Introduction

This appeal stems from a heroin-distribution investigation centered on adjacent properties in Gary, Indiana, owned by Lamont Coleman. Over nine months, investigators used confidential informants and undercover officers to conduct a series of controlled buys and observed a pattern linking sales from an apartment building at 4104 Madison to Coleman and his girlfriend, Katrina “Trina” Owens, who frequently moved between their unit’s south door and a vacant house next door at 4120 Madison. A search warrant yielded heroin, cocaine, cash, and three firearms: a Glock found under the mattress where Coleman was sleeping, a Ruger in an office in the apartment, and a Hi-Point in the neighboring house.

After a jury convicted Coleman on conspiracy and heroin possession with intent to distribute, and on being a felon in possession of a firearm, Coleman raised four issues on appeal:

• Constructive amendment of the indictment via generic jury instructions on the felon-in-possession count, where the indictment specified a particular Glock by model and serial number.
• Allegedly “newly discovered” information at sentencing that surveillance recordings were unusable, warranting a new trial or a second Franks hearing, and a Brady violation based on nondisclosure.
• Improper exclusion at sentencing of an affidavit from Leroy Coleman claiming leadership of the operation.
• Error in considering acquitted conduct at sentencing.

The Seventh Circuit affirmed on all grounds. The opinion both reinforces and sharpens circuit guidance on two recurring problem areas: tailoring jury instructions when an indictment narrows the basis for conviction by specifying a particular firearm, and the demanding materiality showings required for Franks/Brady relief where digital surveillance evidence is later lost.

Summary of the Opinion

• Constructive Amendment: Although the jury instruction on 18 U.S.C. § 922(g) did not identify the Glock specified in the indictment, Coleman forfeited the issue by not objecting. Applying plain-error review, the court found no prejudice because the government anchored its proof and arguments to the Glock, the parties stipulated to the interstate-commerce nexus only for the Glock, the jury had the indictment during deliberations, and the court repeatedly tied the count to the indictment. The court reiterated its instruction-tailoring guidance from United States v. Pierson.
• “Newly Discovered” Surveillance Evidence and Franks/Brady: The sentencing testimony that van surveillance recordings were unusable did not warrant a new trial or a second Franks hearing. Coleman failed to make the substantial preliminary showing of deliberate or reckless falsity and materiality required by Franks. Even excising the affidavit’s reference to recordings, abundant independent evidence established probable cause. For the same reasons, the Brady claim failed for lack of materiality and prejudice.
• Sentencing Affidavit: The district court did not abuse its discretion in excluding a handwritten, notarized affidavit from Leroy Coleman asserting he was the operation’s leader. Given Leroy’s unreliability, lack of foundation for the affidavit, and its inconsistency with the trial record and his plea characterization as a minor participant, the court properly found inadequate indicia of reliability.
• Acquitted Conduct: The court acknowledged the 2024 Sentencing Guidelines amendment barring reliance on acquitted conduct as “relevant conduct” (USSG § 1B1.3(c)), but noted it is not retroactive and that Supreme Court precedent (Watts) still permits consideration of acquitted conduct proved by a preponderance so long as the sentence remains within statutory limits. The panel observed it was not clear the district court relied on “acquitted conduct” in any event, but preserved the issue for potential future Supreme Court review.

Analysis

Precedents Cited and Their Role

• Constructive Amendment and Plain Error
  • Stirone v. United States: Only the grand jury may broaden an indictment; courts and prosecutors may not.
  • United States v. Pierson (7th Cir.): Where an indictment narrows a felon-in-possession charge to a specific firearm, untailored pattern instructions risk constructive amendment; nonetheless, plain-error reversal requires prejudice.
  • United States v. Withers; United States v. Leal; United States v. Robinson; United States v. Patlan; United States v. Carr: The waiver/forfeiture framework and plain-error standards; a blanket “no objection” is typically forfeiture, reviewed for plain error.
  • United States v. Marcus; United States v. Remsza: Plain-error prejudice requires a reasonable probability of a different result.
  • United States v. Tate: Evidence that a gun was under a defendant’s mattress supports constructive possession.
• Franks, Rule 33, and Brady
  • Franks v. Delaware; United States v. Clark; United States v. Taylor; United States v. McMurtrey; United States v. Vines; United States v. Glover: Franks requires a substantial preliminary showing of intentional or reckless falsity/omission and materiality measured against probable cause; conclusory assertions are insufficient.
  • United States v. Coscia; United States v. O’Malley; United States v. Kawleski: Rule 33 new-trial standards; new evidence must probably lead to acquittal.
  • United States v. Miles; United States v. Kelly; United States v. Souffront; United States v. Roland: Probable cause can rest on controlled buys and officer observation; immaterial misstatements do not vitiate probable cause.
  • Brady v. Maryland; United States v. Bagley; United States v. Mitrovich; Goudy v. Cummings; Kyles v. Whitley: Suppression of favorable evidence violates due process only if material, i.e., a reasonable probability of a different result.
• Sentencing Evidentiary Reliability
  • United States v. Tankson; United States v. Zehm; United States v. Barker; USSG § 6A1.3(a): Sentencing courts may consider hearsay but must ensure sufficient indicia of reliability.
  • Fed. R. Evid. 902(8); United States v. Amerson; United States v. Wilkus: Self-authentication does not compel admission; courts may exclude affidavits lacking reliability.
• Acquitted Conduct
  • United States v. Watts: Permits judicial consideration of acquitted conduct if proved by a preponderance and sentence stays within statutory maximum.
  • United States v. McClinton and separate statements; United States v. Robinson (7th Cir.): Circuit’s continued adherence to Watts pending further guidance.
  • USSG § 1B1.3(c) (eff. Nov. 1, 2024): Excludes acquitted conduct from relevant conduct, unless it establishes the offense of conviction; not retroactive (see 1B1.10(d)).
  • United States v. Paladino: If later constitutional change renders a sentencing rule unlawful and prejudicial, remand may be warranted.

