United States v. Bastian, No. 13-1156-cr (2d Cir. Oct. 29, 2014) (Katzmann, Sack, and Lynch), available here
Defendant pled guilty to conspiracy to distribute crack cocaine and to possessing a firearm in connection with that drug-trafficking offense (18 U.S.C. § 924(c)(1)). But the plea to the gun charge was based on the possession of a different weapon from the one identified in the indictment. On appeal, defendant argued that the district court’s acceptance of the plea constructively amended the indictment and that the court’s failure to inform him of his rights under the Grand Jury Clause prevented him from entering a knowing and voluntary plea.
Because these claims were not raised in the district court, the Circuit reviewed them for plain error only. And defendant could not satisfy that rigorous standard. The Court noted that, while two circuits have held that variations from the specific weapon named in an indictment can constructively amend an indictment, several cases from other circuits (and from the Second Circuit) “counsel to the contrary.” Judge Lynch’s opinion for the Court states, “[T]his Court has never held that substituting a different weapon than that charged in the indictment constructively amends a § 924(c)(1) charge and indeed our cases have suggested that, in general, it does not.”
Accordingly, because “the operative legal question is unsettled,” defendant could not establish that any error was “clear or obvious” under current law, as required to show plain error. Similarly, because it was unclear that defendant even had a right to a superseding indictment, “it cannot have been plain error for the court not to have advised him of such a right, or sought its waiver.” “At most,” the Circuit concluded, “the district court failed to identify a novel legal issue that neither party brought to its attention, an omission that does not meet the standard of a plain error calling for relief from this Court.”