FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILFREDO LOPEZ,

Defendant-Appellant.

No. 19-10017

D.C. No.

17-cr-00053-1

OPINION

On Appeal from the United States District Court

for the District of Guam

Tydingco-Gatewood, Chief Judge, Presiding

Argued and Submitted October 20, 2020

Honolulu, Hawaii

Filed July 6, 2021

Before: J. Clifford Wallace, Carlos T. Bea, and

Mark J. Bennett, Circuit Judges.

Opinion by Judge Bea

Partial Dissent by Judge Bennett
2 UNITED STATES V. LOPEZ

SUMMARY*

Criminal Law

The panel affirmed the district court’s judgment in a case 

in which Wilfredo Lopez was convicted of attempt to entice 

a minor to engage in prohibited sexual activity (18 U.S.C. 

§ 2422(b)) and attempt to transfer obscenity to a minor under 

sixteen years of age (18 U.S.C. § 1470). 

Lopez, who served as a member of the U.S. Army in the 

Territory of Guam, worked at Andersen Air Force Base, a 

federal enclave within the special maritime and territorial 

jurisdiction of the United States, but lived off-base in 

territory subject to both federal law and the laws of Guam.

The panel held that the district court, which admitted into 

evidence edited video clips of Lopez’s post-arrest 

interrogation, abused its discretion and violated Fed. R. 

Evid. 106 (the rule of completeness) by categorically 

excluding the entirety of the remaining interrogation footage 

as inadmissible hearsay despite the risk that the 

Government’s selective editing would mislead the jury. The 

panel concluded, however, that the error was harmless.

The panel held that it was not error, let alone plain error, 

for the district court to enter a judgment of conviction as to 

the Section 2422(b) attempted enticement charge on this 

record. Lopez asked this court to interpret Section 2422(b) 

as requiring the Government to charge a predicate offense 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. LOPEZ 3

and to prove Guam would have had jurisdiction to prosecute 

him for said predicate offense. As a matter of first 

impression, the panel held that Lopez’s reading of Section 

2422(b) is inconsistent with the statute’s text and how the 

statute has been interpreted. The panel held that Section 

2422(b) does not require the Government to allege a specific 

predicate offense or to prove that the relevant court would 

have jurisdiction over the defendant for the commission of 

such offense, so long as the Government proved the 

defendant’s sexual conduct would have constituted “a

criminal offense” under the laws of an applicable territorial 

jurisdiction. The panel concluded that under this reading of 

Section 2422(b), the Government presented sufficient 

evidence to allow the jury to conclude Lopez attempted to 

entice “Brit” to engage in sexual conduct that is criminal in 

Guam. 

Lopez relied on his reading of Section 2422(b) as 

requiring a specific predicate offense to argue that the 

district court violated his due process rights by failing to 

instruct on the elements of the Guam criminal sexual 

penetration statute cited in the indictment. Reviewing for 

plain error, the panel concluded that, although the district 

court should have instructed the jury on the applicable “laws 

of Guam,” Lopez cannot meet his burden of establishing the 

error affected his substantial rights. Rejecting again Lopez’s 

core argument that Section 2422(b) requires the indictment 

and proof of a specific predicate offense, the panel held that 

the district court nevertheless erred in failing to define the 

“laws of Guam” against which Lopez’s proposed sexual 

conduct was to be evaluated. The panel did not need to 

decide whether the error was plain or seriously undermined 

the integrity or reputation of judicial proceedings because 

there is no question that Lopez cannot meet his burden of 

demonstrating prejudice to his substantial rights, as Lopez 
4 UNITED STATES V. LOPEZ

failed to identify a reasonable probability that the jury would 

have come to a different decision had the district court 

instructed that 9 G.C.A. §§ 13.10, 13.60(a), and 25.15(a)(1) 

criminalize attempts to engage in sexual penetration of a 

minor under fourteen years of age. 

The panel held that there was no error, let alone plain 

error, in the district court’s denial of Lopez’s motions for 

acquittal under Fed. R. Evid. 29 and entry of judgment of 

conviction on the charge under Section 1470 for attempted 

transfer of obscenity to a minor under sixteen. The panel 

wrote that the indictment did not charge completed transfer 

of obscenity rather than an attempt. The panel wrote that 

Lopez waived objections to the jury instructions and jury 

verdict form as to the Section 1470 charge.

Dissenting in part, Judge Bennett dissented from the 

Majority’s affirmance of Lopez’s conviction for attempted 

enticement of a minor in violation of Section 2422(b). He 

wrote that Lopez could not have been charged with or 

committed First Degree Criminal Sexual Conduct in 

violation of 9 G.C.A. § 25.15(a)(1) as the predicate for his 

Section 2422(b) violation, because the sexual activity he 

proposed was to take place on Anderson Air Force Base, a 

place within the Special Maritime and Territorial 

Jurisdiction of the United States, and that crime is not 

assimilated under the Assimilative Crime Act, 18 U.S.C. 

§ 13. Judge Bennett also wrote that by sua sponte amending 

the indictment on appeal, to find that the government had 

proven a crime with which the grand jury had never charged 

Lopez, the Majority usurped the function of the grand jury, 

in violation of the Fifth Amendment.
UNITED STATES V. LOPEZ 5

COUNSEL

Joshua D. Weiss (argued), Deputy Federal Public Defender; 

Cuauhtemoc Ortega, Interim Federal Public Defender; 

Office of the Federal Public Defender, Los Angeles, 

California; for Defendant-Appellant.

Rosetta L. San Nicolas (argued), Assistant United States 

Attorney; Shawn N. Anderson, United States Attorney; 

United States Attorney’s Office, Hagatna, Guam; for 

Plaintiff-Appellee.

OPINION

BEA, Circuit Judge:

Wilfredo Lopez was convicted in the U.S. District Court 

for the District of Guam of an attempt to entice a minor to 

engage in prohibited sexual activity and an attempt to 

transfer obscenity to a minor under sixteen years of age in 

violation of 18 U.S.C. §§ 2422(b) and 1470. On appeal, 

Lopez argues the district court erred by admitting into 

evidence edited video clips of his post-arrest interrogation, 

thereby creating the misleading impression that Lopez 

confessed to key elements of the charges, and further erred 

by denying his trial motions for acquittal under Federal Rule 

of Criminal Procedure 29. For the following reasons, we 

reject Lopez’s claim of prejudicial error, deny relief with 

respect to additional contentions that the district court 

committed plain error, and affirm the judgment of 

conviction.
6 UNITED STATES V. LOPEZ

I. BACKGROUND

Wilfredo Lopez served as a member of the U.S. Army in 

the Territory of Guam. Lopez worked at Andersen Air Force 

Base (AAFB), a federal enclave within the special maritime 

and territorial jurisdiction of the United States, but lived offbase in territory subject to both federal law and the laws of 

Guam.

In November 2017, the U.S. Air Force Office of Special 

Investigations (OSI) identified Lopez as a potential child 

predator. An OSI agent had posted an advertisement on a 

classifieds website in which he posed as a thirteen-year-old 

girl named “Brit” seeking friends among “other mil brats” 

living on-base. Lopez responded to the advertisement under 

the alias “Chris Bain” with an email that invited “Brit” to 

“chill by the lookout on base” and “do whatever if you know 

what I mean.” When “Brit” replied that she was thirteen 

years old, Lopez responded “I’m 29, I can get in trouble for 

this.” Nevertheless, Lopez continued to communicate with 

“Brit” by email, asked for her phone number, and offered to 

message her using a Facebook account he operated under the 

alias “Blake Johnson.”

In the email exchanges that followed, Lopez repeatedly 

asked “Brit” to do “naughty things” and offered to “teach 

[her] how to kiss, have sex, suck a dick.” Lopez escalated 

the conversation by sending “Brit” a photograph of his erect 

penis and requesting nude photographs in return. “Brit” 

responded with photographs of a female law enforcement 

agent that appeared to depict a teenage girl in a sweater and 

in a dress. Lopez then sent “Brit” a second photograph of 

his erect penis and a video depicting the same. All told, 

Lopez asked to meet “Brit” on four separate occasions at 

different locations within AAFB. The first and second 

invitation involved proposed meetings at the Base Exchange 
UNITED STATES V. LOPEZ 7

and at an on-base Burger King, neither of which 

materialized. Lopez then proposed meeting “Brit” at the onbase library. Lopez appeared at the library, waited for some 

time, and left when “Brit” failed to arrive. Finally, Lopez 

arranged to meet “Brit” at her supposed on-base residence. 

OSI agents arrested Lopez when he arrived at the agreedupon location.

After his arrest, Lopez consented to a video-recorded 

interview with two OSI agents and a special agent from the 

Federal Bureau of Investigation. During the eighty-minute 

interrogation, Lopez admitted to communicating online with 

a person claiming to be an underage girl. However, Lopez 

maintained that he knew “Brit” was an undercover agent 

because of the suspicious timing and content of the messages 

sent from her account. Lopez noted, for example, that many 

of the messages were sent during the middle of the day when 

school-aged girls would be in class and lack access to email. 

Lopez also described in some detail the process by which he 

checked the photographs received from “Brit” for evidence 

of law enforcement involvement. When asked why he 

continued the email and text message exchanges after “Brit” 

told him she was underage, Lopez claimed that he hoped to 

obtain a discharge from the military to avoid the automatic 

deduction of child support and alimony payments from his 

military wages for the benefit of his estranged wife.

In December 2017, a grand jury in the U.S. District Court 

for the District of Guam indicted Lopez on two counts of sex 

crimes against children. The first count alleged Lopez 

violated 18 U.S.C. § 2422(b) by an attempt to entice a minor 

“to engage in sexual activity for which a person can be 

charged with a criminal offense, to wit: First Degree 

Criminal Sexual Conduct, in violation of 9 [G.C.A.] 

§ 25.15(a)(1), all in violation of Title 18, United States Code, 
8 UNITED STATES V. LOPEZ

Sections 2422(b) and 2.” The Guam statute cited in the 

indictment punishes the sexual penetration of a minor under 

fourteen years of age as a first-degree felony. Notably, 

Guam law also punishes an attempt to the same grade and 

degree as a completed offense. 9 G.C.A. §§ 13.10, 13.60(a). 

The second count alleged Lopez violated 18 U.S.C. § 1470 

by an attempt to transfer obscene materials to a minor under 

sixteen years of age.

At a pretrial hearing, the Government moved to 

introduce into evidence eleven video clips of the post-arrest 

interrogation in which Lopez appeared to confess he 

believed “Brit” was an underage girl. With few exceptions, 

the video clips were about ten seconds long, omitted the 

agents’ questions, and presented only portions of Lopez’s 

complete statements. Lopez immediately objected on the 

ground that the rule of completeness codified in Federal Rule 

of Evidence 106 required either excluding the clips or 

admitting the entire recording. The district court reserved 

decision and invited written motions from Lopez and the 

Government. The Government subsequently filed a motion 

in limine arguing that, although prosecutors could introduce 

the video clips into evidence as admissions by a party 

opponent, the hearsay bar prohibited Lopez from introducing 

additional footage of the interrogation because the footage 

contained self-serving statements about his conduct and 

good character.

The district court considered the motion in limine prior 

to jury selection on the morning of trial. Lopez renewed his 

objection that the video recording should be admitted in full 

or not at all. Lopez explained through counsel that, although 

he believed that the Ninth Circuit precedents cited by the 

Government appeared to cut against his position, the Federal 

Rules of Evidence are nevertheless best read to require his 
UNITED STATES V. LOPEZ 9

requested ruling. The court overruled Lopez’s objection and 

admitted into evidence the video clips proffered by the 

Government after concluding that they were not misleading 

and that the additional footage was inadmissible hearsay.

The case proceeded to trial. At the close of the 

Government’s evidence, Lopez moved for a judgment of 

acquittal under Federal Rule of Criminal Procedure 29. 

Lopez predicated his Rule 29 motion exclusively on the 

argument that no reasonable jury could conclude Lopez 

believed “Brit” was an underage girl as required by the mens 

rea element of both charged offenses. The district court 

summarily denied the motion.

Lopez then took the stand in his own defense to testify 

that he believed “Brit” was a law enforcement agent all 

along. Lopez claimed to have spotted the ruse because of his 

familiarity with the tactics of sex offender sting operations 

and because the timing of the messages was inconsistent 

with the schedule of a school-aged girl. Lopez claimed he 

continued the conversation only because he sought discharge 

from the military to circumvent the garnishment of his wages 

for child support and alimony payments. Lopez further 

explained that the clips presented by the Government 

inaccurately portrayed the lengthy post-arrest interrogation 

by omitting footage in which he repeatedly denied believing 

“Brit” was underage. After the defense rested, Lopez 

renewed his Rule 29 motion on the same basis as the original 

motion. The district court found the record contained 

sufficient evidence to support conviction, denied the motion 

once again, and proceeded to instruct the jury using a written 

script agreed upon by both parties.

The jury returned a verdict of guilty on both counts. The 

court sentenced Lopez to concurrent 120-month sentences to 

be followed by 36 months of supervised release, including 
10 UNITED STATES V. LOPEZ

special conditions of supervised release, as well as 

registration under the terms of the Sex Offender Registration 

and Notification Act. Lopez timely appealed. We have 

jurisdiction pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

On appeal, Lopez argues the district court prejudiced his 

defense by admitting into evidence isolated excerpts of the 

post-arrest interrogation recording and denying his motion 

to introduce the remaining footage. Lopez also challenges 

the evidence and jury instructions supporting his attempt 

conviction pursuant to 18 U.S.C. § 2422(b) as well as the 

indictment, jury instructions, and jury verdict form 

supporting his attempt conviction pursuant to 18 U.S.C. 

§ 1470 on several theories never raised below. We consider 

each argument in turn under the applicable standard of 

review.

A. Evidentiary Challenge

Lopez challenges his convictions on the ground that the 

district court violated Federal Rule of Evidence 106 by 

allowing the Government to introduce excerpts of the 

recorded post-arrest interrogation while excluding the 

remaining interrogation footage as inadmissible hearsay. 

We review challenged evidentiary rulings for an abuse of 

discretion. United States v. Vallejos, 742 F.3d 902, 905 (9th 

Cir. 2014). We will not reverse a conviction on account of 

trial error if the Government shows the erroneous decision 
UNITED STATES V. LOPEZ 11

more likely than not had no material impact on the verdict. 

United States v. Bailey, 696 F.3d 794, 803 (9th Cir. 2012).1

We hold the district court abused its discretion and 

violated Rule 106 by categorically excluding the entirety of 

the remaining interrogation footage as inadmissible hearsay 

despite the risk that the Government’s selective editing of 

the interrogation footage would mislead the jury. However, 

we agree with the Government that the district court’s 

evidentiary ruling was harmless error.

1. The Rule of Completeness—Rule 106

This is not the first case in which we have addressed the 

intersection of Federal Rule of Evidence 106 and the bar to 

the admission of hearsay evidence codified in Federal Rule 

of Evidence 802. In United States v. Collicott, 92 F.3d 973 

(9th Cir. 1996), we explained that the rule of completeness 

codified in Rule 106 renders additional portions of a 

complete document or recording relevant when the opposing 

party distorts the meaning of the document or recording by 

introducing misleading excerpts into evidence. Id. at 983 

(citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 

1 The Government argues that Lopez withdrew his evidentiary 

objection by failing to file a written response to the Government’s 

motion in limine and by acknowledging contrary circuit precedent. We 

reject these contentions. Defense counsel objected to the Government’s 

initial motion to introduce the excerpts of the interrogation recording. 

Counsel renewed the objection prior to the district court’s ruling on the 

Government’s written motion while candidly acknowledging potential 

weaknesses in his argument. Timely and specific oral objections are 

sufficient to preserve an evidentiary ruling for appellate review. Cf. 

United States v. Alvirez, 831 F.3d 1115, 1122 (9th Cir. 2016) (“When the 

district court judge makes a definitive ruling admitting evidence, there is 

no need to renew the objection to preserve the claimed error.” (citation 

and quotation marks omitted)).
12 UNITED STATES V. LOPEZ

(1988)). At the same time, we also held that the rule of 

completeness does not compel the admission of inadmissible 

hearsay evidence simply because such evidence is relevant 

to the case. Id.

