United States Court of Appeals For the First Circuit

No. 22-1867

UNITED STATES OF AMERICA,

Appellee,

v.

GRACE KATANA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Rikelman, Selya, and Howard, Circuit Judges.

Daniel J. Cloherty, with whom Cloherty & Steinberg LLP was on brief, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

February 22, 2024 RIKELMAN, Circuit Judge. Grace Katana appeals his

conviction after a jury trial for conspiracy to interfere with

interstate commerce by robbery in violation of

.

He presents three interconnected arguments on appeal, all focused

on his claim that the indictment charged him with conspiring to

rob Joseph Wilson, whereas the government at trial proved only

that he had conspired to commit a break-in at Wilson's home.

Specifically, Katana argues that: (1) the district court's jury

instructions and the government's arguments at trial

constructively amended the indictment in violation of his Fifth

and Sixth Amendment rights; (2) the government's evidence at trial

amounted to a prejudicial variance of the charge set forth in the

indictment; and (3) there was insufficient evidence to support his

conviction. After careful consideration, we affirm.

I. BACKGROUND

A. The Indictment

In July 2019, Katana and three other

individuals -- Junior Melendez, Keith Johnson, and Shaun

Walker -- were charged with conspiring to interfere with interstate

commerce by robbery in violation of the Hobbs Act,

. The indictment alleged that:

From at least March 19, 2019 through March 25, 2019, in Worcester, Rockland, and elsewhere in the District of Massachusetts, . . . [Melendez, Johnson, Katana, and Walker] conspired with each other . . . to obstruct, - 2 - delay and affect interstate commerce and the movement of articles and commodities in commerce by the robbery of Person # 1, an individual residing in Rockland, Massachusetts who was engaged in the sale of custom glass smoking devices.

In May 2022, Melendez and Walker pleaded guilty, and the

district court severed Johnson from the trial scheduled to begin

later that month. Katana proceeded to trial, which took place

over five days that spring.

B. The Evidence

We recount the relevant facts as presented at trial "in

the light most favorable to the jury's verdict, consistent with

record support." United States v. Akoto,

, 38 (1st

Cir. 2023).

In mid-March of 2019, the Bureau of Alcohol, Tobacco,

Firearms and Explosives ("ATF") initiated a court-approved wiretap

of Melendez's cell phone.1 During the course of its investigation,

ATF intercepted numerous calls (some of which we detail below) and

SMS text messages to and from one of Melendez's cell phones. Based

on information gleaned from these calls and texts, ATF began to

suspect that Melendez was preparing to commit a crime at a

residence, with help from Katana, Johnson, and Walker. ATF

ultimately learned that the target residence was located at 6

1 ATF had been assisting the Worcester Police Department in an investigation of Melendez since the summer of 2018. - 3 - French Road in Rockland, Massachusetts, where an individual named

Joseph Wilson was living with his then-girlfriend, Jennifer

O'Brien. From that residence, Wilson operated a business, which

he advertised online, selling ornate glassware for smoking tobacco

and marijuana to customers in and out of Massachusetts. The

estimated value of the glassware at 6 French Road in late March

2019 was approximately $40,000.

On March 18, 2019, ATF intercepted a phone call from

Melendez to an individual named Tyrone Walker.2 Melendez reported

that he had "something for [Tyrone] and [Johnson] to do together"

and asked whether he was interested. Tyrone answered affirmatively

and indicated that he would talk to Melendez "about it" when he

saw him in person.

The following day, Melendez told Johnson that he was

waiting to "get . . . all the details" from Katana, who was out of

town for the next few days.3 After Melendez added "it is going to

be you. . . . and [Shaun Walker]," Johnson responded: "I'd rather

2 To avoid any confusion between Shaun Walker and Tyrone Walker, we refer to the latter as "Tyrone."

3 Although Melendez did not explicitly mention Katana by name during this conversation, ATF agents believed that he was referring to Katana and that Katana was in California at the time.

- 4 - take [Tyrone] though for the body. It's more body."4 Melendez

indicated they would "figure it out," but Johnson relented: "I'm

going in first; it doesn't even matter."

Two days later, on March 21, Katana told Melendez that

he would be arriving on a flight the next day, adding "we can do

that shit Sunday if anything." Katana asked if "it [was] a go,"

and Melendez responded: "Yeah, . . . they're all lined up."

On March 23, Melendez informed Johnson that they would

be proceeding "tomorrow" and that Katana was "out there . . .

getting the whole layout."5 Melendez also noted that "it's in the

Bean,"6 in "a rich, rich ass neighborhood." When Johnson asked

who was "in the crib," Melendez answered: "He's gonna let me know

everything today" and "he's out there right now." The following

day, March 24, Melendez updated Johnson that the timing would be

"around two, three in the morning." After overhearing this

conversation, ATF began constant physical surveillance of Johnson

and Melendez.

4 Tyrone and Johnson were both approximately six feet tall and over 200 pounds. Walker was "much smaller than Tyrone," about 5'6" and under 180 pounds.

5 As before, although Melendez did not reference Katana by name in this phone call, ATF agents believed he was referring to Katana.

6 ATF agents assumed from this statement that Melendez was planning to target a residence in the Boston area. - 5 - On March 25 at approximately 1:42 a.m., Katana told

Melendez: "I'm ready when you guys are. I'm about to be in

Worcester." The two agreed to meet in a particular area of

Worcester, and ATF agents followed Melendez there. About twenty

minutes later, Melendez called Katana again and asked: "What are

we doing, are we waiting until tomorrow?" After a brief exchange,

Katana indicated that he had Wilson's "schedule" and added, "that's

what I wanna show you, come get me and I'll show you and then we'll

decide."7 Melendez then decided that "2 or 3 in the morning is

not really the best time to do it" and that he would "make them

scope it out" and "make sure everything is right," noting that he

wanted "to make sure they get away with it."

ATF continued physical surveillance of Melendez early

that morning. At approximately 2:30 a.m., ATF spotted Melendez's

black Dodge Charger, running with its headlights on, parked in

front of a house on Bowker Street in Worcester for about five or

ten minutes before leaving the area. Concerned that Melendez's

plan was to target a residence on Bowker Street, ATF asked two

members of the Worcester Police Department to sit on Bowker Street

7 Katana suggests on appeal, as he did at trial, that he also said "he's in Maine," indicating that Katana believed Wilson was out of town. There is no basis for us to evaluate this claim on appeal, however, as the parties did not provide us with a copy of the recording itself, and the transcript of the call is unclear. As we will explain later, however, whether Katana believed that Wilson was in Maine at the time does not impact our ultimate holding in this case. - 6 - for the night. At approximately 3:15 a.m., Worcester Police

observed a parked sedan and Honda CR-V on that street. Three

middle-aged men emerged from one of the cars and loaded a dolly

from one car to the other.

On the afternoon of March 25, at approximately 12:26

p.m., Katana arrived at Melendez's residence in Worcester. About

half an hour later, Johnson told Melendez that he was ready to be

picked up and asked: "[Y]ou got the thing or I'm bringing mine?"

Melendez answered: "Well, we finding out right now. He might

not -- he probably not even there, so I'ma find out right now."

