Sixth Amendment:
A. Right to Jury Trial/Booker
B. Confrontation Clause
C. Speedy Trial
D. Right to Counsel/Self Representation
E. Indictment - Variance/Deplicity
F. Miscellaneous Sixth Amendment
Sixth Circuit
E. Indictment - Variance/Duplicity
• Fair Notice - Variance from IndictmentU.S. v. Hynes, 05-2036 (11/7/06)
> Defendant went to trial on charges of conspiracy to launder money and making a false declaration before a grand jury. During the trial, the government introduced evidence of an overt act regarding the purchase of a piece of real estate that was not listed in the conspiracy count, but the purchase occurred within the time period of the conspiracy. Further, the government stated during closing argument that defendant had made a second false statement before the grand jury (in addition to the one for which he was charged in the indictment.) Defendant was convicted and argued on appeal that the government had constructively amended the indictment by introducing evidence regarding the purchase of the property and the additional false statement.
* Holding: A variance occurs when evidence offered at trial proves facts materially different from those alleged in an indictment. A variance is fatal only when a defendant shows that her substantial rights were affected. A constructive amendment of an indictment occurs when a combination of both the evidence offered at trial and the instructions provided to the jury so modify essential elements of the offense charged that there is a substantial likelihood that the defendant was convicted of a different offense. A constructive amendment of the indictment is per se prejudicial to the defendant. In the case, the court held that neither the evidence regarding the real estate nor the evidence about the additional false statement constituted a constructive amendment of the indictment. Further, the court found that defendant’s substantial rights had not been affected by any variance in the indictment and the proof. Thus, the conviction was affirmed.
• Fair Notice - Variance from Indictment
U.S. v. Caver, 05-3295 (12/4/06)
> Defendants were charged with conspiracy to distribute narcotics and at trial the government introduced evidence of a complex “chain” conspiracy. Defendants were convicted and argued on appeal that a fatal variance occurred between the indictment and the evidence at trial because the evidence showed multiple conspiracies.
* Holding: In the context of a drug conspiracy, a variance from an indictment requires reversal when (1) an indictment alleges one conspiracy, but the evidence at trial can reasonably be construed only as supporting a finding of multiple conspiracies, and (2) defendant demonstrates prejudice. In the case, the court held that the evidence presented at trial did not exclude the possibility of a single “chain” conspiracy in which defendants were involved. Further, defendants were unable to show prejudice, even if the evidence proved multiple conspiracies. Thus, the conviction was affirmed.
• Fair Notice - Variance from Indictment
U.S. v. Nance, 05-6036 (4/6/07)
> Defendant was charged with being a felon in possession of a firearm. The indictment alleged defendant’s constructive possession of the firearm in a safe, for which he had the key. At trial, the government introduced evidence that defendant had possessed the firearm four days earlier and had placed it in the safe. Defendant was convicted at trial and argued on appeal that the evidence admitted at trial had unlawfully amended the indictment.
* Holding: A two judge majority found that evidence of defendant’s prior possession of the firearm constituted neither an amendment to the indictment nor a fatal variance in the evidence. The court ruled that defendant’s prior possession of the firearm was relevant to show his “access to the safe and his ability to exercise control” over the gun on the date charged in the indictment. Further, the court held that any variance in the proof was not prejudicial to defendant. Finally, the court noted that it found unavailing the government’s argument that the “on or about” language included the actual possession from four days prior. The court emphasized that “on or about” language did not permit conviction for an uncharged offense that occurred in close proximity to the charged offense. Because, however, the court found no amendment of, or variance, from the indictment, the court affirmed the conviction.
• Right to Indictment - Variance
U.S. v. McAuliffe, 06-3016 (6/22/07)
> Defendant was prosecuted for mail fraud under 18 USC § 1341 and the indictment charged the violations in the conjunctive: “devising a scheme and artifice to defraud, and for obtaining money and property by means of false and fraudulent pretenses.” The instructions provided to the jury, however, used the disjunctive “or” instead of “and” in describing the offense. Defendant argued on appeal that the indictment was constructively amended by the substitution of the word “or” for “and.”