When Rule 106 and Rule 802 collide, the critical inquiry 

for the trial court is the purpose for which the evidence is 

offered. Portions of a document or recording are admissible 

under Rule 106 notwithstanding the bar on hearsay evidence 

when offered “to correct a misleading impression in the 

edited statement” introduced by an opposing party. Vallejos, 

742 F.3d at 905 (citation and quotation marks omitted). In 

the interrogation context, for example, we have held that 

Rule 106 provides for the admission of additional portions 

of a defendant’s statement when the prosecution offers a 

redacted version that “distorts the meaning of the statement,” 

“excludes information substantially exculpatory of the 

declarant,” or “excludes portions of a statement that are . . .

explanatory of [or] relevant to the admitted passages.” 

United States v. Dorrell, 758 F.2d 427, 435 (9th Cir. 1985) 

(citations and quotation marks omitted). By contrast, 

hearsay evidence is evidence offered “to prove the truth of 

the matter asserted.” Fed. R. Evid. 801(c)(2). There is no 

conflict between evidence introduced under the rule of 

completeness and the bar on inadmissible hearsay because 

the former serves the purpose of correcting a distortion 

created by an opposing party’s misleading proffer of part of 

a document or recording, while the latter serves the purpose 

of barring introduction of hearsay evidence proffered for its 

truth.

The district court abused its discretion by categorically 

excluding the entirety of the remaining interrogation footage 

as inadmissible hearsay. The first step in the district court’s 

error was the erroneous conclusion that the Government’s 
UNITED STATES V. LOPEZ 13

selectively edited excerpts accurately presented the content 

of Lopez’s statements. On a fair review of the interrogation 

recording, it should have been apparent that the excerpts 

risked misleading the jury by making it seem as though 

Lopez confessed during interrogation to believing “Brit” 

was underage when, in reality, the full recording conveys a 

different impression.

For example, one clip shown at trial depicts an isolated 

moment in which Lopez stated: “Um, I was just bored at 

first, and was on Gmail, and that’s when she told me she was 

15, [sic] and I was like oh shit.” However, the Government’s 

editing truncated Lopez’s explanation that he believed the 

“Brit” persona was a scam:

Um, I was just bored at first, and was on 

Gmail, and that’s when she told me she was 

15, and I was like oh shit, but then that’s 

when the thing started happening in my life 

and I was like you know what, this can get me 

into trouble, and then I knew that [the “Brit” 

persona] was a scam from the beginning.

In another clip, the Government presented Lopez’s 

affirmative answer to an agent’s statement “You’re 29. 29 

and a 13-year-old.” as if it were an admission. In fact, the 

exchange took place during a colloquy in which Lopez 

attempted to explain why he believed “Brit” was a law 

enforcement agent:

Lopez: If it was a regular 13 year-old, that 13 

year-old girl would not keep messaging a 29 

year-old guy, especially calling him the 

“boyfriend” and herself “girlfriend,” when do 

you see that? You don’t see that at all.
14 UNITED STATES V. LOPEZ

Agent: Yea, that’s crazy right?

Lopez: So I already know.

Agent: How old are you?

Lopez: I’m 29.

Agent: You’re 29. 29 and a 13-year-old.

Lopez: Yeah. So from there I was like, ok, 

it’s someone, that’s watching me, and then 

that’s when you guys came out and then I was 

like ok, that’s the OSI.

Yet another clip followed the same pattern by presenting 

Lopez in what appears to be an agitated state admitting “I 

wasn’t talking to you guys, I was talking to a minor.” In 

context, Lopez was cajoling the interrogating agents to expel 

him from the military:

Lopez: Come on now, sir, can you just get 

me out of the army?

Agent: [Laughs] Listen, my job isn’t to get 

people out of the army, my job is to, to 

investigate federal crimes. So, um. . .

Lopez: No, I wasn’t talking to you guys, I 

was talking to a minor.

Agent: [Pause] I mean, in your frame of 

mind, what you attempted to do, what were 

you attempting to do?
UNITED STATES V. LOPEZ 15

Lopez: Get kicked out of the army.

Agent: Ok. So, were you or were you not 

trying to have sex with a 13 year-old?

Lopez: No, I promise you that. I wasn’t.

The potentially misleading impact of the Government’s clips 

means they should not, in fairness, have been considered in 

isolation from Lopez’s related statements at other points in 

the interrogation.

This case is a far cry from Dorrell and Vallejos, in which 

we found the excluded portions of the defendants’ 

confessions fell outside the ambit of Rule 106 because they 

did not serve to correct misapprehensions created by the 

partial introduction of a document or recording. In Dorrell, 

we affirmed the exclusion of portions of a confession in 

which the defendant explained the political and religious 

motivations behind his attempted sabotage of a missile 

factory. Removing these details “did not change the 

meaning of the portions of his confession submitted to the 

jury” because his expressions of ideological zeal during the 

confession were presented as justifications for his criminal 

conduct, not to contradict evidence of the conduct to which 

he had confessed. 758 F.2d at 435. Similarly, in Vallejos, 

we approved the redaction of a confession to remove details 

meant to “humanize” the defendant by bringing out his 

character and personal history, which were irrelevant to his 

factual admissions regarding the commission of the crime. 

742 F.3d at 905. Here, the Government’s excerpts created 

the misleading impression that Lopez confessed to the mens 

rea required for conviction: knowledge or mistaken belief 

that “Brit” was underage. The excluded footage contained 

information directly qualifying statements which the 
16 UNITED STATES V. LOPEZ

Government’s editing cut off prematurely and, at times, at

mid-sentence. Under these circumstances, at least some 

additional footage would have been admissible under the 

rule of completeness codified in Rule 106.

The district court compounded this error by ruling 

categorically that all remaining portions of the interrogation 

recording would be inadmissible hearsay if Lopez moved to 

introduce them into evidence. To be sure, Rule 106 does not 

obligate a district court to grant a party’s motion to introduce 

an entire document or recording to correct the misleading 

impression created by the opposing party’s partial 

introduction. We have long recognized that “[a]pplication 

of the rule of completeness is a matter for the trial judge’s 

discretion.” Dorrell, 758 F.2d at 434 (citing United States v. 

Burreson, 643 F.2d 1344, 1349 (9th Cir. 1981)). Here, at 

least some excluded portions of the interrogation recording 

contained self-serving statements about Lopez’s own 

character that were properly kept from the jury. But other 

portions contained statements that bore directly on the 

meaning of the excerpts presented by the Government at 

trial. By ruling that the remainder of the recording would be 

inadmissible hearsay if proffered by the defense, the district 

court denied Lopez the opportunity to proffer limited 

selections of additional footage that would serve to correct 

the misleading impression created by the Government’s 

excerpts.

In response to Lopez’s objection, the district court could 

have excluded the video clips offered by the Government or 

admitted the Government’s clips subject to Lopez’s ability 

to proffer additional portions of the recording under Rule 

106. The only course foreclosed by the Federal Rules of 

Evidence was the one taken here: admitting portions of a 

document or recording that risked misleading the jury while 
UNITED STATES V. LOPEZ 17

foreclosing the admission of any additional portions of the 

same document or recording.2

2. Harmless Error Review

Nevertheless, we hold that remand for a new trial is 

unwarranted because the district court’s misapplication of 

Rule 106 was harmless error. Throughout the proceedings 

below, Lopez’s defense focused on disputing the knowledge 

element of both charged offenses by attempting to persuade 

the jury that he believed “Brit” was an adult law enforcement 

agent. Given the extensive circumstantial evidence 

presented at trial of Lopez’s belief that “Brit” was underage, 

the probative value of the wrongfully excluded interrogation 

footage, and the mitigating effect of Lopez’s trial testimony 

on any prejudice resulting from admission of the 

interrogation excerpts, we conclude “it is more probable than 

not that the error did not materially affect the verdict.” 

Bailey, 696 F.3d at 803 (citation omitted).

It is well established that the strength of the 

Government’s case can render trial errors harmless by 

reducing the likelihood that tainted evidence impacted the 

2 Lopez also argues for the first time on appeal that showing the 

interrogation excerpts at trial violated his Fifth Amendment right against 

self-incrimination and his due process right to a fair trial even if the 

excerpts were admissible under the Federal Rules of Evidence. Because 

we hold the district court abused its discretion and violated Rule 106 by 

admitting the evidence, we need not pass on the contention that Rule 106 

violated the Constitution as applied in this case. In any event, harmless 

error review would be equally applicable to such a violation. Lopez does 

not argue the district court’s erroneous evidentiary ruling amounts to a

structural constitutional error requiring automatic reversal. Nor does 

Lopez argue the district court violated his Fifth Amendment right not to 

testify at trial by putting him in a position where taking the stand was the 

only way to rebut the Government’s misleading evidence.
18 UNITED STATES V. LOPEZ

verdict. See United States v. Gonzalez-Flores, 418 F.3d 

1093, 1102 (9th Cir. 2005); United States v. GonzalezSandoval, 894 F.2d 1043, 1049 (9th Cir. 1990). Here, the 

Government introduced reams of sexually explicit messages 

which Lopez sent to “Brit” after she repeatedly claimed to 

be thirteen years old. Lopez referenced “Brit’s” sexual 

inexperience by offering to teach her how to perform various 

sexual acts and continued to send her explicit emails and 

obscene materials after receiving photographs from “Brit” 

depicting an underage girl. Throughout the 

communications, Lopez expressed a fear of getting in 

trouble because “Brit” was underage. Investigating agents 

explained at trial that Lopez attempted to meet “Brit” to 

engage in sexual acts and repeatedly solicited nude 

photographs from her. Given the strength of the evidence 

that Lopez believed “Brit” was underage, the jury likely 

would have voted to convict even if the district court had 

excluded the Government’s video clips or admitted the entire 

interrogation recording into evidence as Lopez requested.

Lopez’s trial testimony also served to mitigate any 

prejudice resulting from the improper admission of the 

misleading excerpts. Lopez took the stand to explain his 

state of mind when communicating with “Brit.” Lopez told 

the jury he communicated with “Brit” despite knowing the 

persona was a law enforcement trap because he hoped to 

obtain a discharge from the military and thus avoid paying 

child support and alimony. Lopez specifically testified 

about the interrogation, noting that it lasted almost two hours 

and that the clips presented by the Government were 

misleading. Taken together, the Government’s evidence and 

Lopez’s trial testimony left the jury in substantially the same 

position to judge the credibility of Lopez’s mens rea defense 

as it would have been absent the district court’s erroneous 
UNITED STATES V. LOPEZ 19

evidentiary ruling. A new trial is not required under these 

circumstances.

B. Attempted Enticement of a Minor

Next, Lopez challenges the sufficiency of the evidence 

supporting his attempted enticement conviction pursuant to 

18 U.S.C. § 2422(b). The indictment alleged Lopez violated 

Section 2422(b) by attempting to entice a minor to engage in 

sexual activity criminalized by Guam’s First Degree 

Criminal Sexual Conduct statute, 9 G.C.A. § 25.15(a)(1). 

Lopez twice moved for acquittal under Federal Rule of 

Criminal Procedure 29 on the ground that the Government 

failed to prove the mens rea required for conviction by 

showing Lopez believed “Brit” was underage. The district 

court denied both motions after concluding the evidence was 

sufficient to allow a reasonable jury to find all elements of 

the charged offense, including that Lopez believed “Brit” 

was underage.

On appeal, Lopez challenges the denials of his Rule 29 

motions on the ground that the Government failed to prove 

a different element of the Section 2422(b) offense: that the 

sexual activity in which he sought to entice “Brit” to engage 

was “sexual activity for which any person can be charged 

with a criminal offense.” According to Lopez, this statutory 

language means “the Government had to prove that 

Mr. Lopez attempted to entice a minor to engage in sexual 

activity that would have violated a criminal offense for 

which he actually could have been prosecuted.” Because the 

indictment cited a Guam law criminalizing the sexual 

penetration of a minor under fourteen, Lopez argues the jury 

“had to find that Mr. Lopez attempted to entice a minor to 

engage in ‘sexual penetration,’ as is required to violate the 

Guam statute.” In other words, Lopez asks us to interpret 

Section 2422(b) as requiring the Government to charge a 
20 UNITED STATES V. LOPEZ

predicate offense and to prove Guam would have had 

jurisdiction to prosecute him for said predicate offense. 

Because the Government failed to prove Guam or another 

governmental entity would have had jurisdiction to 

prosecute violations of the Guam statute cited in the 

indictment that were to occur on AAFB, a federal enclave, 

accepting Lopez’s argument would require us to reverse the 

Section 2422(b) conviction and remand for acquittal. See

United States v. Audette, 923 F.3d 1227, 1238 (9th Cir. 

2019).

As an initial matter, we conclude Lopez forfeited this 

statutory argument by failing to raise it before the district 

court. While Rule 29 motions need not specify grounds for 

acquittal, it is well established that Rule 29 motions raising 

particular grounds fail to preserve appellate review of other 

grounds not raised. United States v. Hussain, 972 F.3d 1138, 

1146 (9th Cir. 2020); United States v. Graf, 610 F.3d 1148, 

1166 (9th Cir. 2010). We review forfeited challenges to the 

sufficiency of the evidence for plain error. United States v. 

Garcia-Guizar, 160 F.3d 511, 516–17 (9th Cir. 1998). To 

establish plain error, the defendant must at least demonstrate 

an error, that the error was plain, and that the error prejudiced 

his substantial rights. United States v. Depue, 912 F.3d 

1227, 1234–35 (9th Cir. 2019) (en banc); see also United 

States v. Olano, 507 U.S. 725, 733–36 (1993). We may 

overturn a conviction for plain error resulting in insufficient 

evidence only “to prevent a miscarriage of justice or to 

preserve the integrity and the reputation of the judicial 

process.” Garcia-Guizar, 160 F.3d at 516 (citing Olano, 

507 U.S. at 736).3

3 Our decisions in Hussain and Graf used the term “waiver” rather 

than “forfeiture” to describe arguments for acquittal not properly 
UNITED STATES V. LOPEZ 21

We conclude it was not error, let alone plain error, for 

the district court to enter a judgment of conviction as to the 

Section 2422(b) attempted enticement charge on this record. 

We hold as a matter of first impression that Lopez’s reading 

of Section 2422(b) to require charging a specific predicate 

offense is inconsistent with the statute’s text and how the 

statute has been interpreted. Instead, Section 2422(b)’s 

“sexual activity for which any person can be charged with a 

criminal offense” element requires the Government to prove 

the defendant proposed sexual conduct that would have 

constituted any criminal offense in one or more relevant 

territorial jurisdictions. Under this reading of Section 

2422(b), the Government presented sufficient evidence to 

allow the jury to conclude Lopez attempted to entice “Brit” 

to engage in sexual conduct that is criminal in Guam.

1. Meaning of “any sexual activity for which any person 

can be charged with a criminal offense” in 18 U.S.C. 

§ 2422(b)

“As always, we begin with the text of the statute.” 

Friends of Animals v. U.S. Fish & Wildlife Serv., 879 F.3d 

preserved before the district court. See Hussain, 972 F.3d at 1146; Graf, 

610 F.3d at 1166. But “waiver” is “the ‘intentional relinquishment or 

abandonment of a known right’” and entirely precludes appellate review, 

while “forfeiture” is “the failure to make the timely assertion of a right” 

and subjects an argument to plain error review. Olano, 507 U.S. at 733 

(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Our circuit law 

is clear that waiver requires “evidence that the defendant was aware of 

the right he was relinquishing and relinquished it anyway.” Depue, 

912 F.3d at 1233 (citing United States v. Perez, 116 F.3d 840, 845 (9th 

Cir. 1997) (en banc)). Because there is no evidence that Lopez 

considered including the argument for acquittal now pressed on appeal 

but declined to do so, the argument was forfeited, not waived.
22 UNITED STATES V. LOPEZ

1000, 1003 (9th Cir. 2018) (quoting Limtiaco v. Camacho, 

549 U.S. 483, 488 (2007)). 18 U.S.C. § 2422(b) provides:

Whoever, using the mail or any facility or 

means of interstate or foreign commerce, or 

within the special maritime and territorial 

jurisdiction of the United States knowingly 

persuades, induces, entices, or coerces any 

individual who has not attained the age of 

18 years, to engage in prostitution or any 

sexual activity for which any person can be 

charged with a criminal offense, or attempts 

to do so, shall be fined under this title and 

imprisoned not less than 10 years or for life.

