FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50334

Plaintiff-Appellee, D.C. No.

v.  CR-05-00627-

SGL-01 JUAN RICO DOSS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

March 9, 2009—Pasadena, California

Submission Vacated March 24, 2009

Resubmitted August 20, 2009

Submission Vacated January 4, 2010

Resubmitted December 1, 2010

Filed January 14, 2011

Before: Michael Daly Hawkins, Marsha S. Berzon and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Hawkins

727
COUNSEL

Davina T. Chen (briefed and argued), Office of the Federal

Public Defender, Los Angeles, California, for the defendantappellant.

Anne Voigts (argued) and Tammy C. Spertus (briefed), Office

of the United States Attorney, Los Angeles, California, for the

plaintiff-appellee.

UNITED STATES v. DOSS 731
OPINION

HAWKINS, Circuit Judge:

Juan Rico Doss (“Doss”) appeals his conviction and life

sentence for sex trafficking of children, transportation of

minors into prostitution, conspiracy to commit those offenses,

and two counts of witness tampering. The issue before us is

whether one can be convicted for witness tampering under 18

U.S.C. § 1512 by encouraging a witness to withhold testimony when that witness possesses a legal right or privilege

not to testify. Doss also contends that the district court erred

in applying Taylor’s1 modified categorical approach to find he

had a qualifying prior sex offense involving a child under the

age of 17, thus requiring a life sentence pursuant to 18 U.S.C.

§ 3559(e). For the reasons that follow, we largely affirm, but

the reversal of one count and an error in sentencing require

vacatur and re-sentencing.

FACTS AND PROCEDURAL HISTORY

Doss was indicted in 2005, along with his wife Jacquay

Ford (“Ford”), for numerous counts of sex trafficking of children and transportation of minors into prostitution. At Doss’s

first trial, the government called a minor victim, C.F., as a

witness, and she refused to testify. The government did not

call Ford as a witness. A mistrial resulted when the jury was

unable to reach a verdict. 

A grand jury then issued a superseding indictment against

Doss, adding three charges of witness tampering, involving

C.F., Doss’s wife, and a fellow prisoner, Mark Cohn. Count

7 alleged that Doss had tampered with juvenile witness C.F.:

Between on or about April 11, 2006 and April 13,

2006 . . . defendant Juan Rico Doss knowingly used

1

See Taylor v. United States, 495 U.S. 575 (1990). 

732 UNITED STATES v. DOSS
intimidation, threatened and corruptly persuaded,

and attempted to intimidate, threaten and corruptly

persuade C.F., with the intent to influence and prevent the testimony of C.F. in an official proceeding,

and with the intent to cause and induce C.F. to withhold testimony from an official proceeding, namely,

United States v. Juan Rico Doss, CR 05-627 (A) –

ER. 

In so attempting, defendant Juan Rico Doss did

things that were substantial steps toward intimidating, threatening and corruptly persuading C.F.,

including among other things, between on or about

April 11, 2006 and April 13, 2006 when defendant

Juan Rico Doss was transported with C.F. to or from

the official proceeding he told C.F., words to the

effect that (1) if C.F. testified, everyone would get in

trouble; and (2) if C.F. testified, it would be bad for

C.F.

Count 8 alleged that Doss also tampered with his wife, Jacquay Ford:

Between on or about May 16, 2006 and May 21,

2006, . . . defendant Juan Rico Doss knowingly corruptly persuaded, and attempted to corruptly persuade, Jacquay Quinn Ford with the intent to

influence and prevent the testimony of Jacquay

Quinn Ford in an official proceeding and with the

intent to cause and induce Jacquay Quinn Ford to

withhold testimony from an official proceeding,

namely, United States v. Juan Rico Doss, CR 05-

627(B) – SGL.

In so attempting, defendant Juan Rico Doss did

things that were substantial steps toward intimidating, threatening and corruptly persuading Jacquay

Quinn Ford, including among other things: (1) in a

UNITED STATES v. DOSS 733
letter dated May 16, 2006, defendant Juan Rico Doss

encouraged Jacquay Quinn Ford to refuse to testify

against him at trial by stating “Believe me if I got to

go back to trial which is most likely I will if I don’t

get a 5 year deal, they are going to try you again to

come testify which they made clear against me and

if and when that time comes, I would expect you to

hold strong and say NO that you won’t even get on

the stand period”; and (2) in letters dated May 16,

18, 21, 2006, defendant Juan Rico Doss encouraged

Jacquay Quinn Ford to refuse to testify against him

based on their marital status. 

Doss moved to dismiss the witness tampering charges, contending they did not allege a crime because there was nothing

inherently corrupt about urging someone not under a compulsion to testify to exercise their right not to testify. He also

filed a motion to sever the tampering charges from the

remaining counts. The district court denied both motions.

At Doss’s second trial, C.F. testified against Doss, as did

Doss’s wife, Ford. As evidence of Count 8, the Government

offered three letters written by Doss to his wife. The letters

were written while both were in custody on the charges in the

present case; all references to Doss’s first trial were redacted

from the versions presented to the jury. At the time Doss

wrote these letters, he was unaware that Ford had entered into

a cooperation agreement with the Government; it appears that,

at most, Ford had told Doss that she had agreed to plead

guilty. The relevant language from the first of these letters is

quoted in the indictment, above. 

In a second letter, Doss notified Ford of his anticipated trial

date, then wrote, “I sure wish you were going to trial with me.

You know the decision is yours to fire your attorney and take

your plea back.” In the third letter, Doss wrote, “Jacquay as

husband [and] wife we go through certain things and we

734 UNITED STATES v. DOSS
sometimes have to make [and] take sacrifices for one another

and remain strong together as one because we are one.”

With respect to witness tampering in Count 7, witness C.F.

and a fellow prisoner, Mark Cohn, testified in substantially

similar detail regarding a conversation that occurred between

Doss and C.F. C.F. testified that one day she was transported

back from the courthouse on the same van as Doss. She was

placed in the front of the van, but separated from the male

inmates by a metal divider and could not see who was speaking. She testified she could not recognize the voice and that

she could not remember many specifics of the conversation.

