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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13245
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-00116-TFM-MU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(May 8, 2020)
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
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Darrell Johnson appeals his convictions and sentences for conspiring to
possess with intent to distribute and manufacture methamphetamine, in violation of
21 U.S.C. § 841(a)(1); knowingly possessing with the intent to distribute
methamphetamine, in violation of § 841(a)(1); and felony possession of a firearm,
in violation of
18 U.S.C. § 922(g)(1). On appeal, Johnson first argues that the
evidence of a conspiracy introduced at trial only supported a conspiracy from 2017
onward, and therefore materially and prejudicially varied from the conspiracy
alleged in his superseding indictment, which alleged a conspiracy from 2012
onward. Second, he contends that the district court’s jury instructions
constructively amended the conspiracy charge in the superseding indictment.
More specifically, he claims that the court instructed the jury only that it was
unlawful to possess methamphetamine and that methamphetamine was a controlled
substance, but did not apprise the jury of how to find the precise drug type—
“methamphetamine (actual)”—and quantity. We disagree and affirm his
convictions and sentences. For ease of reference, we address each point in turn.
I.
Normally, we review a claim of constitutional error de novo. United States
v. Williams,
527 F.3d 1235, 1239 (11th Cir. 2008). However, if an error is not
preserved, we review only for plain error. United States v. Dortch,
696 F.3d 1104,
1110-12 (11th Cir. 2012). To prevail under plain error review, the party must
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show: (1) there was an error; (2) that was plain or obvious; (3) that affected the
defendant’s substantial rights in that it was prejudicial and not harmless; and
(4) that seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. United States v. Johnson,
694 F.3d 1192, 1195 (11th Cir. 2012).
A fundamental principle derived from the Fifth Amendment is that “a
defendant can only be convicted for a crime charged in the indictment” because
“[i]t would be fundamentally unfair to convict a defendant on charges of which he
had no notice.” United States v. Keller,
916 F.2d 628, 632–33 (11th Cir. 1990).
“When the evidence at trial or the court’s jury instructions deviate from what is
alleged in the indictment, two distinct problems can arise—constructive
amendment or variance.” United States v. Flynt,
15 F.3d 1002, 1005 (11th Cir.
1994) (per curiam).
“A variance occurs when the facts proved at trial deviate from the facts
contained in the indictment but the essential elements of the offense are the same.”
Keller,
916 F.2d at 634. A variance requires reversal only if the variance between
the charged conspiracy and the evidence presented at trial is material, and the
material variance prejudiced the defendant. See United States v. Richardson,
532
F.3d 1279, 1284 (11th Cir. 2008). “Prejudice generally is measured in terms of
whether the defendants were deprived of fair notice of the crimes for which they
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were being tried, and whether the spillover of the proof of other crimes prejudiced
them.” United States v. Glinton,
154 F.3d 1245, 1252 (11th Cir. 1998).
To determine whether there was a material variance between the indictment
and the evidence introduced at trial, the test is whether, viewing the evidence in the
light most favorable to the government, a reasonable trier of fact could have found
that a single conspiracy existed beyond a reasonable doubt. Richardson,
532 F.3d
at 1284. A jury’s conclusion that a single conspiracy existed should not be
disturbed so long as it is supported by the evidence, and a material variance will
exist only if there is no evidentiary foundation for the jury’s finding of a single
conspiracy.
Id.
Here, we apply plain error review because Johnson did not argue at trial that
the evidence varied materially and prejudicially from the conspiracy charged in the
superseding indictment. Viewing the evidence in the light most favorable to the
government, the evidence was sufficient to permit the jury to conclude that
Johnson conspired to possess with the intent to distribute and manufacture
methamphetamine as alleged in the superseding indictment. Further, Johnson was
on fair notice of the scope of the alleged conspiracy and the charges against him.
Accordingly, Johnson’s conspiracy conviction does not warrant reversal. See
id.
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II.
A constructive amendment occurs “when the essential elements of the
offense contained in the indictment are altered to broaden the possible bases for
conviction beyond what is contained in the indictment.” United States v. Dennis,
237 F.3d 1295, 1299 (11th Cir. 2001). Unlike a variance, a constructive
amendment to an indictment constitutes per se reversable error. Flynt,
15 F.3d
at 1005. However, we need not address whether a constructive amendment
amounts to a per se reversible error when the defendant fails to object at trial in
cases where, even if we assume that the district court erred, the error was not plain.
Dortch, 696 F.3d at 1112. Moreover, we will not reverse a conviction unless we
find that “the issues of law were presented inaccurately, the [jury] charge included
crimes not contained in the indictment, or the charge improperly guided the jury in
such a substantial way as to violate due process.” United States v. Weissman,
899
F.2d 1111, 1114 (11th Cir. 1999). We have stated:
When the instructions, taken together, accurately express the law
applicable to the case without confusing or prejudicing the jury, there
is no reason for reversal even though isolated clauses may, in fact, be
confusing, technically imperfect, or otherwise subject to criticism. An
erroneous instruction does not require reversal unless the reviewing
court is left with a substantial and ineradicable doubt as to whether the
jury was properly guided in its deliberations.
Id. at 1114 n.1.
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A jury instruction that allows the jury to consider an element of the offense
not listed in the indictment is an impermissible, constructive amendment of the
indictment. S e e Stirone v. United States,
361 U.S. 212, 218–19 (1960). In
determining whether an indictment was constructively amended, we look at
whether the prosecutor’s actions or the court’s instructions, “viewed in context,”
literally or effectively expanded the indictment. United States v. Behety,
32 F.3d
503, 508–09 (11th Cir. 1994). In doing so, we are concerned with the danger that a
“defendant may have been convicted on a ground not alleged by the grand jury’s
indictment.”
Id. at 509. Slightly different wording in a jury instruction does not
amount to constructive amendment where it correctly states the law and tracks the
pattern instructions. See United States v. Elbeblawy,
899 F.3d 925, 939 (11th Cir.
2018), cert. denied,
139 S. Ct. 1322 (2019).
It is unlawful for a person to manufacture, distribute, or possess with intent
to do the same, a controlled substance.
21 U.S.C. § 841(a)(1). A person who
violates that subsection will receive a mandatory minimum term of 10 years’
imprisonment if the violation involved “50 grams or more of methamphetamine, its
salts, isomers, and salts of its isomers or 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, its salts, isomers,
or salts of its isomers.”
Id. § 841(b)(1)(A)(viii). For controlled substance offenses,
“[t]he nature of the controlled substance neither constitutes an element of the
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offense nor broadens the bases for conviction, but is relevant only for sentencing
purposes.” United States v. Rutherford,
175 F.3d 899, 906 (11th Cir. 1999).
Under plain error review, the district court did not constructively amend the
indictment through its jury instructions because, viewed in the context of the trial as
a whole, the court’s slightly different wording did not allow the jury to consider an
element of the offense not contained in the indictment. See Behety,
32 F.3d at 508–
09; Elbeblawy, 899 F.3d at 939. Accordingly, we affirm in this respect.
AFFIRMED.
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