Constructive Amendment on Plain-Error Review: Advance Notice and Strong Evidence Can Defeat Reversal

1. Introduction

In United States v. Herndon, the Fifth Circuit addressed whether an admittedly erroneous expansion of an indictment through jury instructions required reversal when the defendant had not objected at trial. The court held that it did not. Although the instructions constructively amended the indictment, advance notice of the prosecution’s alternative theory and substantial evidence supporting the theory actually charged defeated relief under plain-error review.

Desnique Deshawn Herndon organized and led a prostitution operation involving children, including girls aged thirteen, fifteen, and sixteen. A jury convicted him of six counts of child sex trafficking under 18 U.S.C. § 1591(a) and one count of conspiracy under 18 U.S.C. § 1594(c). He received a life sentence.

Herndon did not deny trafficking the girls; his dispute concerned whether he knew their ages. His indictment alleged that he acted “knowing and in reckless disregard of” the victims’ minority. It did not include the alternative provided by § 1591(c), under which the government need not prove knowledge or reckless disregard of age if the defendant had a “reasonable opportunity to observe” the victim.

The trial court nevertheless instructed the jury on that alternative. The appeal therefore concerned the consequences of an unpreserved charging error—not whether the instruction departed from the indictment, which both parties conceded.

2. Summary of the Opinion

The Fifth Circuit affirmed the convictions. Its reasoning rested on two distinct stages of plain-error review:

1. No demonstrated effect on substantial rights. Herndon had extensive advance notice that the prosecution would invoke § 1591(c). Moreover, the trial evidence supported findings that he knew or recklessly disregarded each victim’s age—the basis of liability charged in the indictment.
2. No justification for discretionary correction. Independently, the court declined to exercise its authority to correct the forfeited error because the substantial evidence against Herndon did not support a conclusion that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

The decision does not approve the instruction as consistent with the indictment. Its central distinction is between identifying an instructional error and establishing entitlement to appellate relief for an error that was not timely challenged.

3. Statutory and Procedural Framework

The alternative age-related basis for liability

As relevant here, § 1591(a) requires proof that the defendant knew or recklessly disregarded that the victim was under eighteen. Section 1591(c) removes that age-related mental-state requirement when the defendant had a reasonable opportunity to observe the victim.

The distinction matters because an opportunity to observe does not necessarily establish actual knowledge or reckless disregard. The jury instruction therefore supplied an additional route to conviction that the grand jury had not charged.

The opinion describes § 1591(c) as introducing strict liability. That description concerns the victim’s age; it does not mean that every element of the trafficking offense becomes a strict-liability element or that the government’s remaining proof obligations disappear.

The four requirements of plain-error review

Because Herndon did not timely object, the court applied plain-error review. That framework requires:

1. An error;
2. An error that is plain;
3. An effect on the defendant’s substantial rights; and
4. A determination that correction is warranted because the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The first two requirements were undisputed. The appeal turned on prejudice under the third requirement and discretionary correction under the fourth.

4. Precedents Cited and Their Influence

United States v. Lockhart, 844 F.3d 501 (5th Cir. 2016)

This decision provided the closest substantive precedent. The court cited pages 515–16 for the operation of § 1591(c): a reasonable opportunity to observe the victim eliminates the need to prove knowledge or reckless disregard of age. It also relied on that decision in recognizing that an instruction introducing this alternative can constructively amend an indictment that does not charge it.

Its influence was therefore twofold. First, it established why the additional instruction changed the permissible basis for conviction rather than merely explaining an existing allegation. Second, the citation to footnote 3 on page 515 supported the court’s later refusal to grant discretionary relief in light of substantial evidence.

The present opinion follows that framework rather than announcing that § 1591(c) may always be submitted without inclusion in the indictment.

United States v. Fulton, 928 F.3d 429 (5th Cir. 2019)

The court relied on page 439 for the rule that an unpreserved constructive-amendment claim receives plain-error review. This precedent determined the appeal’s procedural posture and prevented the acknowledged error from ending the inquiry.

The court also cited this decision when explaining that substantial evidence against a defendant may justify declining correction at the discretionary stage. Its role thus extended beyond selecting the standard of review: it supported the independent fourth-prong rationale for affirmance.

Rosales-Mireles v. United States, 585 U.S. 129 (2018)

The Supreme Court’s formulation supplied the governing fourth-prong standard. Even after the first three requirements are satisfied, an appellate court considers whether the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.”

The Fifth Circuit invoked this principle both when stating the general framework and when explaining its alternative ground for affirmance. The citation matters because it separates prejudice from discretionary correction: satisfying the substantial-rights requirement does not itself complete the plain-error analysis.

The opinion uses this precedent for the general standard; it does not suggest that the Supreme Court decision addressed the same indictment or trafficking issue.

United States v. Olano, 507 U.S. 725 (1993)

Citing pages 734–35, the court explained that an error affects substantial rights only if it is prejudicial. This principle anchored the examination of evidence showing that Herndon knew or recklessly disregarded the victims’ ages.

The resulting inquiry was not simply whether an unauthorized theory reached the jury. It was whether that error prejudiced Herndon in light of the evidence supporting the authorized, charged theory. The opinion concluded that it did not.

United States v. Herndon, 2025 WL 1410016 (E.D. Tex. May 13, 2025)

The Fifth Circuit cited the district court’s earlier decision in the same prosecution, particularly its treatment of counsel’s failure to object. The district court reasoned that a timely objection would likely have prompted the government to obtain a superseding indictment expressly including the alternative theory.

