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| Constructive Amendment |
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United States v. Brown
, No. 03-8027 (10th Cir., March 9, 2005) (Published): Lengthy opinion in which various gun and drug charges affirmed, but case remanded for re-sentencing. One interesting argument by Brown was a claim of "constructive amendment" of the Indictment which occurs when the evidence at trial, together with the jury instructions, raises the possibility that the defendant was convicted of an offense other than that charged in the Indictment. This violates the Fifth Amendment. The circuit denied this claim, but noted an inter-circuit conflict on whether this error is reversible per se or subject to plain error review (Brown raised it for the first time on appeal). This panel went with plain error and Brown did not meet it. Brown also raised the issue of the trial court leading prospective jurors in reciting the Pledge of Allegiance. No dice in light of United States v. Wonschik, 353 F.3d 1192, 1198-99 (10th Cir. 2004). Finally, the case was remanded for re-sentencing because Brown objected to the PSI on the basis that some of his priors had actually been dismissed and the trial court simply failed to note or rule upon his objections. The gumment conceded error on this point; thus, the remand.
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United States v. Hoover,
No. 05-30564 (5th Cir., October 10, 2006): Constructive Amendment: Hoover had a 90% interest in a family-owend car dealership. FBI Agent Bill Chesser executed a search warrant at the dealership, inquiring about the practice of "double floorplanning" whereby a single car is used as collateral for more than one loan. Hoover drove there and spoke to Agent Chesser, eventually telling the Agent that one of the employees who complained about the practice was the "one and only person who had raised double floorplanning to him as a[n] issue of the business." This statement formed the basis for the prosecution of Hoover for false statement to a federal agent (this was one count of a mulit-count Indictment). The panel reversed and remanded on the basis of "constructive amendment" whereby the jury instructions allowed the jury to convict Hoover on a basis not announced in the Indictment.
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United States v. McKee,
No. 05-3297 (3rd Cir., October 29, 2007): Constructive Amendment: Complicated tax case, but relief on some counts are obtained by arguing constructive amendment of the indictment that resulted in plain error.
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United States v. Farr,
No. 07-6187 (10th Cir., August 19, 2008) (Published): Constructive Amendment: Solid winner on a constructive amendment theory where the grand jury indicted Farr for failure to pay quarterly employment taxes for a medical clinic, but at trial the government pursued her for another offense (failure to pay a trust fund recovery penalty assessed against her personally).
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