* Holding: Relying on prior precedent, the court held that an offense may be charged conjunctively in an indictment where a statute defines the offense disjunctively. Under these circumstances, it is not error for the district court to instruct the jury in the disjunctive. Thus, because § 1341 defines the mail fraud provisions in the disjunctive, it was not error for the district court to instruct the jury on the disjunctive, even though the indictment described the offenses in the conjunctive.
• Fair Notice - Variance from Indictment
U.S. v. Budd, 05-4098 (8/13/07)
> Defendant was a county sheriff charged with using excessive force against an inmate in violation of 18 U.S.C. § 242. Specifically, the indictment charged that defendant denied the inmate his Fourteenth Amendment right to be free from excessive force. During the trial, however, the district court instructed the jury that the government must prove that defendant denied the inmate of his Eighth Amendment right to be free from excessive force. Defendant argued on appeal that the indictment had been constructively amended by the evidence and jury instructions, and that reversal of his conviction was warranted.
* Holding: An indictment may be the subject of an actual amendment, a constructive amendment, or a variance. An actual amendment occurs when the government actually changes the text of the indictment. A constructive amendment occurs where a combination of the evidence at trial and the jury instructions so modify the charge that there is a substantial likelihood that defendant was convicted of a different offense than the one charged. Both actual and constructive amendments are per se prejudicial. A variance occurs where the evidence at trial proves facts materially different from the indictment. In order for a variance to require reversal, it must affect some substantial right of the defendant. In the case, the court held that a variance had occurred between the charge in the indictment (violation of Fourteenth Amendment) and the jury instructions (violation of Eighth Amendment). The court ruled, however, that the variance did not affect defendant’s substantial rights because the Fourteenth Amendment and Eighth Amendment excessive force standards merely describe “two alternative methods by which one crime could be committed, rather than two crimes.” Accordingly, defendant’s conviction was affirmed.
• Fair Notice - Variance from Indictment
U.S. v. Budd, 05-4098 (8/13/07)
> Defendant was a county sheriff charged with conspiracy and several substantive violations of an inmate’s civil rights under 18 U.S.C. § 242. At defendant’s first trial, he was convicted of conspiracy, but the jury deadlocked on the substantive counts. The government retried defendant on the substantive counts, and during the jury instructions, the district court instructed the jury on coconspirator liability under Pinkerton. On appeal, defendant argued that instructing the jury on Pinkerton liability constituted a constructive amendment of the indictment.
* Holding: Under the theory of Pinkerton liability, a defendant is accountable for coconspirators’ crimes if they are foreseeably committed in furtherance of the conspiracy. Answering an open question in the Sixth Circuit, the court held that a district court may properly provide a Pinkerton jury instruction regarding a substantive offense, even where the defendant is not charged with a conspiracy. Thus, the court found no constructive amendment and affirmed defendant’s conviction.
• Indictment - Variance
U.S. v. Hughes, 06-3024 (10/26/07)
> Defendants (wife and husband) were charged were numerous counts involving a conspiracy to commit insider trading of stock in a small company that was being purchased by Kelloggs. The indictment alleged that a tipster provided insider information about the buyout to several individuals, who then bought stock in the company and subsequently sold it for a substantial profit. Upon their conviction after trial, defendants appealed and argued that a fatal variance occurred between the indictment, which alleged one conspiracy, and the proof at trial, which showed several conspiracies.
* Holding: In order to obtain a reversal based upon a variance between the indictment and proof at trial, the defendant must show that the variance affected a substantial right. To make this showing, the defendant must prove that the variance prejudiced her ability to defend herself, or prejudiced the overall fairness of the trial. In assessing whether the evidence proved multiple conspiracies, a court must consider the existence of a common goal, the nature of the scheme, and the overlapping participants. In the case, the court first held that a variance existed between the indictment and the proof at trial. The indictment alleged a single conspiracy between the tipster, defendants, and the various other individuals who bought and sold the stock. At trial, however, the government did not present evidence to establish any sort of agreement between defendants and the other stock traders; to the contrary, defendants had no idea the others were also trading the stock. Thus, the indictment alleged a single conspiracy, but the evidence proved multiple conspiracies.
