United States v. Katana ( 2024 )

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 18 U.S.C. § 1951.
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, 18 U.S.C.
§ 1951. 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, 61 F.4th 36, 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.
18 U.S.C. § 1951(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, 787 F.3d 72, 78 (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, 994 F.3d 1, 13 (1st Cir. 2021) (quoting United States
v. Mubayyid, 658 F.3d 35, 70 (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, 848 F.3d 476, 495 (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, 73 F.4th 24,
39 (1st Cir.) (alteration in original) (citation omitted), cert.
denied, 144 S. Ct. 370 (2023).
A variance, by contrast, does not involve a change in
the offense charged in the indictment. United States v. Vega-
Martínez, 949 F.3d 43, 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, 86 F.4th 28, 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, 361 U.S. 212 (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 id. at 213. 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
id. at 214. 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." Id. at 217. The Court
stressed that "after an indictment has been returned[,] its charges
may not be broadened through amendment except by the grand jury
itself," id. at 215-16, and "[a]lthough the trial court did not
permit a formal amendment of the indictment, the effect of what it
did was the same," id. at 217. It therefore reversed the
defendant's conviction. See id. at 219.
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, 413 F.2d 1061, 1072
(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, 960 F.3d 922, 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, 167 F.3d 687, 702 (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, 957 F.3d 277, 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,
525 F.3d 116, 131 (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, 658 F.3d at
51 (quoting United States v. Mueffelman, 470 F.3d 33, 38 (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, 12 F.4th 1, 35
(1st Cir. 2021) (second alteration in original) (citation
omitted); see, e.g., Mueffelman, 470 F.3d at 38 (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, 3 F.3d 456,
463 (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, 658 F.3d at 51).
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, 794 F.3d
106, 118 (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, 595 F.3d 50 (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. Id. at 66. 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 361 U.S. at
213-14. 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, 17 F.4th 175, 197 (1st Cir. 2021)
(emphases added); accord Mubayyid, 658 F.3d at 50 (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, 229 F.3d 292, 310 (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, 562 F.3d 411, 421 (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." 361
U.S. at 217.
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, 962 F.3d 25, 33 (1st
Cir. 2020) (quoting Jones v. United States, 527 U.S. 373, 391
(1999)). The instructions described the essential elements of a
conspiracy to commit a Hobbs Act robbery as set out in 18 U.S.C.
§ 1951. See supra, Part I(C); cf. United States v. Cruzado-
Laureano, 404 F.3d 470, 480 (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, 659 F.3d 117, 118 (1st Cir. 2011)
(quoting Commonwealth v. Jones, 283 N.E.2d 840, 843 (Mass. 1972));
see also 18 U.S.C. § 1951(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), 18 U.S.C. § 1951).
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, 663 F.3d 53, 55 (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, 273 F.3d 91, 115 (2d Cir.
2001) (addressing verdict unanimity in Hobbs Act extortion
conspiracy); see also López–Díaz, 794 F.3d at 118 (rejecting
constructive amendment claim because "[t]here was no change to the
statutory elements of the offense"); United States v. Fornia–
Castillo, 408 F.3d 52, 66 (1st Cir. 2005) (same). See generally
18 U.S.C. § 1951. 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,
17 F.4th 175 (1st Cir. 2021), does not support his constructive
amendment theory. There, an indictment charged the defendant with
violating 46 U.S.C. § 70503(a)(2) and 21 U.S.C. § 881(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 21 U.S.C.
§ 881(a)(1), and equipment used to deliver controlled substances,
see id. § 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, 579 U.S. 500, 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." Id. at 200 (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 18 U.S.C. § 1951, 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, 658 F.3d at 51)).
- 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, 408 F.3d at 66 (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, 787 F.3d at 79).
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, 52 F.4th 426, 439 (1st Cir. 2022) (alteration in
original) (citation omitted); see United States v. Moore, 198 F.3d
793, 796 (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, 575 F.3d 1, 7
(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, 726
F.2d 584, 586-87 (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,
649 F.3d 109 (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."
Id. at 116. 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."