Melendez added: "Bring yours . . . just in case. If you want.

Just bring one." When Johnson asked if Melendez was "sure,"

Melendez instructed: "Bring one." Shortly after this

conversation, Melendez, Katana, and Johnson began driving east

toward Boston. Walker traveled in a separate car.

Eventually, Walker ended up at the parking lot of a Home

Depot in Rockland, Massachusetts, about sixty miles from

Worcester. At approximately 2:48 p.m., Melendez called Walker and

instructed: "Go in Home Depot. We gonna go . . . see if . . . the

whip and shit is there. . . . and come right back. Go grab whatever

we need, . . . a pry bar, whatever the fuck we need. We'll be

- 7 - right back. We're only three minutes from his house." A few

minutes later, Melendez and Katana arrived at Wilson's residence.8

Wilson was not home at 6 French Road because he was on

a snowboarding trip in Maine,9 but O'Brien was. O'Brien's vehicle

was parked in the driveway, and she was playing music "fairly

loud[ly]" while waiting for her friend, Rachel Connors, to arrive.

At around 2:53 p.m., Katana walked up to the residence and took

some packages containing glassware that had been delivered to the

front porch. Shortly after Katana left with the packages, Connors

arrived and, as she neared the front door, could hear "pretty

loud[]" music playing inside the residence, even though she was

partially deaf.

Melendez and Katana then drove to the Home Depot in

Rockland, less than half a mile from 6 French Road. At

approximately 3 p.m., Melendez called Walker and asked where he

was. Walker responded that he was in the Home Depot parking lot,

but that he and Johnson "can't be going in and showin' our face."

After Melendez indicated he was inside the Home Depot, Walker

instructed him to "grab a crowbar" or "[w]hatever" Melendez thought

was "going to work." Melendez then informed Walker: "There's one

It is unclear at what point Johnson separated from Melendez 8

and Katana.

While Wilson was away in Maine, he posted on social media 9

about his trip. - 8 - whip in the parking lot. . . . He went to the door. He not even

. . . try to look in the window, but don't think anybody there

anyways, with the light off so we're not sure. So he's trying to

call his other man right now to see." (Second alteration in

original). Melendez added that they were "gonna look" and "make

the decision after that."10 A few minutes later, Melendez and

Katana purchased from Home Depot a yellow crowbar, serrated utility

blades, and an eight-inch screwdriver.

Believing a crime was imminent, ATF and Massachusetts

State Police descended on the Home Depot parking lot and found

Melendez, Katana, Johnson, and Walker in two parked cars. Melendez

was in a black Dodge Charger, with Katana "in [its] vicinity," and

Walker and Johnson were in a Honda CR-V, which was registered to

Katana's sister. Officers found a black ski mask in the Dodge

Charger and the yellow crowbar, a large dolly, and a loaded firearm

in the Honda CR-V. Officers arrested Johnson and Walker on state

firearm charges but permitted Melendez and Katana to leave so that

ATF could continue monitoring their communications and secure

additional evidence against Melendez and his associates.

In June 2019, following further investigation, Katana

and Melendez were also arrested.

10 ATF understood Melendez to be referring to Katana and believed "one whip in the parking lot" referred to a car parked in the driveway at 6 French Road. - 9 - C. Jury Instructions at Trial

At trial, the district court instructed the jury that,

to convict Katana, it had to "be convinced that the government

. . . prove[d] beyond a reasonable doubt that [he] agreed with one

or more coconspirators" as follows:

First, to knowingly and willfully obtain property from another person, in this case, Joseph Wilson;11

Second, to obtain the property of Mr. Wilson by means of a robbery;

And third, to obstruct, delay, or affect interstate commerce through the proposed robbery of Mr. Wilson.

The district court then provided the following definition of

robbery:

The term "robbery" means unlawfully taking or obtaining of personal property from the person or in the presence of another, against his or her will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his or her person or property, or property in his or her custody or possession, or in the person or property of a relative or member of his family or of anyone in his or her company at the time of the taking or obtaining.12

11The parties do not dispute that "Person # 1," the target of the robbery identified in the indictment, is Joseph Wilson.

12 This definition largely quoted from the definition of robbery provided in the Hobbs Act:

The term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against

- 10 - Additionally, the district court instructed the jury that the

government had to prove beyond a reasonable doubt:

First, that the agreement specified in the indictment, and not some other agreement . . . , existed between at least two people to commit a robbery of Mr. Wilson's property that would have had the effect of obstructing, delaying or affecting interstate commerce; and

Second, that Mr. Katana willfully joined in that agreement.

D. Closing Arguments, Verdict, and Motions for Acquittal

Katana and the government presented their closing

arguments after the jury charge. The government argued that Katana

had conspired with Melendez, Johnson, and Walker to "commit[] a

robbery at 6 French Road, taking . . . Wilson's property in the

process." It characterized "the crime that . . . Katana [was]

charged with" as a "conspiracy to separate . . . Wilson from his

property through the actual or threatened use of force to another

person." The government reiterated this proposition later in its

closing, noting that Katana had been "charged with conspiracy to

interfere with interstate commerce by robbery; that is, that he

his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

(b)(1). - 11 - agreed with at least one other person to unlawfully take the

property here belonging to Joseph Wilson from another person

through the actual or threatened use of force."

In his closing, Katana stressed that the issue before the

jury was "whether the government . . . proved beyond a reasonable

doubt that . . . [he] conspired to commit a robbery of Joseph

Wilson," rather than simply "a break-in of a house" or an unlawful

taking of Wilson's property. Katana argued that the evidence did

not show that he agreed to rob Wilson or any other individual,

because robbery is "a crime . . . committed against a person or in

his presence" and there was no proof that Katana or his co-

conspirators believed someone would be at 6 French Road at the

time of the break-in. At most, Katana suggested, the government

had proven a conspiracy to unlawfully take Wilson's property (in

other words, larceny or theft) rather than, as charged in the

indictment, a conspiracy to rob Wilson.

During its rebuttal, the government suggested that

defense counsel was asking the jury to interpret the charge against

Katana "far too narrowly" and explained that the conspirators

targeted Wilson because of his business assets at 6 French

Road -- namely, the "glassware worth $40,000." The government

advised the jury to "use [their] common sense and . . .

experience," noting that "when we talk about a robbery" -- for

example, "[s]omebody robbed a gas station" -- "[i]t is the business - 12 - that is the target of the robbery." And in this case, the

government explained, the target of the robbery was Wilson "because

he was an individual who was running [his] business as a d/b/a"

and it was "his property" that the conspirators sought. The

government also stressed that, to meet its burden of proof, it

"need only show that [the conspirators] agreed . . . to go into

[Wilson's] house and use force . . . as necessary against any

person inside that house to take [the] property that was owned by

Joseph Wilson."