Nonetheless, the court held that defendants suffered no substantial prejudice. In a multiple conspiracy case, the court must consider three factors in determining whether the defendant was prejudiced: (1) the number of conspiracies involved; (2) the number of non-conspirator co-defendant’s tried with the defendant; and (3) the size of the conspiracy alleged in the indictment. Considering the factors, the court ruled that defendants were not unduly prejudiced by the variance. Further, the court held that the district court provided adequate jury instructions to protect defendants from “guilt transference.” Accordingly, defendants convictions were affirmed.
• Indictment - Variance
U.S. v. Swafford, 06-5878 (1/17/08)
> Defendant was charged with a drug conspiracy for distributing iodine to numerous buyers, knowing that the buyers were using the iodine to make meth. At trial, the government presented evidence of numerous transactions by defendant with different buyers of iodine. Upon defendant’s conviction, he argued for the first time on appeal that a fatal variance occurred because the indictment alleged a single conspiracy, but the evidence at trial proved multiple conspiracies.
* Holding: A variance occurs where the evidence at trial proves facts materially different from those alleged in the indictment. A variance requires a reversal only where it affects defendant’s substantial rights. In the case, the court found that defendant failed to object to the variance in the district court, thus the court applied plain error review. The court held that a variance occurred because the government’s evidence showed that defendant was engaged in independent relationships with the individual buyers of iodine, but the government failed to show any connection between the buyers. Although the government claimed that this was a single “hub-and-spoke” conspiracy, the court emphasized that the “wheel” had no “rim,” meaning “no common goal or enterprise” between the various buyers. As such, the government’s evidence actually proved multiple conspiracies between defendant and the various buyers.
Further, the court held that the variance amounted to plain error because it likely substantially affected the outcome of the proceeding. In this regard, the court reasoned that defendant suffered from substantial “spillover” in the evidence. Many of the purchases of iodine by the buyers were not obviously related to the manufacture of meth, while other large scale purchases clearly warranted an inference of defendant’s knowledge. Had the indictment been pled properly as involving multiple conspiracies, the jury may very well have concluded that conspiracies existed between defendant and certain customers, but not others. The court concluded that “had the government been required to prove each of the multiple conspiracies, the amount of iodine/methamphetamine – and the attendant guidelines range – may very well have been lower.” Accordingly, defendant’s conviction was reversed.
• Indictment - Variance
U.S. v. Warman, 05-4416 (8/18/09)
> Defendant was indicted in a large scale drug conspiracy involving the Outlaw Motorcycle Club. At trial, defendant alleged that the proof varied from the indictment by showing multiple conspiracies instead of just the one charged in the indictment. The district court provided an instruction warning the jury that it may only find defendant guilty of the conspiracy charged in the indictment. Defendant was convicted and he appealed.
* Holding: In order to obtain a reversal based on a variance, the defendant must prove that (1) a variance occurred, and (2) the variance affected a substantial right. The court held that any prejudice suffered by defendant as a result of proof of multiple conspiracies was remedied by the instruction provided by the district court and the fact that significant evidence was presented to link defendant to the conspiracy charged in the indictment. Accordingly, defendant’s substantial rights were not affected, and his conviction was affirmed.
• Indictment - Variance
U.S. v. Beasley, 08-5164 (10/8/09)
> Defendant was charged with being a felon in possession of ammunition, pursuant to 18 USC § 922(g). The indictment charged that defendant possessed .25 caliber ammunition, but prior to trial the government moved to amend the indictment to reflect that the ammunition was .22 caliber. The district court denied the motion, and at trial the government introduced evidence that the ammunition was .22 caliber. The district court instructed the jury that it could convict defendant if it found that he possessed any caliber ammunition. Defendant was convicted and he appealed.
