¹ Section 1591 provides as follows: “(a) Whoever knowingly— (1) . . . recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in 6 USA V. BRADFORD Bradford argued to the district court that the heightened mens rea requirement for a defendant who advertises sex trafficking (i.e., knowing that the victim is under eighteen years old instead of knowing or recklessly disregarding that fact) distinguishes advertising as a second crime prohibited by § 1591. Therefore, he argued that Counts 1 and 2 of the superseding indictment were duplicitous because they each charged him with both crimes described in § 1591. The district court was not persuaded by Bradford’s arguments and concluded that both knowledge and recklessness could permissibly be charged in the same count. Citing United States v. Mal, 942 F.2d 682, 688 (9th Cir. 1991), the district court rejected Bradford’s argument that § 1591 creates two separate crimes, reasoning that § 1591(a) proscribes a range of conduct in a single sentence and that § 1591(b) provides a single penalty. Therefore, the district court denied Bradford’s motion to dismiss, and the case proceeded to trial. A jury convicted Bradford on all counts. B At sentencing following his conviction, Bradford did not contest the calculation of his sentencing range under the Guidelines. Based on the nature of his offense and his criminal history, the Guidelines range for Bradford’s sentence was life in prison. Bradford did, however, argue violation of paragraph (1), knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).” 18 U.S.C. § 1591(a). USA V. BRADFORD 7 for a downward variance from the Guidelines based on his personal history. He emphasized that his upbringing was “tragic and horrific,” because it included childhood homelessness, abuse by his parents, and the abuse of drugs. At his sentencing hearing, Bradford addressed the district court and apologized to his victims and their families. He expressed his desire to avoid life in prison so that he could be involved in his children’s lives and his hope that he could change and be forgiven. The government opposed Bradford’s request for a variance, arguing that Bradford’s upbringing and circumstances did not justify departing from the Guidelines. It pointed to Bradford’s extensive criminal history to argue that he was a known recidivist. 2 At sentencing, the government read a victim impact statement written by the mother of one of Bradford’s minor victims, describing how her family was “directly impacted by Bradford’s actions in the most horrific way imaginable,” and recounted that, while in custody, Bradford tried to threaten witnesses to dissuade them from testifying against him. The district court sentenced Bradford to a term of life imprisonment. It explained that, in imposing Bradford’s sentence, it was making an individualized determination under 18 U.S.C. § 3553(a). It also explained that it had considered the parties’ sentencing memoranda, letters read into the record, the evidence and testimony it had heard during the trial, the nature of the offenses, including Bradford’s conduct towards minors, Bradford’s history and 2 In its sentencing memorandum, the government recounted that Bradford was convicted of, inter alia, two vehicle thefts, two counts of robbery with a deadly weapon, burglary while in possession of a firearm, reckless driving, vandalism, and spousal battery. 8 USA V. BRADFORD characteristics, the need to promote respect for the law, provide just punishment, and protect the public, the types of sentences available, the need to avoid unwarranted sentencing disparities, and Bradford’s desire to be involved in his children’s lives. II A “We review de novo a district court’s decision not to dismiss an allegedly duplicitous indictment.” United States v. Ramirez-Martinez, 273 F.3d 903, 913 (9th Cir. 2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186, 1187 (9th Cir. 2007) (en banc); accord United States v. Mancuso, 718 F.3d 780, 790 (9th Cir. 2013). “An indictment is duplicitous when it joins two or more distinct and separate offenses into a single count.” Mancuso, 718 F.3d at 792 (citing United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976)). “In reviewing an indictment for duplicity, our task is not to review the evidence presented at trial to determine whether it would support charging several crimes rather than one, but rather solely to assess whether the indictment itself can be read to charge only one violation in each count.” United States v. Martin, 4 F.3d 757, 759 (9th Cir. 1993) (quoting United States v. Yarbrough, 852 F.2d 1522, 1530 (9th Cir. 1988)). A duplicitous indictment can result in numerous “vice[s].” United States v. Starks, 515 F.2d 112, 116–17 (3d Cir. 1975). For example, if an indictment contains a duplicitous count, then “a general verdict for a defendant on that count does not reveal whether the jury found him not guilty of one crime or not guilty of both,” and such an outcome “could prejudice the defendant in protecting USA V. BRADFORD 9 himself against double jeopardy.” Id. at 116. Conversely, “a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both,” which “could prejudice the defendant in sentencing and in obtaining appellate review.” Id. “Duplicity may also give rise to problems regarding the admissibility of evidence, including its admissibility against one or more codefendants.” UCO Oil, 