The Fourth Circuit Refines Constructive Amendment Doctrine: No Reversal for Stray Oral Jury Misstatements Corrected in Writing

Introduction

United States v. Brayan Contreras-Avalos (Fourth Circuit, June 3, 2025) tested the interplay between the Fifth Amendment’s grand jury guarantee and the “constructive amendment” (or “fatal variance”) doctrine, as applied to jury instructions. In a sprawling racketeering and violent-crime prosecution of three MS-13 members—Brayan Alexander Contreras-Avalos, Jairo Arnaldo Jacome, and Luis Arnoldo Flores-Reyes—the district court inadvertently referred twice to “conspiracy” in its oral charge on substantive murder‐in‐aid‐of‐racketeering counts. Those misstatements were corrected in the written instructions, but not repeated orally. On appeal, two of the defendants argued that the stray oral errors broadened the bases of conviction beyond the indictment and warranted reversal. The Fourth Circuit rejected that argument on plain‐error review, affirmed the sufficiency of the evidence on all counts, and clarified how inadvertent oral slip-ups in jury charges interact with written instructions and constructive amendment doctrine.

Key Issues:

Does an unobjected‐to oral misstatement in a jury charge, corrected in the written instructions, qualify as a Fifth Amendment–violative constructive amendment?
What is the appropriate standard when reviewing for a “fatal variance” in jury instructions—plain‐error review or invited error?
Was there sufficient evidence to sustain convictions for (a) murder in aid of racketeering (VICAR), (b) RICO conspiracy, and (c) drug‐distribution conspiracy?

Parties:

Plaintiff‐Appellee: United States of America
Defendants‐Appellants: Brayan Alexander Contreras-Avalos; Jairo Arnaldo Jacome; Luis Arnoldo Flores-Reyes

Summary of the Judgment

In a published opinion, Judge Wilkinson, joined by Judges Niemeyer and Wynn, affirmed the district court’s judgment in full. The Fourth Circuit held that:

The two inadvertent oral references to “conspiracy” in jury instructions on substantive VICAR murder counts, though not repeated orally after correction, did not amount to a Fifth Amendment–violative constructive amendment. Under plain‐error review, the errors were neither prejudicial nor outcome‐determinative, especially given the correct written instructions supplied to jurors.
On the merits, there was ample evidence—witness testimony, gang admissions, physical corroboration—to sustain convictions for murder in aid of racketeering (Counts 5 & 7), RICO conspiracy (Count 1), drug conspiracy (Count 8), and extortion conspiracy (Count 10). Defendants’ challenges to actus reus, mens rea, and purpose elements of VICAR failed.
No abuse of discretion occurred in denying motions for acquittal (Rule 29) or new trial (Rule 33). Credibility determinations and credibility challenges based on uncorroborated cooperator testimony were properly left to the jury or rejected as non‐abusive.

Analysis

Precedents Cited

United States v. Banks, 29 F.4th 168 (4th Cir. 2022): Articulated constructive amendment doctrine and explained that a district court’s oral jury instructions cannot broaden the bases of conviction beyond the indictment.
United States v. Moore, 810 F.3d 932 (4th Cir. 2016): Confirmed that uncharged offenses cannot be added by jury instructions and detailed “fatal variance” analysis.
Rosemond v. United States, 572 U.S. 65 (2014): Defined aiding and abetting standards—an affirmative act with intent to facilitate the crime.
United States v. Huskey, 90 F.4th 651 (4th Cir. 2024): Described the standard for reviewing evidence in racketeering contexts, viewed in the light most favorable to the government.
United States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc): Set forth substantial‐evidence standard in criminal cases.

These precedents steered the Fourth Circuit’s reasoning on constructive amendment, plain‐error review, VICAR elements, and sufficiency of evidence.