By its plain language, Section 2422(b) criminalizes 

communications that persuade, induce, entice, or coerce a 

minor to engage in sexual activity regarded as criminal. For 

the reasons that follow, we hold Section 2422(b) requires 

proof that the defendant’s persuasive communications 

described sexual conduct that could be charged in at least 

one relevant territorial jurisdiction but does not require the 

Government to indict a specific predicate offense or to prove 

a governmental entity would have had jurisdiction to 

prosecute the defendant for such predicate offense.

First, the phrase “any person” in the clause “for which 

any person can be charged with a criminal offense” indicates 

Congress deliberately chose to divorce criminal liability 

under Section 2422(b) from the actual or attempted 

commission of a predicate offense. By using the phrase “any 

person” rather than “the defendant,” Section 2422(b) sets out 

an objective inquiry that asks whether a person could be 

charged in an applicable territorial jurisdiction for the sexual 

conduct proposed in the defendant’s communications. See, 
UNITED STATES V. LOPEZ 23

e.g., United States v. Saldaña-Rivera, 914 F.3d 721, 724 (1st 

Cir. 2019) (“Nothing in the language of [S]ection 2422(b) 

requires the [G]overnment to show that Saldaña himself 

could have been charged . . . . Rather, criminal liability 

arises under [S]ection 2422(b) if . . . any adult who engages 

in the sexual activity in which Saldaña attempted to engage 

could be charged.”). For this reason, a defendant can be 

convicted of attempted enticement pursuant to Section 

2422(b) based on communications with an adult undercover 

agent he believed to be a minor even if the criminal laws of 

the relevant jurisdiction cover only completed sex crimes 

with a minor. See id. The question is whether “any person” 

who proposes engaging in the sexual acts proposed by the 

defendant would be committing a crime, not whether the 

defendant himself could have been charged had the conduct 

come to fruition with the actual person with whom he was 

communicating.

Second, Congress knows how to impose a predicate 

offense requirement; it did not do so in Section 2422(b). 

Consider the differences between Section 2422(b) and the 

Racketeer Influenced and Corrupt Organizations Act 

(RICO), which imposes criminal liability on “[w]hoever . . .

commits . . . or threatens to commit a crime of violence 

against any individual in violation of the laws of any State 

or the United States, or attempts or conspires so to do.” 

18 U.S.C. § 1959(a). The same word imposing criminal 

liability under RICO, “[w]hoever,” also modifies the phrase 

“a crime of violence . . . in violation of the laws of any State 

or the United States.” Thus, the defendant must have 

committed or threatened to commit a particular predicate 

offense to be convicted under RICO. By contrast in Section 

2422(b), the word “[w]hoever” modifies the act of criminal 

enticement while “any person” modifies the “can be charged 

with a criminal offense” element. The defendant must have 
24 UNITED STATES V. LOPEZ

committed the enticement but need not necessarily be 

chargeable with a particular predicate offense. Lopez does 

not cite, nor are we aware of, any statute similar to Section 

2422(b) in which Congress used this structure to impose a

predicate offense requirement.

Third, Section 2422(b)’s use of the indefinite article “a” 

is further evidence that the “can be charged with a criminal 

offense” element is not tethered to the defendant or to 

limitations imposed elsewhere in the statute. Whereas 

definite articles like “the” restrict the noun that follows as 

particularized in scope or previously specified by context, 

the indefinite “a” has generalizing force. See Nielsen v. 

Preap, 139 S. Ct. 954, 965 (2019) (citing The, MerriamWebster’s Collegiate Dictionary 1294 (11th ed. 2005)); In 

Re Cardelucci, 285 F.3d 1231, 1234 (9th Cir. 2002) (citing 

The, Black’s Law Dictionary 1477 (6th ed. 1990)). This 

distinction matters because “the ‘rules of grammar govern’ 

statutory interpretation ‘unless they contradict legislative 

intent or purpose.’” Preap, 139 S. Ct. at 965 (quoting A. 

Scalia & B. Garner, Reading Law: The Interpretation of 

Legal Texts 140 (2012)). Courts should hesitate before 

imposing constraints on the scope of criminal liability not 

evident in the statute’s text or context. See United States v. 

Shill, 740 F.3d 1347, 1352 (9th Cir. 2014) (declining to limit 

the phrase “a criminal offense” in Section 2422(b) to 

felonies because the plain meaning of the statute supports no 

such limitation).

Finally, Section 2422(b)’s repeated use of the word 

“any” (“any facility,” “any sexual activity,” “any person”) 

suggests the class of communications covered by the statute 

should be construed broadly. Unless limited by context, the 

word “any” bears the “expansive meaning” of “one or some 

indiscriminately of whatever kind.” Ali v. Fed. Bureau of 
UNITED STATES V. LOPEZ 25

Prisons, 552 U.S. 214, 219 (2008) (quoting United States v. 

Gonzales, 520 U.S. 1, 5 (1997)). The text and context of 

Section 2422(b) contain none of the limiting factors that 

sometimes counsel against the broad reading of “any.” The 

breadth of Section 2422(b)’s language is intentional, and we 

must take Congress at its word by declining artificially to 

narrow the scope of predatory communications subject to the 

statute. See Shill, 740 F.3d at 1354 (“Congress’s repeated 

use of the word ‘any,’ combined with the expansive list of 

unlawful acts listed in [Section 2422(b)] . . . strongly 

suggests that Congress intended the statute to carry its literal 

meaning.”).

Lopez fails to identify any contrary words in the text or 

context of Section 2422(b) that support his reading of the 

statute to require the Government to indict a specific 

predicate offense and prove hypothetical jurisdiction over 

the same.4 Instead, Lopez relies on our decisions in United 

States v. Dhingra, 371 F.3d 557 (9th Cir. 2004), and United 

States v. Tello, 600 F.3d 1161 (9th Cir. 2010), both of which 

affirmed Section 2422(b) convictions against challenges to 

the element Lopez now contests on appeal. Lopez believes 

Dhingra and Tello required the Government to prove the

defendant could be charged with one or more specific 

criminal offenses cited in the indictment had he followed 

through with the sexual conduct proposed. Neither case 

supports Lopez’s reading of Section 2422(b) to require a 

specific predicate offense as an essential element of the 

enticement charge.

4 Nor does our dissenting colleague, who repeatedly asserts Section 

2422(b) requires the Government to charge a predicate offense, without 

offering a single word in the text of the statute on which to anchor his 

assertion. See, e.g., Dissenting Op. 48–49, 52 n.6, 55, 59–60.
26 UNITED STATES V. LOPEZ

In Dhingra, a defendant convicted pursuant to Section 

2422(b) for engaging in explicit online conversations with a 

fourteen-year-old girl argued the statute violated the First 

and Tenth Amendments by incorporating all state and local 

laws, thereby subjecting defendants to far-flung local 

standards of conduct and usurping the states’ police power 

over sex crimes. 371 F.3d at 564. We avoided these 

challenges by holding Section 2422(b) applies only “to 

situations in which an individual could actually be 

prosecuted” for the proposed sexual conduct consistent with 

“the jurisdiction and venue restrictions of state and federal 

law.” Id. at 565. By specifying “an individual,” Dhingra

kept faith with the statute’s use of “any person” to indicate 

the defendant himself need not be prosecutable for the 

proposed sexual acts. See id. at 564 (“[A] [Section] 2422(b) 

violation is its own offense subject to prosecution 

independent of other underlying offenses.”). We further 

explained in Dhingra that Section 2422(b)’s “can be charged 

with a criminal offense” requirement is similar to the 

community standards element of judicial review of an 

obscenity statute in that both require the jury to evaluate the 

defendant’s conduct against local rather than national 

standards. See id. at 565 (“As would be the case in the 

speech context, . . . ‘a juror applying community standards 

will inevitably draw upon personal knowledge of the 

community or vicinage from which he comes.’” (quoting 

Ashcroft v. ACLU, 535 U.S. 564, 576–77 (2002))). That is, 

Section 2422(b) requires the jury to evaluate the defendant’s 

conduct against local standards so that “the defendant would 

be judged in accordance with the community in which he is 
UNITED STATES V. LOPEZ 27

prosecuted, i.e., the venue and jurisdiction flowing from the 

commission of the [Section] 2422(b) violation.” Id.5

In Tello, another Section 2422(b) case, an Arizona 

resident entered California with the intent to pick up a 

purported minor with whom he had been communicating 

online and to return to Arizona to have sex with her. 

600 F.3d at 1162–63. On appeal, the Arizonan argued there 

was insufficient evidence to support his conviction because 

the indictment cited only California statutes and not Arizona 

statutes in describing the unlawful nature of the intended 

sexual conduct. Id. at 1165. The Government argued the 

conviction should be affirmed because California law 

permitted criminal jurisdiction over persons who committed 

part of any crime within the state or, in the alternative, 

because the intended sexual conduct in Arizona could have 

been charged under several Arizona statutes not cited in the 

indictment. See id.; United States v. Tello, Gov’t Br. at 20, 

33, 2009 WL 5836124 (Oct. 14, 2009). Because we agreed 

with the Government that California could have exercised 

criminal jurisdiction over the defendant based on his 

communications and physical entry into the state, we 

declined to pass on “the various alternate grounds on which 

the [G]overnment ask[ed] us to affirm.” Tello, 600 F.3d 

at 1167 & n.6. Thus, our decision did not require the 

Government to procure indictment of a specific predicate 

5 Our dissenting colleague argues we “misread[] our decision in 

Dhingra,” which “never discusse[d] the actual issue presented here—

whether the [G]overnment is limited to proving the offense charged by 

the grand jury.” Dissenting Op. at 55 (emphasis in original). But as 

explained below, that is not the issue here. Rather, the issue here is 

whether Dhingra requires the Government to charge and to prove a 

specific predicate offense as an essential element of Section 2422(b) 

enticement charge. Dhingra did not so hold, and the dissent offers no 

argument to the contrary.
28 UNITED STATES V. LOPEZ

offense or to prove the relevant court would have had 

jurisdiction over the defendant for said predicate offense. 

Rather, we affirmed the Section 2422(b) conviction based on 

our reading of California law and said nothing about the 

propriety of the indictment’s citations to certain state laws 

over others.6

In sum, Lopez identifies no prior decision in which our 

court has inferred from the text of Section 2422(b) that the 

Government must set out a particular predicate offense in the 

indictment. We have consistently resolved sufficiency of the 

evidence challenges to Section 2422(b) convictions by 

assessing whether the conduct proposed by the defendant 

would have been illegal in the relevant state or territory and 

have not required the Government to prove the relevant court 

would have had jurisdiction over a particular predicate 

offense charged in the indictment alongside the Section 

2422(b) offense. See id.; United States v. Goetzke, 494 F.3d 

1231, 1235 (9th Cir. 2007) (per curiam); United States v. 

Meek, 366 F.3d 705, 717–20 (9th Cir. 2004). Similarly, 

every one of our decisions to consider a constitutional 

challenge to Section 2422(b) has given full effect to the plain 

meaning of the statute without adopting a specific predicate 

6 Our dissenting colleague insists that we misread Tello because the 

court in that case “understood that it was limited to the California 

predicate offenses charged in the indictment.” Dissenting Op. 57

(emphasis in original). But the Tello court said no such thing. Rather, 

the Tello court resolved the appeal on the narrow ground that the 

appellant was incorrect about the jurisdictional scope of California law. 

Because we agree with the dissent that Guam’s jurisdictional statute 

would not extend to completed sexual conduct occurring solely within 

AAFB (a federal enclave), this narrower ground is unavailable here. 

That is why we address, as a matter of first impression, whether Section 

2422(b) requires the Government to charge a predicate offense and prove 

here that Guam would have had jurisdiction over said predicate offense.
UNITED STATES V. LOPEZ 29

offense requirement or imposing other atextual narrowing 

constructions. See Shill, 740 F.3d at 1351–55 (rejecting 

vagueness challenge to the requirement that the defendant’s 

communications relate to “a criminal offense”); Dhingra, 

371 F.3d at 564 (rejecting First and Tenth Amendment 

challenges to the use of state and local law to define criminal 

sexual activity). We now join several other circuits in 

holding Section 2422(b) does not require the Government to 

allege a specific predicate offense or to prove that the 

relevant court would have had jurisdiction over the 

defendant for the commission of such offense, so long as the 

Government proved the defendant’s proposed sexual 

conduct would have constituted “a criminal offense” under 

the laws of an applicable territorial jurisdiction. See, e.g.,

United States v. Jockisch, 857 F.3d 1122, 1131–32 (11th Cir. 

2017); United States v. Hart, 635 F.3d 850, 855–56 (6th Cir. 

2011).7

7 The Sixth and Eleventh Circuits have concluded Section 2422(b) 

does not require proof that the defendant could have been prosecuted 

under a particular law so long as the jury may reasonably conclude the 

defendant’s communications proposed a criminal sexual act. See 

Jockisch, 857 F.3d at 1131–32; Hart, 635 F.3d at 855–56. The First, 

Second, and Eighth Circuits have declined to read a predicate offense 

requirement into Section 2422(b) without definitively rejecting the 

possibility. See United States v. Berk, 652 F.3d 132, 138–39 (1st Cir. 

2011); United States v. Spurlock, 495 F.3d 1011, 1014 n.2 (8th Cir. 

2007); see also United States v. Brand, 467 F.3d 179, 182 (2d Cir. 2006) 

(evaluating sufficiency of the evidence without asking whether the 

indictment charged a predicate offense). Only the Seventh Circuit has 

embraced the view that Section 2422(b) liability “depends on the 

defendant’s having violated another statute, and the elements of the 

offense under that other statute must therefore be elements of the federal 

offense.” United States v. Mannava, 565 F.3d 412, 415 (7th Cir. 2009). 

We agree with the Sixth Circuit that Mannava reached the wrong 

conclusion by analogizing to inapposite statutory schemes. See Hart, 

635 F.3d at 855–56.
30 UNITED STATES V. LOPEZ

2. Plain Error Review

Next, we determine whether the district court plainly 

erred by entering a judgment of conviction on the Section 

2422(b) count. Conviction for attempted enticement under 

Section 2422(b) requires proof that the defendant 

“knowingly (1) attempted to (2) persuade, induce, entice, or 

coerce (3) a person under 18 years of age (4) to engage in 

sexual activity that would constitute a criminal offense.” 

Goetzke, 494 F.3d at 1234–35. Lopez contests only the 

“sexual activity that would constitute a criminal offense” 

element of the Section 2422(b) charge, which requires proof 

that the defendant’s communications sought to induce a 

minor to engage in conduct that would be criminal in at least 

one relevant territorial jurisdiction.

To determine whether the sexual conduct proposed 

would have been criminal, we look to the criminal and 

jurisdictional laws of the territorial jurisdictions in question. 

See Tello, 600 F.3d at 1165. This case involves conduct 

within the Territory of Guam, in which Lopez resided, as 

well as conduct that occurred or was intended to occur within 

AAFB. Guam authorizes criminal jurisdiction over 

individuals whose conduct within the Territory constitutes at 

least one element of an offense under territorial law.8 

Federal prosecutors exercise exclusive criminal jurisdiction 

8 Guam’s territoriality statute provides for criminal jurisdiction over 

“conduct which is an element of the offense or the result which is such 

an element occurs within this Territory.” 9 G.C.A. § 1.16(a)(1); see also

Model Penal Code § 1.03. Judicial construction of the Guam statute is 

limited, but jurisdictions with identical statutory language similarly 

require at least one element of the crime be committed in-state to 

authorize a criminal prosecution. See, e.g., State v. Sumulikoski, 

110 A.3d 856, 862 (N.J. 2015); State v. Wagner, 596 N.W.2d 83, 87 

(Iowa 1999).
UNITED STATES V. LOPEZ 31

over AAFB because the base is a federal enclave within the 

special maritime and territorial jurisdiction of the United 

States. See 18 U.S.C. § 7; United States v. Smith, 925 F.3d 

410, 415–16 (9th Cir. 2019).

