United States v. Jose P. Floresca

38 F.3d 706, 1994 U.S. App. LEXIS 29939, 1994 WL 586228

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 27, 1994
• Docket: 92-5447
• Status: Published

Opinions

Reversed and remanded by published opinion.. Judge HALL wrote the opinion of the Court, in which Chief Judge ERVIN, and Judges WIDENER, MURNAGHAN, HAMILTON and MICHAEL concurred. Judge WIDENER wrote a separate concurring opinion. Judge RUSSELL wrote a dissenting opinion in which Judges WILKINSON, WILKINS, NIEMEYER and WILLIAMS joined.

OPINION

K.K. HALL, Circuit Judge:

Following a jury trial, Jose Floresca was convicted of several offenses arising from his professional conduct as a physician. Flores-ea wrote false prescriptions for controlled substances, gave the prescriptions to others to have them filled, and then unlawfully resold them. He was also convicted of witness tampering. Floresca appealed the latter conviction, for which he was sentenced to 45 months in prison. The parties filed briefs and argued before a panel of this court. Prior to the issuance of a decision, however, a majority of the court voted to rehear the case en banc. We now reverse Floresea’s conviction for witness tampering and remand for resentencing on the remaining counts.

I.

Floresca, bom in the Philippines but now a citizen of the United States, operated a clinic in Beckley, West Virginia. In 1987, he hired his lifelong friend, Romeo Lopez, to perform s.imple tasks around the office.

In April 1991, Floresca wrote some “straw” prescriptions for Fastin and Tylox,¹ both Schedule II controlled substances.² He gave the prescriptions to various persons, including Lopez, along with money to have the prescriptions filled. Lopez and the others obtained the drugs and returned them to Floresca, who then resold them at a profit. Both Floresca and Lopez were indicted as a result of the government’s investigation into the scheme, but the indictment against Lopez was dismissed in exchange for his testimony against Floresca.

While the trial was pending, Lopez continued to work at Floresca’s clinic. On several occasions, Floresca allegedly tried to dissuade Lopez from testifying. As a result, Floresca was charged in Count Nine of a superseding indictment with witness tampering, in violation of 18 U.S.C. § 1512(b)(1).³

At trial, in addition to giving evidence against Floresca on the drug charges, Lopez recounted Floresca’s attempts to prevent him from cooperating with the government. Lopez’s testimony was the sole source of the government’s evidence against Floresca regarding Count Nine.

At the close of the evidence, the court read to the jury the applicable language of Section 1512(b) through the end of Paragraph (1) — the paragraph alleged by the indictment to have described the objective of Floresca’s tampering. However, instead of instructing the jury on the meaning of the language of the paragraph that it had just read, the district court, at the government’s request and without objection, instructed the jury on the essential elements of the subsection’s third enumerated paragraph. See note 3, supra.4

The jury convicted Floresca of seven drug-related counts and of Count Nine. Floresca appeals only the latter conviction, arguing that the court committed plain error by instructing the jury that it could convict him of a different crime than the one for which he was indicted, thereby violating his Fifth Amendment right to a grand jury indictment.⁵

H.

We begin by analyzing what the district court did when it instructed the jury on Paragraph 3 instead of Paragraph 1. The question is whether the district court’s action is appropriately classified as a variance, a failure to instruct on an essential element of the charged offense, or a constructive amendment of the indictment.

Instructing the jury on Paragraph 3 did not create a variance. A variance occurs when the facts proven at trial support a finding that the defendant committed the indicted crime, but the circumstances alleged in the indictment to have formed the context of the defendant’s actions differ in some way nonessential to the conclusion that the crime must have been committed.⁶ Once a reviewing court determines that the facts incorrectly noted in the indictment do not concern an issue that is essential or material to a finding of guilt, the focus is properly upon whether the indictment provided the defendant with adequate notice to defend' the charges against him.⁷ No variance occurred in Floresca’s ease because Lopez’s testimony adhered to the facts alleged in Paragraphs E — H of the indictment. See note 3, supm.8

Likewise, though the district court plainly failed to instruct the jury on Paragraph 1, its action cannot be classified as a “mere” failure to instruct. The charge to Floresca’s jury on the essential elements of Count Nine was flawed, not only by the absence of the proper instruction, but also by the presence of a misinstruction — and no ordinary misinstruction at that. The court’s: instruction on Paragraph 3 was more than just a misstatement of the law applicable to the indicted offense; it stated a distinct, unindicted offense.⁹ It was by no means only a “slight defect in the charge [that] could be cured by other circumstances.” United States v. Polowichak, 783 F.2d-410, 416 (4th Cir.1986).