* Holding: The court held that the difference in the caliber of the ammunition between the indictment and the evidence at trial constituted a variance. However, the variance was not fatal because defendant suffered no prejudice. Section 922(g) does not require proof of any specific caliber of ammunition, the district court properly instructed the jury on the elements of the offense, defendant did not object to the instruction, and defendant did not argue that the difference in ammunition caliber had any relevance in the case. Defendant’s only defense at trial was that he did not possess ammunition, thus the caliber of the ammunition was “an irrelevant component” in establishing defendant’s guilt. Accordingly, defendant’s conviction was affirmed.
• Variance - Drug Conspiracy
U.S. v. Robinson, 07-5474 (11/24/08)
> Defendant was charged with others in a drug conspiracy. At trial, the evidence showed that defendant participated with the drug distributer to acquire drugs, develop customers, and distribute drugs to downstream sellers. Upon defendant’s conviction, he appealed and argued that the indictment alleged a single conspiracy, but the evidence at trial proved multiple conspiracies.
* Holding: In order to prove a single conspiracy, the government need only prove that each conspirator had knowledge of and agreed to participate in a collective venture. In a “chain” conspiracy, drugs are sold and resold numerous times before they reach the ultimate consumer. In such a conspiracy, each member need not know the identities of all of the participants, so long as the member is aware that she is participating in a joint enterprise. In the case, the court held that no variance occurred between the indictment and the proof as the evidence reasonably supported the theory of only one “chain” conspiracy. Accordingly, defendant’s conviction was affirmed.
• Constructive Amendment of the Indictment
U.S. v. Mayberry, 06-2239 (8/21/08)
> Defendant was charged with two counts of being a felon in possession of a firearm. In regard to one of the counts, the government introduced evidence at trial that the defendant possessed the gun during an armed robbery. The district court provided a limiting instruction that the evidence could be considered only in relation to whether defendant intended to possess the firearm, not for any other acts. Defendant did not object to the evidence at trial, but argued on appeal that the evidence constructively amended the indictment.
* Holding: In order to prove a constructive amendment, a defendant must show that the presentation of the evidence and the jury instructions so altered the elements of the charged offense that there is a substantial likelihood that the defendant was convicted of an offense not charged in the indictment. The court held that nothing in the jury instructions served to amend the indictment. Further, the court found that the government was entitled to introduce evidence of the possession of the gun during a robbery. The court noted that prosecutors cannot be prohibited from introducing highly probative evidence merely because it may support conviction of an uncharged offense. Thus, the court found no plain error and affirmed the conviction.
• Constructive Amendment/Variance
U.S. v. Kuehne, 06-3668 (10/28/08)
> Defendant was charged with a violation of 18 USC § 924(c) for trading a firearm for drugs, and numerous other firearms violations. Although the indictment stated that defendant “used” the firearm in relation to a drug crime, the jury instructions provided that the jury could convict if it found that defendant “used or carried” the firearm. Further, at trial, the government introduced evidence regarding defendant’s theft and sale of many guns that were not charged in the indictment. Defendant was convicted and argued for the first time on appeal that the proof at trial and jury instructions constituted a constructive amendment and/or variance from the indictment.
* Holding: A constructive amendment of the indictment occurs where the presentation of evidence and jury instructions effect a material change in the elements of the indictment. A constructive amendment is per se prejudicial and requires reversal. A variance occurs where the terms of the indictment are unchanged but the evidence at trial proves materially different facts. A variance only requires reversal if the variance affected a substantial right of the defendant, such as where a defendant can show prejudice to his defense, the general fairness of the trial, or to the indictment’s sufficiency to bar future prosecutions.
Regarding the § 924(c) charge, the court held that the district court’s use of the term “carry” in the jury instructions only offered an alternate theory of committing the same offense. Thus, because defendant’s substantial rights were not affected by the instruction, the court found no error. Regarding the proof of uncharged firearms, the court held that such evidence did not adversely impact defendant’s ability to defend himself at trial. Accordingly, the court found no plain error and affirmed defendant’s convictions.
• Variance
U.S. v. Osborne, 07-5572 (10/28/08)
> Defendant was charged in a conspiracy to commit mail fraud along with two other individuals. At trial, the evidence arguably demonstrated that defendant was involved in a conspiracy with one of the codefendants, and a separate conspiracy existed between the two codefendants. Defendant was convicted and argued on appeal that the evidence introduced at trial constituted a material variance from the indictment.
