Sunday, April 06, 2014

Case o' The Week: Ninth Ward(s) Off Constructive Amendment -- Ward, Fatal Variances, and Constructive Amendments

Hon. Chief DJ William Smith

  It would be unfair to expect a Judge who uses Twitter, has Dylan and Wilco on his iPad playlist, and who penned a 70+ page swipe at the crack guidelines, to necessarily write a great decision on constructive amendments.
  (But it is great when that’s the way it happens works out . . . ) United States v. Ward, 2014 WL 1317155 (9th Cir. Apr. 3, 2014), decision available here.

Players: Decision by visiting Chief DJ William Smith (above right), joined by Judges Watford and Hurwitz. Big win by (former CD Cal AFPD) Davina Chen.

Facts: Ward stip’ed to fraud counts and went to a jury trial on two counts of agg identity theft (18 USC Section 1028(a)(1)). Id. at *1. The indictment named two victims in those counts: Glen and Hagler. Id. at *1. 
  Over defense objection, the government introduced evidence that other victims also had their IDs stolen. Id. at *2. 
  Jury instructions did not specify that the victims of the agg ID theft had to be Glen and Hagler. Despite objections from the government and the defense, the court refused to correct that omission. Id. at *2-*3. Ward was convicted.
Issue(s): “The question before us is whether the district court’s instruction resulted in a constructive amendment of the charges in Counts VI and VII [the agg ID counts].” Id. at *5.

Held:Read together, these cases instruct that the determination of whether a constructive amendment has been effected requires sensitivity to both the jury instructions as a reflection of the indictment, and to the nature of the proof offered at trial. More specifically, when conduct necessary to satisfy an element of the offense is charged in the indictment and the government's proof at trial includes uncharged conduct that would satisfy the same element, we need some way of assuring that the jury convicted the defendant based solely on the conduct actually charged in the indictment. Typically, that assurance will be provided by jury instructions requiring the jury to find the conduct charged in the indictment before it may convict. If the jury instructions do not impose that limitation, however, the defendant's conviction could be based on conduct not charged in the indictment. That possibility results in a constructive amendment of the indictment, requiring reversal, because it destroys the defendant's substantial right to be tried only on charges presented in an indictment. Applying that rationale here, we conclude that the district court constructively amended the indictment by permitting the jury to convict Ward on Counts VI and VII based on conduct not alleged in those counts. Ward was indicted for aggravated identity theft as to only Gerald Glen and Chris Hagler, and the identity of the victims was necessary to satisfy an element of the offense because aggravated identity theft requires proof that the victim was a real person. But the jury heard testimony that Ward also victimized [other victims].Then, the jury was instructed that it could convict Ward on Counts VI and VII if he stole the identity of ‘a real person,’ without further specificity. On those facts, we simply cannot know the basis for the jury's aggravated identity theft convictions.” Id. at *6-*7 (internal quotations and citations omitted).

Of Note: Constructive amendments and fatal variances are the “Rule Against Perpetuity” of criminal justice: a tricky area of law that is easy to forget. From the defense side, the nutshell is: constructive amendment good (gets a reversal), fatal variance bad (usually no relief, unless prejudices substantial rights). Judge Smith gives us a thorough and accessible discussion that is a good start to unravel these distinct proof problems. See id. at *4-*5.

How to Use: While the government also objected to the instruction at trial, it had the chutzpah on appeal to argue that the error wasn’t preserved. Id. at *3. The Court gives a nice little backhand to this argument, finding that although defense counsel didn’t say, “Fifth Amendment,” “the substance of the objection was patently clear.” Id. It’s a useful passage to fend off plain error when the government is arguing waiver on appeal.
For Further Reading: The Heritage Foundation is spot-on when it asks, “Can we Get Some Americans Out of Jail?” Heritage commentator Israel Ortega explains why money wasted on mand-min jail terms is better spent on prevention and rehabilitation. See article here
   Mr. Ortega touts the Smarter Sentencing Act– a bipartisan bill that is now out of Committee. See bill summary here.

Image of Chief Judge William Smith from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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