Robert Earl Tucker, Jr., was found guilty of three counts of making
false statements to a federally licensed firearms dealer in violation of 18
U.S.C. § 922(a)(6) and two counts of possession in violation of 18 U.S.C.
§ 922(g)(4). Tucker’s pro se appeal raises a host of issues, but we need only address one: whether the district court plainly erred by allowing constructive amendment of his indictment. It did, and we REVERSE.
Abundant precedent confirms “[t]he Fifth Amendment[’s] guarantee  that a criminal defendant will be tried only on charges alleged in the grand jury indictment.” This means that “only the grand jury may amend an indictment once it has been issued.”
Here, however, the district court erroneously instructed on a theory
of guilt that was obviously outside the indictment. Tucker was charged under a statute that prohibits a person from possessing a firearm or ammunition if he or she “has been adjudicated as a mental defective or . . . has been committed.” Yet Tucker’s indictment alleged only that he had been adjudicated as a “mental defective”; it did not mention commitment. This would have posed no problem had the district court’s jury charge not instructed that guilt could rest on either adjudication or commitment. This erroneously granted the jury license to paint Tucker’s guilt with too broad a brush. We therefore conclude that the jury instructions were plainly flawed.
Almost a century and half have passed since the Supreme Court first
announced that “charges may not be broadened through amendment except by the grand jury itself.”20 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. The district court’s error struck a blow to the fairness, integrity, and public reputation of Tucker’s proceedings. This requires correction.
Full case here: United States v. Robert Earl Tucker, Jr., https://www.ca5.uscourts.gov/opinions/pub/21/21-30194-CR0.pdf
Anton Vialtsin, Esq.
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