We conclude that the district court’s misinstruction resulted in an amendment to the indictment. A constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury.¹⁰

Whether particular conduct constitutes constructive amendment has elicited a fair amount of comment, in this circuit as well as in others. See, e.g., United States v. Bledsoe, 898 F.2d 430 (4th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 521, 112 L.Ed.2d 532 (1990); Moore v. United States, 512 F.2d 1255 (4th Cir.1975). While the dissent relies in significant part on Moore and Bledsoe to determine that there was no constructive amendment in this case, we decline to do so, for the following reasons.

In Moore, the defendant was convicted of possessing a prohibited firearm in violation of 26 U.S.C. § 5861. The indictment charged that Moore possessed a sawed-off 12-gauge shotgun, as prohibited by 26 U.S.C. § 5845(d), but the evidence proved instead that he possessed a flare gun that was modified to fire 12-gauge shells, a weapon prohibited under 26 U.S.C. § 5845(e). The jury was charged under § 5845(e). The panel held that the misdescription in the indietment was surplusage and affirmed the conviction. But Moore is indistinguishable from this case: Floresca was indicted under section 1512(b)(1) but the jury was charged under and he was convicted under section 1512(b)(3). Because both of these departures from the offense as indicted constitute clear examples of constructive amendment, we reject the rule of Moore and overrule that case. The dissent’s reliance on Moore is thus misplaced.

The Bledsoe case, although related, is distinguishable on its facts. In that case, the defendant was indicted for selling cocaine within 1000 feet of a “public school,” in the words of the statute, which made criminal the selling of such a drug within 1000 feet of either a “public or private” school. Upon being advised that the government could not prove that Bledsoe sold cocaine within 1000 feet of a public school because he had in fact sold the drug within 1000 feet of a private parochial school, the district court simply struck the word “public” from the indictment. The panel affirmed this conduct of the district court, finding that the word “public” was surplusage because all schools are either public or private and thus within the statute.

Because Bledsoe is on different facts than the instant ease, we are of opinion that it would be inappropriate to overrule it as circuit precedent. We do, however, limit the Bledsoe case to its facts, see Rutkin v. United States, 843 U.S. 130, 138, 72 S.Ct. 571, 576, 96 L.Ed. 833 (1952) (declining to overrule a distinguishable precedent, but limiting that precedent to its facts). Not only do we limit Bledsoe to its facts as precedent, to the extent that Bledsoe is inconsistent with our holding today, it is no longer authority in this circuit. See United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982) (finding that prior cases were inconsistent with the Court’s holding, but overruling them only to the extent necessary to reconcile them). Thus, Bledsoe does not control our holding in this case.

In short, we hold that what transpired at Floresca’s trial amounted to nothing less than a constructive amendment of the indictment. The jury was allowed to return a guilty verdict upon finding that Floresca approached Lopez with the intent to affect either his cooperation in the investigation or his testimony at trial. This resulted in a broadening of the bases for Floresca’s conviction. We stress that it is the broadening itself that is important—nothing more. It matters not, if a constructive amendment has occurred, whether the factfinder could have concluded (as it surely could have based on reasonable inferences arising from Lopez’s testimony) that Floresca intended to influence both the investigation and his trial.¹¹ Though this is a case of first impression in this circuit, all of our sister circuits have consistently interpreted Stirone, note 10, supra, to mean that a constructive amendment of the indictment constitutes error per se.12 Plainly and simply, “a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” Sti-rone, 361 U.S. at 217, 80 S.Ct. at 273.