The district court did not err, let alone plainly err, by 

entering a judgment of conviction for the Section 2422(b) 

offense. The Government adduced sufficient evidence at 

trial to prove Lopez proposed to engage in unlawful sexual 

activity with a person he believed to be a minor. Under 

Guam law, an attempt to engage in sexual penetration of a 

minor under fourteen is a felony in the first degree 

punishable to the same extent as the completed offense. See

9 G.C.A §§ 25.15(a)(1) (First Degree Criminal Sexual 

Conduct), 13.60(a) (Attempt). An attempt conviction 

requires proof of the defendant’s “intent to engage in 

conduct which would constitute such crime” and “a 

substantial step toward commission of the crime.” Id.

§ 13.10; see People v. Flores, 2004 Guam 18 ¶ 12.

That is exactly what happened here when Lopez 

intentionally communicated with “Brit” from within the 

Territory of Guam in furtherance of his goal of sexual 

penetration. The Government introduced records of email 

communications in which Lopez discussed sex with “Brit” 

and sought to persuade “her” to have sex when they met in 

person. Lopez acknowledged at trial that he used online 

classifieds forums on prior occasions to invite others to visit 

him “off base, because that’s where I live.” A reasonable 

jury could conclude some of the communications with “Brit” 

were sent from off-base locations, including from Lopez’s 

home, where he spent substantial time and likely formed the 

intent sexually to penetrate a minor. It is well established 

that communications intended to groom a victim to engage 

in sexual activity in the future constitute substantial steps 
32 UNITED STATES V. LOPEZ

toward the completion of a crime. See, e.g., Tello, 600 F.3d 

at 1165–66 (finding substantial step where defendant sought 

to persuade minor victim to engage in sexual acts and to 

agree to travel with him from California to Arizona); 

Goetzke, 494 F.3d at 1236 (finding substantial step where 

defendant sent letters to the victim proposing sexual 

activities at an unspecified future date).9

This is not the first Section 2422(b) case in which we 

have recognized that substantial steps toward the completion 

of a crime in another jurisdiction gave rise to criminal 

liability in the forum where the substantial steps occurred. 

In Tello, we rejected the argument that California could not 

have prosecuted the defendant for sexual acts which were to 

take place in Arizona because we concluded that California 

law authorized prosecution of intentional conduct 

undertaken in the state in partial execution of a crime to be 

completed within or without the State. By driving into 

California for a criminal purpose, the defendant took a 

substantial step toward committing an act that would have 

violated California law even though the completed crime 

was planned to take place in Arizona. See 600 F.3d at 1165–

66. The analysis in Tello applies here because Guam has 

9 Our dissenting colleague states that he cannot understand why this 

particular offense should support the conviction and seeks to brand our 

analysis as allowing prosecution for “attempting to entice to attempt.” 

Dissenting Op. 49–50 & nn.4–5. But the dissent’s tongue-twister 

misunderstands Section 2422(b). Lopez has not been charged with 

attempted sexual penetration of a minor or any other violation of Guam 

law, and need not be for this federal prosecution to succeed. The 

question here is whether “any person can be charged with a criminal 

offense” for engaging in the sexual conduct proposed by the defendant. 

18 U.S.C. § 2422(b). The answer is yes, because Guam could have 

charged a person in Lopez’s position for attempted sexual penetration of 

a minor based on substantial steps taken within the Territory.
UNITED STATES V. LOPEZ 33

adopted the California attempt and criminal jurisdiction 

standards that informed our decision in that case. Compare

Cal. Penal Code § 778a(a), with 9 G.C.A. § 1.16(a)(1); 

People v. Quintanilla, 2019 Guam 25 ¶¶ 12–15 (adopting the 

substantial step standard in People v. Johnson, 303 P.3d 379, 

384 (Cal. 2013)). Like California in Tello, Guam could have 

prosecuted an individual in Lopez’s position for an attempt 

to engage in sexual penetration of a minor based on 

substantial steps taken within the Territory of Guam.

Lopez argues the Government failed to prove the Section 

2422(b) offense because the indictment specified that he 

engaged “in sexual activity for which a person can be 

charged with a criminal offense, to wit: First Degree 

Criminal Sexual Conduct, in violation of 9 [G.C.A.] 

§ 25.15(a)(1), all in violation of Title 18, United States 

Code, Sections 2422(b) and 2.” The indictment did not 

specify Guam’s attempt statute, and so the only potential 

predicate offense in the indictment was 9 G.C.A. 

§ 25.15(a)(1), which criminalizes the completed sexual 

penetration of a minor under fourteen. It is undisputed that 

Guam would have lacked jurisdiction to prosecute an offense 

taking place exclusively within AAFB territory, and the 

evidence adduced at trial indicated Lopez proposed to meet 

“Brit” only at locations within AAFB. Thus, the argument 

goes, the Government proved Lopez could have been 

charged with completed sexual penetration of a minor under 

Guam law only if the United States could have prosecuted 

that offense on AAFB territory under the Assimilated 

Crimes Act, 18 U.S.C. § 13.10

10 The Assimilated Crimes Act authorizes federal authorities to 

prosecute violations of state law taking place within federal enclaves. 

Assimilation of state law offenses into federal law is appropriate only 
34 UNITED STATES V. LOPEZ

Because Section 2422(b) does not contain a predicate 

offense requirement, however, the indictment’s citation to 

Guam’s First Degree Criminal Sexual Conduct statute was 

mere surplusage. Gratuitous language in an indictment 

cannot bind the Government to proving elements not 

required for conviction pursuant to the applicable criminal 

statute. In United States v. Garcia-Paz, 282 F.3d 1212 (9th 

Cir. 2002), we addressed a similar sufficiency challenge to a 

conviction based on an indictment that alleged the defendant 

“knowingly import[ed] and br[ought] into the United States 

certain merchandise, to wit, marijuana, contrary to law.” Id. 

at 1215 (emphasis added). The defendant argued the 

indictment required the Government to prove that he knew 

he was smuggling marijuana and not just “merchandise” 

more generally. We looked to the requirements of the statute 

to determine the elements the Government was required to 

prove, not the language in the indictment. Because the 

statute prohibited knowingly smuggling “any merchandise

contrary to law,” we held the Government needed to prove 

knowledge only as to the smuggling of merchandise without 

regard to its contents. Id. at 1217 (quoting 18 U.S.C. § 545) 

(emphasis added). The “to wit” clause in the charging 

document “was mere surplusage and did not cause the 

indictment to allege that [the defendant] had knowledge of 

the marijuana.” Id. at 1216. Here, too, the Government 

proved the essential elements of the Section 2422(b) offense 

by adducing evidence that Lopez engaged in “sexual activity 

for which any person can be charged with a criminal 

offense.” The indictment’s “to wit” citation to a particular 

Guam statute was not compelled by Section 2422(b) and 

stated merely one means (but not the only means) by which 

when the state law covers criminal conduct not already punished by a 

federal offense. See Lewis v. United States, 523 U.S. 155 (1998).
UNITED STATES V. LOPEZ 35

the jury could find Lopez proposed sexual conduct that 

would be criminal in a relevant territorial jurisdiction.11, 12

To be sure, the Government complicated this case by 

citing an inapt example of applicable law. Lopez 

perpetuated this difficulty by failing to object to the 

indictment, failing to seek a bill of particulars, and seeming 

to agree that the conduct alleged would have been 

chargeable in Guam until filing this appeal. But the question 

presented by Lopez’s sufficiency of the evidence challenge 

is whether the Government adduced sufficient evidence at 

trial for the jury to conclude Lopez committed each element 

of the Section 2422(b) offense. See Hussain, 972 F.3d at 

1146; Graf, 610 F.3d at 1166. Because Section 2422(b) 

requires that the jury conclude a person in Lopez’s position 

could have been charged with a criminal offense in a relevant 

territorial jurisdiction for engaging in the conduct Lopez 

11 Our dissenting colleague argues Garcia-Paz is “a far cry from this 

case” because the “any sexual activity for which any person can be 

charged with a criminal offense” element of the Section 2422(b) charge 

“requires statutes to give it meaning.” Dissenting Op. 66. But here 

again, our colleague assumes without any basis in ordinary principles of 

statutory interpretation that Section 2422(b) defines this element of the 

offense by reference to a particular predicate offense that must be 

charged in the federal indictment. Garcia-Paz dealt with the same legal 

question presented here: Whether the insertion of an illustrative “to wit” 

clause in an indictment obligates the Government to prove the particular 

conduct alleged in the illustrative clause. It does not.

12 Our dissenting colleague further argues Garcia-Paz differs from 

this case because “here the jury was specifically instructed that the 

government must prove beyond a reasonable doubt a predicate crime that 

Lopez did not commit.” Dissenting Op. 66 n.21. This argument is 

curious given that Lopez asks us to reverse his Section 2422(b) 

conviction on the ground that the court failed to instruct the jury as to the

elements of the Guam First Degree Criminal Sexual Conduct statute 

cited in the indictment. See infra, Part II.C.
36 UNITED STATES V. LOPEZ

proposed, the Government carried its burden of proof. The 

district court did not err, let alone plainly err, by entering a 

judgment of conviction on this record.13

Our dissenting colleague believes this case does not 

involve a question of statutory interpretation at all and turns 

instead on the question whether “a court [can] amend the 

indictment returned by the grand jury to excise the charged 

predicate offense and substitute a different predicate 

offense.” Dissenting Op. 60. But this view of the case 

simply assumes and asserts that Section 2422(b) requires the 

Government to charge a particular predicate offense without 

engaging in the statutory interpretation required to justify 

such a conclusion. Looking to the statute at issue here is not 

a needlessly “abstract inquiry.” Dissenting Op. 58 n.14. 

Rather, it is the first step in evaluating Lopez’s argument that 

the jury lacked sufficient evidence to convict him under 

Section 2422(b). Only by construing the requirements of the 

statute of conviction can our court determine whether the 

Government offered sufficient proof at trial to support the 

jury’s verdict. That is what it means to “begin with the text 

of the statute.” Friends of Animals, 879 F.3d at 1003 

(quoting Limtiaco, 549 U.S. at 488).

As explained above, Congress did not structure Section 

2422(b) like other statutes in which the federal criminal 

offense is explicitly defined by proof of a predicate offense. 

Rather, Section 2422(b) extends criminal liability to those 

persons who violate local standards of conduct by enticing 

13 Because Guam could have prosecuted a person in Lopez’s 

position for attempted sexual penetration of a minor, we need not decide 

whether the Guam offense cited in the indictment could have been 

assimilated into and prosecuted under federal law pursuant to the 

Assimilated Crimes Act.
UNITED STATES V. LOPEZ 37

or attempting to entice a minor to engage in “any sexual 

activity for which any person can be charged with a criminal 

offense.” See Dhingra, 371 F.3d at 565 (comparing Section 

2422(b)’s “any person can be charged” element with the 

local standards requirement of obscenity prosecutions). Our 

dissenting colleague is correct that the Fifth Amendment’s 

grand jury requirement is an important protection for liberty 

guaranteed to all federal criminal defendants. See

Dissenting Op. 77–78. But this case presents no violation of 

that right in need of vindication, and the dissent errs by 

asserting the existence of atextual barriers in the way of 

prosecuting the predatory conduct toward minors that 

Congress sought to punish by enacting Section 2422(b).

By incorrectly assuming that Section 2422(b) requires 

the Government to charge a predicate offense, our dissenting 

colleague confuses the distinction between the constructive 

amendment of an indictment, which typically requires 

reversal, and a variance in proof, which requires reversal 

only upon a showing of prejudice. See United States v. 

Ward, 747 F.3d 1184, 1189 (9th Cir. 2014). “An amendment 

of the indictment occurs when the charging terms of the 

indictment are altered, either literally or in effect, by the 

prosecutor or a court after the grand jury has last passed upon 

them.” Id. (quoting United States v. Von Stoll, 726 F.2d 584, 

586 (9th Cir. 1984)). Discrepancies between an indictment 

and evidence presented at trial amount to a constructive 

amendment in two general situations: first, when “there is a

complex set of facts distinctly different from those set forth 

in the charging instrument” such that the defendant lacked 

notice; and second, when “the crime charged was 

substantially altered at trial, so that it was impossible to 

know whether the grand jury would have indicted for the 

crime actually proved.” Von Stoll, 726 F.2d at 586 (citation 

and quotation marks omitted).
38 UNITED STATES V. LOPEZ

Here, there is no question that the Government proved at 

trial the same criminal behavior alleged in the indictment by 

adducing evidence that Lopez used online profiles to engage 

in lewd and predatory conversations in an attempt to engage 

in sexual relations with a person he believed to be an 

underage girl. Nor is there any question that the Section 

2422(b) attempted enticement offense indicted by the grand 

jury was ultimately proved at trial. Whether the behavior in 

which Lopez engaged could have been charged under one 

Guam offense or another is irrelevant to the culpability of his 

conduct under federal law. Section 2422(b) was enacted to 

punish those who engage in predatory communications with 

minors, and the grand jury was fully appraised of the 

relevant allegations when it made its decision to indict Lopez 

for violating this prohibition. See id. at 587 (holding “the 

divergence between the indictment and proof did not affect 

the sufficiency of the complaint or alter the crime charged” 

because the culpable conduct proved at trial was the same as 

the conduct alleged in the indictment). Indeed, we have 

never found a constructive amendment where “the 

indictment simply contains superfluously specific language 

describing alleged conduct irrelevant to the defendant’s 

culpability under the applicable statute.” Ward, 747 F.3d 

at 1191; see also Garcia-Paz, 282 F.3d at 1216–17 (rejecting 

challenge based on an indictment’s gratuitous specification 

of “to wit, marijuana” for a smuggling offense that covered 

“any merchandise”); United States v. Antonakeas, 255 F.3d 

714, 721–22 (9th Cir. 2001) (rejecting challenge where the 

evidence failed to prove the indictment’s specific claim that 

the defendant conspired to distribute cocaine in Hawaii 

because a nexus to Hawaii “was in no way essential to the 

offense on which the jury convicted” (citation omitted)).

Similarly, in United States v. D’Amelio, 683 F.3d 412 

(2d Cir. 2012), the defendant appealed his Section 2422(b) 
UNITED STATES V. LOPEZ 39

conviction on the ground that the indictment alleged he 

attempted to entice a minor “us[ing] a facility and means of 

interstate commerce . . . to wit, . . . a computer and the 

Internet,” whereas the evidence at trial included analogue 

telephone conversations. Id. at 414–15. The Second Circuit 

affirmed the conviction after concluding the divergence 

between the indictment and the proof at trial did not alter the 

“core of criminality” set out in the indictment or modify an 

“essential element” of the crime. Id. at 417. Without such 

an impact, the divergence did not constructively modify the 

indictment in violation of the defendant’s Fifth Amendment 

rights. Id. at 422–24. The circumstances in D’Amelio are on 

all fours with this case, and the Second Circuit’s analysis is 

consistent with our circuit’s approach. Whether a “to wit” 

clause in an indictment offers surplus content to the 

interstate jurisdictional element or the “for which any person 

can be charged with a criminal offense” element of the 

Section 2422(b) offense, an indictment is not constructively 

amended by proof at trial of a different means unless the 

divergence otherwise prejudices the defendant’s substantial 

rights.

Contrary to the view of our dissenting colleague, this 

case has little in common with Howard v. Daggett, 526 F.2d 

1388 (9th Cir. 1975) (per curiam). See Dissenting Op. 67. 

The defendant in Howard was charged with inducing two 

specific women to engage in interstate prostitution. Id.

at 1389. At trial however, the evidence and the jury 

instructions also referred to the defendant’s conduct toward 

other alleged prostitutes not named in the indictment. Id. 

