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. At trial, however, the district court also instructed the jury that it could convict if Herndon had a “reasonable opportunity to observe” the victims, a theory under § 1591(c) that eliminates the need to prove knowledge or reckless disregard of age. Herndon did not object at trial but argued on appeal that the instruction constructively amended the indictment and required reversal under plain-error review.
The Court’s Holding
The Fifth Circuit affirmed. The parties agreed that the instruction constructively amended the indictment and constituted plain error, but the court held that the error did not affect Herndon’s substantial rights. Herndon had more than 18 months of notice that the government intended to rely on the reasonable-opportunity-to-observe theory, including notice at his detention hearing, in pretrial meetings and filings, in proposed instructions, and during trial.
The court also concluded that substantial evidence permitted the jury to find that Herndon knew or recklessly disregarded each victim’s minority. That evidence included his failure to verify ages, victims’ youthful appearance and behavior, his directions to lie about age or dress to look older, and statements showing that he knew particular victims were minors. The court further held that counsel was not ineffective for failing to object because the government could readily have obtained a superseding indictment.
Because Herndon failed to establish prejudice, he could not satisfy the third requirement of plain-error review. The court added that, even if he had done so, it would not exercise its discretion to reverse because the substantial evidence against him meant 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 permits conviction on an alternative theory of liability that the indictment did not charge.
- An unpreserved constructive-amendment claim does not warrant reversal unless the defendant satisfies every requirement of plain-error review, including prejudice to substantial rights.
- Advance notice of the government’s theory and strong evidence supporting the indictment’s charged mental state can defeat a showing of prejudice.
Why It Matters
The decision shows that a constructive amendment, although plainly erroneous, does not automatically require reversal when the defendant failed to object at trial. Courts applying plain-error review will examine whether the defendant had notice of the uncharged theory and whether the trial evidence independently supported conviction under the theory actually alleged in the indictment.
For practitioners, the opinion underscores the importance of comparing proposed jury instructions with the indictment and making a timely objection. Without one, a defendant must overcome both the demanding substantial-rights requirement and the appellate court’s discretion to leave a forfeited error uncorrected.