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RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 16a0040p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

JACKIE MIZE (13-6560); KELVIN MIZE (13-6558); 

JAMES MIZE (13-6559), 

Defendants-Appellants. 

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Nos. 13-6558/6559/6560 

Appeal from the United States District Court 

for the Eastern District of Tennessee at Knoxville. 

No. 3:12-cr-00137—Thomas A. Varlan, Chief District Judge. 

Argued: June 12, 2015 

Decided and Filed: February 18, 2016 

Before: KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.

_________________ 

COUNSEL 

ARGUED: Michael B. Menefee, MENEFEE & BROWN, P.C., Knoxville, Tennessee, for 

Appellant in 13-6558. David C. Jennings, UNITED STATES ATTORNEY’S OFFICE, 

Knoxville, Tennessee, for Appellee. ON BRIEF: Michael B. Menefee, MENEFEE & 

BROWN, P.C., Knoxville, Tennessee, for Appellant in 13-6558. Gary W. Lanker, LAW 

OFFICE OF GARY W. LANKER, Memphis, Tennessee, for Appellant in 13-6559. Russell T. 

Greene, Knoxville, Tennessee, for Appellant in 13-6560. David C. Jennings, UNITED STATES 

ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. 

 CLAY, J., delivered the opinion of the court in which MARBLEY, D.J., joined. KEITH, 

J. (pp. 13–19), delivered a separate dissenting opinion. 

 

The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting 

by designation. 

>
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 2 

_________________ 

OPINION 

_________________ 

CLAY, Circuit Judge. Kelvin Mize, James Mize, and Jackie Mize (collectively 

“Defendants”) were convicted, following a jury trial, of conspiracy to distribute and possession 

with intent to distribute oxycodone in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C), and 

conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 

(a)(1)(B)(i), and 1956(h). Those charges arose from the Defendants’ involvement in a 

prescription pill conspiracy organized by Jackie Mize (the “Mize conspiracy”), the father of 

Kelvin and James. The Mize conspiracy operated similarly to a separate conspiracy organized 

by Kevin Bussell (the “Bussell conspiracy”). Because we find a prejudicial variance between the 

charges in the indictment and the proof offered at trial, we REVERSE and VACATE all three 

convictions and REMAND for a new trial. 

I.

BACKGROUND 

 To explain how the Mize conspiracy began and operated, the government at trial 

presented evidence about the separate Bussell conspiracy. The Bussell conspiracy operated as 

follows: groups of individuals from Tennessee, many of whom were drug addicts, would travel 

to doctors’ offices and pain clinics in Florida, visiting several doctors and pain clinicians at a 

time. Kevin Bussell,1

 the conspiracy’s ringleader, paid for their travel expenses, including hotel 

costs, and even provided them with drugs. These “doctor shoppers” would present false reports 

of pain to examining doctors in order to obtain prescription medication pills—mainly opiates and 

oxycodone. They would then bring those pills back to Tennessee, keep half of them, and give 

the other half to Bussell, who would sell his share for a profit. 

 The Bussell conspiracy was formed in 2009 when Bussell assembled a group of people to 

travel from Tennessee to Florida and obtain prescription medication pills. Bussell’s first group 

 1

Kevin Bussell was sometimes referred to during trial as “Trent Bussell.” 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 3 

of shoppers consisted of three people, one of whom was James Mize. But because James had to 

wait six months before he could refill his prescription, he did not accompany Bussell on the 

second trip to Florida. Instead, the trip was made by James’ brother, Kelvin Mize. 

 Eventually, Bussell started doctor shopping—i.e., his doctor shoppers would visit 

multiple doctors in order to obtain multiple controlled substance prescriptions. This also allowed 

Bussell’s doctor shoppers to circumvent Florida’s six-month waiting time for filling new 

prescriptions. Because of the doctor shopping scheme, Bussell increased the number of shoppers 

he took on each trip to Florida. At its peak, the Bussell conspiracy sent forty people to Florida at 

a time, each of whom visited anywhere from two to five doctors per trip. 

 Both James and Kelvin went to Florida with Bussell as doctor shoppers. Jackie, on the 

other hand, was not one of Bussell’s doctor shoppers. Instead, Jackie asked Bussell to take him 

on a trip to Florida to learn how the operation worked. Jackie accompanied Bussell on his next 

trip and Bussell showed him how the operation worked. But because Jackie was not one of 

Bussell’s doctor shoppers, he paid for his own trip expenses. 

 After seeing Bussell and his shoppers in action, Jackie assembled his own group to travel 

to Florida and essentially do the same thing—i.e., obtain prescription pills for opiates and 

oxycodone and return to Tennessee to sell them on the black market. Jackie’s group of doctor 

shoppers included Kelvin and his ex-wife Donna Webb, James, and Jackie’s two other sons, 

Jonathan and Ryan. 

