good morning may please the court my name is gail johnson and i represent bernard murray in this direct appeal from his criminal conviction i think i want to start today with this court's recent decision in the miller case which again the government hasn't addressed but i think requires the government to concede certain aspects of the plain error test for reversal under miller it is settled law here that when there is a constructive amendment of the indictment and the jury is allowed to convict a defendant of an offense that was not charged by the grand jury that necessarily  grand jury in the indictment the grand jury indictment charged that m b was an employee or an officer of a federal agency the jury would receive evidence that m b was actually a contractor and they were instructed that they could convict if she were assisting a b o federal employee or officer that factual difference may means that mr murray not only is there a reasonable probability that he was convicted that we would suggest obvious he was convicted under the part of the statute that was not charged by the grand jury because the part that was granted charge by the grand jury frankly there's insufficient evidence of that so this is in a way even stronger than some of this co back sane conduct by the defendant for the differences in the characterization the legal status of the victim that's the only difference between the two is clause on the fifth amendment and tell me what the difference is between a variance a constructive amendment yes understood rone i think this case is controlled by  storm you know the government tries to suggest at some point that if there's not a different statutory fed section charged you know or are instructed on then there's no problem and that's just a variance that's not true understeer own that's not true and that this court other presidents you don't there involving the importation of sand and then the jury was instructed on the exploitation of a finished product concrete for use in steel mills if a court supreme court found that that was an impermissible construct impermissible constructive amendment but how is that different than the variance i mean i always understood variance more in the concept of conspiracies where you charge one conspiracy and then the facts that come out of trials show perhaps multiple conspiracies going to the back lot of clinton that you alluding to the question is the facts are permutation in the something that was different than what was charged so theoretically the jury sitting there looking at that indictment or looking at the instructions would would be willing to convict based upon fact that it saw that really poor no relationship what the charge was i mean tell me where i'm wrong that's a least my general conception what the variance issue is the distinction on the constructive amendment front at least the clear categorical distinction is one where actually the language is different in other words the language in the instruction this case is different than the indictment i mean then it's not question of what the facts words facts are what the facts are but the jury had before it the law and the law is different the law provides that someone may be convicted of this offense if they assault either an employer or an officer of a federal agency or a person assisting but the grand jury only indicted on the first  alternative but then a trial now that and i was constructively amendment amended when evidence was presented of the second alternative namely that she was a contractor assisting a federal employee and they were instructed with the assisting language which we've got our gonzales at the d's a case or however you pronounce that i have i have i'm i'm sure you can tell me how but i'm having a hard time seeing why that case is in controlling that case doesn't answer this question and when you answer that note that miller does not even cite that case and it seems to me that we're talking about a different scenario in miller than we are in gonzales it did so with that prime your answer or insufficiency of the evidence as to the crime charged by the grand jury here by contrast as in miller there is what was a miller discussed i think it's a hotly contested evidence or dispute in our case is even stronger insufficiency of the haven't for the crime charged by the grand jury so we look at first principles with the fourth prong of the plane or a test the concern is whether it be air or seriously affect the fairness the integrity or the public reputation of these judicial proceedings what we have in mr murray's case meets that test because had the construct of the memmott not occurred had the jury been victim called it the husband instead of the why would that be an obvious error and obvious destructive of mamet's impermissible i don't know that i've seen case law so i'm not sure what about more wouldn't exactly the situation in more which is a published decision of ours in which the court specifically said not only was it not obvious here that it was an error at all and because of the ranger it had missed a dentist by the victim as the husband and it was it was a robbery of a vehicle and maybe getting the husband wife mixed up but it was the wife's vehicle there was never an issue about it it was never a dispute in our court i think it more specifically said that's permissible that's not a constructive amendment and if we said that i find it difficult to say well it prone to it's an obvious error and then you make it even it's a technical i think that gets back to the courts question earlier that i probably didn't answer well well enough in terms of the distinction between a variance and a constructive amendment a variance is permissible when there are certain minor fact that just got were got wrong and that's what happened in those cases what happened here was the grand jury charged one aspect of the statute the law and mr murray was clearly convicted under a different one mr murray was convicted of an offense not charged in the indictment and we don't say that broadly just like oh it was m b versus t c no mr murray was convicted of assaulting someone who is assisting in the language of the statute  that broke it down as to want to in terms of error possible ways and means to commit this crime and and all and the jury would return an indictment on the first one ok and then at trial all we heard about was the second one and then you received an instruction on the second one that in your view is a constructive amendment which is different than a situation where the evidence at trial and the instruction both went to that charge and seems to me that that is the distinction with a difference i mean i have a hard time seeing how gonzales not map onto this case precisely because what you have here is a related charges it is you know you can take as a given