* Holding: The court held that the evidence may have established two conspiracies, but the indictment only involved three people and the defendants were charged with similarly culpable conduct. Further, the government’s cooperating witness was able to carefully specify the interactions that he had with each individual defendant. Thus, the court found that any variance between the indictment and evidence was harmless.
• Indictment - Constructive Amendment
U.S. v. Benson, 08-1131 (1/12/10)
> Defendant was charged with being involved in a drug conspiracy from “in or about 1999 to at least May 9, 2002.” At trial, the government introduced evidence of a seizure of a substantial sum of drug money from defendant in 1998, approximately 11 months prior to the indictment time period. Defendant failed to object to the evidence at trial, but argued on appeal that admission of the evidence constituted a constructive amendment of the indictment.
* Holding: The court held that, where an indictment uses the language “on or about,” a constructive amendment does not exist when the conduct proven at trial is “reasonably near” the date alleged in the indictment. The court found that the conspiracy time period alleged in the indictment spanned over three years. Thus, the court reasoned that the currency transaction 11 months prior to the indictment period was “reasonably near” the dates alleged, given the extensive indictment time period. Accordingly, the court found no plain error in the admission of the evidence. Further, the court noted that the currency transaction was admissible as background evidence under FRE 404(b). Thus, defendant’s conviction was affirmed.
• Constructive Amendment/Variance
U.S. v. Russell, 07-2354 (2/19/10)
> Defendant was charged with maintaining a drug-related premises, in violation of 18 USC § 856(a)(1). Although the indictment charged only “maintaining” the premises, the district court instructed the jury that it could find guilt if defendant “opened, leased, rented, used, or maintained” a stash house. Defendant did not object to the instruction and was convicted. Defendant argued on appeal that the jury instruction constituted a constructive amendment of the indictment.
* Holding: First, the court held that the added verbs in the jury instruction did not constitute a constructive amendment of the indictment because the instruction tracked the language of the § 856(a). Thus, the court ruled that the instruction constituted a variance from the indictment. The court found that the variance was not fatal because defendant could not show that the instruction affected his substantial rights. The jury verdict form was limited to “maintaining” a stash house, and the jury foreperson recited only the “maintaining” element when reading the verdict. Given that defendant failed to object to the instruction, the court found no plain error and affirmed defendant’s conviction.
• Duplicitous Indictment
U.S. v. Kakos, 06-1263 (4/20/07)
> Defendant was charged with interstate receipt of stolen property (18 USC § 2315) and the indictment alleged in one count that defendant received both a stolen trailer and the stolen meat inside. Defendant was convicted at trial and he argued for the first time on appeal that the one count indictment was duplicitous in that it charged two offenses in one count.
* Holding: Where a defendant neither raises the duplicity issue pretrial or during jury instructions, the court reviews for plain error. The court held that defendant was not prejudiced even if the indictment was duplicitous because there was nothing in the record to suggest that defendant could have known the trailer was stolen but not the meat. Thus, there was no risk that the jury verdict was not unanimous and accordingly the court found no plain error in defendant’s conviction.
• Duplicitous Indictment
U.S. v. Damrah, 04-4216 (5/6/05)
> Defendant was indicted for unlawful procurement of naturalization in violation of 18 U.S.C. § 1425(a) and (b) for making false statements in a citizenship application. The one count indictment charged Defendant with procuring naturalization both as being “contrary to law” (§ 1425(a)) and “to which [he] was is not entitled” (§ 1425(b)). Defendant challenged the indictment as being duplicitous for charging two different crimes in one count. The district court agreed that the indictment was duplicitous, but found any error harmless and curable by a special verdict form for the jury.
* Holding: An indictment should be dismissed for duplicity if two distinct crimes are charged in a single count. It is not duplicitous, however, to allege in one count that separate means have been used to commit a single offense. The court concluded that the “contrary to law” and “to which he is not entitled” language of § 1425(a) and (b) were not separate elements of the offense, but were merely different means to satisfy the mens rea element of the statute. Accordingly, the court found no duplicity in the indictment.