Id. at 119, 121. 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." Id. at 121. 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." Id. at 125.
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 id.Katana does not argue that the evidence in this case points to
multiple conspiracies, as it did in Dellosantos. See id. at 119,
121. 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, 981 F.3d 39, 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,
649 F.3d at 116)); 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, 787
F.3d at 79)).
- 34 -
B. Sufficiency of the Evidence
We review Katana's preserved sufficiency of the evidence
claim de novo. See United States v. Daniells, 79 F.4th 57, 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, 994 F.3d 66, 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, 885 F.3d 27, 46 (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 18 U.S.C. § 1951(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. Id. 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, 707 F.3d 68, 74 (1st Cir. 2013)
(citation omitted); see United States v. Orlando, 819 F.3d 1016,
1022 (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, 595 F. Supp. 2d 282 (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 id. 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."
Id. at 293. 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." Id. at
294. "The plan did not . . . even suggest a likelihood that non-
participants would be present . . . ." Id. 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. Id. at
295. 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." Id. 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]." Id. 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 id. 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, 55 F.4th 12, 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, 885 F.3d at 46). 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, 361 U.S. 212 (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, 470 F.3d 33, 38 (1st Cir. 2006); see United States v.
Mubayyid, 658 F.3d 35, 49 (1st Cir. 2011); United States v.
Rodríguez-Rodríguez, 663 F.3d 53, 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, 3 F.3d 456, 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.19 539 F.3d 44, 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, 73 F.4th 24, 39 (1st Cir. 2023); United States v. Davis,
717 F.3d 28, 34 (1st Cir. 2013); Rodríguez-Rodríguez, 663 F.3d at
58; United States v. Celestin, 612 F.3d 14, 24 (1st Cir. 2010).
Yet in "every one of these cases, [we] found no constructive
amendment and thus no error."20 Brandao, 539 F.3d at 59.
Brandao considered two possible exceptions, United States
19
v. Iacaboni, 363 F.3d 1 (1st Cir. 2004), and United States v.
Santa-Manzano, 842 F.2d 1 (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 18 U.S.C. § 1956(a)(1)(A)(i), but was ordered to
forfeit certain funds on a theory of concealment money laundering,
see id. § 1956(a)(1)(B)(i). Iacaboni, 363 F.3d at 7. We agreed.
And although we labeled the situation a "per se prejudicial
'constructive amendment,'" id., 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, 17 F.4th 175 (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. Id. at 198–200, 201.
- 43 -
Our use of "prejudicial per se" language "seems to have
begun with dicta in United States v. Dunn, 758 F.2d 30, 35 (1st
Cir. 1985)." Id. 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, 413
F.2d 1061, 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, 121 U.S. 1 (1887),
a jury instruction which modifies the offense
charged in the indictment, Stirone v. United
States, 361 U.S. 212 (1960), or the admission
of evidence of an offense not charged by the
grand jury, United States v. Beeler, 587 F.2d
340 (6th Cir. 1978).
758 F.2d at 35.21
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, 595 F.3d 50, 67 (1st Cir. 2010).
- 44 -
the change is merely a matter of form." United States v. Cotton,
535 U.S. 625, 631 (2002) (quoting Russell v. United States, 369
U.S. 749, 770 (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, 582 U.S. 286, 294 (2017). See, e.g.,
Washington v. Recuenco, 548 U.S. 212, 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, 960 F.3d 922, 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, 539 F.3d at 58 (first quoting Fed. R.
Crim. P. 52(b); and then quoting United States v. Olano, 507 U.S.
725, 734 (1993)). We determined that it does not. See United
States v. Taylor, 848 F.3d 476, 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, 29 F.4th 168, 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, 556
U.S. 129, 140 (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, 919 F.3d 143, 148–49 (1st Cir.
2019); see also Price v. Georgia, 398 U.S. 323, 331 (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, 470 F.3d at 38.
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 -