here for purposes of discussion that is a different charge i mean it's a different means any way of committing this crime but that doesn't mean or element whichever one it's either way the point is it's different i'll give you that but the point is that's not what was going on miller i mean you look at the what miller what the court what the government argued and miller is essentially the evidence is undisputed of the charge in question and that's that those are two different venues i concur that the language is different what i am suggesting your honor is that gonzales adisa does not address the scenario that was present in miller and his presence here but what i'm saying is this in our you difference between those two in other words yes but why is related charge and then the question was whether the evidence was incontrovertibly as relates to the related charge so that seems to me is this case as opposed to miller where what we're fighting about in even if i can seat your point that there was no evidence about the employee status as it relates to the victim here even if i concede that point that may be miller but that's not the case we're talking about a related charge is there evidence that's been controversial as to the related chart isn't simply science i understand what you're saying but with judge holmes the same one seems perfectly correct and he is the reason there isn't the discussion because that was irrelevant it said we will firm this because it's a closely related charge one that the jury was instructed on and there was overwhelming evidence of you and that's why whether there was evidence of the crime charged by big green jury didn't matter the only reason they looked at the charge of the grand jury was to see that it was closely related to the charge that the jury was instructed on i'll give you enough time to answer i would say that it didn't matter i would say that it was not at issue in that case let me try to say it in a different way in scenarios perhaps such as in gonzales diesel where there's no evidence or dispute as to the charge crime by the child crime charge by the grand jury nor by that one constructively amended there is no problem under the may please the court karl socrates and the united states before even get to the substance of this constructive amendment argument the defendant invited and therefore waived the alleged constructive amendment by affirmatively requesting the jury did the defendant propose it in the cornelius case that we cited in our brain and the can and in cornelia's the defendant indorse the substance of that instruction that's how we described it in the general case that you included in your supplemental authority i don't see anything in this case with the printed indorse the substance of it in fact the whole conversation at that time was whether the jury should instruct on that status i mean whether the courts instruct on that status or whether it should go to the  jury i mean that's an entirely different concept and in context and then the and i think most defense lawyers would say give it to the jerk and they did do exactly that yeah i would agree that this this issue certainly was not before the  direction we said that the defendant thought strategically about that definition below and then on appeal took an opposite view from what he did below were you get anywhere close to that here i would think combination with corners in cornell as you watch you have less than here because in cornelius all you had was that there was a question from the jury and in answering the question to the jury the defendant said court i would like you to just read your instruction of the substance of the instruction so all this make one point and then i'll move on to the substance substance of the argument the way i read it is a jeroboam corniest you two different things jared says you don't have to recognise this particular legal issue in order for there to be invited there cornelius says you don't have to actually go to the court and propose this instruction to have invited there what you have is you have the defendant saying that they definitely wanted that instruction the court gives them what they said they wanted they can't then later argue that it was error for the court to counsel was offered two alternatives if you argued alternative one if you're saying he preferred you to i think we have a very good right to bear issue here but that's not what's going on here i would agree this is not specifically said the calculation of the guideline range is correct and the panel unanimously hild that that did not invite the error when the district judge calculated the guidelines differently the way that i would distinguish the bia tours as well as some of the other waiver cases that do not talk about it in terms of invited there is that although invited there is a form of waiver i think there is a different standard of intent required when you're using x yes and so agreement will judge mcconnell specifically rejected that didn't judge mcconnell specifically said the problem in applying invited here in that context is that invited here just as you're pointing out is a species of waiver and it requires the intentional link which would have a known riot and there was no reason to infer that defense counsel knew of the lightning challenge that he could have made to the probation officers calculation of the guideline range but the difference i see is that it is to be a tour as there wasn't a request for a particular action here or there as i would say in jericho the requirement of the intentional relinquishment of a right i think jared says that is that is not required invited error because there was not an intentional relinquishment in that case of the specific issue on the substance of the constructive amendment i'd like to first start by addressing this premise that there's even a discrepancy at all because what the indictment says is that m b u was an officer an employee as designated in section eleven fourteen section eleven fourteen is titled protection of officers and employees and then it goes on to say that adams and that or it doesn't say this explicitly but i think what it makes clear is as used in that statute the phrase officers than employee includes people who are directly employed by the united states government and people who are assisting  employees of the united states government so when the indictment uses that phrase office or an employee it should be read the way that phrase is used in section eleven fourteen which includes any person assisting a federal officer well i don't know how that makes sense to me hundred sixty before that point there were certain there was a much longer list but there were certain places where it was just an officer an employee and even back then court said a federal contractor falls within that definition