After the jury left to begin its deliberations, Katana

objected to the government's rebuttal on the basis that it

"amounted to a constructive amendment of the indictment and a

variance because [it] advanced [a] theory of [Wilson's] business

being a victim in a manner that [was] not set forth in the

indictment." Katana subsequently moved for a judgment of acquittal

pursuant to Federal Rule of Criminal Procedure 29(a). He argued

in the motion that there was insufficient evidence to establish

that he: knew or believed Wilson or anyone else would be present

at 6 French Road "at the time of the planned break[-]in"; agreed

to commit a robbery of Wilson or anyone else; or agreed to

obstruct, delay, or interfere with interstate commerce.

The next day, on June 7, the district court denied the

motion, and the jury returned a guilty verdict. Katana then moved

for a judgment of acquittal or, in the alternative, a new trial, - 13 - under Federal Rules of Criminal Procedure 29(c) and 33. He

advanced two arguments in that second motion: (1) the district

court's jury instructions and the government's arguments

constructively amended the indictment; and (2) the government's

evidence at trial amounted to a prejudicial variance. The district

court denied the motion. This timely appeal followed.

II. DISCUSSION

A. Constructive Amendment and Prejudicial Variance

We review de novo Katana's preserved claims of

constructive amendment and prejudicial variance. See United

States v. Godfrey,

(1st Cir. 2015). To conduct

this review, we read the indictment "'in a plain and commonsense

manner,' focusing on the text and what it reveals about the scope

of the crimes the grand jury intended to charge." United States

v. Martínez,

, 13 (1st Cir. 2021) (quoting United States

v. Mubayyid,

(1st Cir. 2011)).

1. The Distinction Between the Two Doctrines

A constructive amendment occurs when the government's

evidence or arguments or the court's jury instructions alter the

terms of an indictment such that the defendant is effectively

charged with a different offense than the one returned by the grand

jury. See Akoto, 61 F.4th at 43. Our law prohibits constructive

amendments to safeguard multiple constitutional guarantees for

individuals charged with a crime: the Fifth Amendment right to be - 14 - indicted only by a grand jury and the Sixth Amendment rights to be

informed of those charges and not to be re-prosecuted for the same

offense. See id.; United States v. Taylor,

(1st

Cir. 2017). "When the challenge is preserved, '[a] constructive

amendment is considered prejudicial per se and grounds for reversal

of a conviction.'" United States v. Andino-Morales,

,

39 (1st Cir.) (alteration in original) (citation omitted), cert.

denied,

(2023).

A variance, by contrast, does not involve a change in

the offense charged in the indictment. United States v. Vega-

Martínez,

, 51 (1st Cir. 2020). Rather, a variance

occurs when the government relies at trial on different facts than

those alleged in the indictment to prove the same offense. United

States v. Ramos-Baez,

, 56 n.3 (1st Cir. 2023). A

variance does not require reversal unless "it affects the

defendant's substantial rights, i.e., the right to have knowledge

of the charge sufficient to prepare an effective defense and avoid

surprise at trial, and the right to prevent a second prosecution

for the same offense." Vega-Martínez, 949 F.3d at 51 (cleaned

up).

The Supreme Court's decision in Stirone v. United

States,

(1960), is often cited as the seminal case on

constructive amendments. In Stirone, a grand jury indicted the

defendant on a charge of interfering with Pennsylvania's inbound - 15 - sand trade in violation of the Hobbs Act. See

. But at

trial, the government presented evidence, over the defendant's

objection, that he also interfered with the state's outbound steel

trade in violation of the Hobbs Act, and the district court

instructed the jury that it could convict on either ground. See

. The Supreme Court found that the "variance" between

the indictment, on the one hand, and the jury charge and the

government's proof, on the other, "destroyed the defendant's

substantial right to be tried only on charges presented in an

indictment returned by a grand jury."

. The Court

stressed that "after an indictment has been returned[,] its charges

may not be broadened through amendment except by the grand jury

itself,"

, and "[a]lthough the trial court did not

permit a formal amendment of the indictment, the effect of what it

did was the same,"

. It therefore reversed the

defendant's conviction. See

.

Several years later, the United States Court of Appeals

for the D.C. Circuit suggested that the Stirone Court had found

that the variance between the grand jury's charge and the proof at

trial was "substantial enough to amount to a constructive amendment

of the indictment." Gaither v. United States,

(D.C. Cir. 1969). Courts across the country (ours included) then

began discussing Stirone as a case of constructive amendment. See

United States v. Withers,

, 935 (7th Cir. 2020) - 16 - (Easterbrook, J., concurring) ("[E]very court of appeals . . . has

used the 'constructive amendment' language, which has appeared in

at least 1,900 appellate opinions."); see, e.g., United States v.

Portela,

(1st Cir. 1999) (characterizing Stirone

as "the case establishing that jury instructions can work a

constructive amendment").13 Uncertainty by litigants in

identifying the dividing line between a constructive amendment and

a prejudicial variance ensued. See, e.g., United States v.

Rosario-Pérez,

, 289 (1st Cir. 2020) (explaining that

it was "unclear whether [defendant's claim] would be described

more appropriately as [alleging] a variance from the indictment"

rather than a "constructive amendment"); United States v. Bucci,

(1st Cir. 2008) (noting that defendant had

"conflate[d] his constructive amendment argument with his variance

claim" and proceeding to "address them simultaneously" to avoid "a

futile endeavor to parse the two"). Recognizing this challenge,

we have noted that "[t]he line between 'the crime charged' and

'the facts charged' is inherently fuzzy." Mubayyid,

(quoting United States v. Mueffelman,

(1st Cir.

2006)).

To bring greater clarity to this area of law, we have

held that "[t]he rule against constructive amendments . . . is

See also 3 Charles Alan Wright & Arthur R. Miller, Federal 13

Practice and Procedure § 516 (5th ed. 2023). - 17 - focused not on particular theories of liability but on the offenses

charged in an indictment." United States v. Simon,

, 35

(1st Cir. 2021) (second alteration in original) (citation

omitted); see, e.g., Mueffelman,

(rejecting

constructive amendment argument where "the titular crime was not

altered," as the defendant "was charged with mail fraud and

convicted of mail fraud"); United States v. Fisher,

(1st Cir. 1993) (holding same because "[t]he evidence admitted

against [defendant] pertained directly to" the offenses in the

indictment "and to no other[] charges"). Thus, "[o]ur practice

has been to look to statutory elements in response to claims by

defendants that 'the crime charged' has been changed." Simon, 12

F.4th at 34 (quoting Mubayyid,

).

Accordingly, to succeed on a constructive amendment

argument under our precedent, a defendant generally must show that

the proceedings altered the indictment with respect to a "statutory

element[] of the offense." United States v. López–Díaz,

(1st Cir. 2015) (concluding that court's refusal to

instruct jury that government needed to prove charged conspiracy's

success did not constructively amend indictment because a

conspiracy's success is not an element of charged offense). For

example, in United States v. Dowdell,

(1st Cir. 2010),

we considered whether a "district court's modification of the

indictment to reflect distribution of 'cocaine base' rather than - 18 - 'cocaine'" constituted a constructive amendment.

. In

rejecting the defendant's constructive amendment claim, we

explained that, "[b]ecause [he] was prosecuted under § 841(a)(1),

which prohibits distribution of any controlled substance

regardless of type, drug identity had no bearing on the substance

of the charge." Id. at 68. Thus, "the government could

technically have omitted reference to a particular controlled

substance altogether." Id.

