PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4645

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WENDY ANNETTE MOORE,

Defendant - Appellant.

No. 14-4646

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER AUSTIN LATHAM,

Defendant - Appellant.

Appeals from the United States District Court for the District 

of South Carolina, at Charleston. Richard M. Gergel, District 

Judge. (2:13-cr-00330-RMG-1; 2:13-cr-00330-RMG-5)

Argued: December 10, 2015 Decided: January 20, 2016 

Before TRAXLER, Chief Judge, and MOTZ and HARRIS, Circuit 

Judges.
2

Affirmed by published opinion. Judge Harris wrote the opinion, 

in which Chief Judge Traxler and Judge Motz joined.

ARGUED: Andrew Mackenzie, BARRETT-MACKENZIE, LLC, Greenville, 

South Carolina; James Arthur Brown, Jr., LAW OFFICES OF JIM 

BROWN, PA, Beaufort, South Carolina, for Appellants. Rhett 

DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South 

Carolina, for Appellee. ON BRIEF: William N. Nettles, United 

States Attorney, Columbia, South Carolina, Nathan S. Williams, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Charleston, South Carolina, for Appellee.
3

PAMELA HARRIS, Circuit Judge:

A jury convicted Wendy Annette Moore and Christopher Austin 

Latham of participating in a murder-for-hire plot targeting 

Latham’s estranged wife. In this consolidated appeal, Moore and 

Latham challenge their convictions, arguing that the district 

court constructively amended the indictment through erroneous 

jury instructions and improperly admitted hearsay and character 

evidence. We disagree, and affirm the convictions.

I.

A.

Viewed in the light most favorable to the government, see

United States v. Lentz, 524 F.3d 501, 507 (4th Cir. 2008), the 

evidence at trial established the following. On April 5, 2013, 

police officers stopped Aaron Wilkinson as he drove through the 

city of Charleston, South Carolina. Wilkinson revealed to the 

police that he and his former prison cellmate, Samuel Yenawine,

were involved in a murder-for-hire plot targeting Nancy Latham. 

The planned murder had not yet occurred.

Investigators later learned that appellants Christopher 

Latham and Wendy Moore also were involved in the plot. 

Christopher Latham, a banking executive in Charleston, was in 

the process of divorcing the targeted victim, Nancy Latham, now 

known as Nancy Cannon. Moore was Latham’s assistant at the 
4

bank, as well as his girlfriend. Moore is also the ex-wife of 

Samuel Yenawine. 

Wilkinson explained to the police that a few days before 

the April 5 stop, Yenawine had suggested to him that they travel 

together from Louisville, Kentucky to Nashville, Tennessee to 

buy drugs. Wilkinson agreed, and Yenawine’s girlfriend, Rachel 

Palmer, rented a car for them – the car that Wilkinson was 

driving when the police stopped him. Once the two men were on 

the road, Yenawine told Wilkinson that they actually were headed 

to South Carolina, where Yenawine planned to kill a person he 

described as a witness in a RICO case. 

After arriving in Charleston, Yenawine purchased a pay-asyou-go cell phone and Wilkinson heard him use it to speak to a 

woman. Yenawine told Wilkinson that the woman would meet them 

at a hotel in North Charleston and that she would be driving a 

white 2001 Dodge Durango. Appellant Moore, who drove a white 

Dodge Durango at the time, arrived at the hotel, and Wilkinson 

observed Yenawine meet with her. Moore rented a room for 

Yenawine and Wilkinson, and Yenawine returned from the meeting 

with $5,000 cash and other items. Yenawine gave Wilkinson 

$2,500 for himself and another $2,000 to wire to Rachel Palmer 

in Kentucky. 

Wilkinson observed Yenawine meet with Moore a second time 

in a different location, returning this time with a manila 
5

envelope. Investigators determined that the envelope contained 

a “hit packet” with information related to the plot to murder 

Nancy Cannon, including printed maps with handwritten notes; 

personal information about Cannon, her family, her schedule, her 

vehicle, and her daily routine; and photographs of Cannon, her 

residence, and one of her daughters. 