 The conspiracy organized by Jackie, the Mize conspiracy, would eventually grow to ten 

doctor shoppers, and did in fact operate just like the Bussell conspiracy. Upon returning from 

Florida, Jackie’s doctor shoppers gave him half of their prescription pills. Either Jackie himself 

or Kelvin would then sell those pills for money in Tennessee. For example, Crystal Mason, one 

of Bussell’s doctor shoppers, testified that she bought pills from Kelvin. On the other hand, 

Johnny Harvey, another one of Bussell’s doctor shoppers, testified that he bought pills from 

Jackie. James, for his part, was mainly a drug user and doctor shopper—he did not sell very 

many pills. 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 4 

 According to the testimony at trial, Florida doctors and pharmacists started to adopt more 

stringent screening measures for prescription medication. One such measure was that clinics 

would not see patients, and pharmacists would not fill a prescription, absent proof of a valid 

Florida driver’s license. Bussell responded by leasing residential property in Florida, which he 

used to establish residency in Florida for his doctor shoppers. This had the added benefit of 

housing his doctor shoppers when they travelled to Florida, thus eliminating hotel costs. Soon 

after Bussell entered into his lease, Jackie followed suit, leasing his own Florida property for 

purposes of establishing residency in Florida for his doctor shoppers. 

 In November 2010, law enforcement officers executed search warrants at both Bussell’s 

rental houses in Florida and at Jackie’s farmhouse in Harrogate, Tennessee. At trial, the items 

seized at Jackie’s residence were admitted into evidence. Those items included prescription pill 

bottles for oxycodone in Jackie’s name that had been filled at a pharmacy in Florida, and a folder 

containing several pages of the names and addresses of pain management clinics in Florida. Law 

enforcement officers also found a printout of Kelvin’s patient drug history, which showed 

payment of $1,798.80 for 80 milligrams of oxycodone, and various pieces of notebook paper that 

contained handwritten notations about several kinds of drugs. There were handwritten notes 

about “TP,” which was a reference to Xanax pills, and also about “30s,” which were references 

to 30-milligram Roxycodone pills. One of those notes read: “I sold ten TPs plus three 30s. 

I sold one 30.” (R. 115, Jury Trial Transcript, Volume 1, PageID# 468.) Another note read: 

“I paid dad 550 more dollars.” (Id.) 

 Following the government’s case-in-chief during the Mize conspiracy trial, Defendants 

moved for acquittal under Rule 29 of the Federal Rules of Criminal Procedure, arguing, among 

other things, that the government had not presented any physical evidence of pills or large 

amounts of cash. Kelvin also argued that the government improperly presented evidence about 

the separate Bussell conspiracy in an attempt to prove that he and James and Jackie were 

involved in a much larger drug-trafficking conspiracy. The district court denied Defendants’ 

motions for acquittal. At the close of evidence, a jury convicted Defendants of both counts. 

 Over Defendants’ objections, the district court adopted the presentence investigation 

report’s findings with respect to the amount-of-loss and drug quantities attributable to 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 5 

Defendants. The court sentenced both Kelvin and Jackie to 360 months’ imprisonment and 

sentenced James to 300 months’ imprisonment. This appeal then followed. We discuss 

additional facts as necessary below. 

II.

DISCUSSION 

 Defendants present three issues on appeal. First, Kelvin argues constructive amendment 

of the indictment and prejudicial variance in the proofs. He argues that the government’s 

presentation of evidence about the separate Bussell conspiracy effectively amended the 

indictment, putting him on trial for a crime for which he was never formally charged. Second, he 

challenges the district court’s calculation of the drug quantity attributable to him. And third, all 

defendants challenge the factual sufficiency of the evidence to support their convictions. 

 Because we reverse and vacate Defendants’ convictions on the grounds that a prejudicial 

variance existed between the single conspiracy charged in the indictment and the government’s 

proofs at trial, we need not reach Defendants’ other contentions on appeal. 

A. Reaching the Unpreserved Issue 

 We note initially that Kelvin is the only defendant to raise a constructive amendment and 

variance argument on appeal. And as discussed above, he also objected at trial to the 

government’s presentation of evidence regarding the Bussell conspiracy, thereby preserving his 

claim for appellate review. While Jackie does not raise a constructive amendment and variance 

argument on appeal, he did, however, object at trial to the substantial amount of evidence about 

the Bussell conspiracy. James, on the other hand, does not raise this argument on appeal, nor did 

he raise this challenge at trial. 

