United States v. Peppers: Constructive Amendment, Hearsay Against Interest & Extended Revocation Authority under §3583(i)

Introduction

United States v. Peppers, 10th Cir. (May 30, 2025), addresses three pivotal questions at the intersection of criminal procedure and sentencing:

When does a jury charge or prosecutor’s statement amount to a “constructive amendment” of a conspiracy indictment?
Under Federal Rule of Evidence 804(b)(3), when is a non-testifying co-conspirator’s out-of-court statement admissible as a declaration against penal interest?
May a district court revoke a defendant’s supervised release after its nominal expiration if a revocation petition was filed earlier and delay was “reasonably necessary”?

The appeal consolidated two cases. In No. 23-3112, Dante Peppers challenged his 2023 convictions for:

A conspiracy to possess and distribute methamphetamine (Count 1).
Using a communications facility to facilitate that conspiracy (Count 2).

In No. 23-3113, Peppers attacked the revocation of his supervised release for a 2016 felon-in-possession conviction, which the district court revoked following the 2023 drug convictions—even though his three-year release term had expired in 2020. The Tenth Circuit affirmed both the convictions and the revocation.

Summary of the Judgment

The Court of Appeals for the Tenth Circuit, in an opinion authored by Judge Ebel, affirmed the district court’s rulings on all fronts:

Count 1 was not constructively amended despite a broad conspiracy instruction and certain prosecutorial statements, because the evidence at trial only supported the exact conspiracy charged in the superseding indictment (Peppers with Millsap and/or Hause).
The district court properly excluded defense testimony under Fed. R. Evid. 804(b)(3) about statements co-defendant Millsap made to a defense investigator. Those statements were neither sufficiently against Millsap’s penal interest nor corroborated to satisfy the rule’s trustworthiness requirement.
Section 3583(i) allowed the district court to revoke Peppers’ supervised release for his 2016 conviction even though the three-year release term expired in 2020, because the revocation petition was filed before expiration and the delay was “reasonably necessary” to resolve related drug charges.

Analysis

1. Precedents Cited

The panel relied on a body of Tenth Circuit and Supreme Court precedent:

Constructive Amendment Doctrine: United States v. Miller, 891 F.3d 1220 (10th Cir. 2018); United States v. Apodaca, 843 F.2d 421 (10th Cir. 1988); United States v. Farr, 536 F.3d 1174 (10th Cir. 2008).
Hearsay Against Interest Exception: Williamson v. United States, 512 U.S. 594 (1994); United States v. Lozado, 776 F.3d 1119 (10th Cir. 2015); United States v. Yellowhorse, 86 F.4th 1304 (10th Cir. 2023).
Supervised Release Revocation: 18 U.S.C. § 3583(i); United States v. Gulley, 130 F.4th 1178 (10th Cir. 2025); United States v. Morales-Isabarras, 745 F.3d 398 (9th Cir. 2014); United States v. Ramos, 401 F.3d 111 (2d Cir. 2005).

2. Legal Reasoning

a. Constructive Amendment
A “constructive amendment” occurs if the trial proceedings broaden the indictment’s charges so a defendant might be convicted of an offense not charged by the grand jury. Peppers argued that the three-page conspiracy instruction and a broad opening statement expanded the conspiracy beyond “Peppers, Millsap, and Hause.” The court held, however, that the evidence only supported the precise, closed-group conspiracy charged. No reasonable jury could have found a different or broader conspiracy, so the indictment was not constructively amended.

b. Hearsay Against Penal Interest (Rule 804(b)(3))
Rule 804(b)(3) admits statements against a declarant’s penal interest if: (1) the declarant is unavailable; (2) the statement was so contrary to the declarant’s interest that a reasonable person would only make it if true; and (3) corroborating circumstances clearly indicate trustworthiness. Peppers sought to admit investigator testimony that Millsap denied Peppers’ involvement and said Peppers only dealt marijuana. The court found:

Millsap was unavailable (he invoked the Fifth Amendment).
His statements were not truly against his penal interest—after a generous plea/sentence, Millsap had little motive to confess to fake–meth dealings, and the claim of personal marijuana possession would not expose him to serious new liability.
There was no reliable corroboration—Millsap’s account conflicted with overwhelming trial evidence.

c. Supervised Release Revocation under § 3583(i)
Section 3583(i) extends revocation authority beyond the release term if, before expiration, a warrant or summons is issued and any delay is “reasonably necessary” to adjudicate pre-expiration violations. The court confirmed that because the revocation petition was filed in August 2020 and the district court reasonably postponed revocation until related drug charges concluded in 2023, the delay was lawful and the court retained jurisdiction.

3. Impact

United States v. Peppers clarifies and reinforces several critical principles:

Conspiracy Indictments: Even if jury instructions appear broader, a constructive amendment requires that a different conspiracy could have been proved. Courts will compare the indictment and actual evidence to safeguard the defendant’s notice rights.
Rule 804(b)(3): Mere denials of involvement or off-hand admissions without clear penal jeopardy and strong corroboration will not qualify as statements against interest. Trial courts must rigorously apply the three-part test for trustworthiness.
Supervised Release Revocation: Section 3583(i) functions flexibly. If revocation charges arise before term end, courts may lawfully delay proceedings—even past nominal expiration—when closely tied to ongoing criminal cases.

Complex Concepts Simplified

Constructive Amendment: When a trial’s jury instructions or opening statements mistakenly let jurors convict for an un-indicted offense. Here, the court looked at the actual evidence and found no risk that Peppers was tried for anything other than the exact conspiracy charged.
Hearsay Against Interest (Rule 804(b)(3)): Normally you can’t introduce someone’s out-of-court statement. But if the speaker is unavailable and the statement is so self-damaging that no one would lie unless it were true—and if there’s independent proof it’s trustworthy—then it’s admissible. Peppers failed to meet that test.
§ 3583(i) Revocation Extension: A judge can revoke a person’s supervised release even after it technically ends, so long as a revocation petition was filed while the person was still on release and any postponement was fairly required to sort out those earlier allegations.

Conclusion

United States v. Peppers decisively affirms three key procedural safeguards in federal criminal law. It underscores that:

Defendants must be tried only on precisely what their indictments allege;
Hearsay exceptions designed to admit self-inculpatory declarations demand strict proof of both penal jeopardy and reliability; and
Courts may extend the authority to revoke supervised release when early filings and related proceedings justify a delay.

Together, these holdings refine the balance between prosecutorial flexibility and defendants’ constitutional and statutory protections, shaping future litigation on conspiracy charges, hearsay admissibility, and supervised release administration.