The Seventh Circuit Reaffirms The High Bar Set For A Defendant Seeking Reversal Because An Indictment Was Constructively Amended At Trial
Jana C. Volante writes:
A constructive amendment occurs where the permissible bases for conviction are broadened beyond those presented to the grand jury and beyond those found in the indictment; in other words, a constructive amendment occurs if the proof at trial goes beyond the parameters of the indictment by establishing offenses different from or in addition to those charged by the grand jury. Reversal of a criminal conviction may be required when the conviction is outside the scope of the indictment because the indictment narrows the Government’s theory of the defendant’s criminal liability.
Generally, though, reversal is not required if the amendment is harmless. An appellant must show that the outcome of his trial would have been different if the constructive amendment had not occurred. The burden which this formulation places on a defendant, and the wide sway it affords the government, is illustrated in the recent case of United States v. Natour, 700 F.3d 962 (7th Cir. 2012).
Sami Natour was indicted on five counts of transporting telephones “knowing the same to have been stolen and converted,” in violation of 18 U.S.C. § 2314. Although one of the counts was dismissed, Natour was convicted of all of the other four counts of interstate transportation of stolen property. He appealed his conviction on the basis that the evidence introduced at trial and the jury instructions given at trial impermissibly broadened the indictment in violation of his rights under the Fifth Amendment’s Grand Jury Clause by constructively amending the indictment to include additional conduct beyond the language of the indictment. The Fifth Amendment states in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]” Natour, in essence, claimed that he had been prosecuted for conduct for which he had not been indicted.
To constitute interstate transportation of stolen property under 18 U.S.C. § 2314, goods must be transported across state lines with the knowledge that they have been “stolen, converted or taken by fraud”. The Natour indictment used the word “stolen”, but did not explicitly allege that the cell phones were “taken by fraud”. Therefore, Natour argued that the Government had necessarily limited its theory of the case by indicting him on narrower grounds than the statute would have permitted and that the Government then constructively amended his indictment by introducing evidence of fraud during his trial. Natour also alleged that the indictment was constructively amended when the trial court used a pattern jury instruction, which defined “stolen” as taking which may be “accomplished through the use of false pretenses, trickery, or misrepresentation” – a definition which Natour claimed implied the use of fraud.
However, his conviction was affirmed. The Seventh Circuit held that the term “stolen” is broad enough to encompass taking by fraudulent means. Thus, the Seventh Circuit held that the terms within the indictment were broad enough to encompass goods “taken by fraud”, and, as a result, the proof introduced at trial in Natour’s case and the jury instructions used did not constructively amend the indictment.
Clearly, a defendant bears a heavy burden to prove that there was a constructive amendment of his indictment and to secure a reversal as a result. Notwithstanding the seeming variance between allegation and trial proof, a “constructive amendment” argument is by no means a “slam dunk” argument for a defendant on appeal.
(Jana C. Volante, Esq., the author of this entry, is an associate with Fox Rothschild LLP, based in our Pittsburgh, PA office. Her practice concerns white collar criminal defense and commercial litigation)