 “The general rule of appellate procedure is that issues not presented in an appellant’s 

initial merits brief are waived.” Citizens Coal Council v. U.S. E.P.A., 447 F.3d 879, 905 (6th 

Cir. 2006) (en banc) (citation omitted). But this rule is not jurisdictional, and we may choose to 

entertain arguments not raised by the parties when the failure to do so would constitute a 

miscarriage of justice. See Mayhew v. Allsup, 166 F.3d 821, 823-24 (6th Cir. 1999) (holding that 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 6 

the court would consider the application of a statute helpful to the defendant despite his failure to 

address it either at trial or on appeal when the failure to do so would constitute a miscarriage of 

justice). 

 We recognize that the rule in Mayhew applies only to “exceptional” cases. See id. This 

case, however, meets that exception because, if successful, Defendants’ appeal on this issue 

would result in reversal of their convictions. Moreover, because the issue has been briefed by 

both sides and discussed at oral argument, the government is not prejudiced by Jackie’s and 

James’ neglect in not raising the issue in their briefs.2 Finally, because Defendants were tried 

together for a single conspiracy, it would be a miscarriage of justice to affirm Jackie’s and 

James’ convictions while reversing Kelvin’s conviction based on a constitutional error that 

tainted Defendants’ joint jury trial. We will therefore exercise our discretion to reach the merits 

as to whether a constructive amendment or variance occurred as to all defendants, because we 

believe that a failure to do so would constitute a miscarriage of justice. See id.

B. The Indictment Versus the Proof at Trial 

a. Standard of Review

 Generally, we evaluate claims of constructive amendments to or variances from an 

indictment de novo. United States v. Prince, 214 F.3d 740, 756 (6th Cir. 2000). However, when 

a defendant fails to preserve an argument for appeal, we review only for plain error. To obtain 

relief under that standard, a defendant must establish “(1) error, (2) that is plain, and (3) that 

affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67 (1997) (internal 

citations and quotations omitted). If a defendant can show all three conditions, we will “exercise 

[our] discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, 

integrity or public reputation of judicial proceedings.” Id. at 467 (alteration in original). The 

defendant bears the burden of demonstrating that a constructive amendment or variance has 

occurred. United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002). 

 2

The dissent accuses the majority of “misconstru[ing] the record,” writing that “[t]he majority’s assertion 

that the ‘issue has been briefed by both sides and discussed at oral argument’ is misleading.” Dissent at 1. But this 

is incorrect; we would encourage the dissent to listen to the oral argument audio in this case (which is available on 

Judge Point), and to take another look at the briefs filed on behalf of Kelvin and the government. 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 7 

 Because Kelvin preserved his claim of constructive amendment or variance at trial (and 

also on appeal), we review his claim de novo. We also apply this standard to Jackie because he 

objected at trial to the introduction of extensive evidence about the Bussell conspiracy, thus 

preserving his claim on appeal. But since James did not preserve this issue, we apply plain error 

review as to him. See United States v. Kuehne, 547 F.3d 667, 682 (6th Cir. 2008) (“[W]here no 

specific objection is raised regarding a constructive amendment or a variance before the district 

court, we are limited to ‘plain error’ review on appeal.”). 

b. Constructive Amendment of the Indictment/Variance 

 Defendants argue that the evidence introduced by the government at trial so diverged 

from the charges set forth in the indictment as to violate their rights under the Fifth and Sixth 

Amendments. “An indictment may be the subject of an actual amendment, a constructive 

amendment, or a variance.” United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007). Thus, 

constructive amendments and variances are two types of modifications to indictments that we 

have recognized. United States v. Hynes, 467 F.3d 951, 961 (6th Cir. 2006). However, these 

two concepts—constructive amendments and variances—differ “with respect to the burden 

placed upon the defendant and the remedy mandated upon a showing that a constructive 

amendment or variance has occurred.” Kuehne, 547 F.3d at 683. 

 A constructive amendment “results when the terms of an indictment are in effect altered 

by the presentation of evidence and jury instructions which so modify essential elements of the 

offense charged such that there is a substantial likelihood that the defendant may have been 

convicted of an offense other than the one charged in the indictment.” United States v. Martinez, 

430 F.3d 317, 338 (6th Cir. 2005). Constructive amendments are “per se prejudicial because 

they infringe upon the Fifth Amendment’s grand jury guarantee.” Hynes, 467 F.3d at 962 

(internal citations and quotations omitted). “Because of the constitutional injury that results from 

a constructive amendment, when proven, a defendant is entitled to a reversal of his conviction.” 

Kuehne, 547 F.3d at 683 (citation omitted). 

 In contrast, a variance is “not per se prejudicial.” Budd, 496 F.3d at 521. Instead, 

reversal is only warranted when a defendant proves that “(1) a variance occurred and (2) that the 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 8 

variance affected a substantial right of the defendant.” Kuehne, 547 F.3d at 683 (citing Prince, 

214 F.3d at 757). Generally speaking, a variance “occurs when the charging terms [of the 

indictment] are unchanged, but the evidence at trial proves facts materially different from those 

alleged in the indictment.” Id. (alteration in original). A defendant’s substantial rights are 

affected “only when the defendant shows prejudice to his ability to defend himself at trial, to the 

general fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions.” 