She did testify that the person had stated he knew she was

there “to lie on them,” and that he had said something “about

a guy named Broham,” saying “Broham did it” repeatedly.

Broham was the name of C.F.’s pimp at the time she had met

Doss. 

Mark Cohn, another inmate who was transported from the

courthouse during the same time frame for an unrelated matter, testified about overhearing a similar conversation. He

described the layout of the van and accurately described

C.F.’s appearance. Stating that he had been seated on the

same side of the metal divider as Doss, Cohn identified Doss

as the speaker. Cohn recalled the following about the conversation:

It starts by ‘Hey, girl, how old are you? and her

response is, ‘Hell young; 15.’ His response is, ‘I

didn’t know you were that young.’

He proceeded to talk about, ‘Are you going to testify?’ and she says ‘Yeah. That’s why they brought

me up here.’ ‘Well, you don’t have to testify.’

She says, ‘Well, that’s why I’m here. ‘Well, nobody

has to testify. You don’t testify. You don’t talk.

UNITED STATES v. DOSS 735
Nobody talks.” And then he said something like,

‘It’s all Broham.” 

And that was repeated.

Doss moved for acquittal on all counts at the close of the

government’s case and again at the close of trial, and the district court reserved ruling on the motion pursuant to Fed. R.

Crim. P. 29(b). The jury convicted Doss on all counts except

for tampering with witness Mark Cohn.2 The court denied

Doss’s renewed motion for judgment of acquittal. 

Doss agreed to a bench trial on the issue of whether he had

a “prior sex conviction in which a minor was the victim”

under 18 U.S.C. § 3559(e)(3)(1), which would qualify him for

a mandatory life sentence. Applying the modified categorical

approach, the district court determined that Doss’s prior

Nevada conviction for pandering a child qualified for the

enhancement. Doss received a life sentence on four of the

prostitution counts, 480 months on another child prostitution

count, and 120 months on the witness tampering counts, all to

be served concurrently.

DISCUSSION

I. Witness Tampering

A. Factual/Legal Overview 

[1] Doss argues that the district court erred by denying his

motion to dismiss two witness tampering counts for failing to

state a violation of 18 U.S.C. § 1512(b)(1), (2)(A) and/or by

denying his motion for acquittal of these counts. We review

2Count 9 had charged Doss with attempting to influence Cohn’s testimony after overhearing the conversation between Doss and C.F. in the

transport van, asking him to say that Doss did not initiate conversation

with “that girl” and did not talk to “that girl.” 

736 UNITED STATES v. DOSS
questions of statutory interpretation de novo. United States v.

Horvath, 492 F.3d 1075, 1077 (9th Cir. 2007). To evaluate

Doss’s claims, we must first consider exactly what sort of

conduct is prohibited by this statute. These provisions criminally punish: 

(b) Whoever knowingly uses intimidation, threatens,

or corruptly persuades another person, or attempts to

do so, or engages in misleading conduct toward

another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a

record, document, or other object, from an

official proceeding; 

18 U.S.C. § 1512(b)(1), (2)(A) (emphasis added).

[2] The principal debate is over the meaning of the term

“corruptly persuades.” All courts considering the issue have

found this phrase to be ambiguous. United States v. Baldridge, 559 F.3d 1126, 1142 (10th Cir. 2009). There is currently a circuit split over the type of conduct that falls within

the ambit of this phrase. Two of our sister circuits conclude

that persuasion with an “improper purpose” qualifies (such as

self-interest in impeding an investigation), while another concludes there must be something more inherently wrongful

about the persuasion (such as bribery or encouraging someone

to testify falsely). Compare United States v. Thompson, 76

F.3d 442, 452 (2d Cir. 1996), and United States v. Shotts, 145

F.3d 1289, 1300-01 (11th Cir. 1998), with United States v.

Farrell, 126 F.3d 484, 488 (3d Cir. 1997). 

UNITED STATES v. DOSS 737
In United States v. Khatami, we recognized the circuit split,

but ultimately decided not to resolve the issue there because

the circuits were in agreement that, at a minimum, persuading

a witness to affirmatively lie to investigators would violate

§ 1512(b). 280 F.3d 907, 913-14 (9th Cir. 2002).3 This case,

however, squarely presents the issue left open in Khatami and

requires us to explore the boundaries of conduct covered by

§ 1512(b). We begin by considering the history of § 1512(b)

and the relevant case law to date. 

Prior to 1982, federal witness tampering was covered only

by 18 U.S.C. § 1503, a general obstruction of justice provision, which applied to persons who “corruptly, or by threats

or force, or by any threatening letter or communication,

endeavor[ed] to influence, intimidate, or impede” any grand

juror, witness or court officer. In 1982, § 1512 was added to

provide additional protection to witnesses in federal cases.

Victim and Witness Protection Act of 1982, Pub. L. No. 97-

291, § 4, 96 Stat. 1248, 1249-50 (1982). 

As initially enacted, § 1512 did not include the words “corruptly persuade,” and courts thus concluded the section did

not criminalize non-misleading, non-threatening, nonintimidating attempts to have a person give false information

to the government. See Khatami, 280 F.3d at 912 (discussing

history). In 1988, Congress attempted to close this gap by

including the phrase “corruptly persuades.” Id. (citing AntiDrug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat.

4181).

The Second Circuit has construed “corruptly” to have the

3The Tenth Circuit also recently confronted the issue, but likewise

decided it need not resolve whether persuading a witness to exercise a

Fifth Amendment right could support a § 1512 conviction, because, even

assuming error, the evidence revealed that the defendant asked witnesses

to lie. United States v. Weiss, ___ F.3d ___, 2010 WL 2911718, *7-8 (10th

Cir. July 27, 2010). 