Legal Reasoning

1. Constructive Amendment & Jury Instructions
Under the Fifth Amendment, “[n]o person shall be held to answer for a … infamous crime, unless on … an indictment of a Grand Jury.” A constructive amendment occurs when jury instructions effectively broaden the charges beyond the indictment. Here:

The indictment charged substantive VICAR murder (18 U.S.C. § 1959(a)(1)), not VICAR conspiracy (18 U.S.C. § 1959(a)(5)).
Two stray oral lines mistakenly referenced “conspiracy,” but the written charge—provided to jurors during deliberations—was accurate.
Neither party sought oral reinstruction; instead they agreed to correct the written instructions only.

The court applied plain‐error review (since appellants did not timely object) and held:

No prejudice to substantial rights—jurors received correct written instructions, and the overwhelming evidence and consistent closing arguments concerned substantive murder, not conspiracy.
Thus, even if the stray lines were errors, they did not affect the outcome.
Reversal would undermine the fairness and integrity of judicial proceedings by elevating two lines in a two‐and‐a‐half‐hour charge above the bulk of the trial record.

2. Sufficiency of the Evidence
For VICAR murder, the court confirmed three elements: (1) an enterprise engaged in racketeering activity (MS-13); (2) murder or aiding and abetting; (3) purpose to gain or maintain position in the enterprise.

Actus Reus & Mens Rea: Testimony from cooperating gang members, taxi driver segments, autopsy evidence, and text/call records provided a cohesive narrative that each defendant participated in or facilitated the killings of two teenage victims.
Purpose Element: MS-13’s hierarchy and “kill‐rats” policy, plus direct orders and peer encouragement, showed the murders were meant to maintain or increase gang rank.

Similar deference upheld the RICO conspiracy and drug conspiracy convictions. Uncorroborated cooperator testimony, though subject to impeachment, is routinely admissible and permissible for juror consideration.

Impact

This decision clarifies several vital points for future federal criminal litigation:

Inadvertent oral mistakes in jury charges—when corrected in writing—will not automatically mandate reversal. Defendants must show actual prejudice to their substantial rights under plain‐error review.
Written instructions play a critical role in curing any confusion caused by oral slip‐ups. Providing jurors with a precise written charge before deliberations mitigates risk of a “fatal variance.”
The ruling reinforces the viability of unobjected‐to instructions being reviewed under plain‐error rather than a stricter standard, unless invited by the defendant.
On substantive evidence, the opinion underscores the judiciary’s respect for jury credibility determinations—even when primary witnesses are cooperating criminals.

Trial courts will likely take comfort in ensuring final written instructions are given to jurors and may feel less compelled to pause for extensive reinstruction after minor oral misstatements.

Complex Concepts Simplified

Constructive Amendment (Fatal Variance): Occurs when a jury instruction effectively changes or adds elements to the charged offenses. Here, stray references to “conspiracy” could have suggested a different offense than indicted.
Plain‐Error Review: Applies when a defendant fails to object at trial. Four prongs—error, plainness, prejudice, and effect on judicial integrity—must be satisfied for reversal.
VICAR Murder (18 U.S.C. § 1959(a)(1)): A “violent crime in aid of racketeering”—the government must prove the defendant killed (or aided a killing) to gain or maintain position in a racketeering enterprise.
Aiding and Abetting (18 U.S.C. § 2): Liability when a defendant takes some affirmative act to help the principal crime, with intent to facilitate it.
RICO Conspiracy (18 U.S.C. § 1962(d)): Agreement to conduct the affairs of an enterprise through a pattern of racketeering activity (e.g., murder, extortion, drug trafficking).

Conclusion

United States v. Contreras-Avalos refines the Fourth Circuit’s constructive amendment doctrine by confirming that minor, unobjected‐to oral misstatements, if corrected in the written charge and not shown to have prejudiced the jury, do not undermine a conviction. The court reaffirmed that written instructions carry paramount weight and that plain‐error review protects both defendants’ rights and the finality of jury verdicts. Moreover, the decision underscores the robustness of evidence sufficiency standards in high‐stakes racketeering and violent‐crime prosecutions. This ruling will guide trial courts in marshaling clear, accurate charges and reinforce the deference given to jury factfinding when uncontroverted evidence and credible witness testimony establish a defendant’s guilt beyond a reasonable doubt.