Id. (citations and quotations omitted). 

c. Analysis 

 We are not convinced that a constructive amendment, as opposed to a prejudicial 

variance, occurred in this case. Although our precedent recognizes that the difference between 

the two is “shadowy,” United States v. Barrow, 118 F.3d 482, 488 (6th Cir. 1997), we have held 

that a constructive amendment requires a showing “that the important functions of an indictment 

were undermined by both the evidence presented and the jury instructions.” Hynes, 467 F.3d at 

962 (emphasis in original). 

 In this case, all of the harm was done by the introduction of extraneous and highly 

prejudicial evidence about the separate Bussell conspiracy. The jury instructions, on the other 

hand, do not support Defendants’ claim that the indictment was constructively amended. In 

relevant part, the jury instructions provided as follows: 

The indictment charges that the defendants were all members of one single 

conspiracy to commit the crimes of distributing prescription drugs and money 

laundering. Defendants Kelvin Mize and James Mize have argued that there were 

really two separate conspiracies, one involving Kevin Trent Bussell and his coconspirators; and another one involving Jackie Mize and his co-conspirators. 

To convict any one of the defendants of the conspiracy charge, the government 

must convince you beyond a reasonable doubt that the defendant was a member 

of the conspiracy charged in the indictment. If the government fails to prove this, 

then you must find that defendant not guilty of the conspiracy charge, even if you 

find that he was a member of some other conspiracy. Proof that a defendant was 

a member of some other conspiracy is not enough to convict, but proof that a 

defendant was a member of some other conspiracy would not prevent you from 

returning a guilty verdict, if the government also proved that he was a member of 

the conspiracy charged in the indictment. 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 9 

(R. 117, Jury Trial Transcript, Volume 3, PageID# 1110-11.) 

 While not necessarily a model of simplicity and clarity, these jury instructions do seem 

calculated to mitigate, to the extent possible, any potential for prejudice from the evidence about 

the Bussell conspiracy. The instructions specifically explained that the only way the jury could 

convict Defendants was to find beyond a reasonable doubt that they were members “of the 

conspiracy charged in the indictment”—i.e., the Mize conspiracy. Moreover, we have in the past 

approved of similar instructions in this context. See, e.g., United States v. Gioiosa, 924 F.2d 

1059, 1991 WL 15149 at n.4 (6th Cir. 1991) (unpublished table opinion); United States v. 

Battista, 646 F.2d 237, 243 (6th Cir. 1981). Therefore, under these circumstances, we find that 

there was no constructive amendment here. 

 We do, however, find that there was a prejudicial variance between the charges in the 

indictment and the evidence produced at trial. To determine whether reversal is required, we 

must engage in a two-step inquiry: was there a variance, and if so, was it prejudicial. Kuehne, 

547 F.3d at 683 (citing Prince, 214 F.3d at 757). To determine whether a variance has occurred, 

we look to whether the evidence can “reasonably be construed only as supporting a finding of 

multiple conspiracies” rather than the single conspiracy alleged in the indictment. United States 

v. Warner, 690 F.2d 545, 548 (6th Cir. 1982) (citing Kotteakos v. United States, 328 U.S. 750 

(1946)). Moreover, “defendants can establish a variance by referring exclusively to the evidence 

presented at trial.” Hynes, 467 F.3d at 962. 

 The evidence in this case undoubtedly established two conspiracies, not just the one 

charged in the indictment. The government presented an extraordinary volume of evidence 

about the Bussell conspiracy. Even in its opening statement, the government began by giving the 

jury extensive information about the Bussell conspiracy. It then introduced testimony about the 

volume of drug transactions effected by the Bussell conspiracy. The government also presented 

a history of the investigation of the Bussell conspiracy which included wiretaps, surveillance, 

controlled buys, drug deals, and even surveillance photographs of members of the Bussell 

conspiracy. Even Bussell himself—along with several of his convicted collaborators—testified 

about the operation of his conspiracy. Bussell even went so far as to credit the government for 

his rehabilitation from being a drug user. 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 10 

 The government then argued to the jury that the Mize conspiracy operated in the same 

manner to commit the same crimes. By the close of its case-in-chief, the government had 

presented eleven witnesses—eight of whom discussed the Bussell conspiracy at some length. 

Indeed, during its direct examination of Drug Enforcement Administration (“DEA”) Agent 

Bethel Poston, the government even acknowledged that the majority of Poston’s testimony was 

about Bussell: 

Q [government]: That’s the Trent Bussell you have been talking about since 

you hit the witness stand practically? 

A [Poston]: It is. 

(R. 115 at 498.) 

