The US Court of Appeals for the Fifth Circuit has affirmed a life sentence for child sex trafficking despite agreement by both sides that the trial judge gave the jury an alternative theory of liability that was not charged in the indictment.
Desnique Deshawn Herndon was convicted of six counts of sex trafficking of children and one conspiracy count. His indictment alleged that he knew, or recklessly disregarded, that the victims were minors. The jury was also told it could convict if he had a reasonable opportunity to observe them, a statutory route that does not require proof of knowledge or recklessness as to age.
The parties accepted on appeal that the additional instruction constructively amended the indictment and was plain error. Because Herndon did not object at trial, however, he also had to show that the error affected his substantial rights before the appellate court could consider discretionary relief.
The panel said he could not make that showing. Prosecutors had disclosed their intention to rely on the observation theory repeatedly over the 18 months before trial, including in filings and proposed instructions. A timely objection could have led to a superseding indictment, the court said, and trial counsel’s failure to object did not establish ineffective assistance on the record before it.
The court also found overwhelming evidence that Herndon knew or recklessly disregarded the victims’ ages, including evidence concerning girls aged 13, 15 and 16. That independent evidence meant the defective instruction did not prejudice the verdict.
The conviction and life sentence therefore remain in force. The ruling applies the demanding plain-error standard; it does not approve adding an uncharged theory to jury instructions.
Official Fifth Circuit opinion: United States v Herndon, No. 25-40388
