                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4645


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

WENDY ANNETTE MOORE,

                Defendant - Appellant.



                              No. 14-4646


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHRISTOPHER AUSTIN LATHAM,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Charleston.   Richard M. Gergel, District
Judge. (2:13-cr-00330-RMG-1; 2:13-cr-00330-RMG-5)


Argued:   December 10, 2015                 Decided:    January 20, 2016


Before TRAXLER,   Chief   Judge,   and     MOTZ   and   HARRIS,   Circuit
Judges.
Affirmed by published opinion. Judge Harris wrote the opinion,
in which Chief Judge Traxler and Judge Motz joined.


ARGUED:   Andrew Mackenzie, BARRETT-MACKENZIE, LLC, Greenville,
South Carolina; James Arthur Brown, Jr., LAW OFFICES OF JIM
BROWN, PA, Beaufort, South Carolina, for Appellants.       Rhett
DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.   ON BRIEF:   William N. Nettles, United
States Attorney, Columbia, South Carolina, Nathan S. Williams,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.




                               2
PAMELA HARRIS, Circuit Judge:

     A jury convicted Wendy Annette Moore and Christopher Austin

Latham    of    participating     in   a       murder-for-hire     plot    targeting

Latham’s estranged wife.          In this consolidated appeal, Moore and

Latham challenge their convictions, arguing that the district

court    constructively    amended     the       indictment    through     erroneous

jury instructions and improperly admitted hearsay and character

evidence.      We disagree, and affirm the convictions.



                                           I.

                                           A.

     Viewed in the light most favorable to the government, see

United States v. Lentz, 524 F.3d 501, 507 (4th Cir. 2008), the

evidence at trial established the following.                   On April 5, 2013,

police officers stopped Aaron Wilkinson as he drove through the

city of Charleston, South Carolina.                    Wilkinson revealed to the

police that he and his former prison cellmate, Samuel Yenawine,

were involved in a murder-for-hire plot targeting Nancy Latham.

The planned murder had not yet occurred.

     Investigators       later    learned        that    appellants     Christopher

Latham    and    Wendy    Moore    also         were    involved   in     the   plot.

Christopher Latham, a banking executive in Charleston, was in

the process of divorcing the targeted victim, Nancy Latham, now

known as Nancy Cannon.            Moore was Latham’s assistant at the

                                           3
bank, as well as his girlfriend.               Moore is also the ex-wife of

Samuel Yenawine.

         Wilkinson explained to the police that a few days before

the April 5 stop, Yenawine had suggested to him that they travel

together from Louisville, Kentucky to Nashville, Tennessee to

buy drugs.        Wilkinson agreed, and Yenawine’s girlfriend, Rachel

Palmer, rented a car for them – the car that Wilkinson was

driving when the police stopped him.              Once the two men were on

the road, Yenawine told Wilkinson that they actually were headed

to South Carolina, where Yenawine planned to kill a person he

described as a witness in a RICO case.

         After arriving in Charleston, Yenawine purchased a pay-as-

you-go cell phone and Wilkinson heard him use it to speak to a

woman.      Yenawine told Wilkinson that the woman would meet them

at a hotel in North Charleston and that she would be driving a

white 2001 Dodge Durango.           Appellant Moore, who drove a white

Dodge Durango at the time, arrived at the hotel, and Wilkinson

observed     Yenawine    meet    with   her.     Moore   rented    a   room   for

Yenawine and Wilkinson, and Yenawine returned from the meeting

with     $5,000   cash   and    other   items.     Yenawine     gave   Wilkinson

$2,500 for himself and another $2,000 to wire to Rachel Palmer

in Kentucky.

         Wilkinson observed Yenawine meet with Moore a second time

in   a    different   location,    returning     this    time   with   a   manila

                                         4
envelope.     Investigators determined that the envelope contained

a “hit packet” with information related to the plot to murder

Nancy    Cannon,    including     printed     maps     with   handwritten       notes;

personal information about Cannon, her family, her schedule, her

vehicle, and her daily routine; and photographs of Cannon, her

residence, and one of her daughters.