We found this change constituted an impermissible 

amendment of the indictment because the criminal conduct 

charged under the statute was different from the conduct for 

which the defendant was convicted. Id. at 1390. Howard

was a case in which the evidence at trial involved “a complex 
40 UNITED STATES V. LOPEZ

set of facts distinctly different from those set forth in the 

charging instrument.” Von Stoll, 726 F.2d at 586 (citation 

omitted); see Ward, 747 F.3d at 1190–91 (citing Howard as 

following “a similar pattern” of cases in which a defendant 

was impermissibly convicted “for conduct not alleged in the 

indictment”). But that is not what happened here. Neither 

Lopez nor the dissent argue that the indictment alleged a 

complex set of facts different from the Government’s proof 

at trial. The facts alleged in the grand jury’s indictment were 

identical to the facts on which the petit jury convicted Lopez 

at trial, namely, that Lopez used online personas to lure 

“Brit,” who he believed to be an underage girl, into sexual 

encounters. There was no last-minute switch of “Brit” for 

some other person at trial, and Lopez was well aware 

throughout these proceedings of the specific conduct on 

which the Government based the Section 2422(b) charge.

This case involves, at most, a variance in which “the 

charging terms of the indictment are left unaltered, but the 

evidence offered at trial proves facts materially different 

from those alleged in the indictment.” Ward, 747 F.3d 

at 1189 (quoting Von Stoll, 726 F.2d at 586). The indictment 

proposed that the Government might prove Lopez attempted 

to entice a minor to engage in “sexual activity for which a

person can be charged with a criminal offense” by reference 

to one Guam statute which required proof of sexual 

penetration. But the Government proved at trial that Lopez’s 

proposed conduct would have been unlawful under another 

Guam statute which requires proof of an attempt to engage 

in sexual penetration. Lopez never argued, and cannot fairly 

argue, that this variance prejudiced his defense in any 

manner warranting relief on appeal. The charge against him 

was always attempted “enticement” of illegal sexual activity, 

not the actual commission of the acts about which he 

communicated with a person he believed to be a minor. He 
UNITED STATES V. LOPEZ 41

was not misled. See Von Stoll, 726 F.2d at 587 (“A variance 

between indictment and proof does not require reversal 

unless it affects the substantial rights of the parties.” (citation 

omitted)). As to the challenge before us, we conclude the 

district court did not err by entering a judgment of 

conviction.

C. Jury Instructions

Lopez also raises a due process challenge to the jury 

instructions given for the Section 2422(b) charge. Prior to 

deliberations, the district court read the indictment to the jury 

and instructed the jury on all elements of the Section 2422(b) 

offense using a script expressly approved by both parties. As 

to the “sexual activity for which any person can be charged 

with a criminal offense” element, the court instructed the 

jury that to reach a guilty verdict, it must conclude:

[I]f the sexual activity had occurred, the 

defendant would have been charged with a 

criminal offense under the laws of Guam. . . . 

It is not necessary for the [G]overnment to 

prove that the individual was actually 

persuaded, induced and enticed to engage in 

sexual activity charge[d] in the indictment. 

. . . But it is necessary for the [G]overnment 

to prove that the defendant intended to 

engage in some form of unlawful sexual 

activity with the individual and knowingly 

and willfully took some action that was a 

substantial step toward bringing about or 

engaging in sexual activity charged in the 

indictment.

On appeal, Lopez for the first time relies on his reading 

of Section 2422(b) as requiring a specific predicate offense 
42 UNITED STATES V. LOPEZ

to argue that the district court violated his due process rights 

by failing to instruct the jury on the elements of the Guam 

criminal sexual penetration statute cited in the indictment. 

We review forfeited objections to jury instructions for plain 

error, meaning the defendant must identify an error that was 

plain, affected his substantial rights, and seriously 

undermined the integrity or reputation of judicial 

proceedings. United States v. Peterson, 538 F.3d 1064, 1070 

(9th Cir. 2008).14 We conclude that, although the district 

court should have instructed the jury on the applicable “laws 

of Guam,” Lopez cannot meet his burden of establishing the 

error affected his substantial rights.

“It is a violation of due process for a jury instruction to 

omit an element of the crime.” Evanchyk v. Stewart, 

340 F.3d 933, 939 (9th Cir. 2003); see also United States v. 

Gaudin, 515 U.S. 506, 509–10 (1995). The district court 

complied with this requirement by instructing the jury on the 

elements of the Section 2422(b) offense using model jury 

instructions for the Eighth Circuit, which separate out each 

element and provide additional detail not included in 

analogous model jury instructions for the Ninth Circuit.15 

14 The Government declined to argue that Lopez waived objection 

to the jury instructions on the Section 2422(b) charge when he consented 

to their form and substance despite knowing the indictment cited the 

Guam statute. Because the Government waived any argument for waiver 

it may have had, we need not decide whether Lopez’s consent to these 

instructions constituted relinquishment of a known right. See United 

States v. Pridgette, 831 F.3d 1253, 1258–59 (9th Cir. 2016).

15 Although similar in most respects, the model jury instructions for 

the Eighth and Ninth Circuits differ slightly when describing the “sexual 

activity for which any person can be charged” element. Compare

Manual of Model Criminal Jury Instructions for the District Courts of 

the Eighth Circuit § 6.18.2422B (2017 ed.) (“[T]hat [if the sexual 

activity had occurred] . . . the defendant could have been charged with a 
UNITED STATES V. LOPEZ 43

Because Section 2422(b) requires the Government to prove 

only that “any person” engaging in the sexual conduct 

proposed by the defendant could be charged under federal, 

state, or territorial law, the district court was not required to 

instruct the jury on the elements of a particular predicate 

offense as if they were elements of the Section 2422(b) 

offense. See Garcia-Paz, 282 F.3d at 1215–16 (rejecting 

jury instruction challenge where surplusage in the 

indictment did not constitute an essential element of the 

charged offense). We once again reject Lopez’s core 

argument that Section 2422(b) requires the indictment and 

proof of a specific predicate offense.

The district court nevertheless erred in failing to define 

the “laws of Guam” against which Lopez’s proposed sexual 

conduct was to be evaluated. Generally, trial courts need not 

define terms to the jury that are obvious, in common use, or 

“have plain and ordinary meanings within the statute.” 

Dhingra, 371 F.3d at 567; see also United States v. 

Chambers, 918 F.2d 1455, 1460 (9th Cir. 1990). However, 

“where a federal prosecution hinges on an interpretation or 

application of state law, it is the district court’s function to 

explain the relevant state law to the jury.” United States v. 

Davila-Nieves, 670 F.3d 1, 8 (1st Cir. 2012) (citation 

omitted). The average juror may not know the boundaries 

of Guam’s criminal law with respect to sexual conduct. In 

this case, the Guam offense implicated by the evidence 

offered by the Government at trial criminalizes attempted 

criminal offense under the laws of [the United States] (identify the 

state)].”), with Manual of Model Criminal Jury Instructions for the 

District Courts of the Ninth Circuit § 8.192A (2010 ed., updated May 

2020) (requiring the jury conclude the defendant enticed a minor to 

engage in “any sexual activity for which someone could be charged with 

an offense, that is [insert title of sexual offense]”).
44 UNITED STATES V. LOPEZ

sexual penetration of a minor under fourteen. See 9 G.C.A. 

§§ 13.10, 13.60(a), 25.15(a)(1). Without a working 

definition of applicable Guam law, the jury may have lacked 

the requisite knowledge to evaluate whether the sexual 

conduct Lopez proposed to “Brit” was criminal in Guam.

To be clear, the burden was on the district court, not the 

Government, to instruct the jury on the requirements of 

applicable federal, state, and territorial laws. Federal courts 

may take judicial notice of matters of public record, 

including statutes. See Fed. R. Evid. 201(b); Lee v. City of 

Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Once the 

Government adduced evidence that Lopez proposed sexual 

conduct to a minor, the jury was required to determine 

whether the sexual conduct was considered criminal in 

Guam or another territorial jurisdiction. Prior to jury 

deliberations, it was incumbent upon the district court to 

ensure the jury possessed the requisite background 

knowledge to evaluate the sufficiency of the Government’s 

evidence against applicable criminal laws. The failure to do 

so was error.

We need not decide whether the error was plain or 

seriously undermined the integrity or reputation of judicial 

proceedings because there is no question that Lopez cannot 

meet his burden of demonstrating prejudice to his substantial 

rights. Because jury instruction error is nonstructural, a 

misstatement or omission in jury instructions affects a 

defendant’s substantial rights only when prejudice results. 

See United States v. Alghazouli, 517 F.3d 1179, 1190 (9th 

Cir. 2008). To demonstrate prejudice, the defendant must 

show “a reasonable probability” that “the result of the 

proceeding would have been different” but for the alleged 

error. Id. (quoting United States v. Dominguez Benitez, 
UNITED STATES V. LOPEZ 45

542 U.S. 74, 81–82 (2004)); see also Depue, 912 F.3d 

at 1234.

Lopez fails to identify a reasonable probability that the 

jury would have come to a different decision had the district 

court instructed that 9 G.C.A. §§ 13.10, 13.60(a), and 

25.15(a)(1) criminalize attempts to engage in sexual 

penetration of a minor under fourteen years of age. The jury 

necessarily concluded that Lopez believed “Brit” was 

underage when it decided to convict on the Section 2422(b) 

and Section 1470 charges because the offenses require proof 

that the defendant knew or mistakenly believed the victim 

was under eighteen or sixteen years of age, respectively. 

Every piece of evidence capable of supporting the jury’s 

verdict in this regard indicated “Brit” was thirteen, including 

her statements in the chat transcripts, Lopez’s reactions to 

those statements, and photographs sent from “Brit” to Lopez. 

The jury clearly credited the Government’s documentary 

evidence over Lopez’s trial testimony that he never believed 

“Brit” was underage, and this credibility decision would not 

likely have changed based on the missing instruction. Nor 

did Lopez contest the fact that he proposed to engage in 

sexual penetration with “Brit” as opposed to other forms of 

sexual conduct that would not have violated this particular 

territorial law. After all, Lopez admitted to sending the 

emails that the Government presented at trial and instead 

relied on a mens rea defense that the jury disregarded.

We can envision a different Section 2422(b) case in 

which the definition of applicable federal or state offenses 

would influence the jury’s evaluation of whether the 

defendant proposed sexual conduct that would have been 

criminal in at least one relevant jurisdiction. The jury’s 

verdict may well come down to distinctions in state law 

where the victim’s age places the victim within the 
46 UNITED STATES V. LOPEZ

protections of the criminal laws of certain jurisdictions but 

not others. This, however, is not such a case.

D. Attempted Transfer of Obscenity to a Minor

Finally, Lopez raises a sufficiency of the evidence 

challenge to his conviction under 18 U.S.C. § 1470 for 

attempted transfer of obscenity to a minor under sixteen. In 

his Rule 29 motions, Lopez argued unsuccessfully that the 

Government failed to prove he had knowledge of “Brit’s” 

age as to the Section 1470 charge by showing he believed 

“Brit” was under sixteen. On appeal, Lopez argues the 

Government was obligated to prove Lopez transmitted 

obscene materials to an actual minor because the indictment, 

jury instructions, and jury verdict form all indicate that he 

was charged and convicted for completed transfer of 

obscenity rather than attempt. We review this challenge for 

plain error because Lopez failed to raise it below. See

Hussain, 972 F.3d at 1146; Garcia-Guizar, 160 F.3d at 516. 

We hold there was no error, let alone plain error, in the 

district court’s denial of the Rule 29 motions and entry of 

judgment of conviction on the attempted transfer charge.

Lopez is simply incorrect that the indictment charged 

completed transfer of obscenity rather than an attempt. His 

argument rests solely on the caption preceding the relevant 

count in the indictment, which read “Transfer of Obscenity 

to a Minor.” However, the operative text of the indictment 

charged Lopez with “attempt[ing] to transfer obscene matter 

. . . by sending a girl he believed was thirteen years old two 

images and a video which depicted an adult male exposing 

his erect penis.” This language defeats Lopez’s argument 

because “it is well established that the caption is completely 

surplusage and does not control the body of the indictment.” 

United States v. Pazsint, 703 F.2d 420, 423 (9th Cir. 1983) 
UNITED STATES V. LOPEZ 47

(citing United States v. Dawson, 516 F.2d 796, 804 (9th Cir. 

1975)).

Further, although our overall review is for plain error, we 

agree with the Government that Lopez waived objection to 

the jury instructions and jury verdict form as to the Section 

1470 charge. When the record demonstrates the defendant 

knowingly relinquished an objection, including an objection 

to particular jury instructions, the issue is unreviewable on 

appeal. See Depue, 912 F.3d at 1233; United States v. 

Kaplan, 836 F.3d 1199, 1217 (9th Cir. 2016). Lopez 

reviewed the jury instructions at the request of the district 

court and approved a script that included a substantial step 

instruction for the Section 2422(b) count but not the Section 

1470 count. In doing so, Lopez was fully aware that the 

indictment charged an attempt to violate Section 1470 and 

knew that the attempt charge under Section 2422(b) 

warranted a substantial step instruction. This knowledge is 

sufficient to establish waiver and foreclose consideration of 

the argument on appeal.

Lopez also waived objection to the jury verdict form by 

approving a draft that described the Section 1470 charge as 

“Transfer of Obscenity” without reference to attempt. Jury 

verdict forms are generally considered a type of jury 

instruction, and the same waiver standard applies. See

United States v. Stinson, 647 F.3d 1196, 1218 (9th Cir. 

2011). Challenges to the content of trial documents 

expressly approved by a defendant with full knowledge of 

his rights are waived and cannot support the reversal of a 

conviction on appeal.
48 UNITED STATES V. LOPEZ

III. CONCLUSION

Lopez failed to demonstrate the district court committed 

prejudicial error or plain error warranting relief. We 

therefore AFFIRM the judgment of conviction.

BENNETT, Circuit Judge, dissenting in part:

I respectfully dissent from the Majority’s affirmance of 

Wilfredo Lopez’s conviction on count one—attempted 

enticement of a minor in violation of 18 U.S.C. § 2422(b).1 

The grand jury charged Lopez with attempting to “entice[] a 

person who the defendant believed to be under eighteen 

years of age[] to engage in sexual activity for which a person 

can be charged with a criminal offense, to wit: First Degree 

Criminal Sexual Conduct, in violation of 9 [Guam Code 

Annotated (“GCA”)] § 25.15(a)(1).”2 As I explain below, 

Lopez could not have been charged with or committed First 

Degree Criminal Sexual Conduct in violation of 9 GCA 

§ 25.15(a)(1) as the predicate offense for his § 2422(b) 

violation, because the sexual activity he proposed was to 

take place on Anderson Air Force Base (AAFB), a place 

within the Special Maritime and Territorial Jurisdiction of 

the United States, and that crime is not assimilated under the 

1 I concur in the remainder of the majority opinion.

2 9 GCA § 25.15(a)(1) provides: “A person is guilty of criminal 

sexual conduct in the first degree if he or she engages in sexual 

penetration with the victim and if any of the following circumstances 

exists: (1) the victim is under fourteen (14) years of age . . . .”
UNITED STATES V. LOPEZ 49

Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13.3 Thus, 

Lopez could not have committed and did not commit the 

crime with which he was charged in the indictment. Per 

force, the government presented insufficient evidence of his 

guilt. The Majority convicts the defendant for a different, 

uncharged crime—attempting to “entice[] a person who the 

defendant believed to be under eighteen years of age[] to 

engage in sexual activity for which a person can be charged 

with a criminal offense, to wit: attempted First Degree 

Criminal Sexual Conduct, in violation of 9 GCA §§ 13.10, 

13.60(a), & 25.15(a)(1).”4 See Majority at 31. Though I 

3 “Whoever within or upon [the Special Maritime or Territorial 

Jurisdiction of the United States], . . . is guilty of any act or omission 

which, although not made punishable by any enactment of Congress, 

would be punishable if committed or omitted within the jurisdiction of 

the State, Territory, Possession, or District in which such place is 

situated, by the laws thereof in force at the time of such act or omission, 

shall be guilty of a like offense and subject to a like punishment.” 

18 U.S.C. § 13(a).

4 The government’s arguments as to the Guam offense that Lopez 

could have been convicted of are unclear. The government argued: 

“Lopez could be prosecuted for violation of Guam law because from his 

off-base home, he used the internet to send e-mail messages to Brit. 

Lopez could actually be prosecuted for violation of Guam law.” The 

government also argued: “Lopez’[s] acts advanced and verified the 

existence of his purpose—to gain Brit’s assent to engage in sexual 

activity. Lopez could actually be charged with attempting to persuade 

Brit to engage in sexual activity as defined by Guam law—the law of the 

venue that had jurisdiction over the defendant.” But the government 

never argued in its answering brief that the conviction should be affirmed 

because the defendant was guilty of “attempting to entice to attempt.” 

