Following a jury trial, Jose Floresca was convicted of several offenses arising from his professional conduct as a physician. Floresca 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 Floresca's conviction for witness tampering and remand for resentencing on the remaining counts.

Floresca, born 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 simple 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. Sec. 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

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 case because Lopez's testimony adhered to the facts alleged in Paragraphs E--H of the indictment. See note 3, supra.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. Sec. 5861. The indictment charged that Moore possessed a sawed-off 12-gauge shotgun, as prohibited by 26 U.S.C. Sec. 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. Sec. 5845(e). The jury was charged under Sec. 5845(e). The panel held that the misdescription in the indictment 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 case, 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, 343 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." Stirone, 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.

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)).

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 indicted 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 unindicted 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 Olano 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 Floresca's case under either approach that we need not resolve this question today.14

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 Stirone, 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 unindicted 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 procedure 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 Floresca'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.

I concur in the opinion of Judge Hall as well as in the result.

Left to my own devices, I would not engage in any harmless error analysis, for I think that is unnecessary.

The majority elevates a harmless variance to a constructive amendment of the indictment. It then announces that a constructive amendment mandates reversal of a criminal conviction per se, even where there is no objection below, thereby embracing a per se rule of plain error. On this basis, the majority orders Floresca's conviction under 18 U.S.C. Sec. 1512 reversed.

The majority's reasoning is flawed in several respects. First, a proper analysis confirms that the error in this case is not a constructive amendment of the indictment, but a variance, and a harmless variance at that. Second, even assuming that there was a constructive amendment below, the majority's application of a per se plain error rule flies in the face of recent relevant Supreme Court precedent, particularly United States v. Olano, --- U.S. ----, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). Application of the proper plain error standard dictates that the conviction below be affirmed. I, therefore, respectfully dissent.

The statute at issue in this case, 18 U.S.C. Sec. 1512(b), provides, in pertinent part:

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 to]

* * * * * *

(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.

18 U.S.C. Sec. 1512(b)(1), (3).

Count nine of the indictment against Floresca is entitled: "WITNESS TAMPERING [TITLE 18, U.S.C. SECTION 1512]". J.A. 35. While paragraph D of count nine charges Floresca with "engag[ing] in a continuing course of conduct to threaten, intimidate, and mislead [Lopez] with intent to influence, delay, and prevent the testimony of [Lopez] in an official proceeding," J.A. 35, conduct prohibited under section 1512(b)(1); paragraph F of the count charges that, as "a part of this continuing course of conduct ... defendant JOSE P. FLORESCA told [Lopez] to falsely tell [his] attorney and the authorities that defendant FLORESCA never gave [Lopez] the prescription for thirty (30) dosage units of phentermine, also known as 'Fastin' described in Count One of the September 5, 1991 indictment and in paragraphs J, K and L of Count One of this present indictment," J.A. 36 (emphasis added), conduct prohibited under section 1512(b)(3). Thus, the indictment gave notice to Floresca that the evidence would show violations of 18 U.S.C. Sec. 1512(b)(1) and (b)(3). However, count nine concludes by stating that Floresca had conducted the activities alleged therein "ALL IN VIOLATION OF TITLE 18, UNITED STATES CODE, Sec. 1512(b)(1)." J.A. 37.

The evidence presented at trial on the subject of Floresca's intimidation of Lopez consisted entirely of the testimony of Lopez, who was indicted with Floresca but entered into a plea bargain with the government in return for his testimony. Lopez testified that, following his indictment, but prior to his discussing a plea bargain with the government, "[Floresca] started to argue with me about my legality coming here to the United States, that I'm illegal coming in the states and my marriage is bad. [sic]" J.A. 244. Lopez further testified that, after he had consulted with his lawyer,

[Floresca] started telling me these things that I was illegal. And when I argue with him, he started, he started to talk about he got a lot of friends in Manila airport and he can call them and order them to do something with a person and he knows my son is coming here [from the Philippines]. [sic]

J.A. 244-45. Thereafter Lopez's lawyer instructed Lopez to inform Floresca that he could no longer discuss the case with him. Lopez testified that, when he told Floresca this, "[Floresca] tried to harass me; tell me that he goes to jail, I go to jail. [sic]" J.A. 245.