        Investigators later linked the contents of the hit packet

to appellants Latham and Moore.               The hit packet’s photograph of

Cannon’s house, for instance, was found on Latham’s personal

cell phone.      Handwriting analysis revealed that notes on some of

the   materials     were     written    by    Moore.       And    the   government’s

evidence connected other contents of the hit packet to activity

on    Latham’s     phone   and    the   appellants’        office    computers     and

individual office printers.

       Investigators       also     uncovered        independent        evidence     –

including    cell    phone    tower     evidence     and   bank     records    –   that

further corroborated Wilkinson’s story.                    And the government’s

evidence    suggested      that   Latham      and   his    parents      had   provided

funds to pay Moore’s lawyers, and that Moore and her parents had

provided funds to pay Yenawine’s lawyer.

       Moore, Yenawine, and Wilkinson were arrested in April 2013

and charged with crimes related to the murder-for-hire plot.                        In

June 2013, Yenawine committed suicide in jail.



                                          5
                                             B.

      On    August    6,    2013,    a     grand    jury   returned       a    superseding

indictment       against     appellants       Moore    and    Latham,         as     well   as

Wilkinson and Palmer.           In the two counts principally at issue

here,     the    indictment    charged        Moore    and    Latham      with          federal

crimes involving murder for hire:                   Count One charged conspiracy

to   use    interstate       commerce       facilities      in    the    commission          of

murder for hire, and Count Three, the use of interstate commerce

facilities       in   the    commission       of     murder      for    hire,       both     in

violation of 18 U.S.C. § 1958(a).                    Moore alone was charged in

Count Two with solicitation of murder for hire in violation of

18 U.S.C. §§ 373 and 1958, and both appellants were charged in

Count     Four   with      illegal    firearm       possession         under       18   U.S.C.

§ 924(c)(1) and (2).

      Moore and Latham were tried before a jury in the District

of South Carolina in February of 2014. 1                   The jury convicted Moore

on all four counts against her.                     Latham was convicted only on

Count Three, with the jury unable to agree on Counts One and

Four.      The district court declared a mistrial on Counts One and

Four as     to    Latham,     and    the    government       later      dismissed         those

charges.




      1 Wilkinson pled          guilty        and    Palmer      entered       a    pretrial
diversion program.


                                             6
      Latham was sentenced to 120 months in prison, and Moore was

sentenced to 180 months.           The district court denied appellants’

post-trial motions, and this timely appeal followed.



                                         II.

      Moore and Latham’s first contention is that their Fifth

Amendment right to indictment by a grand jury was violated when

the   district    court,       through    its     instructions      to   the   jury,

constructively amended Counts One and Three of the indictment

against them.      According to Moore and Latham, those instructions

allowed     the   jury    to    convict        them   under   one   provision     of

§ 1958(a), which prohibits the use of a “facility” of interstate

commerce in connection with a murder for hire, while they were

charged   only    under    another,      covering      “travel”     in   interstate

commerce.    For the reasons discussed below, we disagree.

                                          A.

      We begin with the background principles that govern a claim

of constructive amendment.            The Fifth Amendment of the United

States 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.”                       And it is “the

exclusive province of the grand jury” to alter or broaden the

charges set out in an indictment.                 United States v. Whitfield,

695 F.3d 288, 309 (4th Cir. 2012).                    Accordingly, it is well

                                          7
established that “a court cannot permit a defendant to be tried

on charges that are not made in the indictment against him.”

United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994) (en

banc)     (quoting        Stirone     v.       United   States,      361       U.S.   212,   217

(1960)).

         An impermissible constructive amendment – also referred to

as   a    “fatal     variance”        –    occurs    when    the     government,       usually

through       its    presentation           of    evidence      or     argument,       or    the

district court, usually through its jury instructions, “broadens

the possible bases for conviction beyond those presented by the

grand jury.”          Floresca, 38 F.3d at 710; see also United States

v. Randall, 171 F.3d 195, 203 (4th Cir. 1999).                             The key inquiry

is whether a defendant has been tried on charges other than

those listed in the indictment.                      United States v. Allmendinger,

