FILED
                           NOT FOR PUBLICATION
                                                                           OCT 16 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10397

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00697-CRB-1

 v.
                                                 MEMORANDUM*
RODERICK HAROLD BOLDS,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Northern District of California
                Charles R. Breyer, Senior District Judge, Presiding

                    Argued and Submitted September 18, 2015
                            San Francisco, California

Before: CHRISTEN and FRIEDLAND, Circuit Judges, and LEMELLE,** Senior
District Judge.

      Roderick Bolds appeals his conviction on one count of sex trafficking of a

minor, in violation of 18 U.S.C. § 1591, and one count of transportation of a minor


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2423.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in

part.

        1.    We reverse Bolds’s conviction under 18 U.S.C. § 1591 because the

indictment was constructively amended when the jury was instructed that the

government need not prove Bolds knew Sara G. was younger than 18 years of age

if it proved Bolds had a reasonable opportunity to observe her. The indictment

alleged only that Bolds acted with knowledge or reckless disregard as to Sara G.’s

age. Whether Bolds had a reasonable opportunity to observe Sara G. is a distinct

theory of culpability with respect to her age. See United States v. Robinson, 

, 32 (2d Cir. 2012); see also Justice for Victims of Trafficking Act of 2015,

Pub. L. No. 114-22, § 108, 129 Stat. 227, 239 (2015) (amending § 1591(c) to

clarify that proof of reasonable opportunity to observe obviates need to prove

knowledge or reckless disregard).

        Because we do not know which instructions the jury relied on when it

convicted Bolds, and because it is impossible to know whether the grand jury

would have charged Bolds on the “reasonable opportunity to observe” theory, the

jury instructions constructively amended the indictment. See United States v. Hui

Hsiung, 

, 757 (9th Cir. 2015), cert. denied, 

(2015);


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United States v. Ward, 

, 1191 (9th Cir. 2014). We therefore reverse

Bolds’s conviction under 18 U.S.C. § 1591. See 

.

      2.     Because we reverse Bolds’s conviction under § 1591, we do not reach

his argument that the phrase “reasonable opportunity to observe” is

unconstitutionally vague.

      3.     The district court correctly instructed the jury that it did not need to

find Bolds knew Sara G. was younger than 18 years of age to convict him under 18

U.S.C. § 2423. United States v. Taylor, 

, 997 (9th Cir. 2001). The

Supreme Court’s decision in Flores-Figueroa v. United States, 

(2009), which addressed the knowledge requirement of aggravated identity theft

under 18 U.S.C. § 1028(A)(1), is not clearly irreconcilable with our holding in

Taylor. See Miller v. Gammie, 

, 900 (9th Cir. 2003) (en banc);

(Alito, J., concurring in part) (citing § 2423 and

explaining that context may rebut the presumption that a specified mens rea applies

to all elements of an offense).

      4.     The district court did not abuse its discretion by permitting the

government’s expert, Detective Derek Stigerts, to testify under Federal Rule of

Evidence 702. Further, the expert’s testimony did not violate the Confrontation

Clause. The expert “distilled and synthesized what he had learned through his


                                           3
experience” and did not provide testimonial hearsay. See United States v. Vera,

, 1239 (9th Cir. 2014).

      5.    The parties shall bear their own costs on appeal.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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