Simmons and the Constructive Amendment
Last week’s newsletter covered the Simmons Case. In that case we covered the Fourth Circuit’s holding on direct appeal that Aggravated RICO Charges was not a crime of violence under 18 U.S.C. 924(c). There was another important portion about that case as well: a constructive amendment around the Violent Crime in Aid of Racketeering (VICAR) counts.
As we previously indicated, Simmons and others were charged with a set of VICAR offenses that were related to a set of murders and attempted murders. Each attempted murder stated that Simmons (and others) committed both “attempted murder in aid of racketeering activity” and assault with a dangerous weapon in aid of racketeering activity. The Assault with a dangerous weapon counts were based on two state predicate offenses. Those were Va. Code Ann. §§ 18.2-53.1 and 18.2-282.
There is another code section at issue here: “Section 18.2-53, which was not charged in the [second superseding indictment], deems it unlawful for any person committing or attempting to commit a felony to “unlawfully shoot, stab, cut or wound another person.”
These sections are not the same:
“But section 18.2-53.1 more harshly punishes a different category of conduct, deeming it “unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit” a specified list of felonies, including murder. Section 18.2-282, Virginia’s general brandishing statute, deems it unlawful “for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another.”
Further, the parties proposed joint jury instructions that did not track the indictment:
The instructions that the parties jointly proposed to the district court did not accurately track the SSI. Those proposed instructions correctly referenced section 18.2-282 as one of the two state law predicates supporting the VICAR Assault Counts, but incorrectly referenced section 18.2-53 as the second state law predicate offense…And when it came to explaining to the jury the elements of the two state law offenses undergirding the VICAR Assault Counts, Proposed Instruction 80 correctly defined the elements of section 18.2-282, but incorrectly referenced and explained the elements of section 18.2-53, not section 18.2-53.1.
The problem with the proposed jury instructions continued as the court incorrectly explained the wrong section of the law to the jury for each of the VICAR counts:
These errors permeated the court’s final jury instructions on all of the VICAR Assault Counts. Just like the proposed instructions, the district court correctly referenced and explained to the jury the elements of section 18.2-282 as one of the two state law predicates. J.A. 5298; see Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104, 104 (1983) (per curiam) (setting forth section 18.2-282’s elements). However, the court incorrectly explained and referenced section 18.2-53 as the other state law predicate, instead of the actual predicate charged in the [second superseding indictment], section 18.2-53.1.” The jury convicted Simmons and others of the VICAR Assault Counts but did so on a general verdict form. This means that the jurors were not asked to specify if they found either, or both, of the Virginia state law predicates underlying those counts satisfied.”
Simmons did not object to the trial court’s instructions on the VICAR assault counts. On appeal they claimed that the jury instructions were error. This meant that the plain error test applied. Simmons argued that “[b]ecause section 18.2-53 proscribes a wider range of conduct than section 18.2-53.1…the district court impermissibly broadened the basis for their convictions…in our circuit constructive amendments are “error per se.”
““A constructive amendment to an indictment occurs when either the [G]overnment (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury.”… “court[s] cannot permit a defendant to be tried on charges that are not made in the indictment against him.”
The Fourth Circuit likened it to Stirone v. United States, 361 U.S. 212 (1960) where Sitrone was indicted for Hobbs Act Robbery “"for unlawfully obstructing interstate commerce, to wit the movement of sand...But at trial, the Government introduced evidence that he also interfered with steel shipments, and the district court instructed the jury that the interstate commerce element of his Hobbs Act charge could be satisfied “either on a finding that” Stirone obstructed the movement of sand or steel.
This, the Supreme Court held, amounted to a constructive amendment, in violation of the Fifth Amendment’s Grand Jury Clause.”
The Fourth Circuit stated that the same principal was evident here:
“The jury’s convictions on the VICAR Assault Counts could have rested “either on a finding” that in furtherance of a RICO enterprise, Defendants committed assault with a dangerous weapon, as that offense is defined by section 18.2-53 (an unindicted predicate) or brandishment under section 18.2-282 (one of the indicted predicates)... But we have no way of knowing the basis for conviction.”
Under the plain error, Simmons’ rights were violated. But further, because constructive amendments are structural errors, constructive amendments must be considered “per se” prejudicial.
Stated differently, in our circuit, constructive amendments always affect a defendant’s substantial rights, such that Olano’s third prong is satisfied. Id. at 712–14. Further, [our other case law] mandates that we exercise our discretion under the fourth [plain error] prong to correct that error under Rule 52(b), because the possibility of “convicting a defendant of an unindicted crime affects the fairness, integrity, and public reputation of federal judicial proceedings in a manner most serious.” This meant that reversal was appropriate. The court determined that the “VICAR Assault Counts, Counts 8, 15, 18, 27, and 29, must be reversed.”