Constructive Amendments to Grand Jury Criminal Indictments – United States v. Moore

black-and-white-crime-1-1306106-1280x1280A recent case out of the Fourth Circuit tells a sordid tale of murder for hire gone wrong among lovers and business partners, and raises the important question of which types of amendments to charges may constitute a violation of a defendant’s Fifth Amendment right to indictment by a grand jury.

United States v. Moore recounts the tale of four defendants:  Wilkinson, Yenawine, Latham, and Moore.  Latham, a banking executive facing possible RICO charges for his business activities, was dating Moore, who was also Latham’s assistant at the bank.  Moore’s ex-husband, Yenawine, was friends with Wilkinson.  In 2013, Latham and Moore hired Wilkinson and Yenawine to kill Latham’s wife, Nancy, whom he was in the process of divorcing and who was a possible witness in the RICO charges to be brought against him. Latham and Moore assisted Wilkinson and Yenawine in obtaining a vehicle to drive from Kentucky to South Carolina, where they obtained a “hit packet” from Moore that contained all the information necessary to carry out a murder for hire plot against Latham’s wife. While driving in Charleston, South Carolina on April 5, 2013, Wilkinson and Yenawine were stopped by police, and they admitted to being paid to kill Nancy Latham at the request of Latham and Moore. Thankfully, the murder had not yet occurred.

Latham, Moore, Wilkinson, and Yenawine were eventually indicted by a grand jury in relation to the attempted murder for hire.  Specifically, Latham and Moore were charged with two federal crimes:  (1) conspiracy to use interstate travel in the commission of murder for hire, and (2) use of interstate travel in the commission of murder for hire, both violations of 18 U.S.C. 1958(a). Latham and Moore were both ultimately convicted under the second charge.

On appeal before the Fourth Circuit, Latham and Moore argued that their Fifth Amendment right to indictment by a grand jury had been violated because the jury instructions that the trial court presented to the jury did not accurately reflect the charges on which the grand jury indicted them. Specifically, Latham and Moore argued that the judge instructed the jury that they could be convicted for the use of interstate commerce facilities in commission of a murder for hire, as well as use of interstate travel. However, the grand jury had indicted Latham and Moore only for the charge of interstate travel.

The Fourth Circuit acknowledged that the trial court judge, in reading the jury instructions to the jury, had made reference to both use of interstate commerce facilities and interstate travel. However, it declined to find that a constitutional violation occurred.  Instead, it held that potential variations on grand jury indictments, also known as impermissible constructive amendments to the indictment, must be evaluated by looking at the totality of the circumstances. An impermissible amendment occurs only if the court incorrectly broadens the possible bases of conviction after reviewing not only the jury instructions but also the arguments of the parties and any evidence presented at trial.

Here, the Fourth Circuit held that while the judge had read the instructions more broadly than considered by the grand jury, it was clear that an impermissible constructive amendment did not occur because the bulk of the jury instructions tracked the indictment, the opening and closing instructions of the court referenced only the travel charge, the parties’ arguments focused solely on the travel charge, and the evidence presented was directed toward proving the travel charge. Thus, in sum, the totality of the circumstances showed that the jury was only to consider whether it was to charge Latham and Moore under the travel provision of the statute.

United States v. Moore makes clear that small errors by a judge will not necessarily result in the overturn of a federal criminal conviction. Instead, it is important for criminal defendants to consider the strength of their appellate arguments in light of the overall evidence in the case. The West Virginia criminal defense lawyers at the Wolfe Law Firm have been serving clients throughout the state for more than 25 years and can help you consider the merit of a possible criminal appeal. Call us at 1-877-637-5756 or contact us online for a free consultation.

Related blog posts:

Interpreting the U.S. Criminal Sentencing Guidelines – United States v. Martinovich

How Conspiracy Cases Work – United States v. McGee

Appealing a Criminal Conviction in West Virginia – State v. Imoh