Lopez then entered into a plea bargain with the government and was wired with a taping device. Lopez testified that Floresca never again orally threatened him, but did testify:

Q Did Dr. Floresca ever communicate with you about this case other than orally, other than by mouth?

A One time when I wear this tape, he write on a small paper a, toilet paper or, paper towel, paper towel.

Q Did you see what he wrote on there?

A Yes, sir.

Q What did he write?

A "Don't plea bargain. If you plea bargain, you are in their mercy."

On cross-examination, Floresca's attorney, in an attempt to show that Floresca's statements were not threats, established that Lopez's marriage was legal and that Lopez is a citizen of the United States. He also established that Lopez had captured none of Floresca's threats on tape, and that, because Floresca had not allowed him to keep the paper upon which the written threat had appeared, Lopez could not substantiate this claim.

Although the statutory provision cited in the indictment, section 1512(b)(1), prohibits threats that interfere with testimony at an official proceeding, the district court, without objection, charged the jury that it should find Lopez guilty if Floresca made threats to interfere with Lopez's communications with law enforcement officials.2 The majority concludes that the district court's error, which the majority describes as a constructive amendment of the indictment, was plain error that entitles Floresca to reversal of his conviction for violation of section 1512.

Contrary to the conclusion drawn by the majority, there was no constructive amendment of the indictment in this case.

Constructive amendments and variances both arise from similar situations: where the facts or underlying theory of criminality alleged in the indictment vary, as a result of the introduction of evidence, argument by the government, or the district court's jury instructions, from the facts or underlying theory of criminality established at trial. A constructive amendment occurs where, as a result, "the possible bases for conviction" are broadened beyond the bases appearing in the indictment. United States v. Miller, 471 U.S. 130, 138, 105 S. Ct. 1811, 1816, 85 L. Ed. 2d 99 (1985). A variance, by contrast, occurs where a broadening of the bases for conviction does not result. See id. at 145, 105 S.Ct. at 1819-20.3

A broadening of the bases for conviction occurs where the defendant is convicted of a crime not passed upon by a grand jury. See id. at 138-39, 105 S.Ct. at 1815-17; Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960). Under this definition, it is clear that, where the elements of the crime for which a defendant is ultimately convicted are set out in the indictment and where the evidence at trial establishes only facts that were alleged in the indictment, there is no broadening of the bases for conviction and, consequently, the only error that may arise is a variance. See United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.1991) ("Constructive amendment consists of alteration of an indictment by (1) presentation of evidence, and (2) jury instructions[,] both of which work to change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment."); United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986) ("A constructive amendment occurs when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment."). Thus, as one leading treatise has commented, the classification of constructive amendments "has been limited to cases in which the prosecution presents a complex of facts distinctly different from that set forth in the charging instrument." 3 Charles Alan Wright, Federal Practice and Procedure Sec. 516, at 27 (2d ed.1982) (footnotes omitted). See United States v. Massuet, 851 F.2d 111, 116 (4th Cir.1988) ("In contrast with the situation disclosed by Stirone, the government did not attempt to offer any evidence in support of any other charge."), cert. denied, 488 U.S. 1005, 109 S. Ct. 785, 102 L. Ed. 2d 776 (1989); Jackson v. United States, 359 F.2d 260, 263 (D.C.Cir.) (distinguishing Stirone from the case then at bar on the basis that, "[i]n Stirone the prosecution was relying at trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment," while, "in the case before us, there is a single set of facts"), cert. denied, 385 U.S. 877, 87 S. Ct. 157, 17 L. Ed. 2d 104 (1966); accord United States v. Knuckles, 581 F.2d 305, 312 (2d Cir.), cert. denied, 439 U.S. 986, 99 S. Ct. 581, 58 L. Ed. 2d 659 (1978).