Investigators later linked the contents of the hit packet 

to appellants Latham and Moore. The hit packet’s photograph of 

Cannon’s house, for instance, was found on Latham’s personal 

cell phone. Handwriting analysis revealed that notes on some of 

the materials were written by Moore. And the government’s 

evidence connected other contents of the hit packet to activity

on Latham’s phone and the appellants’ office computers and 

individual office printers.

Investigators also uncovered independent evidence –

including cell phone tower evidence and bank records – that 

further corroborated Wilkinson’s story. And the government’s 

evidence suggested that Latham and his parents had provided 

funds to pay Moore’s lawyers, and that Moore and her parents had 

provided funds to pay Yenawine’s lawyer. 

Moore, Yenawine, and Wilkinson were arrested in April 2013 

and charged with crimes related to the murder-for-hire plot. In 

June 2013, Yenawine committed suicide in jail. 
6

B.

On August 6, 2013, a grand jury returned a superseding 

indictment against appellants Moore and Latham, as well as 

Wilkinson and Palmer. In the two counts principally at issue 

here, the indictment charged Moore and Latham with federal 

crimes involving murder for hire: Count One charged conspiracy 

to use interstate commerce facilities in the commission of 

murder for hire, and Count Three, the use of interstate commerce 

facilities in the commission of murder for hire, both in 

violation of 18 U.S.C. § 1958(a). Moore alone was charged in 

Count Two with solicitation of murder for hire in violation of 

18 U.S.C. §§ 373 and 1958, and both appellants were charged in 

Count Four with illegal firearm possession under 18 U.S.C. 

§ 924(c)(1) and (2). 

Moore and Latham were tried before a jury in the District 

of South Carolina in February of 2014.1 The jury convicted Moore 

on all four counts against her. Latham was convicted only on 

Count Three, with the jury unable to agree on Counts One and 

Four. The district court declared a mistrial on Counts One and 

Four as to Latham, and the government later dismissed those 

charges. 

 1 Wilkinson pled guilty and Palmer entered a pretrial 

diversion program.
7

Latham was sentenced to 120 months in prison, and Moore was 

sentenced to 180 months. The district court denied appellants’ 

post-trial motions, and this timely appeal followed.

II.

Moore and Latham’s first contention is that their Fifth 

Amendment right to indictment by a grand jury was violated when 

the district court, through its instructions to the jury, 

constructively amended Counts One and Three of the indictment

against them. According to Moore and Latham, those instructions 

allowed the jury to convict them under one provision of 

§ 1958(a), which prohibits the use of a “facility” of interstate 

commerce in connection with a murder for hire, while they were 

charged only under another, covering “travel” in interstate 

commerce. For the reasons discussed below, we disagree.

A.

We begin with the background principles that govern a claim 

of constructive amendment. The Fifth Amendment of the United 

States Constitution provides that “[n]o person shall be held to 

answer for a capital, or otherwise infamous crime, unless on a 

presentment or indictment of a Grand Jury.” And it is “the 

exclusive province of the grand jury” to alter or broaden the 

charges set out in an indictment. United States v. Whitfield, 

695 F.3d 288, 309 (4th Cir. 2012). Accordingly, it is well 
8

established that “a court cannot permit a defendant to be tried 

on charges that are not made in the indictment against him.” 

United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994) (en 

banc) (quoting Stirone v. United States, 361 U.S. 212, 217 

(1960)).

