’s language
similarly required that the defendant believed that a minor was involved, not that
an actual minor was involved. As such, the government did not need to offer proof
of the involvement of an actual minor to support Weiss’s conviction.
II.
Next, Weiss argues that the indictment was constructively amended because,
while the indictment charged Weiss with attempted enticement of an actual minor,
the government and district court repeatedly informed the jury that the defendant
could be convicted without the existence of an actual minor.
We review claims of constitutional error de novo. United States v. Williams,
527 F.3d 1235, 1239 (11th Cir. 2008). Constructive amendment occurs “when the
essential elements of the offense contained in the indictment are altered to broaden
the possible bases for conviction.” United States v. Keller, 916 F.2d 628, 634
(11th Cir. 1990). In determining whether an indictment was constructively
amended, we look at whether the prosecutor’s actions or the court’s instructions,
“viewed in context,” literally or effectively expanded the indictment. United States
v. Behety, 32 F.3d 503, 508-09 (11th Cir. 1994). Constructive amendment
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constitutes per se reversible error because it violates a defendant’s Fifth
Amendment right to be tried only on charges presented to the grand jury and
creates the possibility that the defendant may have been convicted on grounds that
the indictment did not allege. Id. at 508; U.S. Const. amend. V.
Here, we conclude from the record that no constructive amendment occurred
when the government and court indicated that the existence of an actual minor was
not needed because, as discussed above, the indictment did not require that Weiss
attempted to entice an actual minor. It did not include the words “actual,” but
stated that Weiss had attempted to entice an “individual who had not attained the
age of” 18. It simply required that Weiss believed a minor was involved. See
Root, 296 F.3d at 1227 (holding that 18 U.S.C. § 2242(b) does not require
existence of actual minor, but merely requires the defendant to believe a minor was
involved). Thus, informing the jury that an actual minor was not needed in no way
broadened the possible bases for conviction. Keller, 916 F.2d at 634.
Accordingly, we affirm Weiss’s conviction.
AFFIRMED.
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