Neither did the government cite either GCA § 13.10 or § 13.60(a), relied 

upon by the Majority. Nor did the jury instructions, either directly or 

indirectly, inform the jury of any predicate offense other than 9 GCA 

§ 25.15(a)(1), which was the only predicate offense specified in the 

indictment. And nothing in Lopez’s reply brief suggests that he thought 

attempting to entice to attempt had been raised by the government or was 
50 UNITED STATES V. LOPEZ

harbor serious doubts about whether such a crime 

(attempting to entice to attempt) could even exist,5 Lopez 

was neither charged with nor convicted of that theoretical 

offense, nor was the jury instructed as to that theoretical 

offense. Thus, I dissent.

I.

To successfully convict Lopez for attempted enticement 

of a minor under § 2422(b), the government had to prove that 

Lopez knowingly “(1) attempted to (2) persuade, induce, 

entice, or coerce (3) a person under 18 years of age (4) to 

engage in sexual activity that would constitute a criminal 

offense.” United States v. Goetzke, 494 F.3d 1231, 1234–35 

otherwise at issue in the case. Because of a question at oral argument—

“whether, under Guam law, one can commit the completed crime of First 

Degree Criminal Sexual Conduct (‘CSC’) without also committing its 

attempt,”—Lopez submitted a Rule 28(j) letter noting that, under Guam 

law, a defendant can commit the completed crime without also 

committing its attempt. Appellant’s Citation of Suppl. Authorities at 1, 

United States v. Lopez, No. 19-10017 (Oct. 21, 2020), ECF No. 55. The 

letter also stated: “The Government did not charge the attempted object 

offense, which is codified separately ([9 GCA] § 13.10) and involves 

distinct elements (specific intent).” Id. at 2. The government filed no 

response.

5 I don’t understand why the Majority discusses this particular 

uncharged predicate offense. As Lopez himself acknowledged at oral 

argument, the government could have charged him with enticement in 

violation of § 2422(b), with the predicate offense of sexual abuse of a 

minor within the Special Maritime and Territorial Jurisdiction of the 

United States, in violation of 18 U.S.C. § 2243(a). Oral Arg. at 2:22–

2:33, https://cdn.ca9.uscourts.gov/datastore/media/2020/10/20/19-

10017.mp3. Lopez was clearly trying to induce someone who he 

believed was under sixteen to engage in on-base sexual acts. But while 

that uncharged predicate offense would not have suffered from a possible 

attempting to entice to attempt flaw, a conviction based on it would still 

suffer from the flaws I identify here.
UNITED STATES V. LOPEZ 51

(9th Cir. 2007) (per curiam). We “read § 2422(b) to 

incorporate only the laws ‘for which a person could be 

charged with a criminal offense,’ i.e., the law of the venue 

that would have jurisdiction over the defendant.” United 

States v. Dhingra, 371 F.3d 557, 564 (9th Cir. 2004).

The indictment charged Lopez as follows:

Between on or about October 30, 2017, and 

on or about November 22, 2017 in the 

District of Guam, the defendant WILFREDO 

LEE LOPEZ, used the mail or any facility or 

means of interstate or foreign commerce, that 

is, a cellphone and the Internet, to knowingly

attempt to persuade, induce, and entice[] a 

person who the defendant believed to be 

under eighteen years of age, to engage in 

sexual activity for which a person can be 

charged with a criminal offense, to wit: First 

Degree Criminal Sexual Conduct, in 

violation of 9 GCA § 25.15(a)(1), all in 

violation of Title 18, United States Code, 

Sections 2422(b) and 2.

(emphasis added).

First Degree Criminal Sexual Conduct, in violation of 

9 GCA § 25.15(a)(1), is the charged predicate offense for 

Lopez’s attempted enticement of a minor. Because the 

indictment lists only this offense, this offense is the only 

offense we can consider in determining whether the 

government presented sufficient evidence of the defendant’s 
52 UNITED STATES V. LOPEZ

guilt.6 See United States v. Ward, 747 F.3d 1184, 1189 (9th 

Cir. 2014). Once a grand jury has determined the charges, 

“neither a prosecutor nor a judge can change the charging 

part of an indictment to suit [his or her] own notions of what 

it ought to have been, or what the grand jury would probably 

have made it if their attention had been called to suggested 

changes.” 7 Id. (alteration in original) (citation omitted).

This rule is an old one. As Lord Mansfield noted in 

1770: “[T]here is a great difference between amending 

indictments and amending informations. Indictments are 

found upon the oaths of a jury, and ought only to be amended 

by themselves; but informations are as declarations in the 

6 The Majority misreads my dissent, stating that it “assumes and 

asserts that Section 2422(b) requires the Government to charge a 

particular predicate offense without engaging in the statutory 

interpretation required to justify such a conclusion.” Majority at 36

(emphasis in original). But I neither assume nor assert that Section 

2422(b) requires the government to charge a particular predicate. See

infra n.17. I simply take the indictment the grand jury returned as it 

comes to us—an indictment that does list a specific predicate offense. 

And so I need not address whether the Majority’s attempt to distinguish 

Section 2422(b) from the RICO statute to support its conclusion, see

Majority at 22–25, is sound statutory construction, or instead interpretive 

legerdemain.

7 We said in Ward:

“If an indictment could be so lightly departed from, 

then the great importance which the common law 

attaches to an indictment by a grand jury, as a 

prerequisite to a prisoner’s trial for a crime, and 

without which the Constitution says ‘no person shall 

be held to answer,’ [might] be frittered away until its 

value is almost destroyed . . . .”

747 F.3d at 1189 (alterations in original) (quoting United States v. 

Leichtnam, 948 F.2d 370, 376 (7th Cir. 1991)).
UNITED STATES V. LOPEZ 53

king’s suit. An officer of the crown has the right of framing 

them originally; he may, with leave, amend in like manner 

as any plaintiff may do.”8 Ex parte Bain, 121 U.S. 1, 6 

(1887) (quoting Rex v. Wilkes, 4 Burr., 2527, 2569, 98 Eng. 

Rep. 327 (1770) (Lord Mansfield)).9

8 Federal Rule of Criminal Procedure 7, “The Indictment and the 

Information,” states: “AMENDING AN INFORMATION. Unless an 

additional or different offense is charged or a substantial right of the 

defendant is prejudiced, the court may permit an information to be 

amended at any time before the verdict or finding.” Fed. R. Crim. P. 7(e) 

(emphasis added). There is, of course, no such rule covering the 

amendment of an indictment.

9 The Department of Justice Criminal Resource Manual provides 

that:

The general rule is that indictments cannot be 

amended in substance. “An amendment to an 

indictment occurs when the charging terms of an 

indictment are altered.” United States v. Cancelliere, 

69 F.3d 1116, 1121 (11th Cir. 1995). This follows 

from the fundamental distinction between the 

information and the indictment . . . which must be 

returned by a grand jury. If the indictment could be 

changed by the court or by the prosecutor, then it 

would no longer be the indictment returned by the 

grand jury. Indeed, in Russell v. United States, 

369 U.S. 749, 769 (1962), the Court pointed out that a 

consequence of amending the indictment is that the 

defendant “could then be convicted on the basis of 

facts not found by, and perhaps not even presented to, 

the grand jury which indicted him.” “Thus, the Fifth 

Amendment forbids amendment of an indictment by 

the Court, whether actual or constructive.” United 

States v. Wacker, 72 F.3d 1453, 1474 (10th Cir. 1995).

U.S. Dep’t of Just., Criminal Resource Manual § 236 (2020).
54 UNITED STATES V. LOPEZ

A.

In amending the indictment, the Majority invades the 

province of the grand jury and takes upon itself a role that 

the Constitution specifically and exclusively carves out for 

the grand jury. Ward, 747 F.3d at 1189; see also U.S. Const. 

amend. V (“No person shall be held to answer for a capital, 

or otherwise infamous crime, unless on a presentment or 

indictment of a Grand Jury . . . .”). As the district court 

properly instructed the jury: “You are here only to determine 

whether the defendant is guilty or not guilty of the charges 

in the indictment. The defendant is not on trial for any 

conduct or offense not charged in the indictment.”10 Courts 

give this instruction because “[a] defendant in a felony trial

can only be convicted of charges upon which a grand jury 

has returned an indictment.” United States v. Arreola, 

467 F.3d 1153, 1162 (9th Cir. 2006).11

10 This is Ninth Circuit Model Criminal Jury Instruction 3.10. In 

one of the government’s proposed jury instructions to the district court, 

it stated that “it is necessary for the government to prove that the 

defendant intended to engage in some form of unlawful sexual activity 

with the individual and knowingly and willfully took some action that 

was a substantial step toward bringing about or engaging in sexual 

activity charged in the Indictment.” (emphases added).

11 The court also instructed the jury, at the request of the 

government:

The defendant, WILFREDO LEE LOPEZ, is charged 

in Count 1 of the indictment with attempted 

enticement of a minor in violation of Section 2422(b) 

of Title 18 of the United States Code. In order for the 

defendant to be found guilty of that charge, the 

government must prove each of the following 

elements beyond a reasonable doubt:
UNITED STATES V. LOPEZ 55

The Majority misreads our decision in Dhingra, to 

conclude that the government need not prove that the 

charged predicate offense(s) “could actually be prosecuted” 

against the defendant, but instead can present evidence on 

any predicate crime it wishes, regardless of what the grand 

jury charged. See Majority at 26–27. The Majority tries to 

frame the issue as “whether Dhingra requires the 

Government to charge and prove a specific predicate offense 

as an essential element of [the] Section 2422(b) enticement 

charge.” Majority at 27 n.5. But Dhingra never discusses 

the actual issue presented here—whether the government is 

limited to proving the predicate offense charged by the grand 

jury.12 See Dhingra, 371 F.3d 557.

The Majority also misreads our decision in United States 

v. Tello, 600 F.3d 1161 (9th Cir. 2010), to further support its 

First, the defendant knowingly used the mail, a 

computer, or any means of interstate or foreign 

commerce, that is, a cellphone and the Internet, to 

attempt to persuade, induce, and entice, an individual 

under the age of eighteen (18) years of age to engage 

in sexual activity for which a person can be charged 

with a criminal offense, to wit: First Degree Criminal 

Sexual Conduct, in violation of 9 Guam Code 

Annotated Section 25.15(a)(1) . . . .

12 The Majority extracts the phrase “a § 2422(b) violation is its own 

offense subject to prosecution independent of other underlying offenses” 

to support its argument. See Majority at 26 (quoting Dhingra, 371 F.3d 

at 564) (cleaned up). However, the sentence in full reads: “Similarly, 

because a § 2422(b) violation is its own offense subject to prosecution 

independent of other underlying offenses, the state’s power to prosecute 

criminal sexual conduct under state law is in no way abrogated.” 

Dhingra, 371 F.3d at 564. This has nothing to do with whether the 

government could prove a § 2422(b) violation based on the facts of a 

hypothetical offense never charged in the indictment (much less a 

hypothetical offense on which the petit jury was never instructed).
56 UNITED STATES V. LOPEZ

conclusion. The Majority concludes that Tello “did not 

require the Government to procure indictment of a specific 

predicate offense or to prove the relevant court would have 

had jurisdiction over the defendant for said predicate 

offense.” Majority at 27–28. But that conclusion is 

unrelated to what the Tello court considered. The indictment 

alleged very specific predicate California offenses.13 600 

F.3d at 1165. Tello lived in Arizona and arranged over the 

internet to meet in California with someone he thought was 

a thirteen-year-old California resident. Id. at 1162–63. He 

told “her” that he would drive to California to pick her up 

and return with her to Arizona “where she could live with 

him and have sex.” Id. He drove from Arizona to the 

prearranged meeting place in Los Angeles and was then 

arrested. Id. at 1163. Though sex between adults and 

children was illegal in Arizona, see Ariz. Rev. Stat. § 13-

1405, the government did not charge the obvious Arizona 

crime as the predicate offense. So, the similarities between 

this case and Tello are clear. And Tello made the exact same 

argument Lopez makes:

Tello argues that the evidence showed only 

that he intended to pick up a thirteen-year-old 

girl in California and return to Arizona, 

where he would engage in sexual activity 

with her. Because the government did not 

plead that Tello could be charged with a 

criminal act under Arizona law, where the 

13 “The criminal indictment alleged that Tello ‘could be charged 

with a criminal offense under California law, namely: Lewd Act Upon a 

Child Under the Age of 14 Years, a violation of California Penal Code 

Section 288; Oral Copulation, a violation of California Penal Code 

Section 288a; and Unlawful Sexual Intercourse with a Person Under the 

Age of 18 Years, a violation of California Penal Code Section 261.5.’” 

Tello, 600 F.3d at 1165.
UNITED STATES V. LOPEZ 57

intended sexual activity was to occur, Tello 

contends that there was insufficient evidence 

to support his conviction as pleaded. He 

concludes that his drive to Los Angeles to 

pick up what he thought was a thirteen[-

]year[-]old to take to Arizona for sex does not 

show a crime under California law.

600 F.3d at 1165. The court did not, however, treat the 

California predicate offenses listed in the indictment as 

irrelevant; nor did it find that the evidence obviously 

supported that Tello was enticing the person he thought was 

a thirteen-year-old girl to have sex in Arizona in violation of 

Arizona law, see id. at 1165–67, even though, as the 

Majority points out, the government made this argument in 

the alternative, see Majority at 27.

The Tello court, which did not look to the low-hanging 

fruit (the Arizona offense) that the government could have 

charged as the predicate offense, understood that it was 

limited to the California predicate offenses charged in the 

indictment. Tello, 600 F.3d at 1165–66. The court correctly 

examined whether California could properly exercise 

territorial jurisdiction as to the predicate offenses charged in 

the indictment, because if not, the conviction could not 

stand. See id. Of course, in so doing, it looked to relevant 

California territorial jurisdiction statutes to answer that 
58 UNITED STATES V. LOPEZ

question.14 Because California Penal Code § 778a15 extends 

the reach of California’s jurisdiction to circumstances where 

the defendant performs an act in furtherance of his criminal 

intent in California, Tello was properly subject to 

jurisdiction for the predicate offenses actually charged in the 

indictment. Id. at 1166–67. Because, as discussed below, 

Guam has no comparable jurisdictional statute, Tello does 

not help the government here.16

14 The Majority claims that the difference in the scope of the 

California and Guam territorial jurisdiction statutes is the reason that it 

addresses, “as a matter of first impression, whether Section 2422(b) 

requires the Government to charge a predicate offense and prove here 

that Guam would have had jurisdiction over said predicate offense.” 

Majority at 28 n.6. But the Majority addresses the wrong question. The 

issue presented here is whether, after the grand jury returns an indictment 

charging a particular predicate offense, the court can thereafter replace 

that charged offense with a different offense. This case is not about the 

abstract inquiry of whether a predicate offense need be charged.

15 “Whenever a person, with intent to commit a crime, does any act 

within this state in execution or part execution of that intent, which 

culminates in the commission of a crime, either within or without this 

state, the person is punishable for that crime in this state in the same 

manner as if the crime had been committed entirely within this state.” 

Cal. Penal Code § 778a(a).