The appellate court endorsed that reasoning in rejecting Herndon’s ineffective-assistance contention. Unlike the appellate precedents, this decision supplied case-specific reasoning rather than an independently binding circuit rule.

5. Analysis of the Court’s Reasoning

A. The court accepted the charging violation

A constructive amendment implicates the grand jury’s role in defining the charges in a federal prosecution. Here, the indictment required proof of knowledge or reckless disregard concerning age, while the instruction permitted conviction through reasonable opportunity to observe instead.

The court did not characterize the difference as immaterial or deny that the permissible grounds of conviction had expanded. It accepted the parties’ agreement that the instruction constituted plain error and proceeded to the remaining requirements for relief.

B. Extensive notice weakened the claim of prejudice

The government had disclosed its intended reliance on § 1591(c) approximately eighteen months before trial. That position appeared at the initial detention hearing, in pretrial meetings, in filings and proposed instructions, during opening statements, at instruction conferences, and in closing argument.

The court counted at least twelve opportunities to object. This record supported its conclusion that the alternative theory was neither a surprise nor an unexpected change in the prosecution’s position.

Notice served a remedial function in the analysis: it helped explain why the error did not affect substantial rights. It did not retroactively place the omitted theory in the indictment. The opinion should therefore not be read as holding that prosecutorial notice substitutes for grand-jury authorization.

C. The ineffective-assistance argument did not establish prejudice

Herndon argued that trial counsel’s failure to object was constitutionally ineffective. The court responded that an objection likely would have led to a superseding indictment adding the alternative theory. Given the prosecution’s repeated disclosures, the court regarded counsel’s decision not to object as reasonable.

This reasoning is tied to the circumstances of the case. A superseding indictment would require grand-jury action; it is not simply a prosecutor’s informal revision of the existing charge. Nor does the decision establish that counsel may always disregard an indictment defect whenever correction appears possible.

The court’s point was narrower: in this record, the likely availability of a corrected indictment undermined Herndon’s effort to obtain relief through counsel’s omission.

D. Evidence supported the age-related mental state actually charged

The court supplied a separate reason for finding no prejudice: the evidence supported conviction without reliance on § 1591(c).

In his post-arrest interview, Herndon explained that he did not verify the girls’ ages and acknowledged that a girl “might not be a minor, but she might be a minor.” The court treated this statement as demonstrating recklessness concerning all the victims’ ages. It then reviewed evidence specific to each victim:

The court concluded that a jury could reasonably find knowledge or reckless disregard for each victim. Although it described the error as “harmless,” that conclusion arose within plain-error review, specifically the requirement that Herndon demonstrate an effect on substantial rights.

An important limit remains: the court did not establish that the jury actually selected the charged mental-state theory. Rather, it held that the evidence supporting that theory defeated the required showing of prejudice.

E. The fourth-prong ruling independently supported affirmance

The court further held that discretionary correction was unwarranted. It relied on the substantial evidence described above and Herndon’s concession that the evidence of his involvement in promoting prostitution was “overwhelming.”

That concession was not itself an admission that he knew every victim’s age. The age-specific evidence remained important. Together, however, these considerations persuaded the court that leaving the convictions intact would not seriously damage judicial fairness, integrity, or public reputation.

6. Complex Concepts Simplified

Constructive amendment

The indictment’s wording stays unchanged, but the trial permits conviction on a basis broader than the grand jury charged.

Reckless disregard of age

Actual knowledge is unnecessary if the defendant recklessly disregards the possibility that the victim is under eighteen. The court found Herndon’s statements and conduct sufficient to support that conclusion.

Strict liability concerning age

Under the statutory alternative discussed here, the prosecution need not prove the defendant’s age-related mental state if it establishes a reasonable opportunity to observe the victim. Other required elements remain.

Forfeiture

Failure to raise an objection in time. It differs from intentionally relinquishing a known right and generally triggers plain-error review.

Substantial rights

In this context, the requirement that the error prejudice the defendant, rather than merely constitute a legal mistake.

Superseding indictment

A later indictment returned by a grand jury that replaces an earlier indictment and may revise its allegations.

7. Potential Impact and Limits

The opinion reinforces a practical distinction between preserved and unpreserved charging objections. Within the Fifth Circuit, defendants raising constructive amendment for the first time on appeal must confront the full plain-error framework rather than assume that acknowledgment of the violation guarantees reversal.

It also makes two categories of record evidence especially important: repeated notice of the prosecution’s intended theory and proof independently satisfying the indictment’s original allegations. Future appeals may turn on whether the defense was genuinely surprised and whether the charged mental state was strongly established.

For prosecutors, the decision is not a reason to omit an intended statutory theory from an indictment. Expressly charging the theory avoids a conceded error and the uncertainty of appellate review. For defense counsel, timely objections preserve a materially different appellate posture and permit the charging issue to be addressed before verdict.

The holding remains fact-sensitive. The court did not decide that every unpreserved constructive amendment is harmless, that notice alone always defeats relief, or that evidence of trafficking automatically proves knowledge of age. Nor did it decide how a timely preserved objection would have been resolved.

Its broader significance lies in applying established appellate principles to an admitted indictment defect, not in creating a new substantive trafficking offense or expanding § 1591(c).

8. Conclusion

United States v. Herndon holds that an unobjected-to constructive amendment does not necessarily require reversal. Extensive advance notice, strong evidence satisfying the indictment’s original mental-state allegations, and the absence of a compelling basis for discretionary correction supported affirmance.

The decision preserves the distinction between an unlawful expansion of the charges and the showing required to obtain appellate relief: the instruction was erroneous, but Herndon did not establish grounds for reversal under plain-error review.