 We think that if the testimony introduced by the government established anything, it was 

that Kevin Bussell operated a large scale drug trafficking organization responsible for the 

importation and distribution of hundreds of thousands of dollars’ worth of pills from Florida to 

Tennessee. It is clear from our reading of the record that the government introduced 

significantly more evidence than it should have about the separate Bussell conspiracy. We 

therefore find that the government’s evidence rises to the level of a variance. We turn then to 

whether the variance was prejudicial. 

 To demonstrate substantial prejudice, a defendant must show that the variance prejudiced 

either his ability to defend himself or the overall fairness of his trial. United States v. Manning, 

142 F.3d 336, 339 (6th Cir. 1998). Prejudice exists “where the defendant is unable to present his 

case and is taken by surprise by the evidence offered at trial”; “where the defendant is convicted 

for substantive offenses committed by another”; or “where spillover [occurs] because of a large 

number of improperly joined defendants.” United States v. Swafford, 512 F.3d 833, 842-43 (6th 

Cir. 2008) (internal citations and quotations omitted). 

 At least one of these conditions has occurred here. The primary risk that the variance 

doctrine is designed to alleviate is guilt transference—“that the appellant was convicted based on 

evidence of a conspiracy in which the appellant did not participate.” United States v. Hughes, 

505 F.3d 578, 587 (6th Cir. 2007) (citing United States v. Blackwell, 459 F.3d 739, 762 (6th Cir. 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 11 

2006)). “This risk increases in direct proportion to the number of defendants, and the number of 

conspiracies demonstrated at trial.” United States v. Caver, 470 F.3d 220, 237 (6th Cir. 2006) 

(citing Kotteakos, 328 U.S. at 766). 

 Even if a defendant can show that a variance resulted in guilt transference, “typically any 

danger of prejudice can be cured with a cautionary instruction to the jury that if it finds multiple 

conspiracies, it cannot use evidence relating to one conspiracy in determining another 

conspiracy.” Hughes, 505 F.3d at 587 (citing Blackwell, 459 F.3d at 762). However, as we 

noted in Blackwell, “the more evidence presented at trial that is unrelated to the defendant’s 

conduct, or a conspiracy in which the defendant took part, the less likely instructions are to cure 

the danger of guilt transference.” 459 F.3d at 762. 

 “Whether or not a variance is prejudicial is a judgment that must be made on the facts of 

each case.” United States v. Mills, 366 F.2d 512, 514 (6th Cir. 1966) (citations and internal 

quotation marks omitted). This is an incredibly fact-intensive analysis requiring the 

consideration of what occurred in each case. And in this case, we do not see any other way but 

to find that Defendants were prejudiced by the material variance. They were forced to defend 

against a conspiracy, i.e., the Bussell conspiracy, that was totally separate from the conspiracy 

alleged in the indictment, i.e., the Mize conspiracy. The evidence from a different scheme was 

used to portray Defendants in a grossly prejudicial light before the jury. This error enabled the 

government to bombard the jury with evidence of the Bussell conspiracy and its cast of 

characters and recorded conversations and photographs, when, in fairness, those things had little 

to do with the charged Mize conspiracy. We do not see any reason why the government should 

not have been required to prove its charges against Defendants without all of this prejudicial and 

irrelevant evidence about a totally different conspiracy involving Bussell. 

 We think that we understand why the government did what it did—the theme of its case 

was that Defendants were inspired by the Bussell conspiracy to create their own conspiracy 

operating in a substantially similar manner. But this theme could have been told differently. The 

government could have easily explained to the jury that this case involves a conspiracy which 

was formed by Jackie Mize and that the idea for the conspiracy originated when Jackie learned 

of the Bussell conspiracy. That was really all that needed to be said about the Bussell 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 12 

conspiracy. Instead, the extensive proof presented by the government on the Bussell conspiracy 

likely distracted the jury from the relevant issues—all to Defendants’ prejudice. 

 What this case really comes down to is balance—i.e., the balance between the 

government’s need to introduce evidence about the Bussell conspiracy and its need to introduce 

evidence about the Mize conspiracy. And in trying to find that balance, the government leaned 

too heavily on establishing the existence and intricacies of the Bussell conspiracy, rather than 

focusing on the conspiracy for which Defendants stood trial. The government’s extraordinary 

amount of evidence about the Bussell conspiracy enabled the jury to transfer the guilt of that 

conspiracy to the charged Mize conspiracy. 

 Moreover, we reject the government’s argument that any error was harmless. “[T]his is 

not and cannot be the test.” Kotteakos, 328 U.S. at 767. Prejudice in this context means whether 

Defendants were found guilty of a different conspiracy from that charged in the indictment, not 

whether the evidence was sufficient to justify the verdict. And in any event, harmless error 

should not be what stands in the way of a seemingly unconstitutional conviction. We likewise 

reject the government’s argument that any danger of prejudice was minimized by the district 

court’s instructions to the jury. While that may be the general rule, it does not apply here. 