An impermissible constructive amendment – also referred to 

as a “fatal variance” – occurs when the government, usually 

through its presentation of evidence or argument, or the 

district court, usually through its jury instructions, “broadens 

the possible bases for conviction beyond those presented by the 

grand jury.” Floresca, 38 F.3d at 710; see also United States 

v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). The key inquiry 

is whether a defendant has been tried on charges other than 

those listed in the indictment. United States v. Allmendinger, 

706 F.3d 330, 339 (4th Cir. 2013).

Of particular importance here, when a constructive 

amendment claim rests on allegedly erroneous jury instructions, 

a reviewing court is to consider the totality of the 

circumstances – including not only the instructions and the 

indictment but also the arguments of the parties and the 

evidence presented at trial – to determine whether a jury could 

have “reasonably interpreted” the challenged instructions as 

“license to convict” on an unindicted charge. Lentz, 524 F.3d 

at 514-15. If not – if a reasonable jury, in light of the full 
9

context, would not have thought that it was permitted to convict 

on a ground not included in the indictment – then no 

constructive amendment has occurred. Id. at 515-16. Whether, 

under that standard, appellants’ indictment was constructively 

amended is a question of law that we review de novo. See

Whitfield, 695 F.3d at 306.

B.

To support federal criminal liability, 18 U.S.C. § 1958(a) 

enumerates two distinct and alternative jurisdictional elements,

or links to interstate commerce. Under the “travel prong,” a 

defendant may be convicted if he or she “travels in or causes 

another . . . to travel in interstate or foreign commerce” in 

connection with a murder for hire. Or, alternatively, a 

defendant may be convicted under the “facilities prong” if he or 

she “uses or causes another . . . to use the mail or any 

facility of interstate or foreign commerce.” 18 U.S.C. 

§ 1958(a). Under either prong, the government must prove that 

the defendant’s conduct was undertaken “with intent that a 

murder be committed” for compensation. Id.

In this case, the government charged Moore and Latham only 

under the travel prong of § 1958(a). Count One of the 

indictment alleged that Moore and Latham “did knowingly 

conspire, confederate, agree and have a tacit understanding with 

each other and with others . . . to travel in, and cause another 
10

to travel in, interstate commerce, with the intent that a murder 

be committed” for compensation. J.A. 41. Likewise, Count Three

charged that the appellants, “as principals, aiders and 

abettors, and as co-participants in jointly undertaken criminal 

activity, unlawfully and willfully traveled in and caused 

another to travel in interstate and foreign commerce, to wit, 

travel between Kentucky and South Carolina, with intent that a 

murder be committed” for compensation. J.A. 42. 

In its closing instructions, the district court first read 

the indictment to the jury, advising that the appellants were 

charged under the travel prong in Counts One and Three. But –

and here is where the question in this case arises – as it went 

on to describe § 1958(a), the court made two references to the 

uncharged facilities prong. Specifically, the court stated:

To prove a violation of 18 U.S.C. Section 1958(a), the 

Government must prove a defendant, one, traveled or 

caused another to travel in interstate commerce [or] 

use[d], or cause[d] another person to use the mail or 

any facility in interstate commerce; second, with the 

intent that a murder be committed; third, as 

consideration for the receipt or promise to pay 

anything of pecuniary value.

J.A. 1670-71 (emphasis added); see also J.A. 1672-73. The court 

also provided the jurors a written copy of its instructions, 

including the two references to the facilities prong. No party 

objected.
11

Latham and Moore both filed post-trial motions in which 

they argued for the first time that the district court had 

constructively amended the indictment by mentioning the 

facilities prong in its jury instructions. The district court 

denied the motions, finding that no constructive amendment had 

occurred. 

C.

Latham and Moore again urge that the district court

constructively amended Counts One and Three of the indictment 

against them by adverting to the facilities prong of § 1958(a) 

in its instructions. We acknowledge that in some cases, 

instructing a jury on the facilities prong when it is not 

charged in an indictment could constitute a constructive 

amendment. But under the totality of the circumstances here, 

including the jury instructions, the verdict form provided to 

the jury, the arguments of the parties, and the evidence, see

Lentz, 524 F.3d at 514–15, we find that the district court’s two 

references to the “use of facilities” did not constitute a 

constructive amendment. 

