United States v. Ward

If defendant does not expressly raise a "Fifth Amendment objection" to an amended indictment, but still objects to a substantive change in jury instructions and the court does not change the instructions to accurately reflect the conduct alleged, the court will have "constructively amended the indictment by permitting the jury to convict [the defendant] based on conduct not alleged in those counts" in violation of the defendant's Fifth Amendment rights.

Defendant Doren Harold Ward was convicted for various crimes of identity theft, including two counts of "aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1)." Ward stipulated his guilt on all counts except the aggravated identity theft, and the case went to a jury trial. After the jury was instructed, both defense and government counsel at a "sidebar discussion," "expressed a concern that the instructions for [the aggravated identity theft] did not identify the specific victim or the date on which it took place as alleged in the indictment." The judge agreed to change the instructions, but then "had a change of heart" and proceeded with the original instructions, and Ward was found guilty on all counts. On appeal, Ward argued, "the district court constructively amended the indictment in violation of the Fifth Amendment." The Ninth Circuit held that, although the defendant did not expressly raise a "Fifth Amendment objection" to an amended indictment, he did object to the substantive change in the instructions during the "sidebar discussion," and that the "district court constructively amended the indictment by permitting the jury to convict Ward on [the aggravated identity theft counts] based on conduct not alleged in those counts." REVERSED AND REMANDED.