738 UNITED STATES v. DOSS
same meaning it did in § 1503 (the general obstruction statute), relying on prior cases that had interpreted the term to

mean “motivated by an improper purpose.” Thompson, 76

F.3d at 452. It approved jury instructions that defined “corruptly” as “to act deliberately for the purpose of improperly

influencing or obstructing, or interfering with the administration of justice.” Id. at 453. 

In Thompson, there was evidence that the defendant had

urged his co-conspirators to conceal information and testify

falsely to minimize his role in the offense. Later, however, the

Second Circuit expanded the reach of its holding, concluding

that one could violate § 1512 by suggesting to a coconspirator that he invoke his Fifth Amendment privilege

because the defendant had a self-interested “improper purpose” in making the suggestion — to ensure the witness did

not implicate him. United States v. Gotti, 459 F.3d 296, 342-

43 (2d Cir. 2006). 

The Eleventh Circuit has embraced the Second Circuit’s

approach, concluding it is reasonable to interpret “corruptly”

in § 1512 as a scienter requirement in the same manner as it

had been in § 1503. Shotts, 145 F.3d at 1300-01. The Eleventh Circuit thus affirmed a witness tampering conviction of

a defendant who was engaged in a shady bail bond business

and attempted to persuade his secretary not to talk to law

enforcement agents. Id. at 1301. The court concluded the jury

could reasonably have inferred that Shotts “was attempting

with an improper motive to persuade [the secretary] not to

talk to the FBI.” Id.

[3] The Third Circuit, however, takes a different tack. In

United States v. Farrell, the defendant was charged under

§ 1512 for attempting to dissuade a co-conspirator from providing information to USDA investigators regarding a conspiracy to sell adulterated meat. See 126 F.3d at 486. The

court reasoned that the phrase “corruptly persuades” cannot

mean simply “persuades with the intent to hinder communicaUNITED STATES v. DOSS 739
tion to law enforcement” because such an interpretation

would render the word “corruptly” meaningless, as the statute

already requires an intent to hinder an investigation or proceeding. Id. at 487. The court pointed out that the House

Report gave two examples of “culpable corrupt persuasion”

— if a defendant offered to financially reward a coconspirator’s silence (a bribe) or attempted to persuade a coconspirator to lie to law enforcement about the defendant’s

involvement in the conspiracy. Id. at 488 (citing H.R. Rep.

No. 100-169 at 12 & n.25 (1987)); see also Baldridge, 559

F.3d at 1142 (approvingly quoting Farrell). 

[4] The Third Circuit thus read “the inclusion of ‘corruptly’ in § 1512(b) as necessarily implying that an individual

can ‘persuade’ another not to disclose information to a law

enforcement official with the intent of hindering an investigation without violating the statute, i.e., without doing so ‘corruptly.’ ” Farrell, 126 F.3d at 489. It concluded that the

statute did not reach “a noncoercive attempt to persuade a coconspirator who enjoys a Fifth Amendment right not to disclose self-incriminating information about the conspiracy to

refrain, in accordance with that right, from volunteering information to investigators.” Id. at 488. The court commented,

however, without expressly deciding the issue, that in “the

absence of a privilege, society has the right to the information

of citizens regarding the commission of crime,” and thus persuasion of those without a privilege might well have the requisite degree of culpability or corruptness. Id. at 489 n.3. 

Finally, the Third Circuit expressly rejected the reasoning

of Thompson because it did not find the use of “corruptly” in

§ 1503 sufficiently analogous to its use in § 1512(b) to justify

construing the terms identically. Id. at 490. The court noted

that “corruptly” in § 1503 had consistently been interpreted to

provide the intent element of that section, which would otherwise have no mens rea element. Id. In contrast, § 1512

requires both “knowing” conduct and also specifically

describes the necessary intent within the various subsections

740 UNITED STATES v. DOSS
(e.g., with intent to influence, delay or prevent testimony, or

with intent to cause a person to destroy evidence). Id.

As we consider which of these two competing approaches

we should adopt, the Supreme Court’s 2005 decision in

Arthur Andersen LLP v. United States, 544 U.S. 696 (2005),

offers some guidance. In Arthur Andersen, an accounting firm

had been convicted under § 1512 for destruction of documents in connection with the Enron investigation. Id. at 698.

Although factually a very different case, the Court made a

number of observations about § 1512 with potential implications for this decision. 

The Court focused its attention on what it means to “knowingly . . . corruptly persuade.” The Court commented that:

the act underlying the conviction— “persua[sion]”—

is by itself innocuous. Indeed, “persuad[ing]” a person “with intent to . . . cause” that person to “withhold” testimony or documents from a Government

proceeding or Government official is not inherently

malign. Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination, see U.S. Const., Amdt. 5,

or a wife who persuades her husband not to disclose

marital confidences, see Trammel v. United States,

445 U.S. 40 (1980).

Id. at 703-04 (emphasis added) (internal footnote omitted).4

Arthur Andersen explained that to convict the accounting

company, the government had to prove the company “knowingly . . . corruptly persuaded” its employees to destroy the

4Trammel held that apart from confidential communications (a privilege

held by the accused spouse), a witness spouse holds the privilege to refuse

to testify adversely and “may be neither compelled to testify nor foreclosed from testifying.” 445 U.S. at 53. 

UNITED STATES v. DOSS 741
documents, as opposed to instructing its employees to comply

with a valid document retention policy. Although the parties

relied on interpretations of “corrupt” in §§ 1503 and 1505, the

Supreme Court found these provisions lacked the modifier

“knowingly,” making any analogy “inexact.” Id. at 706 n.9.

“Knowingly,” the Court explained, is associated with “awareness, understanding or consciousness,” and “corruptly” is

associated with “wrongful, immoral, depraved, or evil”;

together they require “conscious[ness] of wrongdoing.” Id. at

705-06. Finally, the Court rejected the jury instructions,

which permitted the jury to convict if it found the company

intended to “subvert, undermine, or impede” governmental

factfinding, noting that under this definition there was no dishonesty required and that “anyone who innocently persuades

another to withhold information from the Government” will

impede the Government’s progress. Id. at 707. 