706 F.3d 330, 339 (4th Cir. 2013).

         Of   particular         importance          here,      when       a     constructive

amendment claim rests on allegedly erroneous jury instructions,

a    reviewing        court      is       to     consider      the     totality        of    the

circumstances         –   including        not    only    the   instructions           and   the

indictment      but       also   the       arguments      of    the     parties       and    the

evidence presented at trial – to determine whether a jury could

have     “reasonably        interpreted”          the    challenged        instructions       as

“license to convict” on an unindicted charge.                              Lentz, 524 F.3d

at 514-15.          If not – if a reasonable jury, in light of the full

                                                 8
context, would not have thought that it was permitted to convict

on    a    ground         not    included         in       the     indictment         –     then       no

constructive amendment has occurred.                              Id. at 515-16.               Whether,

under that standard, appellants’ indictment was constructively

amended     is       a   question     of    law       that    we     review     de     novo.         See

Whitfield, 695 F.3d at 306.

                                                  B.

      To support federal criminal liability, 18 U.S.C. § 1958(a)

enumerates two distinct and alternative jurisdictional elements,

or links to interstate commerce.                            Under the “travel prong,” a

defendant may be convicted if he or she “travels in or causes

another . . . to travel in interstate or foreign commerce” in

connection       with       a   murder          for       hire.         Or,   alternatively,           a

defendant may be convicted under the “facilities prong” if he or

she   “uses      or       causes    another . . .             to     use      the    mail       or   any

facility        of       interstate        or    foreign          commerce.”              18    U.S.C.

§ 1958(a).           Under either prong, the government must prove that

the   defendant’s           conduct       was     undertaken            “with   intent          that   a

murder be committed” for compensation.                            Id.

          In this case, the government charged Moore and Latham only

under     the    travel         prong      of     §       1958(a).         Count     One       of    the

indictment           alleged       that     Moore          and     Latham       “did       knowingly

conspire, confederate, agree and have a tacit understanding with

each other and with others . . . to travel in, and cause another

                                                      9
to travel in, interstate commerce, with the intent that a murder

be committed” for compensation.         J.A. 41.    Likewise, Count Three

charged     that   the    appellants,     “as   principals,     aiders     and

abettors, and as co-participants in jointly undertaken criminal

activity,    unlawfully     and   willfully     traveled   in   and   caused

another to travel in interstate and foreign commerce, to wit,

travel between Kentucky and South Carolina, with intent that a

murder be committed” for compensation.          J.A. 42.

     In its closing instructions, the district court first read

the indictment to the jury, advising that the appellants were

charged under the travel prong in Counts One and Three.                  But –

and here is where the question in this case arises – as it went

on to describe § 1958(a), the court made two references to the

uncharged facilities prong.       Specifically, the court stated:

     To prove a violation of 18 U.S.C. Section 1958(a), the
     Government must prove a defendant, one, traveled or
     caused another to travel in interstate commerce [or]
     use[d], or cause[d] another person to use the mail or
     any facility in interstate commerce; second, with the
     intent   that  a   murder  be  committed;   third,  as
     consideration for the receipt or promise to pay
     anything of pecuniary value.

J.A. 1670-71 (emphasis added); see also J.A. 1672-73.             The court

also provided the jurors a written copy of its instructions,

including the two references to the facilities prong.              No party

objected.




                                     10
       Latham and Moore both filed post-trial motions in which

they   argued     for    the    first       time    that    the    district       court      had

constructively          amended       the     indictment          by     mentioning          the

facilities prong in its jury instructions.                            The district court

denied the motions, finding that no constructive amendment had

occurred.

                                              C.

       Latham     and    Moore       again    urge       that     the     district      court

constructively amended Counts One and Three of the indictment

against them by adverting to the facilities prong of § 1958(a)

in    its   instructions.            We     acknowledge          that    in     some   cases,

instructing       a    jury    on    the    facilities       prong       when    it    is   not

charged     in    an     indictment         could     constitute          a     constructive

amendment.        But under the totality of the circumstances here,

including the jury instructions, the verdict form provided to

the jury, the arguments of the parties, and the evidence, see

Lentz, 524 F.3d at 514–15, we find that the district court’s two

references       to   the     “use   of     facilities”         did     not   constitute       a

constructive amendment.