In the usual case, where the error has been properly preserved, this rule requires a reviewing court to conclusively presume that the defendant has been prejudiced by the constructive amendment and to forgo harmless error analysis.¹³ We believe that such an approach is patently correct, and we are happy to make it unanimous among the circuits.

III.

However, because we brush our strokes on the canvas of plain error review, see Fed. R.Crim.P. 52(b), we analyze Floresca’s case within the strictures of the Supreme Court’s recent decision in United States v. Olano, — U.S. —, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In Olano, the Supreme Court defined plain error as (1) error (2) that is plain and (3) affects substantial rights. Id. at-, 113 S.Ct. at 1776-78. A reviewing court should exercise its discretion to correct plain error if a fourth condition is met — when the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at-, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).

A.

We apply Olano although it is by no means clear that we should. We believe that, because constructive amendments are not subject to review for harmlessness, the Supreme Court would consider them to be “structural defects” in the trial mechanism. See Sullivan v. Louisiana, — U.S. —, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (holding that the deprivation of a defendant’s Sixth Amendment right to trial by jury is a structural defect, not amenable to harmless error analysis). In Sullivan, Justice Scalia reasoned that the question of whether the defendant’s jury would have reached the same verdict absent a constitutionally deficient reasonable doubt instruction was “utterly meaningless” inasmuch as the deficiency caused the jury to have never reached a constitutional verdict to begin with. Id. at -, 113 S.Ct. at 2082. In Floresca’s case, it is “utterly meaningless” to posit that any rational grand jury could or would have in-dieted Floresca under Paragraph 3, because it is plain that this grand jury did not, and, absent waiver, a constitutional verdict cannot be had on an unindieted offense.

It is entirely conceivable that the above analysis ends this case. It is an open question as to whether the absence of an objection requires further analysis when the alleged error goes to the heart of the entire judicial process. However, it is arguable that the Olano Court had exactly those kinds of structural defects in mind when it mentioned the potential existence of a “special category” of errors not requiring a specific showing of prejudice. See note 16, infra, and accompanying text.

If that is true, however, the Court also contemplated, in announcing the fourth Ola-no factor, that a reviewing court would have the discretion to deny relief in such a case— though we have difficulty imagining a structural defect that does not “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Indeed, it is precisely because we reach the same result in Flores-ca’s case under either approach that we need not resolve this question today.¹⁴

B.

It is indisputable that the constructive amendment of Floresca’s indictment was error. Likewise, there can be no question but that the error was plain — obvious enough to require the district court to correct it. There should be no question that the error affected Floresca’s substantial right to grand jury indictment — after all, the Supreme Court has already said that it does: a constructive amendment “destroy[s] the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Stirone, 361 U.S. at 217, 80 S.Ct. at 273. “The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment.” Id. at 218-19, 80 S.Ct. at 274 (emphases supplied).

That a constructive amendment always “affects substantial rights” is also clear by reading the plain language of Rule 52 in light of Stirone. Rule 52(a) squarely defines harmless error as error that does not affect substantial rights.¹⁵ Because the Stirone Court held that the error occasioned by constructive amendments can never be harmless, see note 13, supra, it follows that such errors must affect substantial rights.

There is nothing in Olano to the contrary. Though Olano obviously stands for the rule that a defendant must ordinarily demonstrate that he has been prejudiced by the error in order to prevail, it is equally evident that the Olano Court contemplated that there would be exceptions to that rule. “There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome_” Olano, — U.S. at -, 113 S.Ct. at 1778 (emphasis supplied).¹⁶ Thus, while interpreting Stirone to mean what it says — that an inquiry into prejudice is not appropriate where a constructive amendment has occurred — is entirely consistent with Olano, interpreting Olano to require a showing of prejudice in every case essentially overrules Stirone. The Supreme Court has not overruled Sti-rone, and we may not.¹⁷

We now arrive at the final step of the Olano analysis — whether the error occasioned by the constructive amendment seriously affected the fairness, integrity or public reputation of judicial proceedings, thus justifying the exercise of our discretion to create a remedy absent an objection. To begin with, we note that we must once again leave unfulfilled the desire, born of reflex and not of contemplation, to inject a prejudice component into our analysis.¹⁸ Such a consideration may be appropriate and weigh in a defendant’s favor in a case where he is required to demonstrate actual prejudice in order to satisfy the third prong — and succeeds in doing so. However, in a case like Floresca’s, where the error amounts to a structural defect that renders irrelevant, ab initio, the question of prejudice, logic requires us to instead focus on the nature of the error itself.

