Clarifying the Constructive Amendment Doctrine and Post-Expiration Supervised Release Revocation under 18 U.S.C. § 3583(i)

Introduction

United States v. Peppers, Nos. 23-3112 & 23-3113 (10th Cir. May 30, 2025), presents three central questions:

• Did broad jury instructions and prosecutorial statements constructively amend Count 1 of the superseding indictment, violating Peppers’s rights under the Fifth and Sixth Amendments?
• Did the district court abuse its discretion in excluding a defense investigator’s hearsay testimony under Federal Rule of Evidence 804(b)(3) when co-conspirator Millsap invoked his Fifth Amendment privilege?
• Under 18 U.S.C. § 3583(i), does a district court retain jurisdiction to revoke supervised release after that term has expired, provided a revocation petition was filed before expiration and any delay was “reasonably necessary”?

The defendant, Dante Rovon Peppers, appealed: (1) his 2023 convictions for conspiracy to distribute methamphetamine and use of a communications facility to facilitate the conspiracy; and (2) the revocation of his supervised release for a 2016 felon-in-possession conviction based on the same underlying conduct.

Summary of the Judgment

The Tenth Circuit unanimously affirmed:

• Conspiracy Conviction: Count 1—conspiring with Tyrone Millsap (and possibly Lori Hause) to possess and distribute methamphetamine—was not constructively amended by the jury instructions or opening statement because the evidence related only to the charged agreement.
• Communications-Facility Conviction: Count 2—using Facebook Messenger to facilitate the same conspiracy—stood or fell with Count 1 and was likewise affirmed.
• Hearsay Exclusion: The district court did not abuse its discretion in excluding under Rule 804(b)(3) the defense investigator’s testimony recounting statements by non-testifying co-conspirator Millsap. Those statements were neither sufficiently against Millsap’s self-interest nor corroborated to be deemed trustworthy.
• Supervised Release Revocation: Under 18 U.S.C. § 3583(i), the court retained jurisdiction to revoke Peppers’s supervised release after its December 7, 2020 expiration because (a) a revocation petition issued in August 2020, and (b) delaying the revocation hearing until resolution of the drug charges was reasonably necessary to adjudicate pre-expiration violations.

Analysis

1. Constructive Amendment of the Superseding Indictment

Precedents Cited

• Stirone v. United States, 361 U.S. 212 (1960)—Prohibition on trying a defendant for an offense not charged by the grand jury.
• United States v. Miller, 891 F.3d 1220 (10th Cir. 2018)—Grand-jury and notice rights under the Fifth and Sixth Amendments.
• United States v. Abbey, 1998 WL 321204 (10th Cir. June 5, 1998) (unpublished)—No constructive amendment where evidence only supported the conspiracy charged.
• United States v. Morton, 412 F.3d 901 (8th Cir. 2005)—Broad instructions do not amend the indictment absent proof of additional uncharged conspirators.

Legal Reasoning

Under plain-error review, the court compared the superseding indictment—charging conspiracy among Peppers, Millsap, and Hause—to the district court’s instructions and the evidence. Although the jury instructions broadly defined “conspiracy,” the trial record tied Peppers only to the named co-conspirators. The prosecutor’s closing arguments tracked the indictment. Consequently, there was no reasonable possibility that the jury convicted Peppers of an uncharged agreement, and thus no constructive amendment occurred.

2. Exclusion of Hearsay Statements Against Interest

Precedents Cited

• Fed. R. Evid. 804(b)(3)—Exception for statements against penal interest.
• Williamson v. United States, 512 U.S. 594 (1994)—Requirement that statements be corroborated to ensure trustworthiness.
• United States v. Yellowhorse, 86 F.4th 1304 (10th Cir. 2023)—Elements for admitting statements against interest when the declarant is unavailable.

Legal Reasoning

Peppers’s investigator inadvertently recorded co-conspirator Millsap’s denials of Peppers’s involvement and admissions of selling fake methamphetamine. Millsap, having pled guilty and been sentenced, invoked the Fifth Amendment at trial and was unavailable. The district court excluded the proffered testimony, finding:

• The statements were not sufficiently “against [Millsap’s] penal interest” because a reasonable person in his position would not have believed they exposed him to new criminal or perjury charges.
• They lacked the “clear indicia of trustworthiness” required by the rule, given contradictions with the trial evidence.

The Tenth Circuit held there was no abuse of discretion in this evidentiary ruling.

3. Post-Expiration Supervised Release Revocation (§ 3583(i))

Precedents Cited

• 18 U.S.C. § 3583(i)—Allows revocation beyond supervised release expiration if a petition issues before expiration and any delay is “reasonably necessary.”
• United States v. Gulley, 130 F.4th 1178 (10th Cir. 2025)—§ 3583(i) is jurisdictional.
• United States v. Madden, 515 F.3d 601 (6th Cir. 2008) and Ramos, 401 F.3d 111 (2d Cir. 2005)—Delay is permissible when tied to the resolution of related criminal prosecutions.
• Morales-Isabarras, 745 F.3d 398 (9th Cir. 2014)—The “reasonably necessary” standard focuses on the interests of both parties.

Legal Reasoning

Peppers’s supervised release term ran from December 7, 2017, to December 7, 2020. A revocation petition filed in August 2020 satisfied the pre-expiration requirement. The district court postponed the revocation hearing pending resolution of the drug-trafficking charges—charges that formed the basis of the petition. The Tenth Circuit agreed that such a delay was “reasonably necessary,” balancing the government’s interest in comprehensive adjudication against any prejudice to the defendant.

Impact on Future Cases

• Counsel may propose broad conspiracy instructions when the evidence is confined to the indictment’s scope, reducing retrial risk from hyper-narrow language.
• Courts will continue to apply Rule 804(b)(3) stringently, requiring demonstrable corroboration before admitting statements against interest.
• Under § 3583(i), supervised release revocations may proceed after term expiration so long as petitions issue before expiration and delays serve the interests of justice.

Complex Concepts Simplified

• Constructive Amendment: An unintended trial change that broadens charges beyond the indictment, depriving a defendant of fair notice.
• Rule 804(b)(3) Exception: Allows hearsay when an unavailable declarant admits wrongdoing, but only if the statement is truly self-inculpatory and clearly trustworthy.
• § 3583(i) Jurisdiction: Courts can revoke a release even after it ends when a revocation petition is timely and delays are justified by ongoing related proceedings.

Conclusion

United States v. Peppers sharpens the boundaries of the constructive amendment doctrine, reinforces careful gatekeeping of statements against interest, and confirms that jurisdiction for supervised release revocation extends beyond formal expiration under § 3583(i). These principles will guide practitioners and courts in framing conspiracy charges, evaluating hearsay exceptions, and timing revocation proceedings.