First, the bulk of the jury instructions properly tracked 

the indictment and omitted any mention of the facilities prong. 

The court’s opening instructions to the jury described only 

travel. In its closing instructions, the court read aloud the 

critical portions of the indictment, which charged only travel, 
12

and it expressly cautioned that the appellants were “not on 

trial for any act or crime not contained in the indictment,”

J.A. 1665. The court provided a written copy of its accurate 

summary of the indictment to the jurors, as well as a verdict 

form that correctly set forth the charges in the indictment. 

And the court called special attention to the verdict form, 

instructing the jury to use the verdict form, along with the 

jury charges, “in a methodical way” to reach its decision. J.A. 

1680.

Second, the parties’ arguments focused solely on the travel 

prong. Neither the government nor counsel for Moore ever 

mentioned “use of facilities” of interstate commerce in opening 

or closing arguments. The only reference to “facilitating 

interstate commerce” came from counsel for Latham who, in his 

closing argument, used that term – but only to describe 

Wilkinson’s travel across state lines. J.A. 1618. And in its 

closing argument, the government made clear that it was relying 

on the travel prong: “[W]hat the law requires is travel in 

interstate commerce, and the judge will tell you driving from 

Kentucky down to South Carolina covers your interstate commerce. 

Sounds like a strange term, but really is crossing state lines.” 

J.A. 1554; see also J.A. 1555 (government explaining that 

“whether you’re the one that traveled or whether you assist the 

people that are traveling . . . you’re equally responsible”). 
13

It is true, as the government acknowledges, that the 

evidence at trial involved “extensive testimony regarding items

that could be considered facilities of interstate commerce –

that is, phones and computers.” Response Br. at 35 (emphasis in 

original). But the appellants’ use of cell phones and computers 

to communicate about the plot against Nancy Cannon and to 

prepare the hit packet was presented as substantive evidence 

that Latham and Moore were involved in the murder-for-hire plan, 

not in a way that tied it to the facilities prong of § 1958(a). 

Indeed, the term “facilities of interstate commerce” was never 

defined for the jury, and the government never suggested that 

mere use of technology, independent of its effect on interstate 

travel, was a basis for convicting the appellants. 

In sum, when the jury instructions, the verdict form, and 

the arguments and evidence presented at trial are viewed in 

their totality, we find that the jury could not reasonably have

concluded that it was free to convict the appellants under the 

uncharged, undefined facilities prong of the murder-for-hire 

statute. See Lentz, 524 F.3d at 514–15; see also Allmendinger, 

706 F.3d at 339. Accordingly, we hold that the jury 

instructions did not constructively amend the indictment in this 

case.
14

III.

We can dispose of the appellants’ evidentiary challenges 

more briefly. First, Moore and Latham assert that the district 

court improperly admitted out-of-court statements made by Samuel 

Yenawine. And second, they argue that the district court 

erroneously admitted “character evidence” as to appellant Moore. 

We find no fault with the district court’s evidentiary rulings. 

A.

At trial, the government called Tyler Lee Tudor to testify 

about statements Yenawine had made to him before committing 

suicide. After Yenawine was arrested in April of 2013, Tudor 

and Yenawine became cellmates and friends in jail. Tudor 

testified that he and Yenawine had discussed Yenawine’s 

involvement in a murder-for-hire plot targeting someone 

affiliated with the South Carolina Lottery – as Nancy Cannon was 

at the time, serving on the South Carolina Lottery Commission. 

According to Tudor, Yenawine also had stated that the operation 

involved his ex-wife and a banker. 

Moore filed a motion in limine seeking to exclude 

Yenawine’s statements. The district court denied the motion, 

holding that the statements were admissible under the “statement 

against interest” exception to the rule against hearsay 

evidence. See Fed. R. Evid. 804(b)(3). We review the district 
15

court’s admission of this evidence for abuse of discretion. 

