Constructive amendment is one of those tricky areas that can easily go unnoticed. Today's decision in United States v. Davis, --- F.3d ---, No. 15-10402 (9th Cir. 2017) provides a good refresher.
The Court vacated the defendant's conviction for attempted sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a), based on constructive amendment.
The Court explained: “A constructive amendment occurs 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.” There are two types of
constructive amendment: first, where “there is a complex of
facts [presented at trial] distinctly different from those set
forth in the charging instrument,” and, second, where “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 proved.”
This case involved the second type. The indictment charged the defendant with knowing or being in reckless disregard
of the fact that the person had not attained the
age of 18 years.
The jury instructions and closing argument, however, created a third basis for liability: having a reasonable opportunity to observe her. The district court specifically told the jury "the Government need not prove that
the defendant knew Bianca had not attained
the age of 18 so long as the defendant had a
reasonable opportunity to observe Bianca."
The Ninth found this was a constructive amendment: "It is evident that the language of the indictment differs
substantially from the jury instruction and the government’s
closing argument."
The Court further distinguished between constructive amendments and mere variances: “a constructive
amendment typically mandates reversal, while ‘a variance
requires reversal only if it prejudices a defendant’s substantial
rights.’” It explained "An amendment of the indictment occurs 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. 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.
In this case, "the district court’s jury instruction and the
government’s argument had the effect of altering the terms of
the indictment."
