Constructive Amendment: Standard Of Review (5th Circuit)

A constructive amendment occurs when the trial court "through its instructions and facts it permits in evidence, allows proof of an essential element of the crime on an alternative basis provided by the statute but not charged in the indictment." United States v. Phillips, 477 F.3d 215, 222 (5th Cir. 2007) (quotation omitted). In evaluating whether a constructive amendment has occurred, reviewing courts in the 5th Circuit consider "whether the jury instruction, taken as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of the law applicable to the factual issues confronting them. "United States v. Guidry, 406 F.3d 314, 321 (5th Cir. 2005) (quotation omitted).  The appellate court must "scrutinize any difference between an indictment and a jury instruction" and "will reverse only if that difference allows the defendant to be convicted of a separate crime from the one for which he was indicted." United States v. Nunez, 180 F.3d 227, 231 (5th Cir. 1999). Otherwise, a defendant must "show how the variance in the language between the jury charge and the indictment so severely prejudiced his defense that it requires reversal under harmless error review." Id.

United States v. Scher, 601 F.3d 408, 411-412 (5th Cir. Tex., No. 08-20269, March 23, 2010) applied those standards in holding that a single reference to an alternative theory in the instructions was not a constructive amendment.

For subscription based briefing and sample instructions on this and related issues see:

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3.2.1 - Province Of The Court To Interpret Statute And Apply It To The Facts
300.2.4 - Due Process/Notice: Variance Between Information And Proof At Trial
300.2.5 - Due Process/Notice: Variance Between Indictment/Information And Proof At Trial -- Standard Of Prejudice

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PG VII(C)(11) - Instruction On Uncharged Theory Violates Due Process And Right to Effective Assistance of Counsel: Preliminary Hearing Is Touchstone Of Due Process
PG VII(C)(11.1) - Due Process Notice: Variance Between Information And Proof At Trial