United States v. Lighty, 616 F.3d 321, 351 (4th Cir. 2010). 

“[A] statement made by an unavailable declarant is 

admissible if it is one that ‘a reasonable person in the 

declarant’s position would have made only if the person believed 

it to be true’” because it “‘had so great a tendency to . . . 

expose the declarant to civil or criminal liability.’” United 

States v. Dargan, 738 F.3d 643, 649 (4th Cir. 2013) (quoting 

Fed. R. Evid. 804(b)(3)(A)). The statement must be “supported 

by corroborating circumstances that clearly indicate its 

trustworthiness.” Fed. R. Evid. 804(b)(3)(B). 

Moore and Latham contend that the district court abused its 

discretion in admitting Yenawine’s statements under the 

“trustworthiness” portion of this standard. According to the 

appellants, Yenawine’s statements were inherently unreliable, 

given that Yenawine might have thought he could “cut a deal to 

tell his story” and Tudor may have hoped that his testimony

would result in leniency in his own case. Opening Br. at 44.

But as the district court explained, Yenawine had no reason to 

shade the story he told a cellmate, and the appellants cannot 

establish that the district court abused its discretion in 

finding sufficient corroboration of Yenawine’s statements. 

Moore and Latham’s suggestion that the admission of 

Yenawine’s statements implicated the Sixth Amendment is likewise 
16

without merit. Only “testimonial” statements are excludable 

under the Sixth Amendment’s Confrontation Clause, Dargan, 738 

F.3d at 650, and we have held that statements by one prisoner to 

another are “clearly nontestimonial.” Id. at 650-51 (quoting 

Davis v. Washington, 547 U.S. 813, 825 (2006)). The Sixth 

Amendment adds nothing to the appellants’ claim, and we find no 

error in the admission of Yenawine’s out-of-court statements. 

B.

Moore and Latham’s final contention is that the district 

court admitted certain “character evidence” in violation of 

Federal Rule of Evidence 404, which prohibits use of character 

evidence to prove a propensity to engage in particular conduct.2 

Because the appellants did not raise that objection at trial, we 

review it only for plain error. United States v. Keita, 742 

F.3d 184, 189 (4th Cir. 2014). Thus, we may reverse only on a 

finding that (1) there was “error,” (2) that was “plain,”

(3) that “affect[ed] substantial rights,” and (4) that

“seriously affect[ed] the fairness, integrity, or public 

reputation of judicial proceedings.” Johnson v. United States, 

520 U.S. 461, 467 (1997) (quoting United States v. Olano, 507 

U.S. 725, 732 (1993)). 

 2 Specifically, Rule 404(a)(1) provides that “[e]vidence of 

a person’s character or character trait is not admissible to 

prove that on a particular occasion the person acted in 

accordance with the character or trait.” 
17

The testimony to which Moore and Latham object primarily 

related to Yenawine’s prior conviction for arson, his alleged

involvement in a murder, and Moore’s role as a witness in the 

related proceedings. In addition, they contend that the 

government improperly alluded to the crime of money laundering 

when eliciting testimony related to Latham’s payment of Moore’s 

attorney’s fees, and Moore’s parents’ payment of Yenawine’s 

attorney’s fees. 

Moore and Latham have not established that any of the 

testimony to which they object was admitted in “error,” let 

alone “plain error.” Indeed, some of the testimony was elicited 

by the appellants themselves, through counsel. Moreover, the 

record reflects that the district court required the government 

to correct any misperceptions engendered by its evidence 

relating to Yenawine’s past and the money laundering comment. 

So even assuming, arguendo, the existence of plain error, we 

could not find the “serious[] [e]ffect[]” on the “fairness, 

integrity, or public reputation” of judicial proceedings 

required for reversal under plain error review. See Johnson, 

520 U.S. at 467; Olano, 507 U.S. at 732.

IV.

For the foregoing reasons, the appellants’ convictions are

AFFIRMED.