Constructive Amendment of Indictment Conviction Reversed by Fifth Circuit
The trial court’s constructive amendment of indictment was reversed by the Fifth Circuit on Tucker's 922(g)(4) convictions.
Tucker's Trial History of 922(g)(4)
Tucker was found guilty on two counts of unlawful possession of a firearm, in violation of 18 U.S.C. 922(g). Tucker was charged under 922(g)(4), which makes it illegal for an individual to possess a firearm. In this case, if he “has been adjudicated as a mental defective or who has been committed to a mental institution.”
More than a decade ago, Tucker had been involuntarily hospitalized after doctors determined he presented a danger to himself and others. Shortly after his release, Tucker was again involuntarily committed and diagnosed with paranoid schizophrenia.
In 2019, Tucker purchased a pistol from a firearms dealer. In doing so, Tucker stated that he had neither “been adjudicated as a mental defective” nor “committed to a mental institution.” Eventually, law enforcement obtained a search warrant and seized ammunition from Tucker’s home. Tucker was arrested and charged with three counts of making false statements to a federally licensed firearms dealer, in violation of 922(a)(6), and two counts of possession of firearms and ammunition, in violation of 922(g)(4).
Appeal for Plain Error
On appeal, Tucker argued that the district court erred because its instructions to the jury impermissibly amended Tucker’s indictment. Because the issue was not raised at trial, the Fifth Circuit reviewed the claim for plain error.
Tucker was charged under a statute that prohibits a person from possessing a firearm or ammunition if he “has been adjudicated as a mental defective” or “has been committed to a mental institution.” However, Tucker’s indictment only alleged Tucker had been adjudicated as a “mental defective.” The indictment made no mention of commitment. Yet, when instructing the jury, the district court explained the jury could find Tucker guilty if its verdict rested on either adjudication or commitment.
The Fifth Circuit concluded the trial court’s instructions were erroneous. Because the indictment made no mention of commitment, the court impermissibly amended the indictment by instructing the jury it could find Tucker guilty if he had either been adjudicated or committed.
The appellate court turned to whether the error affected Tucker’s substantial rights. The court noted this issue turns on whether there was a reasonable likelihood the jury applied erroneous instruction in an unconstitutional manner. In analyzing this prong, the court discussed how much of the trial evidence revolved around Tucker’s commitment. This was despite not being charged in the indictment.
To make matters worse, the court prohibited Tucker from “quibbl[ing] over adjudicated or committed” because the court found the two to be the same under the statute. Further, when the jury requested clarification on whether adjudication and commitment were the same, the trial court refused to clarify.
Nonetheless, the government argued on appeal that Tucker’s substantial rights were not violated because the jury received ample evidence that Tucker was adjudicated as a “mental defective.”
The Fifth Circuit Reversed
First, the court determined that the legal issue of adjudication versus commitment should have never been submitted to a jury. Juries determine questions of fact. Questions of law are for the courts to answer.
Second, the Fifth Circuit concluded Tucker never underwent an “adjudication” in the manner contemplated by 922(g)(4). Such adjudication requires a judicial process, which was completely absent from the evidence presented at Tucker’s trial.
Finally, the court examined the plain error. This was how the error seriously affected the fairness, integrity, or public reputation of judicial proceeding. By constructively amending the indictment, the district court violated the Fifth Amendment. This is intended to guarantee an indictment not be broadened except by a grand jury.
“But this constitutional guarantee rings hollow where, as here, a district court simultaneously enlarges the grounds on which the jury could find a defendant guilty while truncating the defendant’s ability to navigate the new, unindicted battlefield. Even worse, this venture creates the added risk that a defendant’s conviction rested on divergent theories of liability-undermining the centuries-long demand for juror unanimity.”
Finding the trial court’s constructive amendment of the indictment met all four prongs of plain error review, and the evidence presented at trial could not support the indictment, the Fifth Circuit reversed Tucker’s 922(g)(4) convictions.
Under the Fifth Amendment, a grand jury indictment may only be amended by a grand jury once it has been issued. Impermissibly constructive amendment of an indictment occurs when the evidence at trial or court’s jury charge expands the scope of the indictment to crimes that have not been charged. This is a very fact-specific inquiry, and requires a close look at the detailed record to determine whether an indictment has been constructively amended in violation of the Constitution.
If you are seeking attorney assistance and you believe the indictment in your case may have been constructively amended or your trial had other issues, please email me at [email protected] so we can discuss your case.