Legal Reasoning

1) Constructive Amendment

The indictment charged Coleman with violating § 922(g) by possessing “a Glock model 19c firearm bearing serial number NLW237.” Pattern instructions for felon-in-possession were given without specifying the Glock. Under Pierson, specifying the firearm makes that detail an essential element of the charged offense; untailored instructions thus risk constructive amendment. But because Coleman did not object, review was for plain error.

The court resolved plain error at the prejudice prong. Several anchors ensured the jury’s verdict tracked the indictment:

• The government’s opening and closing arguments linked Count Four expressly and repeatedly to the Glock found under Coleman’s mattress.
• The interstate-commerce element was proved only for the Glock via stipulation; there was no interstate nexus proof for the Ruger or Hi-Point, making a conviction based on those firearms impossible under the instructions.
• The court’s instructions and verdict materials repeatedly tethered the jury back to “Count Four of the indictment.” The jury had the indictment in the jury room.
• References to additional firearms were deployed to show tools of the drug trade and intent, not to prove the § 922(g) count.

Against that backdrop, any instructional mismatch was not “a mistake so serious that but for it the defendant probably would have been acquitted.” The court also “reasserted” Pierson’s admonition that trial courts and counsel must tailor pattern instructions when an indictment narrows an element (such as identifying a specific firearm).

2) “Newly Discovered” Evidence, Franks, and Brady

At sentencing, an agent explained that van surveillance was viewable in real time but the recordings became unusable due to software problems. Coleman argued the affidavit’s use of the word “recorded” was false or misleading and that timely disclosure of the problem would have changed the suppression and trial outcomes. The panel rejected these arguments for three independent reasons:

• Threshold showing for Franks was not met. Coleman offered no sworn statements or nonconclusory proof of intentional or reckless falsity. The district court credited testimony that officers observed activity in real time and attempted to record it, but the data became unusable later. On that record, there was no clear error in finding no deliberate falsity.
• Materiality was lacking. Even if the challenged “recordings” paragraph were excised, the affidavit still contained a nine-month mosaic: multiple controlled buys arranged with “KD” (linked to Coleman) or “Trina” (Owens), patterns of movement by Coleman and Owens before sales, runners using the east door, close phone contacts, and informant reliability vouching. Independently observed facts provided probable cause.
• No Brady prejudice. The trial already included testimony that the surveillance videos had “technical problems.” Because excision of the paragraph would not defeat probable cause and there was no reasonable probability of a different verdict, the nondisclosure did not undermine confidence in the outcome.

3) Sentencing Affidavit

The district court excluded Leroy Coleman’s handwritten, notarized statement claiming he, not Lamont, led the operation and that Lamont did not influence him. Although sentencing evidentiary rules are flexible, courts must ensure reliability. The court had ample basis to exclude the affidavit: Leroy’s track record of changing stories after speaking with family; neither side called him; counsel could not vouch for origins; and the content conflicted with the trial record and with Leroy’s plea characterization as a minor participant. Admission is not compelled simply because a document is notarized; the court did not abuse its discretion in finding insufficient indicia of reliability.

4) Acquitted Conduct

Watts still permits consideration of acquitted conduct in sentencing if proved by a preponderance and the sentence remains within the statutory maximum. The court recognized the Sentencing Commission’s 2024 policy choice to exclude acquitted conduct from relevant conduct (USSG § 1B1.3(c)), but that amendment is not retroactive. The panel also noted it was not evident the district court relied on “acquitted conduct” in any event: the leadership role is an enhancement, not a charge of which one can be acquitted. The issue is preserved should the Supreme Court revisit Watts or related Sixth Amendment concerns, but no reversible error occurred here.

