Constructive Amendments: What they Are, What They Mean and What to Do

A person has the right to go to trial if they are charged with a criminal offense. Consistent with that right to trial is the right to know what the government must prove to find a person guilty. A constructive amendment makes that much more difficult by adding ways that a person can be found guilty of a crime other than what is alleged in the indictment from when the person is first charged.

If you believe that a constructive indictment was used against you on your case then please reach out to the Law Office of Jeremy Gordon at the information below.

The Right Against Constructive Amendments is In the Fifth and Sixth Amendments

The Fifth and Sixth Amendments: The basis of Criminal Charges

The Fifth Amendment indicates in part that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]"  And the Sixth Amendment indicates in part that an accused person has the right "to be informed of the nature and cause of the accusation [against them]."  These two amendments together bring forth the notice requirement in federal cases.

An indictment is a formal charge or accusation of a serious crime. In the United States, an indictment tracks the code section that the defendant is accused of being out of compliance with. It is customary that the indictment have a reference to the code section that is accused to have been broken to be on the indictment as well, but this is by no means required.

How a person is charged with a crime:  The indictment

An indictment is handed down by a grand jury. Essentially speaking a prosecutor goes to a grand jury and gives them an explanation of what crime they believe a person committed and how they committed it. The grand jury might either ask them questions or compel witnesses and then make a decision on whether to indict the accused person. If they decide to indict, that serves as the formal charging of the defendant.

What is a Constructive Amendment?

How would I Know that Constructive Amendments are Happening on my Case?

The cases below give an example of several types of constructive amendments. You can use those as a guide.

What Should I do if I believe constructive amendments are being set forth on my case?

The most important thing to do is ask that your attorney object to the admission of evidence or the expanded jury charge when it first happens. Bringing forth this objection gives the court the opportunity to engage in a discussion and make a ruling on the constructive amendment so that an appellate court can review that ruling and determine if a constructive amendment was actually put forth. From there if the objection was filed and overruled, the next step would be to allege this issue on direct appeal.

Cases:  Examples of Constructive Amendments

United States v. Tucker (5th Circuit)

The trial court’s constructive amendment of indictment was reversed by the Fifth Circuit on Tucker's 922(g)(4) convictions.

Tucker's Trial History of 922(g)(4)

Tucker was charged under 922(g)(4)  under a statute that prohibits a person from possessing a firearm or ammunition if he “has been adjudicated as a mental defective” or “has been committed to a mental institution.” However, Tucker’s indictment only alleged Tucker had been adjudicated as a “mental defective.” The indictment made no mention of commitment. Yet, when instructing the jury, the district court explained the jury could find Tucker guilty if its verdict rested on either adjudication or commitment.

The Fifth Circuit concluded the trial court’s instructions were erroneous. Because the indictment made no mention of commitment, the court impermissibly amended the indictment by instructing the jury it could find Tucker guilty if he had either been adjudicated or committed. 

The appellate court turned to whether the error affected Tucker’s substantial rights. The court noted this issue turns on whether there was a reasonable likelihood the jury applied erroneous instruction in an unconstitutional manner. In analyzing this prong, the court discussed how much of the trial evidence revolved around Tucker’s commitment.  This was despite not being charged in the indictment.

To make matters worse, the court prohibited Tucker from “quibbl[ing] over adjudicated or committed” because the court found the two to be the same under the statute. Further, when the jury requested clarification on whether adjudication and commitment were the same, the trial court refused to clarify.

Nonetheless, the government argued on appeal that Tucker’s substantial rights were not violated because the jury received ample evidence that Tucker was adjudicated as a “mental defective.”

The Fifth Circuit Reversed

First, the court determined that the legal issue of adjudication versus commitment should have never been submitted to a jury. Juries determine questions of fact. Questions of law are for the courts to answer.

Second, the Fifth Circuit concluded Tucker never underwent an “adjudication” in the manner contemplated by 922(g)(4). Such adjudication requires a judicial process, which was completely absent from the evidence presented at Tucker’s trial. 

Finally, the court examined the plain error.  This was how the error seriously affected the fairness, integrity, or public reputation of judicial proceeding. By constructively amending the indictment, the district court violated the Fifth Amendment. This is intended to guarantee an indictment not be broadened except by a grand jury.

“But this constitutional guarantee rings hollow where, as here, a district court simultaneously enlarges the grounds on which the jury could find a defendant guilty while truncating the defendant’s ability to navigate the new, unindicted battlefield. Even worse, this venture creates the added risk that a defendant’s conviction rested on divergent theories of liability-undermining the centuries-long demand for juror unanimity.”

Finding the trial court’s constructive amendment of the indictment met all four prongs of plain error review, and the evidence presented at trial could not support the indictment, the Fifth Circuit reversed Tucker’s 922(g)(4) convictions.

United States vs. Ricky Davis (9th Circuit)

In United States v. Ricky Davis, the Ninth Circuit Court of Appeals vacated and remanded a conviction for attempted sex trafficking of a minor. The defendant was accused of brining a minor to his house and discussing the possibility of the minor making money by going on dates, taking photos and assisting her in getting the photos online to a known escorting website.