and the reason it said is because the purpose of that statute is that it protects federal functions not federal employees and so i think what we have here is the statute does go on to explain what you know to explain different classes of people that are designated but overall what i think that the indictment insane and particularly when we're here under plain error and there has to be a that an understanding plainly there was a difference that the indictment should be read when it says officer an employee as designated eleven fourteen us weapons which is that he was convicted of and that statute doesn't say anything about officer employed person assist in what it says is a person designated in section eleven fourteen in the text of eleven fourteen makes it distinction there i don't believe that there's a distinction i don't believe there's a legal distinction but you know i think that it does do you think congress i don't believe that congress thought that there was that distinction i understand the point that you're making wonderstone that the title is not dispositive but i think when we combine the title with what courts did before that language was added and then remember that we're under the plane error standard and there has to be through the district court a plane but it has to be plain to the district court that there is a different in other words that the indictment does not say or the indictment does not mean a person to sustain all of that put together i don't think that we get over those first two prongs the other thing i want to point out is that in cases where this court has found constructive amendment it's began it's b it's ben because of the likelihood that the jury convicted the defendant based on entirely different app so the miller case for example we were dealing with an entirely different uncharged false statement in the far case we were dealing with a different tax that was a bait and one that the court in the far case actually specifically said had been determined to be legally distinct  roan it was interference with the shipment of a different product and so what miller says miller actually this is a quote from miller the question is whether there's a possibility that the defendant was convicted on a different set of facts than those in the indictment here we don't have that the defendant was convicted based on the same set of facts the same strong set of facts that are in the indictment well the indictment on its face it's not the same set of facts because the defendant on the face of the indictment speaking about an officer an employee and so i mean the fact that in substance he did the same thing i'm not that argument to me was not compelling would difference to make i mean if the if the jury received the law in the  last is what you're supposed to do aren't we supposed to hold the jury to what the law is that they were supposed to i think that what we need for a constructive amendment is either a different set of facts which is what miller said or a different legal  agreement if if if we start with the premise that ms johnson is stored within that is that the charge has to be circumscribed to what is tailored through the grand jury then it really doesn't matter if a separate offense could have been charged in convicted for someone that had good could have otherwise called within the scope of import i think the closest that i get an analogy on that point is that you know case the government in the indictment said it was a insured by the f d a i see it turned out that it was insured by the federal savings and loan insurance agency in the courts that that that did not create a constructive amendment i think that that's a close an i would like to i would like to address the fourth prong the planer because i do think that consolidates as controlling i would like to address specifically the one point that the defendant keeps going back to which is this point that there was no question of sufficiency in the volatile days and i'd like to point the court footnote to this the data where the court actually says it doesn't decide the issue but it whether they're in it and the quote is basically we have doubts about the assertion that there's even sufficient suggests that the defendant probably could not have been convicted of the defense of the fence as it was charged in the indictment and so we really have a very similar situation here and in my view really is directly on point for the reasons that judge holmes was sane which is we have two alternatives in the statute and this is assuming the defendant's right all the way up to this point we i would quibble with with points leading up to here but if we get to this point there are two alternatives in the statute the indictment charges one the evidence and the instruction support a conviction on the other and then the court says the fourth prong is not satisfied because the evidence on that one charge alternative is overwhelming and that the way i read the case law is that the difference between a variance and a constructive amendment is almost one of the gree i think that can see a variance is a difference in facts between what's and then die it meant a constructive amendment that let me a constructive amendment means that the defendant is convicted of a different effects factually or legally than what's charged in the indictment a variance is something some difference between the indictment and conviction that falls short of that that's that's the way that i've read those cases what's court has any other questions the government question the defense convictions be affirmed thank you thank you i know i have limited time i do just want to direct the court's attention to miller's discussion of the third and fourth pranks together at twelve thirty seven the question on the third prong is that there is if there's a reasonable probability that absent the error the result of the proceeding would have been different that's what we have here and then they go on to say as we noted in gonzales where where constitutional error meets the third prong it ordinarily means the fourth problem as well because we have a situation here where seems to be saying that the the panel had doubt about whether there was sufficient evidence to convict on the crime charged by the granger i'll confess i hadn't noted that language before but it is six words to that that was just that was irrelevant you said yes it was relevant because there are lots of because there was no question that there was sufficient evidence for the crime charged by the grand jury that seems to this seems to i agree that the dict is inconsistent but i think it's a passing statement if the court looks at brown four hundred f third at twelve fifty four the language there was emphasized over and over again to look at the chart evidence on the charge crime thank you thank you