16 The government argues, that Tello supports its position because 

the California jurisdictional statute is supposedly similar to 9 GCA 

§ 1.16(a)(1). But they are not similar. California’s jurisdictional statute 

allows prosecution where a defendant performs an act in furtherance of 

his criminal intent within California, whereas Guam’s statute allows 

prosecution only if “the conduct which is an element of the offense or 

the result which is such an element” occurs off base. The government 

cites to nothing in the record to demonstrate that any element of the 

substantive predicate offense—penetration involving a child under 

fourteen—was contemplated to occur off-base. Instead, it argues that 

“Lopez engaged in substantial steps toward the commission of the 
UNITED STATES V. LOPEZ 59

The Majority’s reliance on United States v. Shill, 

740 F.3d 1347 (9th Cir. 2014), is similarly unavailing. 

There, we considered only whether § 2422(b) “should be 

construed narrowly to preclude prosecution where the 

predicate ‘criminal offense’ is a misdemeanor under state 

law.” Id. at 1349. We relied on § 2422(b)’s use of the term 

“any” in the clause “any sexual activity for which any person 

can be charged with a criminal offense” to hold that there 

was no textual basis to “exclude misdemeanor conduct from 

the statute’s ambit.” Id. at 1354. We said nothing, for 

example, about whether having charged a particular 

predicate misdemeanor, the government could prove an 

entirely different predicate misdemeanor. And the Majority 

cites no case where any court has even addressed the 

question of whether the government can charge a particular 

predicate crime but prove an uncharged predicate crime (and 

I have found no such case). Instead, the Majority attempts 

to use inapposite cases to reach the conclusion that “Section 

2422(b) does not require the Government to allege a specific 

predicate offense or to prove that the relevant court would 

§ 2422 offense from off-base.” Lopez indeed took substantial steps offbase, but that is irrelevant under 9 GCA § 1.16(a)(1). As Lopez correctly 

argues in his Reply Brief:

Here, the emails Lopez sent to “Brit” constituted an 

element of the attempted enticement charge, but not of 

the object offense of Guam’s First Degree Criminal 

Sexual Conduct. That statute criminalizes “sexual 

penetration” where “the victim is under fourteen (14) 

years of age.” 9 GCA § 25.15(a)(1). There is no 

evidence Lopez attempted to entice “Brit” to commit 

any element of this offense within Guam’s territory; 

instead, as the Government agrees, to the exten[t] 

Lopez attempted to entice “Brit” to engage in sexual 

activity, that sexual activity would have occurred on 

the federal base, out of the reach of Guam’s laws.
60 UNITED STATES V. LOPEZ

have had jurisdiction over the defendant for the commission 

of such offense.” Majority at 29.

Because the Majority asks the wrong question, its answer 

to that question is irrelevant. The right question is: Can a 

court amend the indictment returned by the grand jury to 

excise the charged predicate offense and substitute a 

different predicate offense. And the correct answer to that 

question is “no.”

The Majority tries to avoid this by wrongly holding that 

this case “involves, at most, a variance in which the charging 

terms of the indictment are left unaltered, but the evidence 

offered at trial proves facts materially different from those 

alleged in the indictment.” Majority at 40 (quotation marks 

omitted) (quoting Ward, 747 F.3d at 1189). But how have 

the charging terms been left unaltered? As I wrote at the 

beginning of my dissent, the indictment returned by the 

grand jury charged Lopez with attempting to “entice[] a 

person who the defendant believed to be under eighteen 

years of age[] to engage in sexual activity for which a person 

can be charged with a criminal offense, to wit: First Degree 

Criminal Sexual Conduct, in violation of 9 GCA 

§ 25.15(a)(1).” This is a predicate offense Lopez did not 

commit. The indictment, as amended by the Majority, now 

charges a different predicate offense. And this amendment 

not only changes the charging terms of the indictment, but 

changes them materially, as Lopez did not commit the 

offense with which he was actually charged. See United 

States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984) (“An 

amendment of the indictment occurs when the charging 

terms of the indictment are altered, either literally or in 

effect, by the prosecutor or a court after the grand jury has 

last passed upon them.” (quoting United States v. Cusmano, 
UNITED STATES V. LOPEZ 61

659 F.2d 714, 718 (6th Cir. 1981))).17 Where an indictment 

is constructively amended and a conviction is based on the 

newly amended indictment, that conviction must be 

reversed.18 See Ward, 747 F.3d at 1189.

This case does not involve an insignificant or harmless 

“variance.” United States v. Bolzer, 556 F.2d 948 (9th Cir. 

1977), is an instructive variance case. There, the defendants, 

17 The government does not make the argument that no predicate 

offense need be specified in the indictment. And here, the indictment 

did so specify, and it specified a crime for which the defendant could not 

be convicted. So it is unnecessary to determine whether the government 

could have omitted the predicate offense (though I note that the 

indictment here and the indictments in all but one of the Ninth Circuit 

cases cited by the Majority do list predicate offenses). But even if the 

Majority is correct, a court would likely order, on motion, a bill of 

particulars specifying the possible predicate offenses given that a 

defendant is “entitled to know . . . the theory of the government’s case.” 

United States v. Ryland, 806 F.2d 941, 942 (9th Cir. 1986) (emphasis 

omitted); see Fed. R. Crim. P. 7(f); see also United States v. Mannava, 

565 F.3d 412, 414 (7th Cir. 2009) (illustrating how the government 

responded to the defendant’s motion for a bill of particulars by 

specifying the predicate offenses). And in such a case, we would

certainly not allow a post-trial amendment of the bill to completely 

change the specified predicate offense or offenses, as it would run 

contrary to the bill’s functions. See United States v. Giese, 597 F.2d 

1170, 1180 (9th Cir. 1979) (noting that two functions of the bill of 

particulars are “to inform the defendant of the nature of the charge[s] 

against him with sufficient precision to enable him to prepare for trial 

[and] to avoid or minimize the danger of surprise at the time of trial” 

(citation omitted)).

18 The Majority states that “[w]hether the behavior in which Lopez 

engaged could have been charged under one Guam offense or another is 

irrelevant to the culpability of his conduct.” Majority at 38. I agree. 

However, in our criminal justice system, even the most “culpable” 

defendants are not convicted based on what the government could have

charged; they are convicted based only on what the government did

charge.
62 UNITED STATES V. LOPEZ

who were charged with armed mail robbery and conspiracy, 

argued that the conspiracy count should have been dismissed 

because of a fatal variance. Id. at 949. The evidence 

demonstrated that the defendants had been surveilling a 

different postal facility than the one described in the 

indictment. Id. at 950. Because the surveillance was “only 

one of four overt acts alleged to have been committed by the 

defendants in furtherance of the conspiracy,” and because 

the government presented sufficient evidence of the other 

overt acts, we held that the variance was harmless. Id. at 

950–51. Unlike here, the charging terms in the Bolzer

indictment remained unaltered.

The variance cases the Majority cites are inapposite. In 

United States v. Antonakeas, 255 F.3d 714 (9th Cir. 2001), 

the defendant claimed that the trial court constructively 

amended the indictment in response to a jury question. Id.

at 718–19. The indictment charged conspiracy to distribute 

cocaine in Hawaii. Id. at 718. The court instructed the jury 

that it could find the defendant guilty even if the defendant 

did not have knowledge that the drugs would ultimately be 

sold in Hawaii. Id. We first noted that “[a]n indictment is 

amended when it is so altered as to charge a different offense 

from that found by the grand jury.” Id. at 721 (quoting 

United States v. Miller, 471 U.S. 130, 144–45 (1985)). We 

also quoted Miller’s reasoning that the key is whether “the 

proof” on which the conviction is based “corresponds to an 

offense that was clearly set out in the indictment.” Id.

(quoting Miller, 471 U.S. at 136). We reasoned both that the 

supposed removal of the Hawaii nexus was in no way 

essential to the conspiracy offense on which the jury 

convicted the defendant (indeed the jury was correctly 

instructed as to the actual elements of conspiracy, id. at 718), 

and that the government did connect the defendant to a 

Hawaii conspiracy. Id. at 722. This case bears no 
UNITED STATES V. LOPEZ 63

resemblance to ours, where the Majority is post-hoc 

amending the predicate offense charged in the indictment 

(and post-hoc finding sufficient evidence to support its 

amendment). Indeed, the Majority is doing just what Miller

says a court cannot do—amending the indictment to charge 

a different offense from that found by the grand jury. 

471 U.S. at 142–43.

United States v. D’Amelio, 683 F.3d 412 (2d Cir. 2012), 

is also not “on all fours with this case.” See Majority at 39. 

D’Amelio was a § 2422(b) case in which the government was 

permitted to introduce evidence at trial that the defendant 

used the internet and telephone conversations to 

communicate with the supposed underage victim, even 

though the indictment referred only to the internet as a means 

of communication. 683 F.3d at 414–15.

The government’s proof at trial did not 

modify an “essential element” of the alleged 

crime. The essential element at issue is 

D’Amelio’s use of a “facility or means of 

interstate . . . commerce,” 18 U.S.C.

§ 2422(b), not the particular means that were 

used. Neither the indictment nor proof at trial 

showed that D’Amelio committed this crime 

by means of, for example, use of force, which 

would have modified an “essential element” 

of the crime. Whether D’Amelio used the 

Internet or a telephone makes no difference 

under the relevant statute . . . .

Id. at 422 (first alteration in original) (footnote omitted).

The example provided by the Second Circuit of what 

would be improper—changing “use of a ‘facility or means 
64 UNITED STATES V. LOPEZ

of interstate . . . commerce’” to “use of force”—is precisely 

what the Majority has done here.

I agree with the Majority that § 2422(b) allows for a wide 

range of offenses to serve as predicate offenses. See

Majority at 24–25. This, however, allows the government a 

wide range of choices to present to the grand jury. And 

perhaps it allows the government to take the substantial risk 

of not specifying a predicate offense.19 But after the grand 

jury has returned an indictment listing a predicate offense or 

offenses; absent a superseding indictment, the government is 

bound by the indictment the grand jury returned.

The Majority labels the predicate offense returned by the 

grand jury “[g]ratuitous language,” and insists that it is 

“mere surplusage,” Majority at 34, despite the fact that the 

government has never made this argument—not before the 

district court, not in its briefs, and not at oral argument. The 

Majority is incorrect. Surplusage is language that “goes 

beyond alleging elements of the crime.” United States v. 

Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986).20

19 The Majority states that the holdings of the Sixth and Eleventh 

Circuits are that “Section 2422(b) does not require proof that the 

defendant could have been prosecuted under a particular law so long as 

the jury may reasonably conclude the defendant’s communications 

proposed a criminal sexual act.” Majority at 29 n.7. But I have found 

no case (and the Majority cites none) in which an indictment has charged 

a specific predicate offense or offenses, the government claims to have 

proved a completely different predicate offense, and the court upholds 

the conviction.

20 A court, for example, can exercise its discretion to strike 

surplusage “to protect a defendant against prejudicial or inflammatory 

allegations that are neither relevant nor material to the charges.” United 
UNITED STATES V. LOPEZ 65

Section 2422(b) states that “[w]hoever, using . . . any . . .

means of interstate or foreign commerce . . . knowingly 

persuades, induces, entices, or coerces any individual who 

has not attained the age of 18 years, to engage in prostitution 

or any sexual activity for which any person can be charged 

with a criminal offense, or attempts to do so” is guilty of a 

crime. Thus, “any sexual activity for which any person can 

be charged with a criminal offense” is an essential element 

of § 2422(b). See Jenkins, 785 F.2d at 1392. The 

government’s specification of “First Degree Criminal 

Sexual Conduct, in violation of 9 GCA § 25.15(a)(1)” in the 

indictment gives meaning to this essential element and is 

therefore both relevant and material to the charged offense. 

Cf. United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 

1988).

United States v. Garcia-Paz, 282 F.3d 1212 (9th Cir. 

2002), on which the Majority relies, is inapposite. The 

defendant was charged with violating 18 U.S.C. § 545—

“fraudulently or knowingly import[ing] or bring[ing] into 

the United States, any merchandise contrary to law.” 

Garcia-Paz, 282 F.3d at 1217. The indictment alleged that 

Garcia-Paz “did knowingly import and bring into the United 

States certain merchandise, to wit, marijuana, contrary to 

law.” Id. at 1215. Garcia-Paz was an emergency medical 

technician and translator in an ambulance that brought both 

a critically ill patient and approximately 1,000 pounds of 

marijuana into California from Mexico. Id. at 1213. GarciaPaz’s defense was that while he knew he was being paid to 

illegally transport “medicine” across the border, he didn’t 

know the ambulance had marijuana. Id. He requested a jury 

instruction that would have required the jury to find that he 

States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988) (quotation marks 

and citation omitted).
66 UNITED STATES V. LOPEZ

knowingly imported marijuana (as opposed to merchandise) 

in order to convict. Id. at 1215. The district court refused 

the instruction, and we affirmed. Id. at 1215–17. We found 

that a plain reading of the indictment showed “that the phrase 

‘to wit’ did not “speak to Garcia-Paz’s knowledge, but rather 

was there to inform the jury what ‘merchandise’ the 

government would prove was smuggled.” Id. at 1215. Thus, 

the government had to prove that Garcia-Paz knowingly 

smuggled something that qualified as merchandise under the 

statute (marijuana so qualified), and separately had to prove 

that the merchandise was actually transported across the 

border. Id. at 1217. “Consequently, the removal of the 

reference to marijuana from the jury instruction did not alter 

the charge against Garcia-Paz.” Id. at 1216 (emphasis 

added).

The issue in the case was whether the “knowingly” 

element extended to the marijuana, i.e., whether the 

indictment “allege[d] that Garcia-Paz had knowledge of the 

marijuana” such that relieving the government of proving 

knowledge of marijuana, as opposed to knowledge of 

merchandise, would alter the indictment. Id. at 1215–16. 

We held it did not.

Garcia-Paz is a far cry from this case, including because 

“any sexual activity for which any person can be charged 

with a criminal offense” is an element that requires statutes 

to give it meaning. And the possible predicate offenses have 

different elements and require different facts to prove those 

elements, which facts would need to be presented to the 

grand jury.21

21 Garcia-Paz also differs from this case because here the jury was 

specifically instructed that the government must prove beyond a 
UNITED STATES V. LOPEZ 67

This case is more akin to Howard v. Daggett, 526 F.2d 

1388 (9th Cir. 1975) (per curiam), where we held that an 

indictment for the promotion of prostitution that listed the 

names of two specific women who had been induced to 

engage in prostitution could not be altered by jury 

instructions to allow for a conviction regarding other 

women. Id. at 1390. We explained:

The grand jury might have indicted appellant 

in a general allegation, without specifying the 

women to whom his alleged illegal acts or 

purposes related. But it did not do so. To 

allow the jury to consider the evidence 

respecting the other alleged prostitutes was to 

allow the jury to convict of a charge not 

brought by the grand jury. The supplemental 

instruction constituted an impermissible 

amendment of the indictment that destroyed 

the defendant’s substantial right to be tried 

only on charges presented in an indictment 

returned by a grand jury.

Id. (quotation marks and citation omitted).22

reasonable doubt a predicate crime that Lopez did not commit, that is, 

“First Degree Criminal Sexual Conduct, in violation of 9 Guam Code 

Annotated Section 25.15(a)(1).”

22 Howard makes clear that the Majority’s claim that “[b]ecause 

Section 2422(b) does not contain a predicate offense requirement, . . . the 

indictment’s citation to Guam’s First Degree Criminal Sexual Conduct 

statute was mere surplusage” is incorrect. Majority at 34. The statute 

need not require that a predicate offense be listed in order for the 

government to be held to what is actually charged by the grand jury. In 

addition, the Majority’s claim that Lopez “perpetuated” the complexity 
68 UNITED STATES V. LOPEZ

Permitting Lopez’s conviction to stand on a predicate 

offense not charged in the indictment permits the very thing 

we prohibited in Howard as violative of the Fifth 

Amendment.

B.

Having first addressed arguments the government never 

makes, I now move to arguments that the government does 

make—first, that Guam could have prosecuted a violation of 

9 GCA § 25.15(a)(1) here,23 and second, that “[t]he Guam 

Offense was properly assimilated.”24 The indictment listed 

9 GCA § 25.15(a)(1)25 as the predicate offense for the 

of this case by “failing to seek a bill of particulars” makes no sense. 

Majority at 35. Since the grand jury specified a particular predicate 

offense, Lopez had no need to ask a question that the grand jury had 

already answered.

23 The Majority never addresses this argument; it states only that 

Guam could have prosecuted Lopez for the attempt offense discussed 

above: “Guam could have prosecuted an individual in Lopez’s position 

for an attempt to engage in sexual penetration of a minor based on 

substantial steps taken within the Territory.” Majority at 33.

24 The Majority sidesteps the government’s assimilation argument: 

“Because Guam could have prosecuted a person in Lopez’s position for 

attempted sexual penetration of a minor, we need not decide whether the 

Guam offense cited in the indictment could have been assimilated into 

and prosecuted under federal law.” Majority at 36 n.13.