In the terminology of our modern jurisprudence, then,

Stirone is more appropriately characterized as a prejudicial

variance case, rather than a constructive amendment case. The

offense charged in Stirone, a violation of the Hobbs Act, was the

same offense on which the government presented evidence and on

which the district court instructed the jury. See

. The issue was that the government's arguments and the

court's instructions presented "to the jury two different theories

under which the defendant could be found guilty of violating the

Hobbs Act, either of which could have independently supported a

conviction under the Act," even though "the government had

specified only one of those theories in the indictment." United

States v. de Leon-De La Rosa,

, 197 (1st Cir. 2021)

(emphases added); accord Mubayyid,

(characterizing

Stirone as "holding that an indictment was unconstitutionally

broadened where prosecution offered evidence of two theories of - 19 - liability, but the grand jury indicted defendant only on the first

theory" (emphasis added)). Thus, although "the evidence adduced

at trial prove[d] different facts than those alleged in the

indictment," the elements of the offense remained the same. Ramos-

Baez, 86 F.4th at 56 n.3 (citation omitted); see United States v.

Mojica-Baez,

(1st Cir. 2000) (explaining that,

in Stirone, the government introduced "evidence of a different set

of facts" than those alleged in indictment). That is a variance

under our case law. See Ramos-Baez, 86 F.4th at 56 n.3; Simon, 12

F.4th at 34; Vega-Martínez, 949 F.3d at 51; United States v.

Mangual-Santiago,

(1st Cir. 2009). And the

variance in Stirone was so great -- as the facts underlying the

two theories were entirely different -- that the Court had little

difficulty concluding that it was prejudicial because it

"destroyed the defendant's substantial right to be tried only on

charges presented in an indictment returned by a grand jury."

.

With this framework in mind, we turn to Katana's

constructive amendment and prejudicial variance claims.

2. Katana's Constructive Amendment Claim

Katana's constructive amendment claim is based on the

premise that the grand jury charged him with a conspiracy to rob

Wilson and not "any other person" (such as O'Brien) or "any

business entity" (such as Wilson's business) "in the presence of - 20 - others."14 He points to the indictment's language alleging a

conspiracy to commit a "robbery of Person # 1, an individual

residing in Rockland, Massachusetts who was engaged in the sale of

custom glass smoking devices." (Emphasis added.)

Based on his interpretation of the indictment, Katana

challenges the district court's "use of the phrase 'the property

of' in its jury [charge]," including its instruction that the

government had to prove that he agreed "to obtain the property of

. . . Wilson by means of a robbery." (Emphasis omitted.) These

instructions, Katana argues, not only "misstated the agreement

charged in the indictment" but also "created a substantial risk

that the jury could convict [him even] if [it found] he agreed

only to conduct that amounted to a mere 'larceny' of . . . Wilson's

property, rather than . . . a 'robbery' of . . . Wilson himself."

He also asserts that "the district court's repeated insertion of

the phrase 'or her' in its definition of the term 'robbery'"

exacerbated "these erroneous instructions" because it "suggest[ed]

to the jury that the planned robbery need not have been a 'robbery'

of . . . Wilson, despite the plain language of the indictment."

14 Katana acknowledges that the grand jury "may well have been" able to charge him for conspiring to rob Wilson's business on the facts underlying his case, but he argues that because it did not do so, the government could not prosecute him under that theory at trial. For reasons we explain momentarily, we disagree. - 21 - Katana presents a similar theory with respect to the

government's evidence and arguments at trial. He focuses in

particular on the government's statements that: "Katana [had been]

charged with . . . conspir[ing] to separate Joe Wilson from his

property through the actual or threatened use of force to another

person" or, phrased slightly differently at another point, "to

unlawfully take the property . . . belonging to Joseph Wilson from

another person through the actual or threatened use of force"; and

that "[i]t [was] the business that [was] the target of the

robbery."

As we explain in further detail below, we reject for

three reasons Katana's claim that the court's jury charge and the

government's arguments constructively amended the indictment.

First, the offense charged in the indictment -- a conspiracy to

commit a robbery in violation of the Hobbs Act -- was the same

offense on which the court instructed the jury and on which the

government presented evidence. The trial transcript contradicts

Katana's theory that the government's arguments and the jury charge

suggested to the jury that it could convict him of a conspiracy to

commit a larceny. Second, contrary to Katana's contention, a

commonsense and plain reading of the indictment indicates that

Wilson was targeted in connection with his business. Third, the

government’s focus at trial on Wilson’s home business as the target

of the robbery did not amount to a constructive amendment because - 22 - the identity of the target is not an element of a robbery or

conspiracy to commit robbery under the Hobbs Act.

To begin, the district court's instructions -- which we

evaluate "not in isolation but in the context of the entire

charge" -- were clear that Katana was charged with, and could be

convicted of, only a conspiracy to commit robbery in violation of

the Hobbs Act. United States v. McBride,

, 33 (1st

Cir. 2020) (quoting Jones v. United States,

(1999)). The instructions described the essential elements of a

conspiracy to commit a Hobbs Act robbery as set out in

. See supra, Part I(C); cf. United States v. Cruzado-

Laureano,

(1st Cir. 2005) (listing similar

elements for Hobbs Act extortion). The district court was explicit

that the property at issue in the charged conspiracy was Wilson's,

as it explained that the property had to be "obtain[ed] . . . by

robbery from . . . Wilson." There is no dispute that Wilson was

an owner of the business he operated from his residence, and we

are not persuaded that those assets connected to Wilson's business

are not also his property. Additionally, the court's definition

of robbery (which is nearly identical to that provided in the Hobbs

Act) made clear that the government had to prove that Katana

conspired to take property unlawfully "from the person or in the

presence of another, against his or her will, by means of actual

- 23 - or threatened force, or violence, or fear of injury."15 (Emphasis

added.)

The fact that the instructions added "or her" and thus

"did not parrot the statutory definition" of a Hobbs Act robbery

does not mean that they "were legally inconsistent with that

definition." Andino-Morales, 73 F.4th at 39-40. Indeed, "the

method and manner in which" a district court "inform[s] the jury

about the applicable law" is left "within wide limits" to its

discretion. Id. at 40 (citation omitted). It is also worth noting

that the First Circuit's Model Pattern Jury Instructions use the

same "his or her" phrasing (likely because it better reflects

gender parity) in the suggested definition of robbery. See Pattern

Crim. Jury Instrs. for the Dist. Cts. of the First Cir.,

15 We briefly note here Katana's argument that "[f]ederal courts have repeatedly explained that the term 'robbery' in the Hobbs Act is to be interpreted in a manner that is consistent with the common law definition of 'robbery': the unlawful taking of property from the person of or in the presence of the victim." At common law, he explains, robbery is "an offense against a person" whereas larceny or theft is an "offense[] against property." We note, however, that "the principal distinguishing characteristic" of a robbery as compared to a larceny is "the exertion of force." United States v. Rodriguez,

(1st Cir. 2011) (quoting Commonwealth v. Jones,

(Mass. 1972)); see also

(b)(1) (defining robbery as taking property "by means of actual or threatened force, or violence, or fear of injury"). Here, the definition of robbery in the jury charge included the exertion of force, which further undermines Katana's argument that the court instructed the jury on a larceny charge. - 24 - § 4.18.1951 (2022) (Interference with Commerce by Robbery or

Extortion (Hobbs Act),

).

