In 1988, Larry ran down the hall in the Emanuel Celler Federal Court House in Brooklyn, caught me, and told me that the then legendary Chief Judge Jack B. Weinstein, who had been at that time on the bench for 21 years, had erred in his charge to the jury, in his opinion in a rather simple case where the court had admitted evidence concerning a loan not connected to an upstate gambling club described in the indictment. Larry claimed that resulted in an amendment of the indictment in violation of the grand jury clause of the Fifth Amendment. The Fifth Amendment guarantees a trial in a capital case and other cases with infamous penalties. The conviction later reached the U.S. Court of Appeals for the Second Circuit in U.S. v. Zingaro, 858 F.2d 94 (2d Cir. 1988).

Before we analyze the doctrine of constructive amendment of an indictment, which calls for the reversal of a conviction if recognized by defense counsel and preserved and rejected at the trial level, it bears noting that many of the cases tried today are more complicated with much more proof offered by the prosecution than the criminal cases tried before the court in 1988. Counsel must be on the alert to recognize whether there could be a conviction on a set of facts or court instruction outside the terms of the indictment.

In Zingaro, the government charged one count of RICO conspiracy, and two substantive counts of conducting an illegal business that operated in Yonkers, N.Y. The language of the indictment did not include a loan transaction made at a place in New York County. Nonetheless, the court allowed introduction of evidence concerning this loan and charged the jury that it could consider this loan in supporting a verdict of conviction. The Second Circuit unanimously held that this broadened the charges against the defendant, and thus, a "constructive amendment" had occurred. This required reversal of the conviction and a remand to the trial court.

The concept of a constructive amendment for an indictment or proof that is outside the confines of an indictment is traceable to the decision of Mr. Justice Black, writing for the court in Stirone v. U.S., 361 U.S. 212 (1966). There, a conviction was reversed precisely because the proof at trial established a basis to find the defendant guilty that was broader than the basis recited in the indictment.

The indictment in Stirone alleged a Hobbs Act interference with interstate commerce by obstructing the importation of steel into Pennsylvania. The evidence at trial established, as an alternative basis for conviction, obstructing the exportation of steel. The jury was instructed that it could base a conviction upon either. The court concluded that Stirone might have been convicted on a charge the grand jury had never made against him. The charges against Stirone, the court held, constructively broadened the basis upon which conviction could be had. However, in Miller v. U.S., 471 U.S. 130 (1985), the court distinguished Stirone this way:

In contrast to Stirone, Miller was tried on an indictment that clearly set out the offense for which he was ultimately convicted. [Miller's] complaint is not that the indictment failed to charge the offense for which he was convicted, but that the indictment charged more than was necessary.

That is to say that the charges against Stirone were constructively broadened, while the charges against Miller were constructively narrowed, and this salvaged the conviction. U.S. v. Castro, 776 F.2d 188, 123 (3d Cir. 1985), cert. den., 475 U.S. 1029 (1986).

"To prevail on a constructive amendment claim, a defendant must demonstrate that either the proof at trial or the trial court's jury instructions so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury's indictment." U.S. v. Milstein, 401 F.3d 53, 65 (2d Cir. 2005); U.S. v. Salmonese, 352 F.3d 608, 620 (quoting U.S. v. Frank, 156 F.3d 332, 337 (2d Cir. 1998). There is no constructive amendment "where a generally framed indictment encompasses the specific legal theory or evidence used at trial." Salmonese, 352 F.3d at 620.

In Milstein, the defendant was convicted of distributing misbranded drugs in interstate commerce with fraudulent intent. The indictment on that count alleged that "[f]orgery or falsification of any part of the packaging material, including the instructional inserts, lot numbers or expiration dates, renders the drug misbranded under federal law," and that Milstein and others "regularly distributed [the modified drugs] that had been repackaged using forged materials." It further alleged that "[t]hey sold these re-packaged drugs as if they were the original product from the licensed manufacturers, thus distributing misbranded drugs." Following the indictment, the government learned that the drugs had also been contaminated by bacteria. The government contended that its contamination evidence was relevant to the count charging Milstein with selling "misbranded" drugs, because saline ampules labeled "sterile" could be considered mislabeled if they were contaminated.

At trial, the government was permitted to present evidence of contamination, and the court subsequently instructed the jury that it could find Milstein guilty of misbranding as alleged if it found that "the labeling of the ampules of saline diluent suggested untruthfully that these ampules were sterile … when in fact they were a danger to health." Milstein, 401 F.3d at 65

The court held that the indictment would not place Milstein on notice that the government would also attempt to prove that the drugs were not sterile, and the conviction on this count was reversed and the case was remanded.