B. Count 8 (Witness Tampering re Doss’s wife)

Relying on the Third Circuit’s approach and the Supreme

Court’s dicta in Arthur Andersen, Doss argues there was nothing “corrupt” about persuading his wife to exercise her marital privilege not to testify, and that therefore the district court

should have granted his motion for acquittal.5 The government, however, asks this court to follow the Second and Eleventh Circuits’ decisions, based on the “statutory language and

the longstanding construction of similar terms in Section

1503(a).” The government also argues that although Arthur

Andersen suggests that persuading a spouse not to testify is

5Doss also argues that the district court should have dismissed the

indictment against him as to Counts 7 and 8. However, the indictment adequately tracked the statutory language, set forth the necessary elements of

the offense, and included sufficient facts to inform Doss of the specific

offense with which he was charged and to enable him to plead acquittal

or prior conviction of the same offense. See United States v. Bailey, 444

U.S. 394, 414 (1980); United States v. Davis, 336 F.3d 920, 922 (9th Cir.

2003). The district court was required to accept the government’s allegations as true. United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002).

742 UNITED STATES v. DOSS
not inherently malign, it does not necessarily preclude finding

that, in some situations, such persuasion can still be corrupt

— i.e., if done for an improper purpose (such as self-interest)

and with consciousness of wrongdoing.

[5] Although the language of § 1512 is ambiguous, we find

the Third Circuit’s reasoning the more persuasive and the

most consistent with the Supreme Court’s later analysis of

§ 1512 in Arthur Andersen. Although the Second and Eleventh Circuits relied heavily on prior interpretations of the

word “corrupt” in § 1503, the Supreme Court found analogies

to this section unhelpful because it did not also contain the

modifier “knowingly.” 544 U.S. at 706 n.9. This analysis is

quite similar to the Third Circuit’s observation that, unlike

§ 1503, § 1512 already has a mens rea element, “knowingly,”

and thus “corruptly persuades” must have an additional meaning. Farrell, 126 F.3d at 489-90.

Further, the Third Circuit recognized that construing “corruptly” to mean “for an improper purpose”—especially if that

improper purpose is to hinder an investigation or prosecution

(which is already required by the statute) — is circular, essentially rendering the term “corruptly” surplusage. Id. at 489.

The Supreme Court echos this concern in Arthur Andersen,

pointing out that persuading someone with intent to cause

them to withhold testimony is not “inherently malign,” and,

significant here, the Court specifically referred to the marital

privilege as an example. 544 U.S. at 703-04 (citing Trammel

v. United States, 445 U.S. 40 (1980)). 

In addition, as the Third Circuit points out, the examples of

non-coercive “corrupt” persuasion cited by the House Report

were bribery and attempting to persuade a witness to lie, both

actions easy to characterize as inherently wrong or immoral,

and not actions which could be considered otherwise innocent

persuasion. See Farrell, 126 F.3d at 488. The Supreme Court

similarly noted that the term “corrupt” and “corruptly” are

normally associated with “wrongful, immoral, depraved, or

UNITED STATES v. DOSS 743
evil,” and, when coupled with “knowingly” in § 1512, the

government must show the defendant acted with “consciousness of wrongdoing.” Arthur Andersen, 544 U.S. at 705-06.

If it is not, as the Supreme Court indicates, “inherently

malign” for a spouse to ask her husband to exercise the marital privilege (even though made with the intent to cause that

person to withhold testimony), id. at 703-04, then a defendant

could not be shown to act with “consciousness of wrongdoing” merely by asking a spouse to withhold testimony (that

may properly be withheld under the marital privilege) absent

some other wrongful conduct, such as coercion, intimidation,

bribery, suborning perjury, etc. Id. at 706. 

[6] We therefore conclude that the district court erred by

failing to grant Doss’s motion for acquittal of Count 8. In

reviewing claims of sufficiency of the evidence, we review

the evidence in the light most favorable to the government to

determine “whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.” Khatami, 280 F.3d at 910 (emphasis in original) (quotation omitted). The evidence at trial established only that

Doss appealed to his wife to exercise her marital privilege not

to testify against him.6 As Doss’s wife, Ford had the legal

option not to testify, and thus Doss’s request, without more,

was insufficient to establish “corrupt” as opposed to innocent

persuasion. Cf. Arthur Andersen, 544 U.S. at 703-04; id. at

706-07. Accordingly, we reverse Doss’s conviction as to

Count 8.

C. Count 7 (Witness Tampering with C.F.)

Doss argues that the district court also erred by failing to

grant his motion for acquittal on Count 7, contending again

that, consistent with the Third Circuit’s approach, there was

nothing inherently corrupt in persuading a co-conspirator to

6The government did not argue that Doss had threatened or intimidated

Ford, which would of course otherwise violate § 1512. 

744 UNITED STATES v. DOSS
exercise a Fifth Amendment right validly possessed at the

time of their encounter. Nonetheless, the indictment in this

case alleges, and the evidence supports a finding, that Doss

did more than innocently suggest C.F. exercise her constitutional rights.

[7] The indictment alleged Doss had made statements to

the effect that “if C.F. testified, it would be bad for C.F.,”

which could be construed as a threat or attempt to intimidate

C.F. (especially in light of the prior pimp/prostitute relationship between C.F. and Doss). Although there was no specific

testimony that Doss made the statement “it would be bad for

C.F.,” both C.F. and Mark Cohn testified to a conversation in

the transport van in which Doss repeatedly suggested to C.F.

“it’s all Broham.” From their testimony and the context of

Doss’s statements, a rational jury could have inferred that

Doss was attempting to persuade C.F. to lie in her testimony

and to blame her former pimp, Broham, instead of him.7 As

discussed above, under our decision in Khatami, non-coercive

attempts to persuade a witness to lie are clearly covered by

§ 1512(b). 280 F.3d at 913-14; see also Weiss, 2010 WL

2911718 *7-8 (rejecting claim that defendant only encouraged

witnesses to exercise their Fifth Amendment right because

evidence indicated defendant asked witnesses to lie).