For similar reasons, we also find that the government

informed the jury that the offense at issue was a conspiracy to

commit a Hobbs Act robbery. For example, the government stated in

its closing argument that Katana was "charged with conspiracy to

interfere with interstate commerce by robbery; that is, that he

agreed with at least one other person to unlawfully take the

property here belonging to . . . Wilson from another person through

the actual or threatened use of force." In its rebuttal, the

government noted that it "need only show that [the conspirators]

agreed . . . to go into [Wilson's] house and use force . . . as

necessary against any person inside that house to take [the]

property that was owned by . . . Wilson." With these and other

statements, the government made clear to the jury that its burden

of proof required it to show that the conspirators believed someone

(though not necessarily Wilson)16 might be home at the time of the

planned robbery and that the conspirators were prepared to use

force if necessary. After careful review, we find no support in

the record for Katana's claim that the government suggested that

16 As we explain below, the government was not required to prove that the conspirators believed Wilson in particular would be home at the time of the planned robbery. - 25 - the jury could convict him of conspiring to commit what amounted

to a "mere" larceny.

Moving to Katana's next argument about the scope of the

indictment, we reject his claim that the only reasonable reading

of the indictment is that it charged a robbery of Wilson himself,

untethered from his business. To be sure, the indictment in this

case "is not a model of clarity." United States v. Rodríguez–

Rodríguez,

(1st Cir. 2011). However, when we adopt

the requisite commonsense reading of the indictment, we conclude

that its inclusion of the phrase "an individual . . . who was

engaged in the sale of custom glass smoking devices" is enough to

indicate that Wilson was identified as the target of the robbery

in connection with his business. Katana disagrees, arguing that

the government included that language simply to establish the

interstate commerce element of the offense. But the interstate

commerce element is addressed earlier in the indictment, when it

alleges that Katana conspired "to obstruct, delay and affect

interstate commerce and the movement of articles and commodities

in commerce by the robbery of Person # 1." Certainly, the language

about Wilson's glassware business further supported the interstate

commerce element, but Katana provides no reason why it could not

serve the additional purpose of putting him on notice that the

government would focus on the taking of Wilson's business assets

as the object of the conspiracy. - 26 - Finally, we note that Katana admitted at oral argument

that he could cite no case law suggesting that robbery of an

individual is a different offense than robbery of that individual's

home business. And, as Katana further conceded, "the identity of

the target[] of a Hobbs Act conspiracy is not an element of that

conspiracy." United States v. Mulder,

(2d Cir.

2001) (addressing verdict unanimity in Hobbs Act extortion

conspiracy); see also López–Díaz,

(rejecting

constructive amendment claim because "[t]here was no change to the

statutory elements of the offense"); United States v. Fornia–

Castillo,

(1st Cir. 2005) (same). See generally

. Thus, a focus on Wilson's business as the target

at trial did not amount to a constructive amendment.

Katana's reliance on United States v. de Leon-De La Rosa,

(1st Cir. 2021), does not support his constructive

amendment theory. There, an indictment charged the defendant with

violating

(a)(2) and

(a) by

"'knowingly and intentionally destroy[ing] property subject to

forfeiture' -- specifying that the 'subject property' was a

'controlled substance.'" De Leon-De La Rosa, 17 F.4th at 197

(alteration in original). Importantly, § 70503(a)(2) prohibits an

individual aboard a covered vessel from knowingly or intentionally

destroying property subject to forfeiture under § 881(a). Section

881(a), in turn, delineates several categories of forfeitable - 27 - property, including controlled substances, see

(a)(1), and equipment used to deliver controlled substances,

see

§ 881(a)(2). The district court "instruct[ed] the jury

that it could find [the defendant] guilty if it found beyond a

reasonable doubt that 'the property was a controlled substance or

equipment used for delivering controlled substances.'" De Leon-

De La Rosa, 17 F.4th at 197. We concluded that this constituted

a constructive amendment because it broadened the crime charged by

permitting the jury to convict under § 881(a)(1) or § 881(a)(2),

even though the indictment directly quoted only from § 881(a)(1).

See id. (citing Mathis v. United States,

, 519 (2016)).

As we explained, this change amounted to a constructive amendment

because "the [forfeitable] property was an element of the crime

rather than a means of committing it."

(internal

citations omitted).

Katana's case is distinguishable from de Leon-De La Rosa

because the district court here instructed the jury on the elements

of

, which is precisely the statutory offense

charged in the indictment. The government's arguments at Katana's

trial also focused on that offense and no other. Accordingly,

there was no constructive amendment. See Simon, 12 F.4th at 34

(no constructive amendment when "the statutory violation remains

the same" (quoting Mubayyid,

)).

- 28 - 3. Katana's Prejudicial Variance Claim

We now turn to Katana's argument that there was a

"variance from the indictment, which 'occurs when the charging

terms remain unchanged but . . . the facts proved at trial are

different from those alleged in the indictment.'" Fornia-

Castillo,

(citation omitted). Relying on many of

the same arguments that he advances in support of his constructive

amendment claim, Katana asserts that a variance occurred because

the indictment charged him with conspiring to rob Wilson, but the

government's theory at trial was that he had conspired to rob

O'Brien or, alternatively, Wilson's business in her presence. For

the reasons we lay out below, we conclude that there was no

variance here, and, even if there had been, Katana has failed to

demonstrate prejudice.

As we explained earlier, a commonsense reading of the

indictment indicates that Wilson was the target of the robbery in

connection with his business. The government's evidence at trial

showing that Katana and his co-conspirators sought to rob Wilson

of his business assets (the tobacco and marijuana glassware)

therefore did not amount to a variance. Additionally, the

government never argued at trial that Katana and any of his co-

conspirators planned to rob O'Brien. Rather, the government

introduced evidence from which a rational jury could conclude that

the conspirators planned to unlawfully take Wilson's property at - 29 - 6 French Road, by actual or threatened force, regardless of whether

he or someone else (such as O'Brien) was home at the time. See

infra, Part II(B).

Moreover, even if the government's arguments varied from

the indictment, Katana has failed to establish prejudice. He

argues that, because of "the narrowly-drawn charge" in the

indictment, his "defense at trial focused intently on whether the

evidence . . . was sufficient to" establish that he conspired to

rob Wilson -- that is, to take Wilson's property by force or threat

of force from "Wilson's person." Katana also suggests that, had

he been aware of the government's intent to present its

"alternative theory" at trial -- that Katana conspired to rob

Wilson's home business in the presence of a third party -- "defense

counsel may well have taken steps to inquire about the scope of

. . . Katana's knowledge regarding . . . Wilson's alleged business

operations at 6 French Road, about . . . O'Brien's whereabouts or

her residence at that location, or about . . . [the presence of]

any other person . . . at 6 French Road on March 25, 2019." For

example, "the defense may have sought to highlight for the jury

the lack of evidence regarding . . . Katana's knowledge of those

matters." Katana's claim of prejudice is thus, at its core, that

the alleged variance deprived him of "the right to have knowledge

of the charge sufficient to prepare an effective defense and avoid

- 30 - surprise at trial." Vega-Martínez, 949 F.3d at 51 (cleaned up)

(quoting Godfrey,

).

