The opinion of the court was delivered by: Hall, Circuit Judge:
United States v. D'Amelio
Before: RAGGI, HALL, and CHIN, Circuit Judges.
Defendant-Appellee Daniel D'Amelio was convicted, after a jury trial, of attempted sexual enticement of a minor, pursuant to 18 U.S.C. § 2422(b). The district court vacated the conviction and granted D'Amelio's motion for a new trial on the ground that the jury instructions constructively amended the indictment. The government appealed. We hold that the indictment was not constructively amended and therefore reverse and remand.
Appellant, the United States of America (the "government"), appeals from the June 1, 2009, amended decision of the Southern District of New York (McMahon, J.) that vacated Defendant-Appellee Daniel D'Amelio's conviction, after a jury trial, of one count of attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), and granted his motion for a new trial under Fed. R. Crim. P. 33. The district court held that its jury instructions resulted in a constructive amendment of the indictment because the difference between the language of the "to wit" clause of the indictment, which charged D'Amelio with using the Internet as a facility of interstate commerce in committing the crime, and the jury instructions, which permitted proof of D'Amelio's use of the Internet and the telephone in committing the crime, altered an essential element of the charge to such an extent that it violated the Fifth Amendment's Grand Jury Clause. On appeal, the government argues that the district court erred because the deviation between the text of the indictment and the jury charge neither affected the "core of criminality" proven at trial nor modified an "essential element" of the crime, nor did it leave D'Amelio open to be charged again for the same offense. We agree with the government's contentions and therefore reverse the district court's decision and remand for further proceedings consistent with this opinion.
This case stems from contacts occurring online, on the telephone, and in person between D'Amelio, a 47-year-old architect and part-time screenwriter, and an individual with the online screen name "MaryinNYC1991" ("Mary") during August and September of 2004. "Mary's" online profile indicated that she was a twelve-year-old girl, when in reality she was created by a team of New York City Police Department ("NYPD") officers: Detective James Held posed as "Mary" during the Internet chats, and twenty-three-year-old Detective Anne Psomas posed as "Mary" during telephone conversations and in-person meetings with D'Amelio. The content of the Internet and in-person conversations between "Mary" and D'Amelio ranged from innocuous topics such as D'Amelio's work as a screenwriter to more suggestive topics such as "Mary's" sexual history and what D'Amelio enjoyed doing sexually with girls. The NYPD arrested
D'Amelio as he left a New York City park with "Mary," following their second meeting.
On June 15, 2007, a grand jury returned a one-count indictment charging D'Amelio with attempted enticement of a minor for the purpose of engaging in sexual activity, in violation of 18 U.S.C. § 2422(b). The indictment contains a single substantive paragraph, which reads as follows:
From on or about August of 2004, up to and including in or about September of 2004, in the Southern District of New York, DAN D'AMELIA [sic], a/k/a "Wamarchand@aol.com," the defendant, unlawfully, willfully, and knowingly, did use a facility and means of interstate commerce to persuade, induce, entice, and coerce an individual who had not attained the age of 18 years to engage in sexual activity for which a person can be charged with a criminal offense, and attempted to do so, to wit, D'AMELIA [sic] used a computer and the Internet to attempt to entice, induce, coerce, and persuade a minor to engage in sexual activity in violation of New York States laws.
J.A. 14 (emphasis added). In July 2007, eighteen months prior to trial, the government informed D'Amelio of its intention to introduce evidence of the telephone conversations between D'Amelio and "Mary." The government subsequently provided D'Amelio with recordings of the telephone conversations and at trial introduced transcripts of the nine Internet chat sessions between D'Amelio and "Mary," copies of the e-mails D'Amelio sent to "Mary," and recordings of their six telephone calls and two meetings.
In response to the government's requested jury instructions, D'Amelio objected, inter alia, to any reference in the proposed instructions that he used a telephone to commit the offense. He asserted that the jury charge constituted an impermissible constructive amendment of the indictment, which only referred to his use of the Internet,*fn1 particularly since the government ...