Doss argues that even if there was sufficient evidence for

a conviction under § 1512 on Count 7, there was a fatal variance between the proof at trial and the facts alleged in the

7Doss argues that the evidence showed Cohn was not transported the

day Doss and C.F. were in the van together. However, there was conflicting testimony on this point; although the U.S. Marshals recalled only one

time that Doss and C.F. were transported in the van together, believing

C.F. was otherwise transported by car, C.F. testified the van transport

occurred twice. The Marshals’ records reveal only who was transported on

what day, not the manner of transport. In reviewing sufficiency of the evidence, we must view the evidence in the light most favorable to the government, and a rational juror could have resolved the competing testimony

in favor of C.F., especially in light of the corroboration by Cohn. 

UNITED STATES v. DOSS 745
indictment. We review a variance claim de novo. United

States v. Sullivan, 522 F.3d 967, 980 (9th Cir. 2008). A variance occurs where the facts presented at trial materially differ

from those alleged in the indictment. United States v. Montgomery, 384 F.3d 1050, 1060 (9th Cir. 2004). However, a

variance requires reversal only if it affects the defendant’s

substantial rights. Id.

[8] Here, there was no material variance. The indictment

and proof at trial both described the encounter between Doss

and C.F. on the transport van on the dates alleged. See United

States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986)

(“Insofar as the language of an indictment goes beyond alleging elements of the crime, it is mere surplusage that need not

be proved.”). The indictment alleged that Doss had “among

other things” told C.F. “words to the effect that” if C.F. testified, everyone would get in trouble and that it would be bad

for C.F. C.F. did not specifically recall this part of the conversation, but she did recall hearing an individual telling her that

“Broham did it,” and Mark Cohn testified to hearing Doss

make such remarks. The jury may have found, as it apparently

did, that such remarks were intended to encourage C.F. to lie

when she was to provide testimony. 

Doss’s argument appears to be that the government proved

only that he had encouraged C.F. to provide false testimony,

while the indictment only charged threats to influence her not

to testify. He argues his defense was prejudiced because he

intended to argue that stating “it would be bad for C.F.” to

testify was not actually a threat, and thus that there was nothing wrong with the conduct alleged in the indictment. But

even if this distinction constituted a material variance, Doss’s

defense would have been substantially the same regardless of

the specific “corrupt” remarks alleged. For example, Doss

attempted to show that Cohn could not have been in the van

with C.F. and Doss to have overheard the statements, that

C.F. could not have heard Doss clearly through a metal barrier

in the transport van, and that C.F. lacked a vivid memory of

746 UNITED STATES v. DOSS
the conversation and was generally not a good witness. This

tactic would apply regardless of the specific statements

alleged in the indictment.

Doss relies on United States v. Adamson, 291 F.3d 606,

610, 616 (9th Cir. 2002), in which the government alleged a

single misrepresentation but proved a different one, after

affirmatively representing that the conduct alleged in the

indictment was the sole basis for the prosecution. See also

United States v. Tsinhnahijinnie, 112 F.3d 988, 989-90 (9th

Cir. 1997) (fatal variance where indictment alleged 1992 sexual abuse on Indian reservation, but trial testimony placed

abuse off the reservation in 1994). But the indictment language in this case is more forgiving, suggesting there could

be other statements beyond those alleged. See Adamson, 291

F.3d at 616 (“If the indictment had not specified a different

particular misrepresentation, one might say the variance was

benign.”). 

The indictment also sufficiently identified the time and

place of the conversation to give Doss notice of what evidence might be presented at trial. See United States v.

Antonakeas, 255 F.3d 714, 722 (9th Cir. 2001) (no fatal variance where the evidence at trial covered the facts and time

frame alleged in indictment); see also United States v.

Momeni, 991 F.2d 493, 495 (9th Cir. 1993) (no fatal variance

where evidence showed defendant fraudulently used credit

card at hotels in addition to the one charged in indictment in

order to satisfy statutory minimum of $1000).

[9] In sum, the evidence at trial was sufficient to sustain a

conviction on Count 7. Doss did more than merely ask his coconspirator to exercise her Fifth Amendment right not to testify. Viewing the evidence in the light most favorable to the

government, a rational juror could have inferred from the conversation in the transport van that Doss had asked C.F. to lie

on the stand by blaming her former pimp instead of him. PerUNITED STATES v. DOSS 747
suading a witness to lie clearly runs afoul of § 1512, and we

therefore affirm Doss’s conviction of Count 7. 

II. Motion to Sever

Doss argued to the district court that he would be prejudiced from joinder of the witness tampering counts with the

sex trafficking counts because the jury would become aware

of his first trial. The court denied the motion but ordered the

parties to refer to the first trial as an “official proceeding,” and

held that any potential prejudice could also be mitigated

through jury instructions. 

[10] We review the denial of a severance motion for an

abuse of discretion. United States v. Lewis, 787 F.2d 1318,

1320 (9th Cir. 1986). A defendant must show that the failure

to sever rendered the trial “manifestly prejudicial” so that the

defendant’s right to a fair trial was violated. Id. at 1321. 

On appeal, Doss contends the district court’s precautions

did not ensure a fair trial. He claims that even though any

written references to the former trial were redacted and both

sides consistently referred to the former trial as an “official

proceeding,” the jury must have been able to glean that the

prior proceeding was a trial. Doss then further argues that

even though the jury’s knowledge of a prior trial would be

only minimally prejudicial, the jury must have also discerned

that there was some reason it was not supposed to know of the

former trial, and that the conclusion the jury must have drawn

was that Doss had tampered with witnesses at that trial. 

