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United States of America v. Jose M. Rodriguez-Rodriguez

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Before Boudin, Stahl and Howard, Circuit Judges.

After a four-day trial, a jury in the District of Puerto Rico convicted Jose Rodriguez-Rodriguez of using an interstate commerce facility or means in attempting to persuade a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b).*fn1 He presses two arguments in support of his appellate claims that the district court erroneously denied his post-trial motion for judgment of acquittal or for a new trial. First, he asserts that the indictment actually charged him with attempting to persuade a minor to engage in sexual activity not with him, but with another minor, a charge which he says was unsupported by the evidence. Second, he argues that the district court constructively amended the indictment in two ways: by instructing the jury in accordance with the government’s theory that the indictment charged him with attempting to persuade a minor to have sexual relations with him, and also by instructing the jury in such a way that he may have been convicted based on uncharged conduct. Although the indictment is not a model of clarity, we reject Rodriguez’s reading of it, find nothing improper about the jury instructions, and accordingly affirm his conviction.

I.

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