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Constructive amendment error doesn’t warrant new trial, 7th Circuit rules

May 31, 2019

The 7th Circuit Court of Appeals has affirmed a man’s life sentence after rejecting his request to vacate and receive a new trial on his firearm possession convictions based on a constructive amendment error in his indictment.

Devan Pierson was convicted of possessing drugs with the intent to distribute and two related firearm crimes after Indianapolis police uncovered significant amounts of heroin, cocaine and methamphetamine in his home. They also found two handguns — one in his kitchen and one in his vehicle.

An indictment charged Pierson with possessing controlled substances with intent to distribute, possessing a firearm in furtherance of a drug trafficking crime and possessing a firearm as a previously convicted felon. On the firearm counts, the indictment specified only that the car gun was the firearm charged, but evidence was presented to the jury on both guns. 

When the district court instructed the jury at close of arguments on the firearms counts, it did not signal that the car gun was the sole gun at issue. The prosecutor only briefly mentioned the kitchen gun at closing and rebuttal, clarifying that it was not the gun charged.

The jury found Pierson guilty on all counts of the indictment, and Pierson was further alleged to have two prior felony drug convictions. At his sentencing, he received a mandatory life sentence.

In an appeal to the 7th Circuit, Pierson argued that his two firearms convictions should be vacated and remanded for a new trial because his indictment was constructively amended in violation of his Fifth Amendment rights.

Additionally, Pierson asserted that the combination of admitting evidence of the kitchen gun and the court’s jury instructions, which did not specify that guilt could be found based only on the car gun, allowed the jury to convict him on grounds outside of the indictment.

The 7th Circuit found the combination of the evidence and jury instructions added up to a constructive amendment of Pierson’s indictment pursuant to United States v. Leichtnam, noting that the constructive amendment could have been easily avoided.

But despite that error under Leichtnam, the 7th Circuit concluded it did not call for the reversal of Pierson’s firearm convictions.

“The Leichtnam error here was not plain. Constructive amendment doctrine seeks to prevent confusion and to ensure that a defendant stands trial for charges in the grand jury’s indictment,” Circuit Judge David Hamilton wrote. “Though the government introduced evidence of the kitchen gun and the jury instructions were not tailored, other events at trial should have made the charges against Pierson clear to the jury.”

“… Beyond the government’s clarifications, the verdict form directed the jury’s attention to Pierson’s indictment, and the jury had a copy of his indictment in deliberations. In our view, these facts minimized the risk of jury confusion and at least made debatable whether a constructive amendment occurred here,” Hamilton continued.

The 7th Circuit further found there to be little guidance since the ruling in Leichtnam to find the error plain. It additionally concluded that Pierson’s substantial rights were not affected and that even if no constructive amendment had occurred, the verdict would remain the same.

On the issue of vacating his mandatory life sentence pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), the appeals court concluded that the case included an exception that was not challenged.

“Also, we must note that in our experience as judges in criminal cases, we have rarely seen an accused defendant eager to inform a jury about his prior convictions,” the court wrote. “Pierson’s argument is clearly foreclosed by Supreme Court precedent.”

The panel lastly rejected Pierson’s request to vacate his life sentence based on United States v. Clark, 110 F.3d 15, 17 (6th Cir. 1997), and the meaning of “imposed” under Section § 401(c) of the First Step Act.

“It appears that no other circuits have applied Clark’s definition of ‘imposed’ while interpreting the safety‐valve statute, let alone applied it while interpreting any other statute,” it concluded. “In view of the more common meaning of ‘imposed’ and Dorsey, we respectfully decline to extend Clark’s reasoning to § 401(c) of the First Step Act.”

Thus, Pierson’s sentence and convictions were affirmed in USA v. Devan Pierson, 18-1112.

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