United States v. Peppers: Standards for Constructive Amendment, Hearsay Exception, and Post-Expiration Supervised Release Revocation

Introduction

In United States v. Peppers, 10th Cir. No. 23-3112 & 23-3113 (May 30, 2025), the Tenth Circuit addressed three principal issues arising from Defendant-Appellant Dante Peppers’s consolidated appeals:

1. Whether the district court’s instructions and the prosecutor’s opening statement at trial constructively amended the scope of Count 1 of the indictment, in violation of the Fifth and Sixth Amendments;
   (“constructive amendment” doctrine)
2. Whether the court abused its discretion in excluding under Fed. R. Evid. 804(b)(3) a hearsay statement by a non-testifying co-conspirator;
   (“statement-against-interest” hearsay exception)
3. Whether the district court retained jurisdiction to revoke Peppers’s term of supervised release for a 2016 conviction after that term expired but before a warrant had been issued.
   (post-expiration supervised release revocation under 18 U.S.C. § 3583(i))

The panel affirmed the 2023 drug-trafficking convictions and the supervised release revocation. In so doing, it clarified the circumstances under which a constructive amendment claim fails, set limits on invoking the Fed. R. Evid. 804(b)(3) exception when a co-defendant refuses to testify, and endorsed a practical, “reasonably necessary” standard for revoking expired supervised release when a warrant issues before expiration.

Summary of the Judgment

Dante Peppers was tried for conspiring to possess and distribute methamphetamine (Count 1) and for using a communications facility to facilitate that conspiracy (Count 2). He was acquitted on two substantive distribution counts (Counts 3 & 4) but convicted on Counts 1 and 2. He challenges:

• Constructive amendment of the conspiracy indictment because the jury instruction and prosecutor’s opening were broader than the superseding indictment’s phrasing;
• Exclusion of defense evidence: a hearsay statement by co-defendant Millsap to the defense investigator;
• The district court’s jurisdiction to revoke Peppers’s supervised release on a 2016 firearm conviction, given that the supervised-release term expired before the 2023 drug-trafficking trial concluded.

The Tenth Circuit held (1) there was no constructive amendment because, even under the broader instruction, no reasonable jury could have convicted Peppers of an un-indicted conspiracy; (2) the Rule 804(b)(3) proffer failed both the “against‐interest” and “trustworthiness” tests; and (3) under 18 U.S.C. § 3583(i) the court retained revocation jurisdiction when a revocation warrant issued before expiration and the delay in holding the revocation hearing was “reasonably necessary” to resolve the related drug charges.

Analysis

1. Constructive Amendment of the Indictment

Precedents Cited

• Stirone v. United States, 361 U.S. 212 (1960): the fundamental rule that a defendant must be tried only on the charges the grand jury returned;
• United States v. Miller, 891 F.3d 1220 (10th Cir. 2018): elements of a constructive amendment; plain‐error review where defense does not object at trial;
• United States v. Apodaca, 843 F.2d 421 (10th Cir. 1988): defining “possibility that the defendant was convicted of an offense other than that charged.”

Legal Reasoning

A constructive amendment occurs if trial proceedings expand or alter the essential elements or the scope of the offense charged in the indictment. Under plain‐error review, the defendant must show a clear or obvious error affecting substantial rights, and that fairness demands correction. The panel compared the superseding indictment—which charged Peppers with conspiring with two named co-defendants, Millsap and Hause, from July 6 to August 20, 2020—to the district court’s jury instruction (which defined conspiracy more generically as “an agreement of two or more persons to violate federal drug law”).

Although the instruction was broader on its face, the court found no “possibility” that the jury convicted Peppers on any un-indicted conspiracy. The evidence focused exclusively on Millsap’s three controlled buys, Peppers’s one recorded Facebook exchange with Millsap, and Peppers’s known presence at one buy. No other un-indicted actors appeared in the proof in a manner that would support conviction, so the jury could only have found the conspiracy charged in Count 1. Nor did the Government’s opening or closing arguments invite a broader theory. In light of United States v. Abbey (10th Cir. 1998), the panel reaffirmed that an overly broad instruction does not alone create reversible error if the evidence confines the jury to the charged conspiracy.

2. Exclusion of Defense Investigator’s Hearsay Testimony (Rule 804(b)(3))

Precedents Cited

• United States v. Williamson, 512 U.S. 594 (1994): the foundation of the statement‐against‐interest exception;
• United States v. Lozado, 776 F.3d 1119 (10th Cir. 2015): the three-part test—unavailability, penal interest, corroboration;
• United States v. Yellowhorse, 86 F.4th 1304 (10th Cir. 2023): reaffirming that self‐inculpatory statements are reliable only if corroborated.

