Misplacing §1591(c)’s “Reasonable Opportunity to Observe” in Force-Based Sex-Trafficking Charges Is Surplusage; Invited Error Bars Review of Instructional Misstatements

Introduction

This commentary analyzes the Eleventh Circuit’s decision in United States v. Darryl Odely, Jr., No. 23-10069 (11th Cir. Aug. 26, 2025) (per curiam) (not for publication). The defendant, Darryl Odely, Jr., was convicted by a jury of sex trafficking of a minor by force or coercion in violation of 18 U.S.C. § 1591. On appeal, he raised a multi-pronged challenge attacking the indictment, jury instructions, verdict form, evidentiary rulings, the handling of a redaction error referencing his prior imprisonment, the court’s colloquy regarding his right to testify, and the denial of the jury’s request for a trial transcript. The Eleventh Circuit affirmed across the board.

At the heart of the appeal were two linked contentions: (1) that the indictment and instructions effectively converted the force-based provision of § 1591 into a strict liability offense by pairing it with the “reasonable opportunity to observe” language that Congress crafted for the minor-age alternative, and (2) that the special verdict form failed to track the statute precisely, allegedly producing a constructive amendment. The panel held that although the indictment’s wording was imprecise, the error was surplusage and not plain error; and any challenge to the jury instructions and verdict form was barred by the invited-error doctrine because defense counsel expressly approved them at trial.

Summary of the Judgment

The Eleventh Circuit affirmed Odely’s conviction and 300-month sentence (with five years’ supervised release). The court held:

Indictment (mens rea under § 1591): It was error to include § 1591(c)’s “reasonable opportunity to observe” language alongside the force-based alternative of § 1591(a), but the error was surplusage and did not constitute plain error affecting substantial rights. The indictment still alleged a valid federal offense and preserved the proper “knowing” or “reckless disregard” mens rea.
Jury instructions and verdict form: Any constructive-amendment challenge was waived by invited error because defense counsel expressly agreed the instructions and verdict form were “correct.” The court therefore did not review the claim on the merits.
Agent’s testimony and hearsay: The case agent’s statement that the victim “basically” told him earlier the same story she told the jury was admissible to rehabilitate credibility and was not hearsay when not offered for the truth of the matter asserted.
Unredacted reference to prior imprisonment: The transcript of Odely’s FBI interview mistakenly included “did nine years” despite the parties’ agreement to redact criminal history. The trial court did not plainly err by refraining from a sua sponte curative instruction, opting instead to withhold the transcript during deliberations and avoid spotlighting the stray reference.
Right to testify: The court’s colloquy did not impermissibly discourage Odely from testifying; the judge repeatedly emphasized the choice was Odely’s and allowed time for consultation. No violation occurred.
Jury request for transcript: Denial of a general request for the entire transcript of a three-day trial was within the court’s discretion, especially where the jury did not specify particular portions and a full transcript would cause delay and risk undue emphasis.
Cumulative error: None, because the panel found no underlying error.