We need not further define the contours of the boundary between variances and constructive amendments for the case at bar fits squarely into the situation described above. Floresca's conviction can be seen to lie under section 1512(b)(1) or section 1512(b)(3). With respect to section 1512(b)(1), the indictment specifically cited that provision, set out the elements of that provision, and alleged facts meeting each element of the provision and therefore constituting a violation of that provision. With respect to section 1512(b)(3), count nine of the indictment charged that "defendant JOSE P. FLORESCA told [Lopez] to falsely tell [his] attorney and the authorities that defendant FLORESCA never gave [Lopez] the prescription for thirty (30) dosage units of phentermine," J.A. 36 (emphasis added). Thus, the indictment set out the elements of section 1512(b)(3) and alleged facts meeting the elements of that provision and therefore constituting a violation of that provision.

The only arguable error was that the indictment contained no citation to section 1512(b)(3). However, an indictment that provides an incorrect or incomplete citation creates merely a variance, which, absent prejudice, is harmless. As we explained in United States v. Duncan, 598 F.2d 839, 854 n. 11 (4th Cir.), cert. denied, 444 U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1979),

[T]he citation of a statutory provision in an indictment is solely for the benefit of ... defendants; its inclusion is intended to better apprise the defendant of the charges against him without danger to the prosecution. Fed.R.Crim.P. 7, Notes of the Advisory Committee. The rule has long been that a conviction may be sustained on the basis of a statute other than that cited in the indictment. E.g., Williams v. United States, 168 U.S. 382, 389, 18 S. Ct. 92 [94-95], 42 L. Ed. 509 (1897). Miscitation of the statute is harmful error only if prejudice to the defendant can be shown. Fed.R.Crim.P. 7(c)(3).

Accord United States v. Massuet, supra, 851 F.2d at 116 ("If the indictment had included the exact language which it did but cited section 841(a)(1) instead of section 959(b)(2) or even no statute at all, it would have been valid and any challenge against it would have failed."). There was, then, no constructive amendment of the indictment whether Floresca was convicted under section 1512(b)(1) or section 1512(b)(3).4

The majority contends that this case is "indistinguishable" from Moore v. United States, 512 F.2d 1255 (4th Cir.1975). Ante, at 710. An examination of Moore belies this contention. In Moore, the defendant was indicted for violating 26 U.S.C. Sec. 5861(d). That section provides: "It shall be unlawful for any person ... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record...." Included in the definition of the term "firearm," found at 26 U.S.C. Sec. 5845(a), are any "shotgun having a barrel or barrels of less than 18 inches in length," id. Sec. 5845(a)(1), and "any other weapon, as defined in subsection (e) [of section 5845]," id. Sec. 5845(a)(5).

The indictment specifically charged Moore with " 'unlawfully and knowingly possess[ing] a firearm, that is, a sawed-off 12-gauge shotgun ... which was not registered ... as required by ... Sec. 5861(d)....' " Id. at 1257 (Widener, J., dissenting) (emphasis added). "The weapon introduced at trial, however, was certified to be a '[f]irearm made by inserting a 11 inch piece of galvanized pipe into a barrel of flare gun and welding same with solder. The pipe is of the size that will chamber a 12 gauge shotgun shell.' [sic]" Id. at 1256. This weapon is not a "shotgun" meeting the specifications of section 5845(a)(1), but falls within section 5845(e)'s definition of "any other weapon." The district court instructed the jury that "any other weapon," as defined in section 5845(e), constituted a "firearm." Id. at 1257 (Widener, J., dissenting).

In short, the problem in Moore was that the evidence at trial established that the firearm possessed by Moore was distinct from the firearm alleged to have been possessed by Moore in the indictment. As a result, the elements underlying the crime charged and the relevant facts as alleged in the indictment differed from those introduced at trial and upon which Moore was convicted. While, as described above, a constructive amendment will often arise where, as in Moore, facts different from those alleged in the indictment are introduced at trial, the majority in Moore was able to satisfy itself that the bases of conviction were not broadened by viewing the crime with which Moore had been charged as identical to the crime of which he was convicted. Because the majority found that Moore "was in no way prejudiced by the variance," id., it affirmed Moore's conviction.

