What is the test for a constructive amendment to a criminal charge?

MultiRegion, United States of America

The following excerpt is from United States v. Percoco, 18-2990, 18-3710, 19-1272 (2nd Cir. 2021):

"[A] constructive amendment occurs either where (1) an additional element, sufficient for conviction, is added, or (2) an element essential to the crime charged is altered." Dove, 884 F.3d at 146 (internal citation omitted). Our precedent has "consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial." United States v. Banki, 685 F.3d 99, 118 (2d Cir. 2012) (internal quotation marks omitted). Put differently, the indictment must alert a defendant to "the essence of a crime, in general terms," but need not specify "the particulars of how a defendant effected the crime." United States v. D'Amelio, 683 F.3d 412, 418 (2d Cir. 2012). So, to prevail on a constructive amendment argument, a defendant "must demonstrate that either the proof at trial or the trial court's jury instructions so altered an essential element of the charge that, upon review, it is uncertain whether the defendant was convicted of conduct that was the subject of the grand jury's indictment." United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003) (internal quotation marks omitted).

Other Questions


Can a constructive amendment to a criminal charge be considered constructive amendment? (MultiRegion, United States of America)
Can restitution be ordered only for the criminal conviction for the same criminal offence for which the criminal charges were dismissed? (MultiRegion, United States of America)
When counting criminal convictions for career offender purposes under section 4A1.2 of the Criminal Code, is the criminal conviction of a career offender included in the criminal record calculation? (MultiRegion, United States of America)
Is there a constructive amendment to an indictment under section 922(g) of the Criminal Code when evidence that the firearm travelled in and affecting commerce supports a crime other than that charged in the indictment? (MultiRegion, United States of America)
In what circumstances will a defendant be charged with a criminal charge if he and his codefendants were arrested in the same criminal investigation? (MultiRegion, United States of America)
What constitutes a constructive amendment to a criminal charge? (MultiRegion, United States of America)
What is the burden of proving constructive amendment to a criminal charge? (MultiRegion, United States of America)
Is a minor criminal offence included in the criminal history of a defendant in the Criminal History of the Criminal Code? (MultiRegion, United States of America)
What is a constructive amendment to a criminal charge? (MultiRegion, United States of America)
Is there any case law that supports the argument that a defendant was punished for successfully severing the unrelated criminal charges from two separate criminal charges? (MultiRegion, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.