We are not persuaded by this claim for several reasons.

First, Katana's trial strategy does not support his claim of

surprise. Throughout the trial, Katana disputed that he believed

anyone would be at home at 6 French Road. For example, during his

opening statement, Katana's counsel argued that the central issue

before the jury was whether Katana "agree[d] with others to commit

a robbery while someone was there." (Emphasis added.) He

contended that the evidence the jury would hear would "fall far

short of showing that . . . Katana knew or understood that someone

was in the house." (Emphasis added.) To be sure, his attorney

argued at one point that Katana believed Wilson, "the supposed

target of the robbery," would not be home at the time. But

throughout his opening statement, he focused on whether Katana and

his co-conspirators believed anyone would be home. Further, during

cross-examination of the government's key ATF witness, Katana's

counsel ably highlighted the absence of any discussion among the

conspirators that suggested they believed someone would be at 6

French Road.17

17We also note that, although Katana did not cross-examine Connors about how loudly O'Brien was playing her music that afternoon, he did ask O'Brien herself whether she thought that her music could be heard outside of the house. His cross-examination of O'Brien thus provides additional support for our conclusion

- 31 - In sum, the record does not suggest that Katana was "so

in the dark about the" government's prosecution theory at trial

that "[]he could not prepare a defense or plead double jeopardy to

stop a second prosecution for the same crime." United States v.

Greaux-Gomez,

, 439 (1st Cir. 2022) (alteration in

original) (citation omitted); see United States v. Moore,

(10th Cir. 1999) (finding no prejudicial variance where

indictment "named the victim [of the bank robbery] as Brent Byers"

even though the true victim was his wife because defendant "was

not misled by the variance," as he "was aware of the charges

against him and presented his defense with the knowledge that Anne

Byers was the alleged victim"). Accordingly, based on the specific

facts here, any shift in the identity of the target of the robbery

from Wilson personally to Wilson's home business was not

prejudicial. Cf. United States v. Orrego-Martinez,

(1st Cir. 2009) (finding no prejudicial variance despite

government's "shift as to the [identity of the] victims" of

defendant's fraud scheme because victims' identity was not an

element of the charged offense); United States v. Von Stoll,

(9th Cir. 1984) (holding same where defendant was

charged "with transporting money taken from McCallum [but] the

proof showed it was taken from . . . McCallum's partner," because

that Katana was not surprised by the government's theory of the case at trial. - 32 - defrauded person's identity "is irrelevant" to offense charged and

"[t]he inconsistency did not affect [the defendant's] substantial

rights").

Second, our decision in United States v. Dellosantos,

(1st Cir. 2011), which Katana relies on heavily, is

consistent with our conclusion here. The two defendants in that

case challenged their convictions for conspiracy to distribute

cocaine and marijuana on the basis that the evidence at trial

"suggest[ed] only that they participated in a conspiracy to

distribute cocaine, and not the . . . conspiracy to distribute

both cocaine and marijuana that was charged in the indictment."

. Analyzing this challenge through the lens of a

prejudicial variance, we agreed that the evidence at trial "pointed

to at least two distinct conspiracies" -- a Massachusetts-based

conspiracy to distribute cocaine only and a Maine-based conspiracy

to distribute cocaine and marijuana -- rather than a "single

overarching conspiracy covering all the relevant drug dealing."

. We concluded that there was a variance "between

the conspiracy charged and the [separate cocaine-only] conspiracy

for which there was sufficient evidence that the [d]efendants [had]

actually joined."

. We further concluded that the

variance was prejudicial because the defendants "were, at the very

least, deprived of adequate notice of the charges against them[]

- 33 - and . . . therefore limited in their ability to prepare a defense

at trial."

.

Dellosantos is readily distinguishable from the case

before us. The issue in Dellosantos was whether the defendants

had agreed to join the broader conspiracy charged in the indictment

rather than a smaller, narrower one proved at trial. See

Katana does not argue that the evidence in this case points to

multiple conspiracies, as it did in Dellosantos. See

. Rather, he suggests that, like the Dellosantos defendants,

he too has been prejudiced by alternative theories of prosecution

advanced by the government. But as we have already concluded, he

has not established that the alleged variance here was prejudicial

because the record shows that he had sufficient notice of, and was

able to defend himself against, the government's theory at trial.

Because Katana has failed to demonstrate that the

alleged variance was prejudicial, he has failed to demonstrate

grounds for reversal. See United States v. Chan,

, 52

(1st Cir. 2020) ("A variance alone . . . does not necessitate

disturbing a conviction; rather, 'a variance is grounds for

reversal only if it is prejudicial . . . . '" (quoting Dellosantos,

)); see also Vega-Martínez, 949 F.3d at 51 ("A

variance . . . is permitted unless it affects the defendant's

substantial rights . . . ." (cleaned up) (quoting Godfrey,

)). - 34 - B. Sufficiency of the Evidence

We review Katana's preserved sufficiency of the evidence

claim de novo. See United States v. Daniells,

, 71

(1st Cir. 2023). In conducting our review, "we take the evidence

in the light most favorable to the government, draw all reasonable

inferences [in the government's favor], and ask whether a rational

jury could find that the government proved all the elements of the

offense beyond a reasonable doubt." United States v. Fuentes-

Lopez,

, 71 (1st Cir. 2021); see Daniells, 79 F.4th at

71. "To uphold a conviction, [we] need not believe that no verdict

other than a guilty verdict could sensibly be reached, but must

only satisfy [ourselves] that the guilty verdict finds support in

a plausible rendition of the record." Fuentes-Lopez, 994 F.3d at

71 (quoting United States v. Sabean,

(1st Cir.

2018)). Thus, the jury's "verdict must stand unless the evidence

is so scant that a rational factfinder could not conclude that the

government proved all the essential elements of the charged crime

beyond a reasonable doubt." Simon, 12 F.4th at 24 (citation

omitted).

Katana presents two sufficiency challenges. First, he

argues that the evidence at trial was insufficient to prove that

he knew or believed that Wilson would be home at 6 French Road on

March 25, 2019. We reject this argument because Katana's belief

(or lack thereof) that Wilson in particular would be home at the - 35 - time of the planned robbery is not an element the government was

required to prove. The Hobbs Act does not require that a

conspirator intend to take an individual's property in the presence

of that same individual. See

(b)(1) ("'[R]obbery'

means the unlawful taking or obtaining of personal property from

the person or in the presence of another . . . ." (emphasis

added)). The jury was therefore permitted to convict Katana if it

concluded beyond a reasonable doubt that Katana had conspired to

unlawfully take Wilson's property "in the presence of another,"

such as O'Brien, by threatened or actual force.