Doss’s conclusions are quite speculative. For example,

Doss argues that the government equated official proceedings

with trials in its opening statement. The government argued

in its opening that “the defendant tampered with witnesses in

official proceedings connected with this case” and that “one

of the official proceedings is this very trial.” The government

correctly notes that because a trial is a type of official pro748 UNITED STATES v. DOSS
ceeding does not mean that all official proceedings are trials;

they could also be hearings or grand jury appearances. 

As the district court also noted below with respect to the

redacted letters, “a seasoned attorney or a prosecutor would

be able to fill in the blank” but the jurors were just as likely

to think the deleted phrases were expletives. Finally, Doss’s

ultimate conclusion — that he was prejudiced because the

jury must have not only discerned there was a prior trial, but

also concluded that it ended in mistrial because of defendant’s

tampering — heaps on even more speculation. 

[11] The district court did not abuse its discretion by denying Doss’s motion to sever and implementing precautions to

prevent the jury from learning of the previous trial. There is

no allegation that the government or witnesses failed to comply with the court’s orders. There is thus no reason to think

that the joinder was manifestly prejudicial or prevented Doss

from having a fair trial. We affirm the district court’s denial

of the motion to sever.

III. Vouching

[12] Doss alleges that the government improperly vouched

for the credibility of its witnesses and its case in closing argument. “Vouching consists of placing the prestige of the government behind a witness through personal assurances of the

witness’s veracity or suggesting that information not presented to the jury supports the witness’s testimony.” United

States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005)

(quotation omitted). The inherent danger is that “the prosecutor’s opinion carries with it the imprimatur of the Government

and may induce the jury to trust the Government’s judgment

rather than its own view of the evidence.” Id. at 1148 (quoting

United States v. Young, 470 U.S. 1, 18-19 (1985)). 

Because Doss did not object to the government’s closing

argument, we review his claim of improper vouching for plain

UNITED STATES v. DOSS 749
error. United States v. Williams, 989 F.2d 1061, 1071-72 (9th

Cir. 1993). We will reverse for plain error only if an error was

obvious, affected substantial rights, and a miscarriage of justice would otherwise result. United States v. Sayetsitty, 107

F.3d 1405, 1411-12 (9th Cir. 1997).

Doss objects to two passages. The first occurred in the government’s initial closing argument, in which the government

was discussing the testimony of Mark Cohn:

Now there’s no question you have to consider

Mark Cohn’s testimony carefully. He’s a convicted

felon. The Government knows that. He’s a fraudster,

the Government knows that. The Government prosecuted him and convicted him of fraud. The Government is investigating, and he’s cooperating with that

investigation, but you heard him say he’s going to be

pleading guilty to certain charges and he’s going to

be prosecuted again in connection with fraud.

There’s no question that Mark Cohn’s testimony has

to be considered carefully.

But think of it this way: That’s why the Government has prosecuted and convicted him, and that’s

why the Government is going to be charging him

again. But that’s also why he was uniquely situated

to be where he was, and to see and hear what he did.

Because that’s who was in the transport van:

inmates.

Doss characterizes this argument as telling the jurors that

the government knew when Mr. Cohn was lying and when he

was not. Doss also argues that it conveyed the impression that

the government investigates and prosecutes people who are

guilty, implying that the very fact Doss was on trial was evidence of his guilt. 

[13] This characterization reads too much into the government’s argument. Cohn’s credibility at trial had been attacked

750 UNITED STATES v. DOSS
on cross-examination and by the defense in its opening statements. The government’s argument acknowledged that Cohn

was not a perfect witness and that he had a history of lying

and fraud. However, the government then pointed out that it

was because of Cohn’s crimes that he was in a position to

overhear the conversation between Doss and C.F., while

being transported in an inmate van. Nothing in this passage

vouched for Cohn’s credibility. Compare United States v.

Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (prosecutor

described witnesses as “very candid” and “honest”). 

The second passage to which Doss objects occurred during

the government’s rebuttal:

Wow, what a Government conspiracy!

The Government has nothing better to do than to

pressure people to get all on the same page and to

make them come into a courtroom and lie just so that

we can convict an innocent person.

. . . .

I won’t address every single point that defense

counsel made. But for you to believe the defense in

this case, you have to believe that the Government

just wants to pressure witnesses to get up on the

stand and all get in line on the same story to convict

an innocent man, and that the government wants to

pull in this fraudster, this completely unrelated individual in jail, to come in and lie to you as well.

However, Doss omits a substantial portion of the argument

in between these two passages, in which the government

argued:

For you to believe the defense, you have to

believe that Tamica, Candace, and Jacquay are all

UNITED STATES v. DOSS 751
lying to you. They are not the perfect witnesses. But

they are the perfect victims. And the defense can’t

have it both ways. They point to their inconsistencies

and tell you, ‘they can’t possibly be telling you the

truth.’ But when the tales of what happened to them

and how the defendant transported them for purposes

of prostitution match up consistently and match up

with the corroborating evidence, then it’s a government conspiracy to get these people in here and put

pressure on all of these other people to lie to you so

that we can convict an innocent man. 

Ask yourselves if that makes any sense. Ask yourselves if it makes any sense for these two girls to

come in here and testify and just make up this story.

And supposedly, it’s to protect their own pimp.

You heard from Detective Haight. Yes, it’s true,

initially sometimes girls on the street, the prostitutes

that are working on the tracks, don’t readily identify

their pimps. And you heard from him that oftentimes

they do. But this case is not just resting on the testimony of Tamica and Candice in connection with

what they told you about how the defendant transported them between states to work as prostitutes for

him. There’s all of the corroborating evidence in the

case. And the defense just dismisses it. 

[14] Viewed in context and in their entirety, the government’s comments were therefore responsive to the defense’s

closing argument, in which counsel argued “Ms. Doss is here

today because of lies. And those lies have three sources: the

pimp’s game, the government’s pressure, and one con man’s

depravity.” (emphasis added). Defense counsel had also

argued:

Now, the pressure in this case was tremendous.