Impact

A. Instruction-Tailoring When Indictments Specify a Firearm

This decision, building on Pierson, delivers pointed guidance: when an indictment narrows a § 922(g) charge to a particular firearm, that identification becomes an essential element for the case as charged. Pattern instructions must be tailored to include the specified firearm. Failing to do so risks a constructive amendment argument, even if reversal on plain error will still typically require a strong showing of prejudice.

• For prosecutors: If you charge a specific firearm, align trial proof, stipulations (notably the interstate nexus), and closing arguments squarely on that firearm. Consider proposing a tailored instruction naming the firearm in the elements.
• For defense counsel: If the indictment is firearm-specific, object to generic instructions and request a tailored instruction. Preserve objections to avoid plain-error constraints. Scrutinize whether the government ties the interstate-commerce element to the indicted firearm only.

B. Digital Evidence Loss and Affidavit Drafting

The opinion underscores that the loss of digital surveillance recordings does not automatically support Franks relief or a Brady violation. Materiality is decisive. Affiants can describe what was observed live and what they reasonably believed the equipment “recorded,” but agents should draft with care to avoid overclaiming. For defense, an effective Franks proffer requires sworn, nonconclusory evidence of intentional or reckless falsity and a showing that removing the challenged material defeats probable cause.

C. Sentencing Reliability Gatekeeping

Notarization alone does not guarantee admissibility at sentencing. Courts may exclude affidavits lacking reliable foundation, especially where the declarant is demonstrably unreliable and the content conflicts with the record. If a party wants an affidavit considered, be prepared to lay a foundation, call the declarant, or corroborate the assertions.

D. Acquitted Conduct After the 2024 Guidelines Amendment

While the Commission’s policy now excludes acquitted conduct from relevant conduct in federal sentencing, it is nonretroactive and does not displace Watts. Still, the policy shift will change future practice in Guideline calculations. For older cases, litigants should preserve constitutional objections and, if appropriate, seek variances by invoking the Commission’s policy judgment and fairness concerns discussed by multiple justices.

Complex Concepts Simplified

• Constructive Amendment: Occurs when trial proof or instructions permit conviction on a basis broader than the grand jury’s indictment. It violates the Fifth Amendment’s indictment guarantee.
• Plain Error Review: If an issue was forfeited (not objected to), an appellate court corrects only errors that are clear, affected substantial rights (likely changed the outcome), and seriously affect the fairness or integrity of proceedings.
• Franks Hearing: A pretrial evidentiary hearing to test the truthfulness/completeness of a warrant affidavit. Requires a substantial preliminary showing of intentional/reckless falsehood or omission and that removing/adding the information would defeat probable cause.
• Brady Violation: The prosecution’s suppression of favorable, material evidence violates due process. Material means a reasonable probability of a different result had the evidence been disclosed.
• Leadership Enhancement and Sentencing Evidence: At sentencing, courts may consider information not admissible at trial, but it must bear sufficient reliability. Courts may reject unreliable affidavits.
• Acquitted Conduct: Under Watts, judges may consider conduct underlying acquitted charges if proved by a preponderance and within statutory limits; the 2024 Guidelines now exclude acquitted conduct from “relevant conduct” but not retroactively.

Conclusion

United States v. Coleman affirms four important propositions while offering practical refinements that will guide future litigation:

• When an indictment narrows a § 922(g) charge to a particular firearm, courts and counsel should tailor the instruction to that firearm to avoid constructive amendment concerns. Even absent tailoring, reversal on plain error will depend on whether the trial anchored the offense to the indicted firearm—as it did here through stipulations, evidence, and argument focused on the Glock.
• Franks and Brady remain governed by rigorous materiality thresholds. The loss of surveillance recordings, without more, neither establishes deliberate falsity nor undermines probable cause or the trial verdict where extensive independent observations and controlled buys supply the necessary link.
• Sentencing remains a reliability-governed evidentiary forum. Courts can exclude facially suspect affidavits lacking corroboration or foundation, notwithstanding notarization.
• Acquitted conduct is curtailed in future Guideline calculations by USSG § 1B1.3(c) but remains permissible under existing Supreme Court precedent for pre-amendment cases; the constitutional debate is preserved for possible Supreme Court review.

The opinion’s central contribution is a sharpened instruction to tailor jury instructions to the specific narrowing details of an indictment—particularly in firearm cases—and a clear, pragmatic application of materiality doctrines to digital-evidence shortfalls. Together, these clarifications enhance fidelity to the indictment guarantee while maintaining workable standards for warrant integrity and sentencing reliability.