A comparison of Moore and the instant case reveals that the error herein is far less egregious than was the error in Moore: while, in Moore, the elements of the crime for which Moore was indicted varied from those of the crime for which he was convicted and facts entirely distinct from those presented in the indictment were introduced into evidence at trial, here, as noted above, the indictment set out the elements required under both paragraphs and the evidence at trial did not extend beyond the facts alleged in the indictment.5 Yet, we found the error in Moore to be merely a variance; indeed, Moore has recently been described as "[a] classic example of a variance case." Wilson v. Lindler, 995 F.2d 1256, 1261 (4th Cir.1993) ((opinion of Hamilton, J.) ("adopt[ed]" as the opinion of the dissenting members of the en banc court in Wilson v. Lindler, 8 F.3d 173, 175 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S. Ct. 1101, 127 L. Ed. 2d 414 (1994))). If, indeed, Moore is a variance case, then, a fortiori, so is the one now before us.

Recognizing this, the majority can only render this "dissent's reliance on Moore ... misplaced" by overruling that case. Ante, at 710. Of course, even if Moore is aptly seen as a constructive amendment case, that would not mean that the error herein was also a constructive amendment. Because, again, the error in Moore was more egregious, it is entirely conceivable and, indeed, logical that the error in Moore was a constructive amendment while the error herein is a variance.6

I therefore conclude that the error in this case was a variance.

A variance is fatal only if it is in some way prejudicial to the accused. See United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.1993); United States v. Morrow, 925 F.2d 779, 781 (4th Cir.1991). Otherwise, the variance, though error, is harmless. See Brewer, 1 F.3d at 1437; Morrow, 925 F.2d at 781-82.

Because the indictment here set out the elements of both paragraphs and charged facts amounting to violations of both paragraphs, it is clear that the variance in this case did not unfairly surprise Floresca. Floresca certainly had notice of the charges against him adequate enough to allow him to prepare a defense.

Further, the facts of this case indicate that Floresca cannot demonstrate prejudice, i.e., that the error affected the outcome of the trial. The jury charge differs from the charge cited in the indictment only in that the charge given to the jury allowed the jury to convict Floresca under paragraph (3), while the indictment, though it charged the elements of both paragraphs, provided a citation only to paragraph (1). It is clear that Floresca cannot claim surprise resulting from the omitted citation.

Moreover, even if, as seems highly doubtful, Floresca was somehow confused by the omission of a citation to paragraph (3), that is of no moment, for the difference between the two paragraphs was completely immaterial in this case. The only person with whom the government charged Floresca with interfering was Lopez, and the evidence the government presented was that Floresca had threatened Lopez with the general intent of keeping him from cooperating with the government. Lopez testified that Floresca told him that, by cooperating with the government against Floresca, Lopez might be placed in prison or be deported. Floresca enhanced these threats by telling Lopez, according to Lopez's testimony, that, by entering into a plea bargain, he would be at the mercy of the government. Lopez also testified that Floresca made thinly-veiled threats against his son.

Based on this evidence, after the judge instructed the jury that it could find Floresca guilty of interfering with a person who might relate to a law enforcement official knowledge of commission of a federal crime, the jury found Floresca guilty. Floresca's only response to this evidence was to assert that his statements were not really threats. It is inconceivable that the jury, on the evidence presented, would have convicted Floresca for interfering with Lopez's communication to law enforcement authorities, but acquitted Floresca of interfering with Lopez's testimony at trial. Nor can Floresca point to any evidence which he would have presented to defend himself against the charge of interfering with Lopez's communication to law enforcement authorities which he did not present to defend himself against the charge of interfering with Lopez's trial testimony. Floresca, thus, cannot show that he was prejudiced by the district court's error and, as a result, the variance in this case was harmless.