       First, the bulk of the jury instructions properly tracked

the indictment and omitted any mention of the facilities prong.

The    court’s    opening      instructions         to     the    jury    described         only

travel.     In its closing instructions, the court read aloud the

critical portions of the indictment, which charged only travel,

                                              11
and    it    expressly   cautioned       that   the        appellants     were   “not   on

trial for any act or crime not contained in the indictment,”

J.A. 1665.       The court provided a written copy of its accurate

summary of the indictment to the jurors, as well as a verdict

form that correctly set forth the charges in the indictment.

And    the   court   called     special    attention          to   the    verdict    form,

instructing the jury to use the verdict form, along with the

jury charges, “in a methodical way” to reach its decision.                           J.A.

1680.

       Second, the parties’ arguments focused solely on the travel

prong.        Neither    the    government       nor       counsel    for    Moore    ever

mentioned “use of facilities” of interstate commerce in opening

or    closing    arguments.        The    only    reference          to   “facilitating

interstate commerce” came from counsel for Latham who, in his

closing      argument,     used    that    term        –    but    only     to   describe

Wilkinson’s travel across state lines.                      J.A. 1618.       And in its

closing argument, the government made clear that it was relying

on the travel prong:              “[W]hat the law requires is travel in

interstate commerce, and the judge will tell you driving from

Kentucky down to South Carolina covers your interstate commerce.

Sounds like a strange term, but really is crossing state lines.”

J.A.    1554;    see     also   J.A.     1555    (government         explaining      that

“whether you’re the one that traveled or whether you assist the

people that are traveling . . . you’re equally responsible”).

                                          12
        It   is    true,      as    the   government        acknowledges,       that     the

evidence at trial involved “extensive testimony regarding items

that could be considered facilities of interstate commerce –

that is, phones and computers.”                  Response Br. at 35 (emphasis in

original).        But the appellants’ use of cell phones and computers

to    communicate       about       the   plot   against         Nancy   Cannon   and     to

prepare the hit packet was presented as substantive evidence

that Latham and Moore were involved in the murder-for-hire plan,

not in a way that tied it to the facilities prong of § 1958(a).

Indeed, the term “facilities of interstate commerce” was never

defined for the jury, and the government never suggested that

mere use of technology, independent of its effect on interstate

travel, was a basis for convicting the appellants.

        In sum, when the jury instructions, the verdict form, and

the   arguments        and    evidence     presented     at      trial    are   viewed    in

their totality, we find that the jury could not reasonably have

concluded that it was free to convict the appellants under the

uncharged,        undefined        facilities    prong      of    the    murder-for-hire

statute.       See Lentz, 524 F.3d at 514–15; see also Allmendinger,

706     F.3d      at   339.         Accordingly,       we     hold       that   the    jury

instructions did not constructively amend the indictment in this

case.




                                            13
                                           III.

      We can dispose of the appellants’ evidentiary challenges

more briefly.        First, Moore and Latham assert that the district

court improperly admitted out-of-court statements made by Samuel

Yenawine.      And     second,        they    argue        that    the       district   court

erroneously admitted “character evidence” as to appellant Moore.

We find no fault with the district court’s evidentiary rulings.

                                              A.

      At trial, the government called Tyler Lee Tudor to testify

about   statements      Yenawine        had    made        to   him    before    committing

suicide.      After Yenawine was arrested in April of 2013, Tudor

and   Yenawine    became        cellmates          and    friends       in    jail.     Tudor

testified     that     he       and     Yenawine          had     discussed      Yenawine’s

involvement      in    a        murder-for-hire            plot        targeting      someone

affiliated with the South Carolina Lottery – as Nancy Cannon was

at the time, serving on the South Carolina Lottery Commission.

According to Tudor, Yenawine also had stated that the operation

involved his ex-wife and a banker.

      Moore    filed       a     motion       in     limine       seeking       to    exclude

Yenawine’s statements.                The district court denied the motion,

holding that the statements were admissible under the “statement

against     interest”          exception      to         the    rule     against      hearsay

evidence.     See Fed. R. Evid. 804(b)(3).                      We review the district



                                              14
court’s   admission      of    this    evidence         for    abuse    of   discretion.