546 F.2d at 835. And further, “there is no way of knowing with a general verdict on two separate offenses joined in a single count whether the jury was unanimous with respect to either.” Starks, 515 F.2d at 117. Here, Bradford argues that Counts 1 and 2 of the superseding indictment were duplicitous because, in addition to charging him with violating § 1591 by sex trafficking a minor according to the statute’s lengthy list of other verbs, 3 they also charged him with violating § 1591 by advertising—something that he argues is a separate crime prohibited by the same statute. Bradford argues that, consequently, he may have been subjected to several of the vices of duplicity. First, he argues that he may have been improperly convicted of sex trafficking via advertising without the requisite mens rea (i.e., the jury may have improperly convicted him of advertising commercial sex with a minor by finding only that he recklessly disregarded that the victim was under eighteen years old, rather than by finding the heightened standard that he advertised commercial sex with the victim knowing that she was a minor). Relatedly, Bradford also argues that the duplicitous 3 Namely, recruiting, enticing, harboring, transporting, providing, obtaining, maintaining, patronizing, or soliciting a person under the age of eighteen to engage in a commercial sex act. 10 USA V. BRADFORD counts in the superseding indictment prevented him from arguing in his defense that he subjectively believed that the girls he advertised for commercial sex acts were not minors. We reject Bradford’s arguments because § 1591 does not proscribe sex trafficking a minor via advertising as a separate and distinct crime; therefore, neither count in the superseding indictment is duplicitous and Bradford was not deprived of any defense. 4 First, case law does not support Bradford’s broad argument that a statute that includes multiple scienter requirements always establishes multiple crimes. Our caselaw distinguishes between (1) the elements of an offense and (2) the means that can be used to commit it. Elements are “those circumstances on which the jury must unanimously agree,” while means are “those circumstances on which the jury may disagree yet still convict.” Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014). In Schad v. Arizona, the Supreme Court acknowledged that there may be “alternative means to satisfy the mental element of a single offense” so long as they “reasonably reflect notions of equivalent blameworthiness or culpability.” 501 U.S. 624, 644, 643 (1991) (plurality opinion), abrogated on other grounds as recognized by Edwards v. Vannoy, 593 U.S. 255, 265 n.4 (2021); see also United States v. Barai, 55 F.4th 1245, 1250, 1252–53 (9th Cir. 2022) (holding that a statute can contain various scienter requirements without creating

⁴ Even if § 1591 proscribed multiple crimes, Count 1 of the superseding indictment would not be duplicitous. “[W]here conspiracy is the charge, the established rule is that a charge of conspiracy to commit more than one offense may be included in a single count without violating the general rule against duplicity.” United States v. Smith, 891 F.2d 703, 713 (9th Cir. 1989). USA V. BRADFORD 11 more than one mens rea element and, therefore, more than one crime). Having rejected Bradford’s contention that a statute’s inclusion of multiple scienter standards always creates multiple crimes, we now apply our standard duplicity analysis to § 1591. We first ask whether the statute “defines but a single offense” with various means of violation. UCO Oil, 546 F.2d at 838. If so, charging those various means in one count is not duplicitous. United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006). We consider “several relevant factors” when determining if a statute defines a single offense. UCO Oil, 546 F.2d at 836. The first factor is “the language of the statute itself,” which is evaluated for “a Congressional purpose to create more than one offense.” Id. The second factor is “legislative history and statutory context.” Id. at 837. The third factor is “the nature of the proscribed conduct itself,” which can involve considerations of “[r]eason and fairness.” Id. “The fourth factor concerns the appropriateness of multiple punishment for the conduct charged in the indictment.” Id. This factor is based on the “presumption against construing penal statutes so as to lead to multiple punishment.” Id. at 837–38 (citing Bell v. United States, 349 U.S. 81, 83 (1955)). The first UCO Oil factor (the language of the statute) suggests that Congress did not intend to create a distinct offense of sex trafficking a minor by advertising commercial sex with that minor. We previously acknowledged that § 1591 “awkwardly” describes the conduct and mental state that it criminalizes. United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010). And we have already rejected the argument that, under § 1591, “threats of force, fraud, and coercion are 12 USA V. BRADFORD separate elements of the crime” of human trafficking. United States v. Mickey, 897 F.3d 1173, 1181 (9th Cir. 2018). Instead, we held that force, fraud, and coercion are “listed alternatives” that “are not elements but rather possible means to commit the crime.” Id. The same reasoning supports the conclusion that advertising is merely one of several means by which a defendant can violate § 1591. As the district court correctly observed, the proscribed conduct is listed in a single sentence with a single penalty. See Mal, 942 F.2d at 688. And nothing in the title of § 1591 (“[s]ex trafficking of children or by force, fraud, or coercion”) indicates that the statute treats sex trafficking a minor by advertising as a separate crime. See Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir. 2007) (“Although statutory titles are not part of the legislation, they may be instructive in putting the statute in context.”). Analyzing the second UCO Oil factor (legislative history) reveals that Congress did not intend to create a separate crime for sex trafficking a minor through advertising. The word ‘advertises’ was added to the list of prohibited conduct in § 1591 by the Stop Advertising Victims of Exploitation Act (SAVE Act) of 2015, which was Sec. 118 of the Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, 129 Stat. 227, 227. The purpose of the SAVE Act was to “clarif[y] that 18 U.S.C. Sec. 1591 . . . can be violated when a defendant knowingly advertises a victim for a commercial sex act.” H.R. Rep. No. 114-8, at 2 (2015). On the House floor, the SAVE Act was introduced as “an important yet modest bill” that “uses one word, just one word, to clarify that, just as it is against the law to prostitute a child on the street, it is likewise against the law to prostitute a child through an advertisement.” 161 Cong. Rec. H596, H596 (2015) (statement of Rep. Jim USA V. BRADFORD 13 Sensenbrenner). A modest clarification of an existing statute is unlikely to have added an entirely new crime without comment. Legislative history also demonstrates that the SAVE Act focused on “defendants who, while not directly placing the ads, do knowingly benefit from the placement of advertising.” Id. In other words, the statute was crafted with consideration towards web publishers who display advertisements. See Ashley A. Cardenas, The Save Act of 2015: Congress’ Attempt to Reprioritize Online Child Sex Trafficking, 91 St. John’s L. Rev. 505, 519 (2017) (explaining that passage of the SAVE Act was motivated by Congress’s concern that courts were “not holding website operators liable for facilitating online child sex trafficking” (emphasis added)). “Specifically, the bill requires the government to show that these defendants knew that the advertisement involved a minor or a coerced adult. Reckless disregard is not sufficient.” 161 Cong. Rec. at H596 (statement of Rep. Jim Sensenbrenner). Congress’s rationale behind altering the mens rea for these defendants was that “with the way the Internet is, some innocent person might wind up finding things on their site that they may not have had anything to do with.” 5 Id. at H598 (statement of Rep. Sheila Jackson Lee). The point of the heightened mens rea requirement was to “help those individuals have a defense.” Id.

⁵ Congress has balanced similar concerns in related areas of the law. See, e.g., Does 1-6 v. Reddit, Inc., 51 F.4th 1137, 1143–45 (9th Cir. 2022) (discussing Congress’s balancing of culpability for sex trafficking with protection for website publishers in the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 § 4, 47 U.S.C. § 230(e)(5)). 14 USA V. BRADFORD UCO Oil factor three (the nature of the proscribed conduct) likewise suggests that § 1591 does not create a separate crime of facilitating sex trafficking through advertising. The act of sex trafficking a minor by advertising that minor is not a “distinctly different kind[] of conduct,” UCO Oil, 546 F.3d at 837, from the acts of sex trafficking a minor through the other means listed in the statute (i.e., recruiting, enticing, harboring, transporting, providing, obtaining, maintaining, patronizing, or soliciting). In this case, Bradford’s advertising his minor victims for commercial sex acts fits “within the conventional understanding” of his overall crimes. Id. Lastly, UCO Oil factor four (the appropriateness of multiple punishment) also weighs against concluding that Congress intended § 1591 to criminalize the facilitation of sex trafficking through advertising as a separate offense. Under Bradford’s proposed construction of the statute, he would be exposed to charges for both (1) “recruit[ing], entic[ing], harbor[ing], transport[ing], provid[ing], obtain[ing], . . . maintain[ing], patroniz[ing], or solicit[ing]” his victims for sex trafficking, and (2) “advertis[ing]” his victims for sex trafficking. 18 U.S.C. § 1591(a). Accepting Bradford’s construction of the statute and criminalizing sex trafficking by advertising as a separate offense would run afoul of the rule of lenity that animates the fourth factor of the UCO Oil test. See 546 F.2d at 838 (citing Bell, 349 U.S. at 83). Indeed, as his counsel acknowledged at argument, if Bradford had been indicted according to his reading of the statute, he might have raised a multiplicity challenge to that indictment for “charging a single offense in more than one count.” United States v. Garlick, 240 F.3d 789, 793–94 (9th Cir. 2001). USA V. BRADFORD 15 Because sex trafficking a minor by advertising the minor for commercial sex with the knowledge that the minor is under the age of eighteen is merely an alternate means by which a defendant can violate § 1591, the statute defines only one offense. We hold that Counts 1 and 2 of the superseding indictment are not duplicitous. B