Even accepting the majority's characterization of the error as a constructive amendment, I disagree with the majority's result. Under United States v. Olano, --- U.S. ----, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993), to demonstrate plain error under Rule 52(b), a criminal defendant must demonstrate (1) error (2) that is plain and (3) that affects substantial rights. If such a showing is made, then the court of appeals has discretion to exercise its remedial power. Exercise of this discretion turns upon a determination of whether the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Despite Olano's clear directive, the majority claims that "[i]t 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." Ante, at 712. According to the majority, "it is by no means clear that we should" apply Olano here. Ante, at 712. The majority's position in this regard is absolutely devoid of support.7

The opinion in Olano presents the Supreme Court's interpretation of Federal Rule of Criminal Procedure 52(b). Rule 52(b) confers upon the courts of appeals the "limited power," --- U.S. at ----, 113 S. Ct. at 1776, in appropriate cases, to reverse criminal convictions based upon errors which, though plain, were forfeited by the criminal defendant below. Nothing in the language of Rule 52(b) indicates that the rule might not apply to all forfeited errors in criminal cases. It is not surprising, then, that the majority makes no claim that Rule 52(b) does not apply here. Nor does the majority claim that some other statutory provision or rule provides power, supplemental to that provided by Rule 52(b), to correct forfeited errors. Indeed, it is clear and uncontested that Rule 52(b) governs here.

The Supreme Court in Olano analyzed the language of Rule 52(b) and developed a practical test therefrom for courts to apply in determining whether there is reversible plain error. The very thrust of Olano was the development of such a test which would be applicable in all criminal cases in which a criminal defendant, on appeal, asserts a claim of error which was forfeited below. There is simply no basis for the majority's speculation that the Supreme Court might have contemplated that the test formulated in Olano not apply to all cases in which Rule 52(b) is implicated.8

It comes as no surprise then, except perhaps to the majority, that the First and District of Columbia Circuits have concluded that Olano controls wherever there is a forfeited error in a criminal case, even where the error in question is not susceptible to harmless error analysis. See United States v. Washington, 12 F.3d 1128, 1138 (D.C.Cir.1994) (applying Olano analysis to a forfeited claim that a constitutionally deficient reasonable doubt instruction had been delivered; the delivery of such an instruction was found to be per se harmful in Sullivan v. Louisiana, --- U.S. ----, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993)9), cert. denied, --- U.S. ----, 115 S. Ct. 98, --- L.Ed.2d ---- (1994); United States v. Merlos, 8 F.3d 48 (D.C.Cir.1993) (same), cert. denied, --- U.S. ----, 114 S. Ct. 1635, 128 L. Ed. 2d 358 (1994); United States v. Colon-Pagan, 1 F.3d 80 (1st Cir.1993) (applying full Olano analysis in a constructive amendment case); United States v. Lawton, 995 F.2d 290 (D.C.Cir.1993) (same). See also United States v. Gaudin, 28 F.3d 943, 951-52 (9th Cir. 1994) (en banc) (applying Olano analysis in a case where district court's jury instruction omitted essential element of charged crime, an error which that court of appeals found to be "structural").

Although the majority is explicit only in its attempt to evade Olano, the fact remains that the result of its musings would be to avoid the impact of a long line of Supreme Court plain error cases predating Olano, as well as the plain language of Rule 52(b) itself.

I conclude, as of course I must, that Rule 52(b), Olano, and, indeed, all Supreme Court plain error cases are binding upon us. When one examines the ramifications of these authorities to the majority's position, it is readily understood why the majority seeks to evade them. The fact is that Olano and the Supreme Court cases upon which Olano relies are inconsistent with a per se plain error rule. Indeed, Olano itself reversed the Ninth Circuit's use of a per se plain error rule. See Olano, --- U.S. at ----, 113 S. Ct. at 1776. And, in United States v. Young, 470 U.S. 1, 16 n. 14, 105 S. Ct. 1038, 1047 n. 14, 84 L. Ed. 2d 1 (1985), the Supreme Court explicitly eschewed a per se plain error rule, such as the one propounded by the majority here, stating:

A per se approach to plain-error review is flawed. An error, of course, must be more than obvious or readily apparent in order to trigger appellate review under Federal Rule of Criminal Procedure 52(b). Following decisions such as United States v. Frady, [456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982),] United States v. Socony-Vacuum Oil Co., [310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129 (1940) ], and United States v. Atkinson, [297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (1936),] federal courts have consistently interpreted the plain-error doctrine as requiring an appellate court to find that the claimed error not only seriously affected "substantial rights," but that it had an unfair prejudicial impact on the jury's deliberations. Only then would the court be able to conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice.

The Supreme Court could not be more unequivocal: "A per se approach to plain-error review is flawed." Young, 470 U.S. at 16 n. 14, 105 S. Ct. at 1047 n. 14.

Undaunted, the majority purports to follow Olano and, amazingly, finds it entirely consistent with a per se rule. The majority achieves this remarkable result, which, in light of the foregoing, is logically impossible, by means of reasoning unfamiliar to Rule 52(b) jurisprudence. Indeed, while the form of the majority's analysis mimics Olano, the substance of its analysis is quite dissimilar from, and is, in large measure, irreconcilable with, the Supreme Court's clear directive in Olano.

It cannot be disputed that there was error below, of one form or another, and that such error was "plain." I question, however, whether the error satisfies Olano's third prong. Moreover, even if it does, it is clear that this is not a case in which we should exercise our discretion to correct the error.

Olano's third prong requires "that the plain error 'affec[t] substantial rights.' This is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the District Court proceedings." --- U.S. at ---- - ----, 113 S. Ct. at 1777-78.

The majority contends that a determination of prejudice cannot be conducted in this case because "it is 'utterly meaningless' to posit that any rational grand jury could or would have indicted Floresca under Paragraph 3, because it is plain that this grand jury did not." Ante, at ---- (quoting Sullivan v. Louisiana, --- U.S. ----, ----, 113 S. Ct. 2078, 2082, 124 L. Ed. 2d 182 (1993)). The majority, in making this statement, overlooks the fact that the grand jury did indict Floresca for instructing Lopez "to falsely tell [his] attorney and the authorities that defendant FLORESCA never gave [Lopez] the prescription for thirty (30) dosage units of phentermine," J.A. 36 (emphasis added); this is the very conduct prohibited under paragraph 3.10

It is possible and appropriate, then, to determine whether the outcome of Floresca's trial was affected by the error in this case. As discussed above, supra, in Section III, the facts of this case establish conclusively that Floresca cannot demonstrate prejudice, i.e., that the error affected the outcome of the trial.

The majority opinion concludes that Olano's third prong is met because the error of constructive amendment of an indictment is not susceptible to harmless error analysis. This argument relies upon the use of the nearly identical phrasing "affect substantial rights" in subsections (a) and (b) of Rule 52.11 If an error can never be harmless and therefore, under Rule 52(a), always affects substantial rights, then, the argument goes, the error must affect substantial rights under Rule 52(b) and, thus, meets Olano's third prong.12

Although the structure of Rule 52 may suggest such an interpretation, the Court in Olano left this question open. See --- U.S. at ----, 113 S. Ct. at 1778 ("There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome, but this issue need not be addressed.... Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the 'affecting substantial rights' prong of Rule 52(b)." (emphasis added)); id. at ----, 113 S. Ct. at 1779 ("Assuming arguendo that certain errors 'affec[t] substantial rights' independent of prejudice, the instant violation of Rule 24(c) is not such an error."). Despite this non-committal language, the majority assumes not only that the Olano Court intended that a showing of prejudice is not required for some class of forfeited errors, but also that the class of errors for which this is the case is the class of errors not susceptible to harmless error analysis. This is, of course, nothing more than speculation on the part of the majority; nothing in Olano lends support to the majority's musings.13

I would note that, in United States v. Lawton, supra, 995 F.2d 290, the District of Columbia Circuit was faced with a constructive amendment to which no objection had been lodged below. That court did not shirk, as does the majority here, its responsibility under Olano to determine whether the defendant was prejudiced thereby. See 995 F.2d at 294. See also United States v. Gaudin, supra, 28 F.3d at 951-52 (although the Ninth Circuit found the district court's failure to instruct the jury as to an essential element of the crime charged to be a "structural error" which per se affected substantial rights, the court nevertheless took account of prejudice in its Olano analysis, noting that, had the district court properly instructed the jury, the jury would have been faced with "a serious factual question").