Because of the sheer volume of evidence introduced to establish the Bussell conspiracy, it is 

substantially less likely that the court’s instructions cured the danger of creating unfair prejudice. 

See Blackwell, 459 F.3d at 762. 

 For all of these reasons, we find a prejudicial variance between the charges in the 

indictment and the proof offered at trial. Moreover, we find that the error was plain, that it 

affected the substantial rights of all three defendants, and that it seriously affected the fairness of 

the trial. 

 We therefore REVERSE and VACATE all three convictions and REMAND for a new 

trial. 

 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 13 

_________________ 

DISSENT 

_________________ 

 KEITH, Circuit Judge, dissenting. I respectfully dissent. The majority opinion is flawed 

in several respects, and I will highlight the most problematic areas here. 

A. Reaching the Unpreserved Issue – Misconstrued Record & Case Law 

 As a preliminary matter, the majority misconstrues the record and the case law in their 

pursuit to reach the unpreserved issue with respect to James and Jackie. The majority’s assertion 

that the “issue has been briefed by both sides and discussed at oral argument” is misleading. 

Neither Jackie’s counsel nor James’s counsel even attended oral argument, and neither raised the 

issue of a constructive amendment or fatal variance in their briefs. Therefore, the Government 

never had an opportunity to respond to any argument that a fatal variance occurred as to James’s 

or Jackie’s involvement in the offense. While asserting that the inquiry is “fact-intensive,” the 

majority simultaneously applies a cookie-cutter approach to all three defendants, when in fact the 

circumstances for each defendant were different. For example, it is undisputed that Jackie was 

never a member of the Bussell conspiracy. 

 The majority relies on the case of Mayhew v. Allsups, 166 F.3d 821, 823-24 (6th Cir. 

1999), to justify addressing an issue that neither James nor Jackie raised. The majority asserts 

that Mayhew stands for the proposition that a court can “consider the application of a statute 

helpful to the defendant despite his failure to address it either at trial or on appeal when the 

failure to do so would constitute a miscarriage of justice.” A close reading of Mayhew reveals 

that the majority misconstrued this case in much the same way it misconstrued the record. In 

Mayhew, the plaintiff, who was the appellant, failed to raise an argument before the trial court 

regarding a statute that was not enacted until after the trial court issued its judgment. See id. at 

823. But the appellant did raise the issue before this court in its appellate brief. See id. The 

defendant, a corporate entity, was the appellee in that civil case. See id. It failed to directly 

respond to the issue raised by the appellant, instead arguing that the issue was not preserved. See 

id. This court determined that the issue could still be addressed in order to avoid a miscarriage 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 14 

of justice. See id. at 823-24. Mayhew is inapposite for many reasons, but mainly because the 

appellant in Mayhew, raised the issue on appeal, unlike Jackie or James here. See id.1

 The 

majority misconstrues the record and Mayhew in an attempt to excuse its conduct of acting as 

defense counsel rather than impartial judges.2

 Fundamentally, I believe we should refrain from 

overstepping our bounds under the guise of “justice.” 

 Additionally, the majority purports to apply a different standard of review to the fatal 

variance claim it constructed for James, noting that “plain error” review was required. However, 

the majority, in perfunctory fashion, devotes one sentence to the “plain error” inquiry that 

amounts to nothing more than a bare recitation of the “plain error” elements without any analysis 

or citation to legal authority. 

 Because neither James nor Jackie raised the issue on appeal, the remainder of my dissent 

will address the fatal variance claim as raised by Kelvin Mize. 

B. No Guilt Transference Occurred by Definition of the Term 

I agree that a variance occurred with respect to Kelvin because multiple conspiracies 

were discussed at trial. However, as the majority points out, not every variance is a fatal one 

(i.e., not every variance requires reversal). See United States v. Budd, 496 F.3d 517, 522 (6th 

Cir. 2007) (noting that a variance is not prejudicial per se, and thus, a variance will not always 

require reversal). A liberal reading of the majority opinion suggests that the majority believes 

guilt transference occurred with respect to Kelvin, rendering the variance fatal. I respectfully 

disagree. By definition, guilt transference occurs where there is a risk that the defendant was 

convicted “based on evidence of a conspiracy in which the [defendant] did not participate.” 

United States v. Hughes, 505 F.3d 578, 587 (6th Cir. 2007) (emphasis added). In other words, it 

occurs where guilt is transferred from one defendant to another defendant. See id; see also 

United States v. Caver, 470 F.3d 220, 237 (6th Cir. 2006) (“The primary risk is the transference 

 1

Additionally, the majority asserts that the issue in Mayhew was “helpful to the defendant[,]” the appellee. 