At bottom, Floresca was held accountable in a federal court for an “infamous crime” for which he was never indicted by a grand jury. We do not hesitate to say that convicting a defendant of an unindicted crime affects the fairness, integrity, and public reputation of federal judicial proceedings in a manner most serious.

By including the Grand Jury Clause in the Bill of Rights, the Framers — mindful of the intimidating force and presence of a strong national government and the potential for abuse of that force — recognized the need to interpose a group of common local citizens between the accused and the sovereign. The purpose of the grand jury, if nothing else, is to check individual abuses of the official power to initiate a prosecution. Our founding fathers realized that the grand jury is vital in preventing prosecutions grounded solely in spite, revenge, or difference in political philosophy. We believe that the wisdom of the Framers in this regard has stood the test of time; thus, depriving an accused of the protection of the grand jury would be, no less today than yesterday, intolerably unfair.¹⁹

“Integrity” has been defined as, among other things, “firm adherence to a code.” Webster’s New Collegiate Dictionary, 600 (5th ed.1977). For over two hundred years, persons accused of a federal crime have had an absolute constitutional right to a grand jury indictment. Stirone itself was, of course, an affirmation of that right in the strongest possible terms. In the law, one of our most time-honored codes is that of stare decisis, present in this case both by virtue of the unequivocal language of the Constitution, and by Stirone’s condemnation, now over thirty years past, of ever sustaining a conviction for an unindicted crime. No court could choose to consciously ignore all that has gone before while simultaneously maintaining the integrity of the law.

As to the effect that convicting a person of an unindieted offense might have on the public reputation of federal judicial proceedings, we do not doubt that there are a significant number of citizens who — though ignorant of their own state constitution’s criminal proce-, dure requirements, or perhaps even unaware that their state has a constitution — are keenly cognizant of the need for a grand jury indictment in a federal prosecution. We are certain that such citizens, not to mention those better versed in the law, would be outraged if the federal courts suddenly decided, by fiat, to start conducting trials without first having a grand jury consider the government’s evidence. To embark on such a course would gravely threaten the very legitimacy of the federal tribunals.

In sum, we hold that, under Stirone, constructive amendments of a federal indictment are error per se, and, under Olano, must be corrected on appeal even when not preserved by objection.²⁰ Because Floresea’s indictment was constructively amended at trial, we reverse his conviction on Count Nine and remand the case to the district court for further proceedings consistent with this opinion.²¹

REVERSED AND REMANDED.

1 . Fastin is the trade name for phentermine hydrochloride, an amphetamine. Medical Economics Data, Medical Economics Co., Inc., Physician's Desk Reference 2305 (1993). Tylox is the trade name for oxycodone hydrochloride compounded with acetaminophen, a painkiller with morphine-like properties. Id. at 1431.

2 . See 21 U.S.C. § 812(c) (West 1994).

3 . Paragraph D of Count Nine charged that Floresca "engaged in a continuing course of conduct to threaten, intimidate, and mislead [Lopez] with intent to influence, delay, and prevent [his] testimony ... in an official proceeding.” Subsequent paragraphs described the particulars of Floresca’s alleged misdeeds. Paragraph E accused Floresca of telling Lopez that, if Floresca was convicted and imprisoned, Lopez would also go to jail. Paragraph F stated that Floresca had tried to persuade Lopez to tell the latter’s attorney and the authorities that Floresca had not given him any false prescriptions to fill. Paragraphs G and H maintained, respectively, that Floresca had threatened to harm Lopez's son (still living in the Philippines) and to “take steps" to have Lopez deported if Lopez testified against him.