United States v. Lighty, 616 F.3d 321, 351 (4th Cir. 2010).

     “[A]     statement        made    by        an    unavailable       declarant     is

admissible    if    it   is    one    that       ‘a    reasonable       person   in   the

declarant’s position would have made only if the person believed

it to be true’” because it “‘had so great a tendency to . . .

expose the declarant to civil or criminal liability.’”                            United

States v. Dargan, 738 F.3d 643, 649 (4th Cir. 2013) (quoting

Fed. R. Evid. 804(b)(3)(A)).                The statement must be “supported

by   corroborating        circumstances           that        clearly    indicate     its

trustworthiness.”        Fed. R. Evid. 804(b)(3)(B).

     Moore and Latham contend that the district court abused its

discretion     in    admitting         Yenawine’s            statements      under    the

“trustworthiness” portion of this standard.                         According to the

appellants,    Yenawine’s       statements            were    inherently     unreliable,

given that Yenawine might have thought he could “cut a deal to

tell his story” and Tudor may have hoped that his testimony

would result in leniency in his own case.                         Opening Br. at 44.

But as the district court explained, Yenawine had no reason to

shade the story he told a cellmate, and the appellants cannot

establish    that   the       district      court      abused     its   discretion    in

finding sufficient corroboration of Yenawine’s statements.

     Moore    and    Latham’s         suggestion         that     the     admission   of

Yenawine’s statements implicated the Sixth Amendment is likewise

                                            15
without       merit.     Only     “testimonial”       statements        are    excludable

under the Sixth Amendment’s Confrontation Clause, Dargan, 738

F.3d at 650, and we have held that statements by one prisoner to

another are “clearly nontestimonial.”                    Id. at 650-51 (quoting

Davis    v.    Washington,      547    U.S.    813,    825   (2006)).          The    Sixth

Amendment adds nothing to the appellants’ claim, and we find no

error in the admission of Yenawine’s out-of-court statements.

                                             B.

        Moore and Latham’s final contention is that the district

court    admitted       certain    “character        evidence”     in    violation       of

Federal Rule of Evidence 404, which prohibits use of character

evidence to prove a propensity to engage in particular conduct. 2

Because the appellants did not raise that objection at trial, we

review it only for plain error.                     United States v. Keita, 742

F.3d 184, 189 (4th Cir. 2014).                    Thus, we may reverse only on a

finding       that     (1) there      was    “error,”     (2) that       was       “plain,”

(3) that        “affect[ed]        substantial          rights,”        and        (4) that

“seriously       affect[ed]        the      fairness,     integrity,          or     public

reputation of judicial proceedings.”                   Johnson v. United States,

520 U.S. 461, 467 (1997) (quoting United States v. Olano, 507

U.S. 725, 732 (1993)).

     2 Specifically, Rule 404(a)(1) provides that “[e]vidence of
a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in
accordance with the character or trait.”


                                             16
        The testimony to which Moore and Latham object primarily

related to Yenawine’s prior conviction for arson, his alleged

involvement in a murder, and Moore’s role as a witness in the

related     proceedings.               In   addition,     they    contend          that      the

government improperly alluded to the crime of money laundering

when eliciting testimony related to Latham’s payment of Moore’s

attorney’s      fees,      and     Moore’s    parents’        payment       of    Yenawine’s

attorney’s fees.

     Moore      and    Latham      have     not     established     that         any    of   the

testimony      to   which       they    object     was   admitted      in    “error,”        let

alone “plain error.”             Indeed, some of the testimony was elicited

by the appellants themselves, through counsel.                              Moreover, the

record reflects that the district court required the government

to   correct        any    misperceptions           engendered      by      its        evidence

relating to Yenawine’s past and the money laundering comment.

So even assuming, arguendo, the existence of plain error, we

could    not   find       the    “serious[]        [e]ffect[]”    on     the      “fairness,

integrity,      or        public       reputation”       of    judicial          proceedings

required for reversal under plain error review.                              See Johnson,

520 U.S. at 467; Olano, 507 U.S. at 732.



                                             IV.

     For the foregoing reasons, the appellants’ convictions are

                                                                                   AFFIRMED.

                                              17