However, that statement is also incorrect. Mayhew never characterized the issue as being helpful to any party, much 

less the appellee. See id. In any event, the issue did not help the defendant-appellee because the court reversed the 

district court’s order granting summary judgment to the defendant-appellee. See id. at 824. 

2

Notably, both defendants were represented by counsel. 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 15 

of guilt from defendants involved in one conspiracy to defendants in another conspiracy.”) 

(emphasis added). In essence, when guilt transference occurs, a defendant is convicted of the 

“substantive acts of another” person. United States v. Bakri, 505 F. App’x 462, 468-69 (6th Cir. 

2012).

Accordingly, there is no guilt transference where the defendant was a participant in all of 

the conspiracies presented at trial. See, e.g., Hughes, 505 F.3d at 587 (6th Cir. 2007) (noting that 

to demonstrate a prejudicial variance, “[a] reviewing court looks to whether there is a danger that 

the appellant was convicted based on evidence of a conspiracy in which the appellant did not 

participate (guilt transference)”) (emphasis added); United States v. Blackwell, 459 F.3d 739, 

762 (6th Cir. 2006) (same); see also United States v. Martin, 516 F. App’x 433, 443-44 (6th Cir. 

2013) cert. denied sub nom. Brooks v. United States, 134 S. Ct. 301 (2013) (holding that no 

prejudicial variance occurred because even “assuming the existence of two separate conspiracies, 

the evidence overwhelmingly implicated [the defendant] in both”); Bakri, 505 F. App’x at 468-

69 (“Nor was there any possibility of [d]efendant being convicted for the substantive acts of 

another. Regardless of how one describes the conspiracy or the conspiracies, [d]efendant was an 

active participant.”); United States v. Goff, 400 F. App’x 1, 13 (6th Cir. 2010) (holding that even 

though a variance occurred where evidence of two separate conspiracies was introduced, the 

variance did not warrant reversal because the defendant “was an integral participant in these 

other conspiracies”); United States v. Hettinger, 242 F. App’x 287, 294 (6th Cir. 2007) (holding 

that even assuming that multiple conspiracies existed, the defendant “was a member of each 

conspiracy and accordingly could not establish any ‘danger . . . that [he] was convicted based on 

evidence of a conspiracy in which [he] did not participate’”); United States v. Mitchum, 208 F.3d 

216, *3 (6th Cir. 2000) (unpublished table decision) (holding that no fatal variance occurred 

because “no matter which conspiracy the jury believed existed, [the defendant] was involved in 

each”). Here, “[r]egardless of how one describes the conspiracy or the conspiracies, [Kelvin] 

was an active participant” in both of them. See Bakri, 505 F. App’x at 468-69. Therefore, guilt 

transference did not occur. See id.

 Even though a fatal variance did not occur, surely the government cannot introduce 

mounds of “extraneous and highly prejudicial” evidence, a term used by the majority, without 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 16 

some recourse for the defendant. Intuitively, one would think that something is amiss with the 

presentation of the evidence at trial. There is. Where the evidence does not rise to the level of a 

fatal variance, the recourse is an objection pursuant to the Federal Rules of Evidence. These 

rules govern the admissibility of prejudicial evidence. Fed. R. Evid. 403 (noting that in order for 

evidence to be excluded under this rule, the probative value of the evidence must be 

“substantially” outweighed by the danger of “unfair prejudice”) (emphasis added). And the rules 

also govern the admission of evidence of other crimes or wrongs. Fed. R. Evid. 404(b). As an 

initial matter, it is not entirely clear what “highly” prejudicial means as the majority uses the 

term here. The majority does not define or quantify this term. If the majority is of the opinion 

that “highly” prejudicial actually means that the probative value of the evidence is substantially 

outweighed by the danger of unfair prejudice, then the majority’s analysis demonstrates that the 

majority is actually applying a Rule 403 analysis to a fatal variance case. 

The majority wrongly assumes that because “prejudice” to a defendant’s substantial 

rights is a component of the fatal variance analysis, see Caver, 470 F.3d at 235-36, the 

introduction of “highly prejudicial” evidence must be sufficient for a fatal variance. But the 

majority attempts to fit a square peg into a round hole. In every case where there is a variance, 

by definition, there was evidence of a separate uncharged conspiracy, United States v. Warman, 

578 F.3d 320, 341 (6th Cir. 2009), which is undoubtedly prejudicial to some extent. 

In essence, the majority attempts to fit an argument that sounds plainly in the 

admissibility of evidence (which is subject to abuse of discretion review)3

 into a fatal variance 

analysis (subject to de novo review).4

 As the majority opinion’s loose language shows, the 

pieces do not fit. Cf. United States v. English, 785 F.3d 1052, 1059 (6th Cir. 2015) (Clay, J., 

concurring) (concluding that the trial court’s allowance of evidence that the defendant had been 

involved in two prior Medicare fraud schemes during a trial for Medicare fraud was error under 

404(b), but nonetheless harmless error, even where the defendant raised the issue of a fatal 

variance). 