The last sentence of Count Nine, referring to the allegations contained in the above-described paragraphs, stated that they were "ALL IN VIOLATION OF TITLE 18, UNITED STATES CODE, § 1512(b)(1).” Section 1512, in essence, generally proscribes tampering with a federal criminal investigation or subsequent proceeding. Subsection (b) of the statute describes several means of tampering that are prohibited when committed for the purpose of accomplishing certain delineated objectives. The forbidden objectives áre enumerated in three separate paragraphs; however, only the first and third objectives are relevant to the instant case. The pertinent portions read:

(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

* * * * * *

or

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;

shall be fined not more than $250,000 or imprisoned not more than ten years, or both.

4 . After requesting the instruction on Paragraph 3, the government compounded the confusion in its closing argument, stating that “we must prove to you beyond a reasonable doubt that [Floresca] committed acts for the purpose of imposing upon a potential witness and having them [sic] give misleading or false information in the investigation in this case.”

5 .' "No person shall be held to answer for a capital, or otherwise infamous crime, ■ unless on a presentment or indictment of a Grand Jury....” U.S. Const, amend. V. Though the Grand Jury Clause applies with full force to federal prosecutions like Floresca’s, it is one of the few Bill of Rights protections that does not apply to the states. See Wilson v. Lindler, 8 F.3d 173, 174 (4th Cir.1993) (en banc), cert. denied, - U.S. -, 114 S.Ct. 1101, 127 L.Ed.2d 414 (1994) (citing Hurtado v. California, 110 U.S. 516, 534-35, 4 S.Ct. 111, 120-21, 28 L.Ed. 232 (1884)).

6 . See, e.g., United States v. Kimberlin, 18 F.3d 1156, 1158-59 (4th Cir.1994) (strict chronological specificity or accuracy in the indictment is not required where a particular date is not a substantive element of the crime charged); United States v. Morrow, 925 F.2d 779, 781-82 (4th Cir.1991) (in a prosecution for possession of a firearm by a convicted felon, a variance between the indictment and the proof resulting from the indictment's omission of the first digit of the firearm’s serial number went only to form, not to substance, and did not reduce the government's burden of proof).

7 . Kimberlin, 18 F.3d at 1159; Morrow, 925 F.2d at 781 (quoting United States v. Holt, 529 F.2d 981, 983 (4th Cir.1975), and noting that, in determining whether an accused has been prejudiced by a variance, the "primary consideration” is not just whether he has received adequate notice in the indictment of the charges against him, but also whether the context of the crime has been described with sufficient particularity to protect him against another prosecution for the same offense).

8 . The dissenters maintain that three words in Paragraph F of Count Nine ("FLORESCA told [Lopez] to falsely tell [Lopez's] attorney and the authorities that defendant FLORESCA never gave [Lopez] the prescription for thirty (30) dosage units of phentermine .... ”J somehow charged Floresca with a violation of Paragraph 3 in addition to Paragraph 1, and that the indictment’s failure to cite Paragraph 3 along with Paragraph 1 at the end of Count Nine was merely a typographical error. Post, at 717. The government has made no such argument. Indeed, to its credit, the government has not contended- that it ever sought to indict Floresca for violating Paragraph 3.

9 . Because each describes a different objective of an unlawful tampering, requiring the government to prove a different specific intent, it is evident that Paragraphs 1 and 3 are separate crimes.

10 . See Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272-73, 4 L.Ed.2d 252 (1960) (citing Ex Parte Bain, 121 U.S. 1, 9-10, 7 S.Ct. 781, 785-86, 30 L.Ed. 849 (1887)); see also United States v. Miller, 471 U.S. 130, 138-40, 105 S.Ct. 1811, 1815-17, 85 L.Ed.2d 99 (1985) (overruling Bain, but only to the extent that its rule would support nullifying an indictment that had been narrowed by amendment: "[W]e do not limit Bain’s more general proposition concerning the impermissibility of actual additions to the offenses alleged in an indictment, a proposition we have repeatedly reaffirmed.” (emphasis supplied)). For clarity's sake, we must point out that where the government's presentation at trial does not broaden the legal bases for conviction by allowing the jury to consider a different or less specific offense, but instead fails to establish as fact an essential element of the indicted offense, the proper challenge on appeal is to the sufficiency of the evidence.

11 . We therefore reject Floresca's challenge'to the sufficiency of the evidence regarding the objective of the alleged tampering.