Legal Reasoning

The defense proffered testimony from its investigator about statements co-defendant Millsap made by phone—after pledging guilty and being sentenced—to the effect that (a) his methamphetamine sales to the informant were “fake,” (b) Peppers merely “pulled up” to create a façade, and (c) any payments between them were for marijuana. Millsap then invoked the Fifth Amendment at trial, rendering him “unavailable.” The court applied Rule 804(b)(3):

1. Statement must truly be against the declarant’s penal interest (i.e., admission of personal guilt);
2. Corroborating circumstances must clearly indicate trustworthiness.

The district court found neither prong satisfied. First, statements that Peppers was not involved or that marijuana changed hands did not truly inculpate Millsap in any new crime (his guilty plea already admitted a meth-conspiracy). Any hypothetical risk of a perjury prosecution was too speculative. Second, the investigator’s summary conflicted with overwhelming trial evidence: two of the three controlled buys involved real methamphetamine, and no evidence corroborated any marijuana transfer. Under the abuse‐of‐discretion standard, the Tenth Circuit affirmed the exclusion.

3. Jurisdiction to Revoke Supervised Release Under 18 U.S.C. § 3583(i)

Precedents Cited

• 18 U.S.C. § 3583(i): revocation may occur after supervised‐release expiration if (1) a warrant issues before expiration and (2) any delay is “reasonably necessary” to adjudicate pre-expiration matters;
• United States v. Ramos, 401 F.3d 111 (2d Cir. 2005); United States v. Madden, 515 F.3d 601 (6th Cir. 2008); United States v. Morales-Isabarras, 745 F.3d 398 (9th Cir. 2014): interpreting “reasonably necessary” and the harmlessness of delays tied to related criminal prosecutions;
• Gulley, 130 F.4th 1178 (10th Cir. 2025): § 3583(i) is jurisdictional.

Legal Reasoning

Peppers’s three-year supervised release on a 2016 felony‐in‐possession conviction ran from December 7, 2017, to December 7, 2020. In August 2020, while still on supervised release, a revocation petition issued based on his connection to Millsap’s meth trafficking. Meanwhile, the Government indicted him on the drug conspiracy that formed the predicate for the revocation. The court delayed the supervised‐release revocation hearing until after Peppers’s 2023 drug trial concluded. At that point, on the same day the court sentenced him on Counts 1 and 2, it also revoked his expired supervised release and imposed a consecutive 24-month term.

The panel, applying § 3583(i), held that (1) the revocation warrant issued before expiration, and (2) postponing the hearing “was reasonably necessary” to resolve the same underlying conduct in the criminal case. The delay served the legitimate interests of both parties—efficiency, completeness of the record, avoidance of conflicting outcomes—and mirrored the approach taken in Ramos, Madden, and Morales-Isabarras. The Tenth Circuit thus confirmed that post-expiration revocation is permissible when tied to a prior warrant and a related pending prosecution.

Impact

United States v. Peppers clarifies three important points for defense and trial counsel in the Tenth Circuit:

• Constructive Amendment Claims: A jury instruction that is facially broader than the indictment does not necessarily yield reversible error if the evidence and argument remain confined to the charged conspiracy.
• Rule 804(b)(3) Usage: Out-of-court statements by an unavailable co-defendant must truly inculpate the declarant and carry sufficient independent corroboration. Speculative risk of perjury or collateral admissions (e.g., about marijuana possession) may not suffice.
• Supervised Release Revocation: Federal courts retain jurisdiction to revoke a term of supervised release after its expiration so long as a revocation warrant issues before expiration and any postponement is reasonably necessary to resolve pre-expiration matters—especially when based on an overlapping criminal prosecution.

Complex Concepts Simplified

Constructive Amendment

Occurs when trial procedures broaden or alter an indictment’s essential charges so a defendant is effectively tried for an un-indicted offense.

Rule 804(b)(3) “Statement Against Interest”

Hearsay exception for unavailable declarants who make statements so self-inculpatory that a reasonable person would not have made them unless true—but requires corroboration.

18 U.S.C. § 3583(i) “Reasonably Necessary” Jurisdiction

Authorizes revocation of supervised release after expiration when a revocation warrant issues beforehand and a delay is justified to resolve related pre-expiration allegations.

Conclusion

In United States v. Peppers, the Tenth Circuit reaffirmed that a mismatch between the indictment’s precise language and a broader jury instruction does not automatically establish constructive amendment if the proof does not support an un-indicted charge. It underscored the narrow reach of Rule 804(b)(3), demanding true self-inculpation and corroboration before admitting suppressed co-defendant statements. Finally, it endorsed a practical, “reasonably necessary” approach under 18 U.S.C. § 3583(i) for revoking supervised release after expiration when a warrant issues in time and the revocation delay parallels an overlapping criminal prosecution. Together, these rulings strengthen predictability in drug-conspiracy trial practices and supervised release proceedings across the Tenth Circuit.