Constructive amendment of indictment by jury instructon is not reversible plain error where evidence of guilt is overwhelming

APPEAL United States v. Brown, No. 03-8027, ___ F.3d ___ (10th Cir. Mar. 9, 2005)(Wyoming). Appeal of conviction for carrying machine gun during commission of drug trafficking crime in violation of 18 U.S.C. § 924(c). HELD: Constructive amendment of indictment by jury instruction to which defendant did not object at trial is not reversible error per se. Such error is only reversible where amendment constitutes "plain error" and seriously affects fairness, integrity, or public reputation of judicial proceedings. Thus, where overwhelming and essentially uncontroverted evidence existed to support defendant’s guilt on charged crime of "carrying a gun" during commission of drug offense, but jury was instructed to convict if defendant either "used or carried" gun, resulting error could not have affected fairness, integrity, or public reputation of proceeding. Accordingly, error was not reversible. Read the opinion here.