25 “A person is guilty of criminal sexual conduct in the first degree 

if he or she engages in sexual penetration with the victim and . . . the 

victim is under fourteen (14) years of age . . . .” 9 GCA § 25.15(a)(1). 

For purposes of this statute, “[s]exual [p]enetration means sexual 

intercourse, cunnilingus, fellatio, anal intercourse or any other intrusion, 

however slight, of any part of a person’s body or of any object into the 

genital or anal openings of another person’s body, but emission of semen 

is not required.” Id. § 25.10(a)(9).
UNITED STATES V. LOPEZ 69

§ 2422(b) violation. This offense could properly serve as the 

predicate offense only if either Guam had the authority to 

prosecute the completed offense or, if not, the offense can be 

assimilated under the ACA.

As the Majority correctly states, “[i]t is undisputed that 

Guam would have lacked jurisdiction to prosecute an offense 

taking place exclusively within AAFB territory.” Majority 

at 33. It is also undisputed that the planned completed 

offense of sexual penetration would have occurred on 

AAFB.26 With some exceptions that do not apply, Guam 

allows prosecution only for “conduct which is an element of 

the offense or the result which is such an element [if it] 

occurs within [its] Territory.” 9 GCA § 1.16(a)(1). Thus, 

Guam would have had no jurisdiction over the planned 

predicate offense charged here. While I have found no cases 

interpreting this Guam provision, other states have 

interpreted their own jurisdictional provisions, and those 

cases offer some guidance here.

In Arizona, there is territorial jurisdiction to prosecute an 

offense “when the ‘effect’ or ‘result’ of such crime occurs in 

[the state].” State v. Flores, 188 P.3d 706, 713 (Ariz. Ct. 

26 Lopez asked to meet “Brit” on four separate occasions

at different locations within AAFB. The first and 

second invitation involved proposed meetings at the 

Base Exchange and at an on-base Burger King, neither 

of which materialized. Lopez then proposed meeting 

“Brit” at the on-base library. Lopez appeared at the 

library, waited for some time, and left when “Brit” 

failed to arrive. Finally, Lopez arranged to meet “Brit” 

at her supposed on-base residence. [Air Force Office 

of Special Investigations] agents arrested Lopez when 

he arrived at the agreed-upon location.

Majority at 6–7.
70 UNITED STATES V. LOPEZ

App. 2008) (noting that if the defendant’s “conduct had a 

direct effect in Arizona, Arizona can assert jurisdiction”).27 

Because the defendant’s criminal activity in Flores 

“intended to and did direct harm within Arizona,”—the 

defendant “sought and obtained illegal entry into Arizona, 

and he subsequently was illegally transported and present 

within th[e] state”—Arizona could validly exercise 

territorial jurisdiction. Id. at 714; see also State v. Meyers, 

825 P.2d 1062, 1064–65 (Haw. 1992) (finding it proper to 

exercise jurisdiction over a threatening call made from 

California to Hawaii because “a telephone call constitutes 

conduct in the jurisdiction in which the call is received”).28

In addition, in interpreting jurisdictional provisions like 

Guam’s, states have held that there is no territorial 

jurisdiction where no element of the crime is committed 

within the state. See, e.g., State v. Sumulikoski, 110 A.3d 

856, 864 (N.J. 2015) (per curiam) (holding that the state 

lacked jurisdiction to prosecute the offense where all 

conduct that constituted elements of the offense occurred 

outside the state and further holding that “status or ‘attendant 

circumstances’ cannot provide a basis for jurisdiction”);29

State v. Wagner, 596 N.W.2d 83, 87 (Iowa 1999) (finding 

that Iowa could not exercise territorial jurisdiction over a 

27 Arizona authorizes prosecution for “[c]onduct constituting any 

element of the offense or a result of such conduct [if it] occurs within 

[the] state.” Ariz. Rev. Stat. Ann. § 13-108(A)(1).

28 Hawaii authorizes prosecution for “conduct or the result [of 

conduct] which is an element of the offense [if it] occurs within [the] 

State.” Haw. Rev. Stat. § 701-106(1)(a).

29 New Jersey authorizes prosecution for “conduct which is an 

element of the offense or the result which is such an element [if it] occurs 

within this State.” N.J. Rev. Stat. § 2C:1–3(a)(1).
UNITED STATES V. LOPEZ 71

convict’s escape from custody in another state despite the 

convict having been originally prosecuted in Iowa and 

housed at the Iowa State Penitentiary because that was not 

an element of the escape offense).30

Here, neither the effects nor the result of the charged

predicate offense could support Guam’s territorial 

jurisdiction over that offense because there is no evidence 

that Lopez attempted to meet “Brit” other than on base, or 

that penetration was even contemplated at an off-base 

location. That Lopez initiated communications off base does 

not mean that Guam could have prosecuted a crime that 

would clearly have occurred only on base.31

Furthermore, Lopez did not engage in (or even 

contemplate) conduct off-base that could constitute one or 

more elements of First Degree Criminal Sexual Conduct, in 

violation of 9 GCA § 25.15(a)(1). Guam law requires “the 

following relevant elements . . . be met: (1) the person 

engages in sexual penetration with the victim, and (2) the 

victim is under fourteen (14) years of age.” Guam v. 

Campbell, 2006 Guam 14 ¶ 37. Because no sexual 

penetration occurred here (or was contemplated to occur off 

base), none of the elements of this charged predicate offense 

occurred off base (or were contemplated to occur off base). 

Thus, Guam would have had no territorial jurisdiction over 

30 Iowa authorizes prosecution if “conduct which is an element of 

the offense, or a result which constitutes an element of the offense, 

occurs within this state.” Iowa Code § 803.1(2).

31 Because again, the predicate crime the indictment specified was 

not solicitation of a minor, it was penetration of a minor.
72 UNITED STATES V. LOPEZ

the charged predicate offense.32 In that way, this case is akin 

to Sumulikoski and Wagner.

Because Guam could never have prosecuted Lopez for a 

violation of 9 GCA § 25.15(a)(1), it is necessary to address 

whether that provision is assimilated under the ACA. If 

assimilated, then there is no defect in the indictment or 

mismatch between the indictment and the evidence. Lopez 

(despite his claims to the contrary) was communicating with 

someone he believed to be under the age of fourteen. Lopez 

was trying to entice this person into an act involving sexual 

penetration on-base, a place within the Special Maritime and 

Territorial Jurisdiction of the United States. Thus, if 9 GCA 

§ 25.15(a)(1) is assimilated, we must reject Lopez’s 

sufficiency argument.

To determine whether the charged Guam offense is 

assimilated under the ACA, we ask two questions. First, 

“[i]s the defendant’s ‘act or omission . . . made punishable 

by any enactment of Congress[?]’” Lewis v. United States, 

523 U.S. 155, 164 (1998) (alteration in original) (emphasis 

omitted) (quoting 18 U.S.C. § 13(a)). If the answer to this 

question is “no,” the statute will be assimilated. See id. 

Second, “[i]f the answer to [the first question] is ‘yes,’ . . .

the court must ask . . . whether the federal statutes that apply 

to the ‘act or omission’ preclude application of the state law 

in question.” Id. Here, courts are concerned with whether 

the state law’s application “would interfere with the 

achievement of a federal policy,” whether it “would 

effectively rewrite an offense definition that Congress 

carefully considered,” or whether the federal statutes 

32 The Majority appropriately concedes this point. Majority at 28

n.6.
UNITED STATES V. LOPEZ 73

“occupy so much of a field as would exclude use of the 

particular state statute at issue.” Id.

With respect to the first inquiry, the government 

concedes that conduct punishable under 9 GCA 

§ 25.15(a)(1) is also punishable under the federal sexual 

abuse of a minor statute, 18 U.S.C. § 2243(a).33 With 

respect to the second inquiry, the Supreme Court has said 

that “it seems fairly obvious that the [ACA] will not apply 

where both state and federal statutes seek to punish 

approximately the same wrongful behavior.” Lewis, 523 

U.S. at 165. Assimilation will generally be improper “where 

differences amount only to those of name, definitional 

language, or punishment.” Id.

Here, as Lopez points out, Guam and the federal 

government sought to “punish approximately the same 

wrongful behavior, [thus] counseling against application of 

the . . . [Guam] statute through the ACA.” United States v. 

Rocha, 598 F.3d 1144, 1150 (9th Cir. 2010). Both statutes 

target the sexual penetration of minors, and application of 

both the Guam statute and the federal sexual abuse statutes 

33 18 U.S.C. § 2243(a) provides:

Whoever, in the special maritime and territorial 

jurisdiction of the United States . . . knowingly 

engages in a sexual act with another person who—

(1) has attained the age of 12 years but has not attained 

the age of 16 years; and

(2) is at least four years younger than the person so 

engaging;

or attempts to do so, shall be fined under this title, 

imprisoned not more than 15 years, or both.
74 UNITED STATES V. LOPEZ

“would rewrite distinctions carefully considered by 

Congress and would attempt to fill a gap in the federal 

enclave law where no gap exists.”34 United States v. Waites, 

198 F.3d 1123, 1129 (9th Cir. 2000). Moreover, much like 

in Rocha where we observed that assimilation was improper 

because of the comprehensive nature of the assault statutory 

scheme at issue, see 598 F.3d at 1149–52, child sex offenses 

are also comprehensively covered by federal statutes. This 

shows a congressional intent to occupy the field, and thus the 

Guam statute cannot be assimilated.35 We recently reached 

a similar conclusion for similar reasons in holding an Oregon 

weapon statute (which punished shooting at another person) 

was not assimilated notwithstanding greater possible 

punishment, because the conduct was also prohibited by the 

federal assault statute, and because Congress intended the 

34 Guam law punishes “sexual penetration” involving children under 

the age of fourteen with a minimum sentence of fifteen years and a 

maximum sentence of life imprisonment. See 9 GCA § 25.15(a)(1), (b). 

Federal law punishes “sexual acts” with children aged between twelve 

and sixteen with a sentence of up to fifteen years, 18 U.S.C. § 2243(a), 

and “sexual acts” includes those acts that constitute penetration under 

Guam law, 18 U.S.C. § 2246(2). Section 2241(c) imposes terms of life 

imprisonment or imprisonment for thirty years to life when the “sexual 

acts” are accompanied by force, threat of serious bodily injury or death, 

or use of drugs rendering the victim unconscious, or when the victim is 

under twelve years. 18 U.S.C. § 2241(c). But Lewis dictates that 

distinctions in punishment don’t trigger assimilation, 523 U.S. at 165, 

and here, Congress clearly considered the circumstances that warrant 

higher punishment.

35 I have not been able to find a single case in which a child sex 

offense has been charged as an assimilated crime. And, at oral argument, 

the government’s attorney conceded that she was not familiar with any 

child sex offense being prosecuted under the ACA. Oral Arg. at 23:55.
UNITED STATES V. LOPEZ 75

federal statute to occupy the field. See United States v. Do, 

994 F.3d 1096, 1100–02 (9th Cir. 2021).36

II.

Because Lopez did not raise this particular sufficiency

challenge below, I agree with the Majority that we review 

for plain error. But “plain-error review of a sufficiency-ofthe-evidence claim is only ‘theoretically more stringent’ 

than the standard for a preserved claim.” United States v. 

Flyer, 633 F.3d 911, 917 (9th Cir. 2011) (citation omitted).37 

“We say ‘theoretically’ because, while plain-error review 

appears more stringent in theory, it is hard to comprehend 

how a standard can be any more stringent in actuality than 

that ordinarily applied to sufficiency-of-the-evidence 

challenges.” United States v. Cruz, 554 F.3d 840, 844 (9th 

Cir. 2009).

“Plain error is (1) error, (2) that is plain, and (3) that 

affects substantial rights. If all three conditions are met, we 

may then exercise our discretion to notice a forfeited error, 

36 Lopez argues in the alternative that he is entitled to a new trial on 

Count 1 because the jury instructions never informed the jury of the 

actual elements of 9 GCA § 25.15(a)(1). Lopez never raised this claim 

below, and affirmatively agreed to the instructions that were given, 

though as the Majority notes, the government doesn’t argue waiver. See

Majority at 42 n.14. I do not need to reach this issue because of the error 

I find did occur, but I note that the Majority correctly states that “the 

district court should have instructed the jury on the applicable ‘laws of 

Guam.’” Majority at 42.

37 “[I]t is difficult to imagine just what consequences flow from [the] 

application of the plain error standard or to envision a case in which the 

result would be different because of the application of one rather than 

the other of the standards.” United States v. Cruz, 554 F.3d 840, 845 

(9th Cir. 2009) (citation and alterations omitted).
76 UNITED STATES V. LOPEZ

but only if (4) the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” 

United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015) 

(quotation marks, alterations, and citation omitted).

The district court erred because First Degree Criminal 

Sexual Conduct cannot serve as the predicate offense for the 

reasons discussed above. Therefore, prong one is met.

As to prong two, the error need only be “clear” or 

“obvious.” United States v. Olano, 507 U.S. 725, 734 

(1993). Because binding case law is consistent and clear that 

the government is limited to charges listed in the indictment, 

see Ward, 747 F.3d at 1189, and because the indictment does 

not state a crime that Lopez could have been convicted of in 

the circumstances here, I believe the error is both clear and 

obvious. Cf. Cruz, 554 F.3d at 851 (finding an error clear 

and obvious where the government failed to show sufficient 

evidence of one of the essential elements of the offense). 

Indeed, as in Cruz, “no rational trier of fact could have found 

that the government proved” the offense charged in the 

indictment. See id.

It is also noteworthy that “we have expressed our 

reluctance, regardless of the standard of review, to affirm a 

conviction and send a defendant to prison . . . if the record 

clearly showed that the evidence was insufficient.” United 

States v. Garcia-Guizar, 160 F.3d 511, 517 (9th Cir. 1998) 

(quotation marks and citation omitted). Here, Lopez stands 

convicted of the crime with which he was charged by the 

grand jury, but the evidence was insufficient to convict him 

of that crime. Indeed, given the undisputed facts, the 

evidence could never have been sufficient.

“When a conviction is predicated on insufficient 

evidence, the last two prongs of the [plain-error] test will 
UNITED STATES V. LOPEZ 77

necessarily be satisfied . . . .” Cruz, 554 F.3d at 845. “A 

defendant’s ‘substantial rights,’ as well as the ‘fairness’ and 

‘integrity’ of the courts, are seriously affected when 

someone is sent to jail for a crime that, as a matter of law, he 

did not commit.” Id.

III.

The grand jury dates to the Assizes of Clarendon in 1166. 

Hurtado v. California, 110 U.S. 516, 529 (1884).

The grand jury is an integral part of our 

constitutional heritage which was brought to 

this country with the common law. The 

Framers, most of them trained in the English 

law and traditions, accepted the grand jury as 

a basic guarantee of individual liberty; 

notwithstanding periodic criticism, much of 

which is superficial, overlooking relevant 

history, the grand jury continues to function 

as a barrier to reckless or unfounded charges. 

Its adoption in our Constitution as the sole 

method for preferring charges in serious 

criminal cases shows the high place it held as 

an instrument of justice. Its historic office 

has been to provide a shield against arbitrary 

or oppressive action, by [e]nsuring that 

serious criminal accusations will be brought 

only upon the considered judgment of a 

representative body of citizens acting under 

oath and under judicial instruction and 

guidance.

United States v. Mandujano, 425 U.S. 564, 571 (1976) 

(quotation marks and citation omitted).
78 UNITED STATES V. LOPEZ

In our criminal justice system, “[t]he Fifth Amendment’s 

grand jury requirement establishes the ‘substantial right to 

be tried only on charges presented in an indictment returned 

by a grand jury.’” Antonakeas, 255 F.3d at 721 (quoting 

United States v. Miller, 471 U.S. 130, 140 (1985)). It is 

entirely within the government’s control as to the charges in 

the indictment it presents to the grand jury for its 

consideration. The government made its choice here and did 

not prove the offense the grand jury charged. While the 

Majority’s substantive analysis of the defendant’s conduct 

under Guam law is incorrect, that is not its gravest error. In 

contravention of the Constitution, it has taken on the role of 

the prosecutor (in its charging decision) and the grand jury 

(in performing its mandatory role under the Fifth 

Amendment). I therefore respectfully dissent.