United States v. Jacome: Limits on Constructive Amendments in VICAR Jury Instructions

1. Introduction

United States v. Jairo Arnaldo Jacome (Fourth Circuit, June 3, 2025) arises from a multi‐defendant prosecution of three MS-13 members—Brayan Contreras-Avalos, Jairo Jacome, and Luis Flores-Reyes—for racketeering, violent crime in aid of racketeering (“VICAR”) murders, drug trafficking, and extortion. Over a two-week jury trial in Maryland, all three were convicted on all counts, including VICAR murder under 18 U.S.C. § 1959(a)(1) and conspiracy counts. On appeal, Jacome and Flores-Reyes argued that two erroneous references to “conspiracy” in the court’s oral jury charge (corrected in the written instructions) fatally varied the indictment, requiring reversal of their murder convictions. All appellants also challenged the sufficiency of the evidence supporting their convictions.

2. Summary of the Judgment

The Fourth Circuit affirmed. It held that:

On the jury-instruction issue, the two inadvertent oral references to “conspiracy” did not prejudice the defendants or broaden the charges beyond the indictment because (a) the five VICAR elements were correctly stated; (b) the critical element as to actus reus (“commit or aid and abet murder”) was properly explained; (c) the written instructions sent back to the jury were correct; and (d) the government’s closing consistently treated Counts 5 and 7 as substantive murder charges.
Under plain‐error review, there was no reasonable probability the convictions would have differed absent the slip-ups, and thus no fatal variance or constructive amendment.
The evidence against Jacome and Flores-Reyes for the VICAR murders was overwhelming, and the jury was entitled to credit testimony showing each defendant’s active role in the killings to advance or maintain his MS-13 status.
Contreras-Avalos’s challenges to his RICO conspiracy and drug‐distribution convictions failed: witness credibility disputes and lack of forensic evidence do not render cooperator testimony per se insufficient.

3. Analysis

3.1 Precedents Cited

United States v. Banks, 29 F.4th 168 (4th Cir. 2022): Defines “constructive amendment” and reviews mis‐instruction cases.
United States v. Moore, 810 F.3d 932 (4th Cir. 2016): Fifth Amendment grand jury‐indictment requirement.
United States v. Huskey, 90 F.4th 651 (4th Cir. 2024): Standard for reviewing evidence in VICAR cases.
United States v. Zelaya, 908 F.3d 920 (4th Cir. 2018): Purpose element of VICAR murder.
United States v. Tipton, 90 F.3d 861 (4th Cir. 1996): VICAR purpose satisfied by gang policy evidence.
Olano, 507 U.S. 725 (1993): Plain‐error framework.

3.2 Legal Reasoning

Constructive Amendment & Fatal Variance: A conviction cannot rest on a theory beyond the indictment. But occasional slip‐ups in oral instructions, corrected in writing and unaccompanied by prejudice, do not widen the indictment. Under Banks and Moore, a defendant must show actual conviction on unindicted conduct.
Plain‐Error Review: Appellants failed to object contemporaneously, so the court applied the four‐prong plain‐error test (error, plainness, substantial rights, and effect on fairness). They could not prove prejudice or a reasonable probability of a different outcome.
Sufficiency of Evidence: Under Burgos and Huskey, evidence is sufficient if any rational juror could find guilt beyond reasonable doubt. The court recounted eyewitness and testimonial evidence that each defendant knowingly committed or aided VICAR murders to sustain or advance gang rank.

3.3 Impact

United States v. Jacome clarifies that:

Minor misstatements in an oral jury charge, promptly corrected in the written instructions and unaccompanied by confusion or prejudice, do not constitute a Fifth Amendment constructive amendment or fatal variance.
The plain‐error rule requires a strong showing of prejudice; not every slip in oral instructions warrants reversal.
Cooperator testimony, even from felons, is permissible and can sustain convictions absent unambiguous impeachment or lack of any corroboration requirement under federal law.

4. Complex Concepts Simplified

VICAR Murder (18 U.S.C. § 1959(a)(1)): A murder “in aid of racketeering,” requiring proof of (1) an enterprise engaged in racketeering (e.g., MS-13), (2) murder (or aiding and abetting), and (3) purpose—gain or maintain position in the enterprise.
Constructive Amendment: When jury instructions or trial actions shift the basis of conviction to uncharged conduct, violating the Grand Jury Clause of the Fifth Amendment.
Plain Error: Appellate doctrine for unpreserved errors. The defendant must show (1) error, (2) that is clear under current law, (3) affects substantial rights (prejudice), and (4) seriously affects the fairness or integrity of judicial proceedings.
Aiding and Abetting (18 U.S.C. § 2): A defendant is a principal if he knowingly takes an affirmative act to facilitate the crime with intent to do so.

5. Conclusion

United States v. Jacome underscores that the judiciary will not lightly overturn convictions over isolated, cured misstatements in oral jury instructions. The decision confirms that written instructions sent back to the jury, correct recitation of statutory elements, and the totality of trial presentation guard against prejudice. It also reaffirms established sufficiency‐of‐the‐evidence standards: credible cooperator testimony and robust gang expert background can fully support convictions for complex racketeering and VICAR offenses. This precedent will guide trial judges in crafting jury charges and instructs defense counsel on the importance of timely objection when oral charges stray from the written text.