Davis was arrested and indicted for sexual exploitation of a minor (18 U.S.C. 2251) and attempted sex trafficking either by for or of a minor (18 U.S.C. 1591(a), 1594).

The indictment alleged that Davis:

“knowingly attempted to recruit, entice, harbor, transport, provide, obtain, and maintain by any means, a person to engage in a commercial sex act, to wit: a minor female victim, . . . knowing or in reckless disregard of the fact that the person had not attained the age of 18 years[.]”

However, at trial the jury instruction as to the section 1591 violation charged:

“The elements of sex trafficking are: . . . (2) knowing that [the minor] had not attained the age of 18 years, or recklessly disregarded that fact, or the defendant had a reasonable opportunity to observe [the minor], and that [the minor] would be caused to engage in a commercial sex act . . . .”

The above was also reiterated by the prosecutor in closing argument. On appeal, Davis alleged that the inclusion of the phrase “or the defendant had a reasonable opportunity to observe [the minor]” was a constructive amendment to the indictment.

The Ninth Circuit held that a constructive amendment occurred because “the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually provided.” The court further held that this was a constructive amendment and not a variance, stating that:

“An amendment of the indictment occurs when the charging terms of the indictment were altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.”

The appellate court indicated that the district court’s jury instructions and the government’s argument had the effect of altering the terms of the amendment.

United States vs. Blessett (9th Circuit)

In Blessett, the Ninth Circuit reversed a conviction because of a constructive amendment between the indictment and the jury charge.

Facts:  CP case, possible Constructive Indictment

Blessett was arrested and a search warrant was executed on his items.  Officers found a laptop, two tablets and five phones.  There were 2009 images and 57 videos of Child Pornography (CP).

Blessett was charged with receipt of CP under 2252(a)(2) and 5 counts of possession of CP under 2252(a)(4)(B).  After a motion to dismiss, the government filed a superseding indictment of one count of Receipt of CP under 2252(a)(2).  (note:  Blessett also was accused of a violation of supervised release).

The parties agreed to go forward on a lesser included charge:

“After Blessett moved to dismiss the new superseding indictment on various grounds, the district court gave the prosecution the choice of proceeding on the superseding indictment's charge of receipt, on the lesser-included offense of possession in the superseding indictment's receipt count, or on one of the original indictment's possession counts. Both the prosecution and the defense agreed that proceeding on the superseding indictment's lesser-included possession charge would resolve Blessett's objections. The district court stated that, in describing the charge in the jury instructions, it would use the word “possession” rather than “receipt,” and the defense agreed.”

After the prosecutor rested at trial, the defense objected to the government’s proposed jury charge because “the pattern instructions incorporated additional alternatives for the possession offense defined in § 2252(a)(4) that are not lesser included offenses of the receipt offense defined by § 2252(a)(2) and charged in the superseding indictment.”  The court overruled the objections and gave jury instructions that stated that they could convict Blessett for possession of CP if the CP “’had been either shipped or transported in interstate or foreign commerce, or, produced using or copied into material that had been transported in interstate or foreign commerce by computer or other means.’”

The Jury convicted Blessett and he appealed stating that the jury instruction given at trial gave two ways to commit the crime when the indictment only included one of those means.  This, if true would serve as a constructive indictment.

Holding:  A Constructive Amendment was Used Here.

The Ninth Circuit stated that:

The elements of receipt under § 2252(a)(2) require that a person “knowingly receive[ ], or distribute[ ], any visual depiction” of a minor engaging in sexually explicit conduct.  There must also be an interstate commerce nexus, which can be solved by showing:

either (1) that the defendant received the visual depiction using any means or facility of interstate or foreign commerce”; or (2) that the visual depiction is one “that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer. 

The Elements of possession require that the “person “knowingly possess[ ], or knowingly access[ ] with intent to view[,]” any “matter which contain[s] any visual depiction” of “a minor engaging in sexually explicit conduct.”  Here, there must be an interstate commerce nexus as well, which the prosecutor can prove by showing “that the visual depiction is one that “has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer[.]”

This created a constructive indictment:

Here, the jury instructions—which were modelled on the Ninth Circuit's instructions for the § 2252(a)(4)(B) possession offense—directed the jury that it may find the interstate commerce element satisfied if the child pornography “had been either shipped or transported in interstate or foreign commerce” or “produced using or copied into material that had been transported in interstate or foreign commerce by computer or other means.” (Emphasis added.) But the superseding indictment alleged receipt under § 2252(a)(2), not possession, and those two offenses overlap only as to the first of the two nexuses in the jury instructions. That is, the jury could have convicted Blessett based on the view that he had copied images onto devices shipped in interstate commerce, even if those images had not themselves been transported in interstate commerce (including by using a means or facility of interstate commerce). This means that the jury instructions given at trial opened a path for the jury to convict Blessett of a possession charge that was not a lesser-included offense of the receipt charge that was alleged in the superseding indictment.