The power of the United States Attorney’s office has

752 UNITED STATES v. DOSS
few boundaries. And in this case, its tentacles reach

into the relationship between a husband and his wife;

between a 15-year-old girl and her freedom; and it

even tried to convert a known con man into a star

witness.

(emphasis added). And again:

There’s another kind of pressure that’s going on in

this case, which is the pressure that the government

puts on itself to win. And that pressure led to the

very unfortunate decision to enlist a con man to convict Mr. Doss, to prop up baseless accusations of

witness tampering, accusations that are not supported by the supposed victims of the tampering.

(emphasis added).

[15] “[A] prosecutor may respond substantially to a

defense counsel’s attack in order to right the scale.” United

States v. Parker, 991 F.2d 1493, 1498 n.1 (9th Cir. 1993)

(internal quotation marks and citation omitted). When the

government’s rebuttal remarks are placed in context, both

within its own argument and the closing arguments as a

whole, it is apparent that the government was responding to

the defense’s allegations that the government had “cooked”

the case in order to win. See, e.g., Sayetsitty, 107 F.3d at 1409

(closing argument appropriate response to defense counsel’s

characterization that case was “web of deception”). In addition, rather than arguing that the jury should trust the government witnesses (as in United States v. Sanchez, 176 F.3d

1214, 1224 (9th Cir. 1999)), the government asked the jury to

exercise its own judgment and determine the plausibility of

the defense’s explanation in light of the substantial corroboration among the various witnesses. 

[16] The government concedes that its sarcastic comment

“the government has nothing better to do than to pressure peoUNITED STATES v. DOSS 753
ple to get all on the same page” could have been better

phrased, but, in context, we agree these words were merely

“rhetorical emphasis for the inferences the prosecutor was

urging the jury to draw rather than a meaningful personal

assurance that the [defendant was] guilty.” Williams, 989 F.2d

at 1072. We are also mindful that we should not assume the

prosecutor means a remark to have its most damaging meaning, “or that a jury, sitting through a lengthy exhortation, will

draw that meaning from the plethora of less damaging interpretations.” United States v. Leon-Reyes, 177 F.3d 816, 822-

23 (9th Cir. 1999) (internal quotation omitted). 

Finally, even if some of the government’s comments were

improper vouching, these unobjected-to comments do not rise

to the level of plain error resulting in a miscarriage of justice.

There was extensive evidence in support of the child prostitution counts, including the testimony of the two victims and

Doss’s wife, which was also independently corroborated by

numerous telephone, motel and car records. As discussed

above, C.F. and Cohn corroborated one another regarding

Count 7 witness tampering, and this testimony was also independently supported by prison transport records. There was

no reversible error in the closing argument.

IV. Sentencing

[17] Under 18 U.S.C. § 3559(e)(1) a “person who is convicted of a Federal sex offense in which a minor is the victim

shall be sentenced to life imprisonment if the person has a

prior sex conviction in which a minor was the victim. . . .”

The statute defines a “minor” as “an individual who has not

attained the age of 17 years.” Id. § 3559(e)(2)(D). 

The district court applied the enhancement to Doss and sentenced him to life in prison because of a prior child pandering

conviction in Nevada. Nev. Rev. Stat. § 201.300(1)(a).8 The

8The state court information alleged a violation of 201.300(1)(a), which

applies to pandering both adults and children. However, the crime carries

754 UNITED STATES v. DOSS
court acknowledged that the crime did not categorically qualify for the federal enhancement because Nevada law defines

a child as “a person less than 18 years of age,” Nev. Rev. Stat.

§ 201.295(2), whereas federal law defines a minor as under 17

years of age. The court thus turned to the modified categorical

approach set forth in Taylor v. United States, 495 U.S. 575

(1990), and Shepard v. United States, 544 U.S. 13 (2005), and

examined the charging documents, plea agreement and plea

colloquy from Doss’s state court conviction. The court concluded that Doss had admitted to pandering a child who was

16 years of age,9 and that the state conviction thus satisfied

the requirements of § 3559(e). 

At the time of the district court’s decision in 2006, its modified categorical analysis was likely correct. However, several

different penalties based on whether a child or adult is involved, and Doss

pled guilty to “pandering a child (Category B felony),” which is consistent

with the penalties for pandering someone under 18 in Nevada. Nev. Rev.

Stat. § 201.300(2)(b). 

9Count I of the state information alleged that Doss “did . . . wilfully,

unlawfully and feloniously, induce, persuade, encourage, inveigle, entice

or compel a child under the age of 18 years, to wit: [A.D.], being 16 years

of age, and/or [Z.C.], to become a prostitute and/or to engage in or continue to engage in prostitution.” Count II alleged similar conduct with two

additional 17 year olds. In the plea agreement, Doss pled guilty to both

counts “as more fully alleged in the charging document” and indicated he

understood that “by pleading guilty I admit the facts which support all the

elements of the offense(s) to which I now plead as set forth in Exhibit “1”

[the charging instrument].” 

At the plea colloquy, Doss admitted, “I enticed four juveniles in this

Complaint to continue to act as prostitutes.” His attorney then spelled the

names of the two girls from count one for the court reporter (A.D. and

Z.C.), and the court clarified: “As to Count I, you enticed these two young

ladies to work as prostitutes, is that correct?” Doss responded, “Yes, to

continue to work, yes.” Based on all of this information, the district court

concluded that although the information charged in the alternative, at the

plea colloquy Doss admitted pandering both girls, including A.D., who

was alleged to be 16 at the time of the crime, and that therefore the conviction qualified under § 3559(e). 

UNITED STATES v. DOSS 755
subsequent cases have called the approach into question. As

a preliminary matter, when making a generic crime determination, even under the modified categorical approach, our current law precludes the use of Doss’s factual admissions

regarding the age of one child because it was not necessary

to the conviction under Nevada state law. See Navarro-Lopez

v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc)

(explaining that analogous admissions could not be used “to

modify the crime because they were not necessary for a conviction”); see also Aguilar-Turcios v. Holder, 582 F.3d 1093,

1097-98 (9th Cir. 2009); Estrada-Espinoza v. Mukasey, 546

F.3d 1147, 1159-60 (9th Cir. 2008) (en banc) (modified categorical approach is only available in divisible statute to determine under which section defendant was convicted); United

States v. Jennings, 515 F.3d 980, 992 (9th Cir. 2008).