Analysis

Precedents Cited and Their Influence

Rule 12 and “failure to state an offense” review: United States v. Sperrazza, 804 F.3d 1113 (11th Cir. 2015), and United States v. Reed, 941 F.3d 1018 (11th Cir. 2019) establish that after the 2014 amendment to Federal Rule of Criminal Procedure 12, a forfeited claim that an indictment fails to state an offense is reviewed for plain error, not de novo. The panel applied that framework to Odely’s unpreserved indictment challenge.
Subject-matter jurisdiction despite indictment defects: United States v. Cotton, 535 U.S. 625 (2002), and United States v. Brown, 752 F.3d 1344 (11th Cir. 2014) reinforce that defects in an indictment generally do not deprive a court of jurisdiction; jurisdiction persists so long as the indictment charges a violation of a valid federal statute. United States v. Moore, 954 F.3d 1322 (11th Cir. 2020) clarifies that even omission of an element does not defeat jurisdiction.
Elements of § 1591 and mens rea: United States v. Baston, 818 F.3d 651 (11th Cir. 2016) articulates the § 1591 elements, including the mens rea for force/fraud/coercion cases. The panel relied on external circuit authority—United States v. Lockhart, 844 F.3d 501 (5th Cir. 2016), and United States v. Keys, 747 F. App’x 198 (5th Cir. 2018)—to underscore that § 1591(c)’s “reasonable opportunity to observe” pertains to the minor-age knowledge requirement, not to the force/fraud/coercion mens rea.
Surplusage and prejudice in indictments: United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995) (surplusage may be disregarded), and United States v. Pena, 684 F.3d 1137 (11th Cir. 2012) (minor deficiencies not warranting reversal absent prejudice) guided the panel’s conclusion that the misplaced § 1591(c) phrase did not affect substantial rights.
Invited error and constructive amendment: United States v. Hill, 119 F.4th 862 (11th Cir. 2024) holds that express acceptance of a jury instruction constitutes invited error, waiving appellate review—even for constructive amendment claims (see also United States v. Holt, 777 F.3d 1234 (11th Cir. 2015); United States v. Olano, 507 U.S. 725 (1993)). Defense counsel’s explicit approval foreclosed review.
Hearsay and prior consistent/rehabilitative statements: Fed. R. Evid. 801(d)(1); Tome v. United States, 513 U.S. 150 (1995); and United States v. Jiminez, 564 F.3d 1280 (11th Cir. 2009) (statements referencing what a witness said in an interview are non-hearsay when offered to rehabilitate credibility, not for truth). The panel affirmed admission on this non-hearsay rehabilitative ground.
Curative instructions and prior convictions references: United States v. Emmanuel, 565 F.3d 1324 (11th Cir. 2009) endorses a trial court’s discretion to avoid a curative instruction that might unduly highlight a brief improper reference. United States v. Smith, 700 F.2d 627 (11th Cir. 1983) frames plain-error review for unrequested curatives.
Right to testify: United States v. Watts, 896 F.3d 1245 (11th Cir. 2018); United States v. Anderson, 1 F.4th 1244 (11th Cir. 2021); United States v. Ly, 646 F.3d 1307 (11th Cir. 2011); and United States v. Teague, 953 F.2d 1525 (11th Cir. 1992) (en banc) caution trial courts not to intrude on the defendant’s choice, while recognizing a court may ensure the waiver is knowing and voluntary. The panel found the colloquy acceptable. The Ninth Circuit’s United States v. Joelson, 7 F.3d 174 (9th Cir. 1993), also supports this approach.
Jury transcript requests: United States v. Pacchioli, 718 F.3d 1294 (11th Cir. 2013) confirms a trial court’s broad discretion in rereads; older Fifth Circuit cases (binding pre-1981 precedent) such as United States v. Morrow, 537 F.2d 120 (5th Cir. 1976), and Gov’t of the Canal Zone v. Scott, 502 F.2d 566 (5th Cir. 1974) approve denials based on length, delay, and undue-emphasis risks.
Cumulative error: United States v. Gamory, 635 F.3d 480 (11th Cir. 2011) holds there can be no cumulative error without multiple underlying errors.

Legal Reasoning

The panel’s reasoning proceeds in careful steps tied to standards of review:

Indictment adequacy and mens rea under § 1591: Because Odely did not raise a pretrial Rule 12 motion, the court reviewed for plain error. It agreed that the indictment erroneously associated § 1591(c)’s “reasonable opportunity to observe” with the force provision. But the indictment also alleged the correct mens rea—knowledge or reckless disregard—for force/fraud/coercion. Under Cotton, Brown, and Moore, such defects do not divest jurisdiction. And under Cancelliere and Pena, the misplacement was surplusage causing no prejudice; thus, no plain error affecting substantial rights.
Jury instructions and verdict form (constructive amendment): Although the government conceded “imprecise phrasing,” the court did not reach the merits because defense counsel expressly assented that the sex-trafficking instruction “appears correct” and that the verdict form “appears correct.” Under Hill, that is invited error, which waives appellate review, even for claimed constructive amendments.
Agent’s testimony (hearsay): The agent merely affirmed that the victim had earlier told him “basically” what she told the jury. Because the content of the prior statement was not admitted and the testimony functioned to rehabilitate credibility rather than prove the truth of the prior statement, it was non-hearsay and properly admitted (Jiminez 2009).
Unredacted reference to prior imprisonment and mitigation: The unredacted phrase “did nine years” slipped through despite an agreement to redact. Without a defense request for a curative instruction, plain-error review applied. The trial judge declined to further highlight the line and treated the transcript as a demonstrative, withholding it during deliberations. Following Emmanuel, avoiding a curative instruction that might amplify the error was within discretion; no plain error.
Right to testify colloquy: The court warned of strategic considerations (e.g., impeachment by prior felonies if Odely testified), emphasized the choice was his, and allowed overnight reflection. Although one remark—“right now, the jury doesn’t know whether you’re a convicted felon”—seems in tension with the earlier unredacted line, the overall colloquy respected autonomy and did not discourage testimony. The panel found no violation under Anderson, Ly, and Teague.
Jury’s transcript request: Denying a global request for the entire transcript of a three-day trial and instructing the jury to rely on collective memory—while remaining open to a later specific request—was squarely within the court’s broad discretion (Pacchioli; Morrow; Scott).
Cumulative error: With no individual errors, there could be no cumulative error (Gamory).

