Madden: Constructive Amendment subject to Plain Error Review

In U.S. v. Madden, No. 11-14302 (Aug. 16, 2013), the Court reversed a conviction, because the district court constructively amended the indictment. The district court instructed the jury that it could convict a defendant for of violating 18 U.S.C. § 924(c) by carrying a firearm “during and in relation to a drug trafficking offense.” But the indictment charged him with possessing a firearm “in furtherance of” a drug trafficking crime. Because there are situations where a firearm possession would be “during and in relation to” drug trafficking without “furthering or advancing” that activity, the district court “broadened the possible bases for conviction beyond what was specified in the superseding indictment.” Resolving an intra-Circuit split, the Court held that a constructive amendment does not result in automatic reversal, but is subject to review (when, as here, unobjected to) for “plain error.” The Court held that the error was plain, and prejudiced Madden, because he may have been convicted of a charge not in the indictment. The Court found it “self-evident” that this error seriously affects the fairness, integrity, and public reputation of judicial proceedings.