And, as

Katana acknowledged at oral argument, the evidence could plausibly

support the conclusion that the conspirators believed someone

might be at the residence.

For example, on the morning of the planned robbery,

Johnson asked Melendez: "[Y]ou got the thing or I'm bringing mine?"

Melendez responded: "Well, we finding out right now. He might

not -- he probably not even there, so I'ma find out right now."

Immediately, though, Melendez added: "Bring yours . . . just in

case." And when Johnson asked if Melendez was "sure," Melendez

answered affirmatively and unequivocally: "Bring one." The jury

could have reasonably concluded from this conversation that

Melendez and Johnson were referring to the firearm that was

subsequently found in the car with Johnson in the Home Depot

parking lot. The jury could have further concluded that Melendez - 36 - and Johnson discussed bringing the firearm because they

anticipated the possibility that -- although Wilson was "probably"

not home -- someone else might be.18

Additionally, Rachel Connors testified that, despite

being partially deaf, she could hear loud music playing from inside

6 French Road when she walked up the front steps, just moments

after Katana had stolen boxes from the porch. Connors also

testified that O'Brien's car was parked in the driveway at the

time. The jury could have inferred that Katana likely heard the

same music and noticed the same car, tipping him off to the

presence of someone inside the house.

Further, after Katana stole boxes from the porch, he and

Melendez proceeded to Home Depot. At Home Depot, they purchased

a crowbar, screwdriver, and razor blades to facilitate the break-

in. Crediting the testimony of Connors indicating that there were

obvious clues that someone was in Wilson's house that afternoon,

the jury could have found that Katana nevertheless took the final

We note that Katana makes no argument on appeal that he was 18

unaware either that Melendez and Johnson discussed bringing a firearm or that Johnson ultimately brought a firearm with him. Regardless, to "be a willing participant" in the charged conspiracy, Katana "need not [have] 'know[n] the exact scope and extent of the collective endeavor'" because he knew "its essential nature." United States v. Tum,

(1st Cir. 2013) (citation omitted); see United States v. Orlando,

(7th Cir. 2016) (noting that, to convict a defendant charged with a Hobbs Act conspiracy, "the government must show that [he] knew the essential nature and scope of the charged conspiracy and that he intended to participate in it"). - 37 - steps to proceed with the robbery and would have done so had the

police not intercepted him and his co-conspirators. Such a finding

would not have been "unreasonable, insupportable, or overly

speculative" in light of the evidence. Daniells, 79 F.4th at 71

(citation omitted); see Simon, 12 F.4th at 24 ("[W]e must honor

the jury's evaluative choice among plausible, albeit competing,

inferences." (citation omitted)). In sum, the jury could have

reasonably concluded from the evidence at trial that the

conspirators were aware of the possibility that Wilson or someone

else might be at 6 French Road.

The evidence here is therefore distinguishable from that

in United States v. Acosta,

(S.D.N.Y. 2009),

which Katana cites. In that case, a defendant moved for a judgment

of acquittal after being convicted of, among other offenses,

participating in an attempted Hobbs Act robbery. See

at 284-

85. Because the evidence indicated that he and his co-conspirators

had at some point agreed to a "new plan" in which they would not

"rob [the target] but rather . . . break into his empty house and

search for the cash," the district court concluded that the

defendant had "at most aided and abetted an attempted burglary."

. The government had not offered any evidence that the

conspirators "expected anyone to be present at [the target]'s home

during the break-in," and instead the evidence suggested that the

crew selected a particular night for the planned break-in - 38 - "precisely because they thought the house would be empty."

. "The plan did not . . . even suggest a likelihood that non-

participants would be present . . . ."

Additionally, the

district court noted the critical fact that the defendant "was not

at [the target]'s house or in the crew's van [on the] evening"

that two of his co-conspirators broke into the residence.

. The district court acknowledged that, when the homeowner

unexpectedly came home, one of the defendant's co-conspirators

gave another co-conspirator "a gun and told him to point it at

[the victim] and tell him to freeze."

However, that these

two conspirators "may have undertaken their own actions to

transform the burglary into a robbery or attempted robbery," the

district court explained, was not enough to "attach sufficient

specific intent for such an act to [the defendant]."

For

these reasons, the district court determined that a rational jury

could not reasonably conclude that the defendant had aided or

abetted the attempted Hobbs Act robbery and granted the defendant's

motion with respect to that charge. See

In this case, by

contrast, the government introduced evidence from which a jury

could reasonably conclude that Katana anticipated the possibility

that someone might be home at the time of the break-in.

Second, Katana argues that, under the government's

"unindicted 'business robbery' theory of prosecution," the

evidence was insufficient to establish that he was aware of - 39 - Wilson's business operations at 6 French Road. In Katana's view,

there was no evidence that he or any of his co-conspirators had

been aware of Wilson's business or "had ever interacted with anyone

about . . . Wilson's business in any way." When "we take the

evidence in the light most favorable to the government" and "draw

all reasonable inferences" in the government's favor, we conclude

otherwise. Fuentes-Lopez, 994 F.3d at 71.

The jury heard evidence that Katana and Melendez planned

the crime for almost a week and specifically targeted Wilson's

house in Rockland. Katana offers no alternative explanation as to

why he and his co-conspirators chose 6 French Road, a residence

about sixty miles away from Worcester, if not for their knowledge

about Wilson's business, which was advertised online. Further,

Katana had stolen packages from the porch of 6 French Road when he

and Melendez went to scout out the residence. Those packages

contained glassware from Wilson's business. The jury could have

therefore reasonably inferred, as the government suggests, that

Katana and his co-conspirators "knew what they would find and

intended to take" during the planned robbery. Additionally, the

evidence at trial suggested that Katana had a source for

information about Wilson, and the jury could have reasonably

concluded that source would have shared details about Wilson's

home business. In sum, a rational jury could have concluded that

Katana and his co-conspirators planned a robbery at 6 French Road - 40 - because they were aware of Wilson's business there and the related

valuable glassware. See United States v. Correia,

, 33

(1st Cir. 2022) ("[T]he jury [is] entitled to draw reasonable

inferences from the evidence as a whole." (citation omitted)).

Thus, we are satisfied "that the guilty verdict finds

support in a plausible rendition of the record." Fuentes-Lopez,

994 F.3d at 71 (quoting Sabean,

). Katana's claim

that there was insufficient evidence to support his conviction

therefore fails.

III. CONCLUSION

For all these reasons, we affirm Katana's conviction.

-Concurring Opinion Follows-

- 41 - HOWARD, Circuit Judge, concurring. I join the panel

opinion in full, noting especially that I agree with its reading

of Stirone v. United States,

(1960), and with its

conclusion that any variance in this case did not prejudice Katana.

I add a few words of my own to suggest a way to clear up some

confusion that I believe may have found its way into our case law

concerning constructive amendment and prejudicial variance.

Some of our prior decisions have acknowledged that

"[t]he concepts of constructive amendment and variance are closer

to a continuum than exclusive categories." United States v.

Mueffelman,

(1st Cir. 2006); see United States v.

Mubayyid,

(1st Cir. 2011); United States v.