12 . See, e.g., United States v. Dunn, 758 F.2d 30, 36 (1st Cir.1985); United States v. Zíngaro, 858 F.2d 94, 103 (2nd Cir.1988); United States v. Somers, 496 F.2d 723, 744 (3rd Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Young, 730 F.2d 221, 223 (5th Cir.1984); United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986); United States v. Leichtnam, 948 F.2d 370, 377 (7th Cir.1991); United States v. Yeo, 739 F.2d 385, 387 (8th Cir.1984); United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir.1984); United States v. Apodaca, 843 F.2d 421, 428 (10th Cir.), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988); United States v. Figueroa, 666 F,2d 1375, 1379 (11th Cir.1982); United States v. Lawton, 995 F.2d 290, 292 (D.C.Cir.1993).

13 . See Stirone, 361 U.S. at 217, 80 S.Ct. at 273 ("Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.").

14 . In United States v. Colon-Pagan, 1 F.3d 80 (1st Cir.1993), a plain error case, Chief Judge Breyer, writing for the panel, expressed his views on the matter. He concluded that a constitutionally deficient reasonable doubt instruction, albeit a structural defect under Sullivan, is nevertheless subject to Olano’s four-factor test. Id. at 81. The District of Columbia Circuit has adopted the same rule. See United States v. Washington, 12 F.3d 1128, 1138 (D.C.Cir.1994); United States v. Merlos, 8 F.3d 48, 50-52 (D.C.Cir.1993); Lawton, note 12, supra.

15 . Rule 52(a) states that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”

16 . “[I]n most cases, [the phrase 'affecting substantial rights’] means that the error must have been prejudicial_ We need not decide whether the phrase 'affecting substantial rights' is always synonymous with 'prejudicial'.... Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice...." Id. (emphases supplied). See also Colon-Pagan, note 14, supra (noting Olano’s ac-knowledgement that prejudice need not be demonstrated in every case). “We need not consider the strength of the evidence, therefore, in order to hold that the erroneous instruction 'affect[ed] substantial rights.'" Id.

In addition to those errors requiring the defendant to show prejudice and that “special category of forfeited errors” that automatically satisfy the third Olano factor (the category to which we believe that the error in this case belongs), Justice O'Connor's opinion mentions what appears to be a third lype of error that should be "presumed prejudicial" absent a specific showing of prejudice. Id. Because the presence of a presumption ordinarily entails the opportunity for rebuttal, it should be clear that constructive amendments, given Stirone’s unequivocal holding that such errors can never be declared harmless, do not fall into this last category.

17 . Though several Court decisions subsequent to Stirone, beginning with Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), have ruled certain constitutional violations to be amenable to harmless error analysis, constructive amendments have never been included among their number, and Stirone has never been overruled, either explicitly or implicitly.

18 . Again, such an approach in no way runs afoul of Supreme Court precedent. Though the Olano Court stated that a reviewing court should employ its discretion to correct plain errors "in those circumstances in which a miscarriage of justice would otherwise result,” Olano, -U.S. at-, 113 S.Ct at 1779 (citing United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (internal citation omitted)), meaning that the defendant is actually innocent, it also stated that "we have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence.... An error may 'seriously affect the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence.” Id. The lesson here, of course, is that the term "miscarriage of justice” is not the equivalent of "miscarriage of result.”

19 . See also Colon-Pagan, note 14, supra (“a criminal trial marred by a 'structural defect ... cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment [resulting from such a trial] may be regarded as fundamentally fair,'” quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991) (internal citation omitted) (emphasis in Chief Judge Breyer’s opinion)).

20 . We note finally that our holding is consistent with the result in Lawton, see note 12, supra, a post-Olano case reversing, for plain error, the defendant's federal conviction for embezzlement based on a constructive amendment of the indictment.

21 .Our reversal of the underlying conviction renders it unnecessary to address Floresca’s contention that the district court misapplied § 2J1.2(b)(1) of the Sentencing Guidelines by adding eight points to his offense level, resulting from its finding that Floresca threatened to cause physical injury to Lopez's son in order to prevent Lopez from testifying.