Correction in Written Jury Instructions Cures Oral Misstatements: No Fatal Variance

Introduction

This case arises from the consolidated appeals of three MS-13 gang members—Brayan Alexander Contreras-Avalos, Jairo Arnaldo Jacome, and Luis Arnoldo Flores-Reyes—convicted in the U.S. District Court for the District of Maryland. After a two-week jury trial, each defendant was found guilty on multiple counts, including racketeering conspiracy, violent‐crime‐in‐aid‐of‐racketeering (VICAR) murder, drug distribution conspiracy, and extortion conspiracy. On appeal, Jacome and Flores-Reyes challenged two misstatements in the district court’s oral jury instructions—erroneous references to “conspiracy” in counts alleging substantive murder—and argued these created a fatal variance warranting reversal. All three appellants also contested the sufficiency of the evidence supporting their convictions.

Summary of the Judgment

The Fourth Circuit affirmed the district court’s judgment on June 3, 2025. Judge Wilkinson, joined by Judges Niemeyer and Wynn, held:

The two stray references to “conspiracy” in the oral charge did not constitute a constructive amendment or fatal variance because they were corrected in the written instructions provided to the jury, no objection was raised until after the charge, and any possible confusion was cured by the correct written charge.
The evidence against Jacome and Flores-Reyes was more than sufficient to support their VICAR murder convictions (Counts 5 and 7). Testimony and autopsy findings established they committed or aided and abetted brutal killings to maintain or advance their MS-13 status.
The evidence against Contreras-Avalos supported his convictions for RICO conspiracy (Count 1) and drug distribution conspiracy (Count 8). Cooperator testimony, while uncorroborated by physical evidence, was properly credited by the jury.

Analysis

Precedents Cited

United States v. Banks, 29 F.4th 168 (4th Cir. 2022): Defines “constructive amendment” and “fatal variance” doctrine under the Fifth Amendment and emphasizes that an indictment’s charges must match those on which a jury convicts.
United States v. Moore, 810 F.3d 932 (4th Cir. 2016): Explains the Fifth Amendment violation when jury instructions broaden ground beyond the indictment.
United States v. Randall, 171 F.3d 195 (4th Cir. 1999): Discusses fatal variances and constructive amendments in jury instructions.
United States v. Huskey, 90 F.4th 651 (4th Cir. 2024): Guides review of evidence in the light most favorable to the government in jury‐trial settings.
Rosemond v. United States, 572 U.S. 65 (2014): Sets standard for aiding‐and‐abetting liability under 18 U.S.C. § 2.
United States v. Zelaya, 908 F.3d 920 (4th Cir. 2018) & United States v. Tipton, 90 F.3d 861 (4th Cir. 1996): Define the “purpose” element of VICAR murder and how membership‐based duties can satisfy it.

Legal Reasoning

The court first addressed the jury‐instruction claim under the Fifth Amendment’s prohibition on constructive amendment. Jacome and Flores-Reyes pointed to two inadvertent references to “conspiracy” in the court’s oral charge on substantive VICAR murder counts (which should have omitted any reference to § 1959(a)(5), the conspiracy provision). The district judge corrected those errors in the written instructions before sending them to the jury, but did not reinstruct orally. Under plain‐error review, the Fourth Circuit assessed:

Whether an error occurred and was “plain.”
Whether it affected substantial rights—i.e., there is a reasonable probability the outcome would differ absent error.
Whether it seriously impaired the fairness, integrity, or public reputation of judicial proceedings.

The court found any residual confusion cured by the correct written instructions and the overall clarity of the charge. Moreover, closing arguments and overwhelming evidence focused on actual murder, not conspiracy. Thus, no prejudice to the appellants’ rights occurred, and the convictions stood.

On sufficiency‐of‐the‐evidence challenges, the court applied the familiar “substantial evidence” standard: reviewing all evidence in the light most favorable to the government, and upholding convictions if any reasonable juror could find guilt beyond a reasonable doubt.

Jacome: Eyewitnesses testified he led the victim into the woods, strangled and struck him with a machete, and helped bury the body—satisfying actus reus and VICAR “purpose” (to advance his gang rank).
Flores-Reyes: Testimony established he provided the car, participated in code‐language planning calls to kill a rival, and maintained contact before and after the killing—supporting aiding‐and‐abetting liability for murder.
Contreras-Avalos: Cooperator testimony linked him to the MS-13 racketeering enterprise and drug distribution conspiracy; the jury credited these witnesses despite the lack of physical evidence.

Impact

This decision reaffirms that:

Minor misstatements in an oral jury charge, when corrected in the written instructions and not shown to cause actual prejudice, do not constitute a fatal variance.
Written instructions carried into deliberations are a critical safeguard against confusion from oral slips.
The standard for overturning a conviction based on insufficient evidence remains highly deferential: cooperator testimony and gang‐expert evidence can suffice absent physical corroboration.

Lower courts will take guidance that correction post-charge in the written jury instructions typically cures inadvertent misstatements, absent evidence the jury relied on the wrong theory.

Complex Concepts Simplified

Constructive Amendment/Fatal Variance: Occurs if the jury convicts on a charge broader than the indictment. Here, stray words (“conspiracy”) in oral instructions did not broaden the count because the written charge—what jurors actually used—was correct.
Plain Error Review: When a defendant fails to object at trial, an appellate court will reverse only if an obvious mistake affected the outcome and the fairness of the trial.
VICAR Murder (18 U.S.C. § 1959(a)(1)): A special federal murder offense requiring proof that the killing was committed to gain or maintain status within a racketeering enterprise.
Aiding and Abetting (18 U.S.C. § 2): A defendant can be treated as the principal if he intentionally helps or encourages the crime.
Substantial Evidence Standard: Evidence is sufficient if any reasonable juror could find the defendant guilty beyond a reasonable doubt when viewed in favor of the government.

Conclusion

United States v. Contreras-Avalos et al. clarifies that inadvertent oral misstatements in jury instructions do not automatically undermine convictions when corrected in the written charge and no prejudice ensues. The decision underscores the protective role of written instructions, emphasizes the high bar for proving a fatal variance, and reaffirms the deferential standard for reviewing evidentiary sufficiency—even when reliant on compromised witness testimony. As a result, trial courts can be assured that minor slips in oral charges, promptly corrected and memorialized for the jury’s use, will not nullify hard-fought convictions supported by ample evidence.