Rodríguez-Rodríguez,

, 58 n.6 (1st Cir. 2011). Despite

this recognition, we may have also created an incentive for

litigants to expend energy arguing that a case falls under one of

those classifications -- constructive amendment or variance --

instead of the other. We have done so by stating that "[a]

constructive amendment is considered prejudicial per se and

grounds for reversal. [But v]ariance is grounds for reversal only

if it affected the defendant's 'substantial rights.'" United

States v. Fisher,

, 462–63 (1st Cir. 1993) (citation

omitted). Seemingly then, if an appellant persuades us that there

has been a constructive amendment of the indictment, the conviction

will automatically be reversed. - 42 - I use the word "seemingly" because I am unaware of any

case in which we have followed this analytical path to its

destination. We recognized the absence of such a case in United

States v. Brandao.19

, 59–60, 59 n.9 (1st Cir. 2008).

And none has emerged since. It appears that we have employed

language akin to "constructive amendments are considered

prejudicial per se and grounds for reversal" on five occasions

following Brandao (including today). See United States v. Andino-

Morales,

, 39 (1st Cir. 2023); United States v. Davis,

(1st Cir. 2013); Rodríguez-Rodríguez,

; United States v. Celestin,

(1st Cir. 2010).

Yet in "every one of these cases, [we] found no constructive

amendment and thus no error."20 Brandao,

.

Brandao considered two possible exceptions, United States 19

v. Iacaboni,

(1st Cir. 2004), and United States v. Santa-Manzano,

(1st Cir. 1998), but found that both could be readily distinguished. 539 F.3d at 59–60. Only Iacaboni compels further elucidation here. That case did not involve a constructive amendment challenge to a conviction. Instead, the defendant claimed that he pled guilty to promotional money laundering, see

(a)(1)(A)(i), but was ordered to forfeit certain funds on a theory of concealment money laundering, see

§ 1956(a)(1)(B)(i). Iacaboni,

. We agreed. And although we labeled the situation a "per se prejudicial 'constructive amendment,'"

it is readily apparent how the defendant was prejudiced in fact by being ordered to forfeit money not involved in the charge to which he pled guilty.

United States v. de Leon-De La Rosa,

(1st Cir. 20

2021), a recent case where we found constructive amendment, was on plain error review and therefore did not presume prejudice per our decision in Brandao, discussed below.

at 198–200, 201. - 43 - Our use of "prejudicial per se" language "seems to have

begun with dicta in United States v. Dunn,

(1st

Cir. 1985)."

There, we said:

A constructive amendment "occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed upon them." Gaither v. United States,

, 1071–72 (D.C. Cir. 1969). An amendment of the indictment is considered prejudicial per se and grounds for reversal of a conviction whether it is brought about by a literal alteration of the words of the indictment, Ex Parte Bain,

(1887), a jury instruction which modifies the offense charged in the indictment, Stirone v. United States,

(1960), or the admission of evidence of an offense not charged by the grand jury, United States v. Beeler,

(6th Cir. 1978).

.21

Yet neither of the Supreme Court decisions cited in Dunn

instruct that a constructive amendment must be considered

prejudicial per se and grounds for automatic reversal. Our

unanimous opinion today ably explains why Stirone does not dictate

as much. See Slip Op. at 20–21. And Ex Parte Bain, a habeas case

involving a literal alteration to an indictment, stands in modern

times for the "settled proposition of law" that "an indictment may

not be amended except by resubmission to the grand jury, unless

21We have previously noted that Dunn appears to be the source of our obfuscating practice of referring to literal alterations to the indictment as "constructive" amendments. See United States v. Dowdell,

(1st Cir. 2010). - 44 - the change is merely a matter of form." United States v. Cotton,

(2002) (quoting Russell v. United States,

(1962)). The case is therefore of little help in

determining whether a constructive amendment is grounds for an

automatic reversal.

Similarly, the Supreme Court has never listed

constructive amendment as a structural error -- the kind of error

that "should not be deemed harmless beyond a reasonable doubt,"

Weaver v. Massachusetts,

, 294 (2017). See, e.g.,

Washington v. Recuenco,

, 218 n.2 (2006) (listing

structural errors); see also Brandao, 539 F.3d at 60–61 ("[T]here

are good reasons not to extend the list of structural errors to

include constructive amendments."). Indeed, as Judge Easterbrook

points out, "the phrase 'constructive amendment' has never been

used by a single Justice in a criminal case." United States v.

Withers,

, 935 (7th Cir. 2020) (Easterbrook, J.,

concurring).

Taking all this into consideration, we would do well in

the appropriate case to acknowledge that constructive amendments

are not prejudicial per se, despite our past dicta to the contrary.

In many ways, this is the logical corollary of our decision in

Brandao. The relevant question there was whether a constructive

amendment automatically satisfies the third prong of plain error

review -- that the error "'affect substantial rights,' which 'in - 45 - most cases . . . means that the error must have been

prejudicial.'" Brandao,

(first quoting Fed. R.

Crim. P. 52(b); and then quoting United States v. Olano,

(1993)). We determined that it does not. See United

States v. Taylor,

, 495–96 (1st Cir. 2017) ("In

[Brandao], we confronted the question of whether or not

constructive amendments are prejudicial per se and determined they

are not.").

Brandao is not an outlier among the circuit courts. In

fact, there are seemingly no longer any circuits that require

automatic reversal for a constructive amendment on plain error

review. See United States v. Banks,

, 177–78 (4th

Cir. 2022). I see no compelling reason why we should not adopt

that same approach even for claims of constructive amendment that

have been properly preserved.22 See 3 Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 516 (5th ed.

2023)("Once courts are willing to review constructive amendments

with the traditional plain error analysis without the presumption

of prejudice, it is a small step to harmless error review.").

The Supreme Court "has several times declined to resolve 22

whether 'structural' errors . . . automatically satisfy the third prong of the plain-error test." Puckett v. United States,

(2009). Brandao gives rise to the inverse question: Whether errors that do not automatically satisfy the third prong of the plain error test can be structural errors. But even if the answer is yes, it does not follow that a constructive amendment is necessarily a structural error. - 46 - To be sure, the violation of certain constitutional

rights that are related to the concept of constructive amendment

can lead to the automatic reversal of a conviction. For example,

if a defendant is convicted based on evidence that does not satisfy

the elements of the crime charged by the grand jury, an

insufficiency-of-the-evidence claim will secure a reversal. See,

e.g., United States v. Pothier,

, 148–49 (1st Cir.

2019); see also Price v. Georgia,

(1970)

(refusing to apply harmless error review to violation of a

defendant's double jeopardy right). But by dispelling the notion

that constructive amendments are prejudicial per se, we can remove

the unjustified incentive that has developed for the parties to

spend their energy arguing over how to divide a continuum into

exclusive categories. See Mueffelman,

.

In this case, there can be no serious contention that

Katana was prejudiced by any incongruity that existed between the

indictment and the trial evidence or jury instructions. See Slip

Op. at 30–36. Under my view of the proper reading of our cases,

that is enough to foreclose his "constructive amendment" argument.

- 47 -