The majority's largest error, however, is not its analysis of Olano's third prong, but its approach to the exercise of discretion required by Olano. Even assuming that the first three prongs of the Olano test are met, the question remains as to whether the error " 'seriously affects the fairness, integrity or public reputation of judicial proceedings,' " Olano, --- U.S. 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)), so that we should exercise our discretionary remedial power. This question is not to be glossed over. As the Supreme Court explained, "[A] plain error affecting substantial rights does not, without more, satisfy the Atkinson standard, for otherwise the discretion afforded by Rule 52(b) would be illusory." --- U.S. at ----, 113 S. Ct. at 1779.

The Supreme Court's emphasis on the discretion of the court of appeals to exercise its remedial power indicates that this power is equitable. It is clear, then, that, in determining whether to exercise this power, a court must consider the equities of the particular case before it.14 United States v. Childress, 26 F.3d 498, 504 (4th Cir.1994). In exercising our discretionary power, we must bear in mind that Rule 52(b)

authorizes the Courts of Appeals to correct only "particularly egregious errors," United States v. Frady, 456 U.S. 152, 163, 102 S. Ct. 1584, 1592, 71 L. Ed. 2d 816 (1982), those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S., at 160, 56 S.Ct., at 392..... Any unwarranted extension of this exacting definition of plain error would skew the Rule's "careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed." Id. [456 U.S.], at 163, 102 S. Ct., at 1592 (footnote omitted).

United States v. Young, supra, 470 U.S. at 15-16, 105 S. Ct. at 1046.

A determination of whether the error in a given case is likely, if uncorrected, "seriously [to] affect[ ] the fairness, integrity or public reputation of judicial proceedings" necessarily entails an assessment of prejudice in light of the equities of the case.15 Although a showing of prejudice does not, alone, compel such a conclusion, the absence of prejudice virtually precludes it. See Young, 470 U.S. at 16 n. 14, 105 S. Ct. at 1047 n. 14; supra note 15.

As explained at length in Section III, supra, the district court's error in this case did not in any way prejudice Floresca. Nor is there any indication or suggestion that the error was in any way the result of deliberate actions on the part of the prosecution or the district court. In short, it is plain that "the fairness, integrity or public reputation of judicial proceedings" would not be "seriously affected" were we to decline to exercise our discretionary remedial power to correct the error in this case.

Concerns of equity and justice do not deter the majority. Extolling technicality over fairness, compare Childress, 26 F.3d at 504 (declining to exercise our Rule 52(b) discretionary power to remedy "a quibbling disagreement with how the district court instructed the jury"), the majority tries to force its per se rule into the Olano analytical model. In effect, the majority asserts that constructive amendments per se "seriously affect the fairness, integrity or public reputation of judicial proceedings." Despite the fact that such a per se rule is wholly irreconcilable with the language and clear purpose of Supreme Court decisions such as Olano, Young and Frady, supra, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982), the majority suggests that subjecting Stirone errors to full Olano review where no objection below has been lodged both is unfair and undermines the integrity of the court system. Neither of these contentions is accurate.

