United States v. Whitfield, No. 10-5217
Decided: August 22, 2012
Defendant Larry Whitfield appealed his convictions and sentence arising from his role in a failed attempt to rob a bank and a “mid-escape home intrusion” that resulted in the death of an elderly woman who resided at the home. While Whitfield presented four bases for his appeal, the Fourth Circuit found only one to have merit – the district court’s error in instructing the jury on an offense not charged in Whitfield’s indictment. On this basis, the court vacated Whitfield’s conviction and mandatory life sentence and remanded the case for amendment of the judgment and resentencing.
The proceedings against Whitfield began when a grand jury returned a four-count indictment against Whitfield and his accomplice in an attempted bank robbery. Count Four of the indictment charged Whitfield with violating 18 U.S.C. § 2113(e). Notably, this statute encompasses three alternative offenses, but Count Four alleged only two of the three alternative offenses. The offense not alleged, the “death results offense,” formed the basis of the controversy surrounding the district court’s error.
While the death results offense was not included in the grand jury’s indictment, the district court nonetheless instructed the jury on this offense. Whitfield repeatedly objected to the inclusion of this offense, and the district court overruled his objections. Ultimately, the district court entered judgment against Whitfield, finding him guilty on Count Four and sentencing him based on the death results offense.
On appeal, the Fourth Circuit considered Whitfield’s claim “that his Fifth Amendment right to be indicted by a grand jury was abridged because he was convicted of an offense no charged in Count Four – the death results offense.” The court concluded that the district court “constructively amended” Count Four when it instructed the jury on the uncharged death results offense. Thus, because the court noted that a constructive amendment constitutes a fatal error and is reversible per se, it vacated Whitfield’s conviction of the death results offense and its resulting mandatory life sentence. In reaching this decision, the court discussed the distinction between a constructive amendment and an indictment error and held that the district court’s “error arose not from the indictment’s omission of an element of a charged offense [i.e, an indictment error] but from the district court’s instructions on an element of an uncharged offense – the death results offense – [i.e., a constructive amendment] on which Whitfield ‘as ultimately convicted and sentenced.’”
– Allison Hite