However, these cases are not outcome-determinative here

because a recent Supreme Court decision further alters the

legal landscape. In Nijhawan v. Holder, the Supreme Court

analyzed a list of aggravated felonies under immigration law,

categorizing as an aggravated felony “an offense that involves

fraud or deceit in which the loss to the victim or victims

exceeds $10,000.” 129 S. Ct. 2294, 2298 (2009) (emphasis in

original); 8 U.S.C. § 1101(a)(43)(M)(I). The Court distinguished between generic crimes (in which a court would look

to the offense statute to determine if there was an appropriate

monetary threshold as an element of the underlying offense)

and “circumstance-specific” crimes, which would instead

look to the facts and circumstances underlying an offender’s

conviction. Id. at 2298-99. The Court concluded that subparagraph (M)(I) was the latter, noting that:

The language of the provision is consistent with a

circumstance-specific approach. The words “in

which” (which modify “offense”) can refer to the

conduct involved “in” the commission of the offense

of conviction, rather than to the elements of the

offense. 

756 UNITED STATES v. DOSS
Id. at 2301. 

The sentencing enhancement at play here, 18 U.S.C.

§ 3559(e)(1), contains similar language. It provides for a mandatory minimum life sentence for a federal sex offense of the

type of which Doss was convicted if the defendant has a

“prior sex conviction in which a minor was the victim.” As in

Nijhawan, the clause “in which a minor was the victim” modifies “prior sex conviction” but is not necessarily an element

of that prior offense.10 Instead, the language suggests we are

to consider “the specific circumstances surrounding an

offender’s commission of [that crime] on a specific occasion.”

Nijhawan, 129 S. Ct. at 2302. 

In Nijhawan, the Court also looked to the remainder of the

statute, noting that the language of various other provisions

“almost certainly does not refer to generic crimes but refers

to specific circumstances.” Id. at 2300-01. Likewise,

§ 3559(e) has other indications that it too is circumstancedependent. For example, it provides that an otherwise qualifying felony cannot serve as the basis for sentencing if the

defendant establishes that the sexual activity “was consensual

and not for the purpose of commercial or pecuniary gain”—

something that could not be determined by a mere comparison

of generic elements or even under the modified categorical

approach. 

As the government argued to the district court, § 3559(e)

presents a “hybrid” situation. The first portion of the sentencing enhancement—whether defendant has a prior “sex

offense” conviction—involves the traditional Taylor approach

and a comparison of generic elements. However, in light of

Nijhawan, we conclude that Congress intended courts applying § 3559(e) to then look to the specific circumstances of

that conviction to determine whether it involved a minor (and

10Doss does not otherwise dispute that his prior sex offense would qualify as a “prior sex conviction” except for the victim’s age. 

UNITED STATES v. DOSS 757
whether the defendant’s defenses described above might also

apply given the particular circumstances of the prior conviction).

[18] Nonetheless, we also recognize that Nijhawan was an

immigration case, and although we believe its reasoning is

equally applicable to § 3559(e), the constitutional ramifications are decidedly different. Because we conclude that “in

which a minor was the victim” is not an element of “prior sex

conviction,” a factual determination that a minor was

involved necessarily falls outside the “fact of a prior conviction” exception of Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). Thus, if this fact increases the penalty Doss would

face above the statutory maximum, it must be proven to a

factfinder beyond a reasonable doubt. Id.; see also Nijhawan,

129 S. Ct. at 2302 (government conceding that in a criminal

proceeding for illegal reentry the loss amount would need to

be submitted to a jury). 

The mandatory life sentence enhancement pursuant to

§ 3559(e) was applied to Doss’s convictions on Counts 4, 5,

and 6 for violations of 18 U.S.C. § 2423. Although § 2423

currently provides for a maximum term of life in prison, at the

time of Doss’s crime, the statute provided a statutory maximum of 30 years in prison, 18 U.S.C. § 2423 (2000), amended

by Adam Walsh Child Protection and Safety Act of 2006,

Pub. L. 109-248, § 204, 120 Stat. 587, 613, and thus Apprendi

applies.

[19] In this case Doss waived a jury determination and

proceeded to a “bench trial” for sentencing. However, our

review of the proceeding makes it clear that although the government sought a factfinding sentencing trial and wished to

introduce evidence in that proceeding, such as birth certificates of the two victims from the Nevada conviction, the district court instead based its decision entirely on legal grounds

—application of the Taylor/Shepard modified categorical

approach—and did not undertake any specific factfinding (an

758 UNITED STATES v. DOSS
approach that was perfectly understandable given the law at

the time). Under these circumstances, especially considering

the significant change in law since the sentencing, we believe

the fairest approach would be to remand Counts 4, 5, and 6

for a new sentencing proceeding to determine, applying a

beyond-a-reasonable-doubt standard, whether Doss’s prior

sex conviction indeed involved a minor under the federal definition.11

CONCLUSION

Doss’s convictions are AFFIRMED, except for Count 8,

which is REVERSED. Doss’s life sentences on Counts 4, 5

and 6 are VACATED and REMANDED for further proceedings in accordance with this Opinion.

11We note that, because this determination is outside the Taylor/Shepard

framework, the factfinder’s determination of whether the prior conviction

involved a minor under the age of 17 need not be limited to the documents

involved in a generic offense inquiry, but that the court or jury may consider any competent evidence that may be introduced under the Federal

Rules, as with any other sentencing enhancement that increases the statutory maximum. Cf. Nijhawan, 129 S. Ct. at 2302-03. 

UNITED STATES v. DOSS 759