TRIAL ORDER NO. 2 RE: DEFENDANT'S MOTION IN LIMINE NO. 2 AND SUPPLEMENTAL BRIEFING

Re: Dkt. No. 358, 408, 409

YVONNE GONZALEZ ROGERS, District Judge.

Defendant's Motion in Limine No. 2 seeks to exclude evidence relating to Matrix's internal employee policies and codes of conduct on the basis that those policies and codes are irrelevant to the issue of whether defendant engaged in the conduct alleged in the indictment.1 (Dkt. No. 358.) During the pretrial conference on August 16, 2019, defendant raised, for the first time, the argument that the government's intent to introduce this evidence, as well as the government's proposed jury instructions and its statements to the Court indicate that the government's case-in-chief at trial may result in a constitutionally prohibited constructive amendment of the indictment in violation of the Fifth Amendment.2 The motion is DENIED WITHOUT PREJUDICE.

The Fifth Amendment to the Constitution provides that "[n]o 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. Thus, under the Fifth Amendment, it is a constitutional error to allow a federal criminal defendant to be convicted of a felony based on facts and theories not alleged in the indictment. Stirone v. United States, 361 U.S. 212, 217-18 (1960) ("Ever since Ex Parte Bain, 121 U.S. 1, 7 . . . was decided in 1887, it has been the rule that after an indictment has been returned its charged may not be broadened through amendment except by the grand jury itself."); see also United States v. Garcia-Paz, 282 F.3d 1212, 1215 (9th Cir. 2002). A constructive amendment of the indictment occurs when the Court alters the charging terms of the indictment after the grand jury has made its charges. United States v. Adamson, 291 F.3d 606, 614 (9th Cir. 2002). A variance occurs when the evidence offered at trial proves facts different from those alleged in the indictment. Id. Although a constructive amendment is always fatal, a variance is fatal only if it prejudices the defendant's substantive rights. Id.

Here, the indictment alleges a conspiracy count under 18 U.S.C. § 1349 and five mail fraud counts under 18 U.S.C. §1341, which allege that defendant conspired with others to defraud and did defraud Matrix "by submitting false and fraudulent invoices for materials used and work performed by the businesses knowing that the materials had not been used and the work had not been performed[,]" (See Dkt. No. 408 ("Defendant's Suppl.") at 3.) Defendant argues that the jury instructions proposed by and the evidence relating to Matrix's internal policies and code of conduct proffered by the government "show that the government intends . . . to argue to the jury that [defendant] either 1) conspired to defraud Matrix of its right to the honest services of its employees by failing to disclose a conflict of interest, or 2) devised a scheme to defraud Matrix of money or property by failing to disclose the conflict of interest of the project managers." (Id. at 4-5.) Defendant asserts that both of these arguments fall outside of the offenses charged in the indictment and therefore constitute a constructive amendment of the indictment. (Id. at 4.)

Defendant's argument is premature. Defendant fails to identify any authority for determining whether constructive amendment of the indictment has occurred before the presentation of evidence. See United States v. Ward, 747 F.2d 1184, 1191 (9th Cir. 2014) (finding that "the determination of whether a constructive amendment has been effected requires sensitivity to both the jury instructions as a reflection of the indictment and to the nature of the proof offered at trial"). Accordingly, the Court DENIES this portion of defendant's motion without prejudice to bringing the motion again at the completion of evidence.3

This Order terminates Docket Number 358.

IT IS SO ORDERED.