A jury instruction allowing conviction based on strict liability instead of mens rea was impermissible because the government modified essential elements of the indictment. U.S. v. Lockhart, 844 F.3d 501, 515-16 (5th Cir. 2016). A jury instruction allowing for conviction for carrying any of three firearms was impermissible because the indictment only charged the defendant with carrying one specific weapon, which was an essential element. U.S. v. Leichtnam, 948 F.2d 370-79 (7th Cir. 1991). The short of this is that there will be no impermissible amendment when the government eliminates a piece of evidence from the proof. U.S. v. Godfrey, 787 F.3d 72, 79 (1st Cir. 2016).

The essence of the doctrine is that because the Fifth Amendment assures the defendant the right to be tried only for offenses returned by the grand jury, the prosecution cannot amend the indictment without reconvening the grand jury. An indictment is considered amended when either the prosecution or the court alters the charging terms of it after it has been returned. However, it should be noted that jury instructions may cure an alleged amendment to the indictment by limiting the charges on which the defendant may be convicted. This approach often limits the effectiveness of the claimed amendment, but of course, if the government does not press this, the defense lawyer is not obligated to do so.

In U.S. v. Hernandez, 490 F.3d 81 (1st Cir. 2007), there was no constructive amendment when the jury instruction permitted conviction for heroin or cocaine possession when the court instructed that the fact finder was to consider only heroin as the operative drug.

Courts will often try to save a conviction at the trial or appellate level by holding that all that occurred was a variance—that is, the indictment remained unaltered—but the evidence at trial proved facts other than those alleged in the indictment. U.S. v. Gabriel, 369 F.3d 682 (2d Cir. 2004). This occurs most often when a conspiracy alleges multiple members, but the proof at trial shows only a conspiracy with some members. The defendant must cast his argument in terms of substantial prejudice, for courts are most likely to sustain a verdict on the basis of a variance. F.R.Cr.P. 52(A); U.S. v. Dupree, 462 F.3d 131 (2d Cir. 2006). The defense lawyer would be well advised to argue that the "cat is out of the bag," that the court erred in allowing an abundance of proof as to cocaine, and that any conviction could not be sustained and an instruction would be of little value in insulating the defendant from the constitutional protection that Stirone offers.

The greater the volume of proof offered, the more likely it becomes a duty of the defense lawyer to examine the proof against the charges, and to be ready to argue when appropriate that prejudice has occurred. Counsel must be aware of the court's offer to give corrective jury instructions to mitigate possible prejudice from non-material variance.

In U.S. v. Aracri, 968 F.2d 1112 (2d Cir. 1992), a variance between the indictment charging defendants with a single conspiracy and evidence concerning multiple conspiracies was not fatal because it was mitigated by jury instruction. Defense counsel should not agree to a cautionary instruction, arguing as earlier noted that it is too late in the trial to offer corrective measures. Keep in mind that any variance resulting from ambiguity based on "on or about" date in indictment is remedied in most cases by a jury instruction clarifying that the jury need to find the criminal act on a date reasonably near the charge date. U.S. v. Blanchard, 542 F.3d 1133 (7th Cir. 2008).

The defense bar was gratified by the decision in Stirone, but like most decisions heralding any change of great magnitude in the criminal field, courts have proceeded to whittle down the rule once announced by exceptions, modifications and variations. What appeared in Stirone to be a decision of major importance was sharply cut back by the doctrines of variance, mitigation of prejudice, and the like. Still, the trial lawyer must be alert to the concept of constructive amendment of an indictment, lest the appellate lawyer on conviction argues that the point is not preserved because the defense counsel failed to lodge a proper objection. Unless the defendant can show substantial prejudice, courts will rarely reverse a conviction on the basis of a variance. U.S. v. Mangual, 562 F.3d 411 (1st Cir. 2009); U.S. v. Vosburgh, 602 F.3d 512 (3d Cir. 2010); U.S. v. Beasley, 583 F.3d 384 (6th Cir. 2009). A court is likely to find a variance when there is no argument that there is an amendment, for there will be no claim that the defendant was prejudiced by the alteration of the charging terms of an indictment after being returned by the grand jury. The lesson to be learned is that one must stand fast on the position that an amendment has occurred and the proof deprives the defendant of a constitutional right guaranteed by the Fifth Amendment to the United States Constitution.

Jay Goldberg was Acting United States Attorney for the Northwest District of Indiana, Special Attorney and Counselor to the U.S. Department of Justice, and assistant district attorney New York County. Attorney Alex S. Huot assisted in the writing of this article.