Jury instruction constructively amended the indictment required reversal

In U.S. v. Madden the defendant was indicted and charged with a drug conspiracy. One of the counts charged the defendant with knowingly using and carrying a firearm during and in relation to a crime of violence and with knowingly possessing a firearm in furtherance of a drug trafficking crime. In charging the jury, the district court at first correctly described the charge by using language that mirrored the indictment: “that the defendant knowingly used and carried a firearm during and in relation to a crime of violence… and did knowingly possess a firearm in furtherance of a drug trafficking offense.” A few minutes later the district court used different language in describing this count: The indictment alleges that the defendant knowingly carried a firearm during and in relation to a drug trafficking offense or possessed a firearm in furtherance of a drug trafficking offense…”
Basically, the district court mistakenly replaced the “crime of violence” language with “drug trafficking offense.”

The defendant argued that the jury instruction constructively amended the indictment and that the constructive amendment was reversible error. A constructive amendment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment. The court of appeals decided the district court’s instruction did constructively amend because it allowed a conviction for “carrying a firearm during and in relation to a drug trafficking offense” when the indictment only charged the defendant with possessing a firearm “in furtherance of … a drug trafficking crime” and using and carrying a firearm “during and in relation to a crime of violence.” The government only had to prove the defendant violate the law in one of those ways. Adding “during and in relation to” broadened the possible bases for a conviction beyond what was specified in the superseding indictment.

Because the defendant did not raise an objection at trial nor was the issue raised before the district court, the court of appeals held that the issue must be reviewed for plain error and rejected the defendant’s argument that a constructive amendment is a constitutional error that is per se reversible. In reaching this decision the court of appeals relied on the Supreme Court decision in U.S. v. Olano which held that the authority to correct an unobjected-to constructive amendment is discretionary. So even if the plain error test is satisfied, the court of appeals may correct the error but is not required to. This means that the court can only the error is all four prongs of the plain-error test are met. The constructive amendment must: 1) be an error, 2) that is plain, 3) that affects the defendant’s substantial rights, and 4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. The court found the district court erred when it constructively amended the indictment in violation of the Fifth Amendment. The error was plain because it was obvious and clear under current law. The error was prejudicial in that the defendant may have been convicted on a charge that was not in the indictment. Finally, the court found that convicting a defendant of an unindicted crime seriously affected the fairness, integrity, and public reputation of judicial proceedings.