 3

Pedigo, M.D. v. UNUM Life Ins. Co. of Am., 145 F.3d 804, 807 (6th Cir. 1998). 

4

United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006). 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 17 

C. The Majority’s Impracticable Approach to the Volume of the Evidence Test 

The majority opinion suggests that the “volume” of the evidence of the Bussell 

conspiracy makes this case unique and that the case “comes down to . . . balance.” While 

balance is important, the majority again misses the mark in its analysis. 

In United States v. Blackwell, 459 F.3d 739, 762 (6th Cir. 2006), this court noted that 

where the sheer volume of evidence of a separate conspiracy is concerning, we can examine the 

following three factors to determine whether a variance was prejudicial: (1) the number of 

conspiracies the evidence establishes, (2) the number of non-conspiratorial co-defendants tried 

with defendant, and (3) the size of the conspiracy alleged in the indictment. Id. at 762. Indeed, 

in United States v. Hughes, 505 F.3d 578, 590-91 (6th Cir. 2006), we held (after applying these 

factors) that a variance was not prejudicial where there were three separate conspiracies and six 

codefendants. In United States v. Osborne, 545 F.3d 440, 444 (6th Cir. 2008), we held that even 

assuming a variance occurred, it did not require reversal where there were two conspiracies and 

only three defendants. In the present case, we similarly have two conspiracies and three 

defendants. 

The majority seems to suggest that we need to abandon the three-factor test articulated in 

Blackwell, and instead employ a “this-feels-like-too-much-evidence” approach. This approach is 

problematic for at least two reasons. First, it advances a test that is non-quantifiable; in other 

words, it will be impossible for trial judges to know whether 50% or 60% or 70% of the evidence 

admitted is too much evidence of the uncharged conspiracy. Second, it is impracticable in 

reality. Trial judges would presumably be forced to keep tally marks of every piece of evidence 

of the uncharged conspiracy during the trial, and then presumably declare a mistrial midway 

through when the evidence crosses this arbitrary threshold of “too much”—even without defense 

counsel having raised the issue.” I believe the problems associated with this approach are the 

very reasons this court usually employs a very quantifiable inquiry, such as the one articulated in 

Blackwell—the one the majority surreptitiously abandons here. 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 18 

D. Juror Confusion 

The majority also asserts that reversal is warranted because the jury was “distracted” by 

the evidence of the Bussell conspiracy. Perhaps the majority meant to rely on juror “confusion,” 

which is applicable to the analysis for determining whether a variance was prejudicial. See

United States v. Osborne, 545 F.3d 440, 444 (6th Cir. 2008) (holding that even assuming a 

variance occurred, the evidence related to a second conspiracy was “clearly demarcated and not 

likely to confuse the jury.”). At oral argument, Kelvin’s counsel conceded that distinctions were 

drawn between the Bussell conspiracy and the Mize conspiracy at trial. This made it even less 

likely that the jury was confused. See id. Also, as we concluded in Caver, a trial of short 

duration also makes it less likely that the jury was confused. United States v. Caver, 470 F.3d 

220, 237 (6th Cir. 2006) (concluding that even assuming that the evidence at trial demonstrated 

only multiple conspiracies, there was no prejudice requiring reversal because, inter alia, the trial 

only lasted a week). In the present case, the trial only lasted four days, further minimizing any 

juror confusion. 

E. Conclusion 

In sum, the majority commits many errors: it confuses the admission of prejudicial 

evidence with the occurrence of a fatal variance; it ignores the definition of guilt transference 

(tellingly, the majority quoted the definition but never applied it to either of the defendants); it 

proposes a “this-feels-like-too-much” evidence test that is flawed in theory and impracticable in 

reality; and it robs the government of any meaningful opportunity to respond to the issues with 

respect to Jackie and James. In committing these errors, the majority reaches the wrong 

conclusion. 

At first blush, it may appear that the majority reaches a “noble” outcome because the 

convictions of three defendants are reversed. However, courts should be ever mindful that true 

justice requires consistent application of the law for everyone. Undoubtedly, the “this-feels-liketoo-much” evidence approach espoused by the majority will not be applied consistently in trial 

courts or even on appeal. Creating these arbitrary tests both invites and justifies discrimination 

among defendants, because what “feels like too much evidence” for one person will not “feel 
Nos. 13-6558/6559/6560 United States v. Mize, et al. Page 19 

like too much evidence” for another. The majority opinion will perpetuate confusion and 

disorder in the courts, and thus undermine the public’s confidence in the judiciary. As a court of 

appellate review, we strive to provide guidance that the district courts can consistently follow in 

a fair and meaningful way. But with today’s opinion, the majority has abdicated that 

responsibility altogether.