Impact and Practice Implications

Although unpublished, this decision is instructive for § 1591 prosecutions and trial practice in the Eleventh Circuit:

Indictment drafting under § 1591: Prosecutors should avoid pairing § 1591(c)’s “reasonable opportunity to observe” language with the force/fraud/coercion alternative. That clause relaxes proof of knowledge only as to a victim’s minority, not as to the use of force, threats, fraud, or coercion. Misplacing it risks appellate challenge; at minimum, it is error—even if often harmless as surplusage where the correct mental state is also alleged.
Jury instructions and verdict forms: Defense counsel must vigilantly scrutinize § 1591 instructions. Express assent will trigger the invited-error bar and forfeit appellate review—even of asserted constructive amendments. Prosecutors and trial judges should ensure instructions and special verdicts distinguish clearly between the force-based alternative (knowledge/reckless disregard that force/fraud/coercion will be used) and the minor-age alternative (knowledge/reckless disregard of age, with § 1591(c)’s “reasonable opportunity to observe” easing the age scienter proof).
Evidence rehabilitation vs. hearsay: The decision underscores a pathway to admit limited “consistency” testimony by law-enforcement witnesses to rehabilitate a victim’s credibility without introducing hearsay content. Counsel should confine such testimony to the fact of consistency rather than details to remain outside hearsay (Jiminez 2009).
Redaction errors and curatives: Both sides must police redactions rigorously. When a stray reference to prior convictions slips in, a court may exercise discretion to avoid curative instructions that could magnify the harm, particularly where the remark was brief and embedded, and where the court can take alternative steps (e.g., withholding the demonstrative transcript during deliberations).
Right to testify colloquies: Judges may caution defendants about impeachment risks but should emphasize autonomy and avoid expressing a preference. Defense counsel should create a clear record if they believe the colloquy skews the client’s choice; absent an objection, review may be plain error.
Jury requests for transcripts: Courts retain broad discretion to deny sweeping rereads, particularly for multi-day trials, unless a jury makes a targeted request. Defense counsel should avoid promising the jury that it “can” have transcripts; instead, counsel might say the court “may” allow rereads of specific portions.

Doctrinally, the opinion also reiterates important appellate gateways: post-2014, forfeited indictment challenges are reviewed for plain error; defects in indictments rarely implicate jurisdiction (Cotton; Brown); and invited error remains a robust barrier to appellate relief, even for claimed constructive amendments (Hill).

Complex Concepts Simplified

Constructive amendment: Occurs when the jury instructions or trial proof effectively alter the charges from those in the indictment, risking conviction for an uncharged offense. It is generally reversible—unless the defendant invited the error by expressly agreeing to the instruction or form.
Invited error: When a party expressly approves or induces a ruling (e.g., saying an instruction “appears correct”), that party waives appellate review of the claimed error.
Plain error review: A stringent appellate standard used when an issue was not properly preserved. The appellant must show (1) error, (2) that is clear or obvious, (3) affecting substantial rights (usually prejudice), and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
§ 1591 structure (sex trafficking):
- Force/Fraud/Coercion path (the “force provision”): The government must prove the defendant acted knowing, or in reckless disregard, that means of force, threats of force, fraud, or coercion would be used to cause a commercial sex act. This path carries a 15-year minimum if force/fraud/coercion is found (§ 1591(b)(1)).
- Minor-age path (the “minor provision”): The government must prove the defendant knew or recklessly disregarded that the victim was under 18; alternatively, § 1591(c) allows conviction if the defendant had a reasonable opportunity to observe the victim, easing the age scienter. This path carries a 10-year minimum if no force/fraud/coercion is found (§ 1591(b)(2))—but a 15-year minimum if force/fraud/coercion is also found.
- Key distinction: The “reasonable opportunity to observe” clause pertains to age awareness; it does not apply to the force/fraud/coercion mental state.
Surplusage in indictments: Superfluous or erroneous language in an indictment can be disregarded if the indictment otherwise tracks the statute and gives fair notice; reversal usually requires prejudice.
Hearsay vs. rehabilitation: A statement is hearsay if offered for its truth. But testimony that a witness previously made a consistent statement can be admitted to rehabilitate credibility (not for truth), sidestepping hearsay rules, so long as details aren’t introduced for their truth.
Curative instruction: A cautionary remark by the judge to minimize prejudice from improper evidence. Courts sometimes decline to give one if it would unduly emphasize the improper reference.

Conclusion

United States v. Odely crystallizes several pragmatic and doctrinal points in sex-trafficking prosecutions under § 1591. Most notably, the panel clarifies that inserting § 1591(c)’s “reasonable opportunity to observe” language into a force/fraud/coercion theory is an error but, when the indictment also alleges the correct mens rea, the misstep is surplusage not warranting reversal absent demonstrated prejudice. Just as importantly, the decision reinforces that invited error will foreclose appellate review of alleged instructional defects—including constructive-amendment claims.

Beyond § 1591, the court’s handling of hearsay rehabilitation, redaction mishaps, right-to-testify colloquies, and jury transcript requests provides practical guidance for trial participants. Counsel should preserve objections early and often, avoid affirming instructions that will later be challenged, and maintain care with redactions and promises to juries about transcript rereads. While unpublished and therefore non-binding, the decision is a useful roadmap of current Eleventh Circuit doctrine and trial best practices in complex trafficking cases.