There are many constitutionally significant elements of a criminal prosecution. Three of these are indictment, evidence produced at trial and jury instructions.
The Fifth Amendment guarantees a criminal defendant the substantial right to be tried only on the charge presented in the indictment. The Due Process Clause requires the Government or the State to prove every essential element of the offense charged in the indictment beyond a reasonable doubt. Jury instructions are instructions given by the judge to the jury about the application of the law and evidentiary rules presented at trial.
Conviction Can Only be Had on Offense Charged
It is a fundamental premise is that a criminal defendant can be convicted only for the offense charged in the indictment (absent any lesser included verdicts from which a jury may choose) after the prosecution has proven all the elements of that offense beyond a reasonable doubt. The judge protects the integrity of the process with instructions that the jury has a sworn duty to apply.
Constructive Amendment to Indictment
Most of the time this orderly process works as designed. There are times, however, when the prosecution and the judge disrupt this orderly process through what is known as a “constructive amendment” to the indictment. A constructive amendment occurs when “the charging terms of the indictment” are altered, either literally or in effect, by the prosecution and/or the court at some point after the grand jury has issued the indictment.”
The courts have held that there are two types of constructive amendment:
First, where “there is a complex of facts [presented at trial] distinctively 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.”
How does a constructive amendment occur?
There are many variables that could explain why a constructive amendment occurs. But in this post we will deal only with the how a constructive amendment occurs.
On April 14, 2017, the Ninth Circuit Court of Appeals in United States v. Davis illustrated how a constructive amendment occurred in a child sex offense case.
Sexual Exploitation and Trafficking of a Minor
In 2011, Ricky Davis brought a 13-year-old girl into his Fresno, California home. He took sexually explicit photos of her and assisted her in posting the photos on an “escort services” website. This action led to the teenager getting a date with an individual with whom she had sex in exchange for money. Law enforcement officials eventually discovered the photos and arrested Davis. He was charged with two sex offenses: 1) sexual exploitation of minor in violation of 18 U.S.C. § 2251(a); and 2) attempted sex trafficking either by force or of a minor in violation of 18 U.S.C. §§ 1591(a), 1594.
- 1591(a) requires that the Government prove beyond a reasonable doubt that a defendant “… knowingly attempted to recruit, entice, harbor, transport, provide, obtain, and maintain by any means, a person to engage in a commercial sex act, to-wit: a minor female victim … knowing or in reckless disregard of the fact that the person had not attained the age of 18 years …”
In his instructions, the judge instructed the jury:
“The elements of sex trafficking are: … (2) knowing that Bianca had not attained the age of 18 years, or recklessly disregarded that fact, or the defendant had a reasonable opportunity to observe Bianca, and that Bianca would be caused to engage in a commercial sex act …”
Also, as part of his instructions, the judge told the jury:
“In Count 2 of the Indictment, the defendant is charged with Attempted Sex Trafficking of Children. For the defendant to be found guilty, 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.”
In its closing argument, the Government naturally followed the lead of the judge’s instructions, telling the jury:
“… we, again, submit that the evidence shows both, that Bianca had not attained the age of 18, or the defendant recklessly disregarded that fact, or he had a reasonable opportunity to observe Bianca, and that she would be caused to engage in a commercial sex act.”
Jury Instruction Substantially Different from Indictment
The above emphasized language in the trial judge’s instructions and the Government closing arguments was, as the Ninth Circuit pointed out, “substantially” different from “the language of the indictment.” The indictment specifically charged that Davis “knew Bianca “was a minor or that he recklessly disregarded this fact.”
The indictment language imposed upon the Government a burden to prove beyond a reasonable doubt that “either Davis affirmatively knew of Bianca’s age, or alternatively, that he recklessly disregarded her minority status.”
However, the language of the judge’s jury instructions and the Government’s closing argument permitted the jury to consider a “third option” for convicting Davis; namely, as found by the Ninth Circuit, “they could convict, even without a finding as to knowledge or recklessness, so long as they determined that Davis ‘had a reasonable opportunity to observe Bianca.’”
The appeals court had no problem finding that a “constructive amendment” had occurred because the offense charged in the indictment was “substantially altered” at the trial by both the judge and Government to the point that “it was impossible to know whether the grand jury would have indicted for the crime actually proved.”
The Fifth Circuit Court of Appeals adopted this same position last year—that the court may not substantially amend the indictment through its instructions to the jury.
Amendment to Indictment Creating New Charge is Per Se Reversible Error
The Ninth Circuit reversed Davis’s § 1591(a) conviction because an amendment to the indictment creating a new charge is a “per se reversible error.” Anything less would demean a defendant’s right to be tried solely on the grand jury charge.
There is a serious caveat here: a defendant must make a timely and proper objection to a constructive amendment of the indictment to have the issue reviewed on appeal.