This meant that a constructive indictment had occurred:

An indictment is amended “ ‘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.’ ” …Because the possession offense described in the jury instructions allowed conviction based on a nexus element that was not included in the receipt offense charged in the indictment, that possession charge was to that extent not a lesser-included offense of the indictment's receipt offense. ..As a result, it is impossible to know from the terms of the superseding indictment whether the grand jury would have indicted Blessett for the possession offense that rested on the non-overlapping interstate-nexus element, and we therefore must conclude that the challenged jury instruction constructively amended the indictment. 

The court determined that since a constructive amendment had occurred, a reversal was in order.

The court vacated the conviction and sentence in the new CP case (Blessett’s supervised release violation was affirmed) and remanded the cases back to the district court.

United States vs. Simmons (4th Circuit)

Facts:  RICO Case, Possible Constructive Amendment

Simmons and others were charged with a set of VICAR offenses that were related to a set of murders and attempted murders.  Each attempted murder stated that Simmons (and others) committed both “attempted murder in aid of racketeering activity” and assault with a dangerous weapon in aid of racketeering activity.  The Assault with a dangerous weapon counts were based on two state predicate offenses.  Those were Va. Code Ann. §§ 18.2-53.1 and  18.2-282.

There is another code section at issue here:  “Section 18.2-53, which was not charged in the [second superseding indictment], deems it unlawful for any person committing or attempting to commit a felony to “unlawfully shoot, stab, cut or wound another person.”

These sections are not the same:

“But section 18.2-53.1 more harshly punishes a different category of conduct, deeming it “unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit” a specified list of felonies, including murder.  Section 18.2-282, Virginia’s general brandishing statute, deems it unlawful “for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another.”

Further, the parties proposed joint jury instructions that did not track the indictment:

The instructions that the parties jointly proposed to the district court did not accurately track the SSI. Those proposed instructions correctly referenced section 18.2-282 as one of the two state law predicates supporting the VICAR Assault Counts, but incorrectly referenced section 18.2-53 as the second state law predicate offense…And when it came to explaining to the jury the elements of the two state law offenses undergirding the VICAR Assault Counts, Proposed Instruction 80 correctly defined the elements of  section 18.2-282, but incorrectly referenced and explained the elements of section 18.2-53, not  section 18.2-53.1.

The problem with the proposed jury instructions continued as the court incorrectly explained the wrong section of the law to the jury for each of the VICAR counts:

These errors permeated the court’s final jury instructions on all of the VICAR Assault Counts. Just like the proposed instructions, the district court correctly referenced and explained to the jury the elements of section 18.2-282 as one of the two state law predicates. J.A. 5298; see  Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104, 104 (1983) (per curiam) (setting forth  section 18.2-282’s elements). However, the court incorrectly explained and referenced section 18.2-53 as the other state law predicate, instead of the actual predicate charged in the [second superseding indictment],  section 18.2-53.1.”  The jury convicted Simmons and others of the VICAR Assault Counts but did so on a general verdict form.  This means that the jurors were not asked to specify if they found either, or both, of the Virginia state law predicates underlying those counts satisfied.”

Simmons did not object to the trial court’s instructions on the VICAR assault counts.  On appeal they claimed that the jury instructions were error.  This meant that the plain error test applied.  Simmons argued that “[b]ecause section 18.2-53 proscribes a wider range of conduct than  section 18.2-53.1…the district court impermissibly broadened the basis for their convictions…in our circuit constructive amendments are “error per se.”

Constructive Amendments

The Fourth Circuit likened it to Stirone v. United States, 361 U.S. 212 (1960) where Sitrone was indicted for Hobbs Act Robbery “"for unlawfully obstructing interstate commerce, to wit the movement of sand...But at trial, the Government introduced evidence that he also interfered with steel shipments, and the district court instructed the jury that the interstate commerce element of his Hobbs Act charge could be satisfied “either on a finding that” Stirone obstructed the movement of sand or steel.

This, the Supreme Court held, amounted to a constructive amendment, in violation of the Fifth Amendment’s Grand Jury Clause.”

The Fourth Circuit stated that the same principal was evident here:

“The jury’s convictions on the VICAR Assault Counts could have rested “either on a finding” that in furtherance of a RICO enterprise, Defendants committed assault with a dangerous weapon, as that offense is defined by section 18.2-53 (an unindicted predicate) or brandishment under  section 18.2-282 (one of the indicted predicates)... But we have no way of knowing the basis for conviction.”

Under the plain error, Simmons’ rights were violated.  But further, because constructive amendments are structural errors, constructive amendments must be considered “per se” prejudicial.

Stated differently, in our circuit, constructive amendments always affect a defendant’s substantial rights, such that  Olano’s third prong is satisfied.  Id. at 712–14. Further,  [our other case law] mandates that we exercise our discretion under the fourth  [plain error] prong to correct that error under Rule 52(b), because the possibility of “convicting a defendant of an unindicted crime affects the fairness, integrity, and public reputation of federal judicial proceedings in a manner most serious.”  This meant that reversal was appropriate.  The court determined that the  “VICAR Assault Counts, Counts 8, 15, 18, 27, and 29, must be reversed.”