Central to the majority's position is the proposition that affirmance of the conviction below would emasculate the right to indictment by a grand jury and overrule Stirone. See ante, at 712-14. The majority's mischaracterization of the effect of affirming Floresca's section 1512 conviction could not be more gross. Affirming the conviction herein would in no way "depriv[e] ... accused[s] of the protection of the grand jury." Ante, at 713-14. If an accused timely raises an objection based upon the Fifth Amendment's Grand Jury clause, the district court should consider and rule upon such objection. In light of Stirone, moreover, where, following timely objection, the district court erroneously fails to grant relief from a true constructive amendment of the indictment, this Court will reverse any conviction obtained below. Where, however, as here, the defendant fails to raise any objection below, the defendant must establish that affirmance of his conviction would " 'seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings,' " Olano, --- U.S. at ----, 113 S. Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. at 160, 56 S.Ct. at 392). Such a rule, contrary to the majority's suggestion, see ante, at 712-14, in no way overrules or even undermines Stirone. See United States v. Thetford, 676 F.2d 170, 180 (5th Cir.1982) (in a plain error case, distinguishing Stirone on the ground that, in the case under review, "[u]nlike Stirone, ... there was no objection to the jury instruction given" (footnote omitted)),16 cert. denied, 459 U.S. 1148, 103 S. Ct. 790, 74 L. Ed. 2d 996 (1983); United States v. Coulter, 474 F.2d 1004, 1005 (9th Cir.) (in plain error case, distinguishing Stirone on the ground that "[i]n Stirone an objection was made at trial"), cert. denied, 414 U.S. 833, 94 S. Ct. 172, 38 L. Ed. 2d 68 (1973); see also Jackson v. United States, supra, 359 F.2d at 263 (finding no reversible plain error in a similar case, but suggesting that Stirone might govern "if timely objection had been made").

With this in mind, I turn to the majority's specific objections to abstaining from exercising our discretionary Rule 52(b) remedial power in all constructive amendment cases. First, the majority asserts that to "depriv[e] an accused of the protection of the grand jury would be ... intolerably unfair." Ante, at 713-14. This, in the abstract, is true. However, as demonstrated just above, requiring an accused who failed below to raise an objection to a claimed constructive amendment to meet the Olano test does not deprive the accused of the protection of the grand jury. An accused retains below the right to object to the claimed constructive amendment. The burden which he must meet to warrant correction of the error increases17 only by virtue of his failure to voice any such objection below. There is nothing "intolerably unfair" about enforcing the contemporaneous-objection rule. See Young, 470 U.S. at 15-16, 105 S. Ct. at 1046-47.18

The majority next suggests that affirmance of the conviction below would undermine the integrity of the federal court system by eroding the right to indictment by a grand jury and overruling Stirone. See ante, at 713-14. The discussion above completely discredits the premise underlying this argument and, with it, the argument itself.

Thus, subjecting constructive amendments to which objections were not lodged at the trial level to an Olano analysis in no way undermines the integrity of the court system. Rather, I would suggest, it is the rule adopted by the majority, that certain errors, namely those that are not susceptible to harmless error analysis, are always considered to be reversible plain errors as a matter of law, even where they are not objected to at trial, undermines the court system's integrity, by encouraging defense counsel to forego objecting to such errors at trial. If defense counsel's client is acquitted, he succeeds; at worst, a conviction results, and his client will be entitled to a retrial as a matter of law. This exceedingly undesirable result undermines the contemporaneous objection rule, see Young, 470 U.S. at 15-16, 105 S. Ct. at 1046-47, and, with it, the integrity and reputation of the court system.

At bottom, the majority overturns Floresca's conviction on a technicality. This, alone, erodes the integrity and public reputation of our court system. Worse, the majority promulgates a per se rule under which such technicalities will, as a matter of law, always triumph over fairness and entitle fortunate defendants to reversal. The deleterious effect of such a rule on the integrity and public reputation of the court system is sure to be even more pronounced.

The majority elevates the harmless variance in this case to a constructive amendment of the indictment. Then, when the majority, begrudgingly, applies Olano to the error herein, it misconstrues and misapplies the Supreme Court's opinion; only by its gross mischaracterization of Olano can the majority reach the result it does, a result that truly flies in the face of fairness.

I would affirm the district court's judgment in all respects.19 I respectfully dissent.

Circuit Judges WILKINSON, WILKINS, NIEMEYER and WILLIAMS join this dissenting opinion.