                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 16a0040p.06

                        UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 UNITED STATES OF AMERICA,                                       ┐
                                         Plaintiff-Appellee,     │
                                                                 │
                                                                 │         Nos. 13-6558/6559/6560
            v.                                                   │
                                                                  >
                                                                 │
 JACKIE MIZE (13-6560); KELVIN MIZE (13-6558);                   │
 JAMES MIZE (13-6559),                                           │
                          Defendants-Appellants.                 │
                                                                 ┘
                              Appeal from the United States District Court
                           for the Eastern District of Tennessee at Knoxville.
                      No. 3:12-cr-00137—Thomas A. Varlan, Chief District Judge.

                                           Argued: June 12, 2015

                                  Decided and Filed: February 18, 2016

                 Before: KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.

                                            _________________

                                                 COUNSEL

ARGUED: Michael B. Menefee, MENEFEE & BROWN, P.C., Knoxville, Tennessee, for
Appellant in 13-6558. David C. Jennings, UNITED STATES ATTORNEY’S OFFICE,
Knoxville, Tennessee, for Appellee. ON BRIEF: Michael B. Menefee, MENEFEE &
BROWN, P.C., Knoxville, Tennessee, for Appellant in 13-6558. Gary W. Lanker, LAW
OFFICE OF GARY W. LANKER, Memphis, Tennessee, for Appellant in 13-6559. Russell T.
Greene, Knoxville, Tennessee, for Appellant in 13-6560. David C. Jennings, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

         CLAY, J., delivered the opinion of the court in which MARBLEY, D.J., joined. KEITH,
J. (pp. 13–19), delivered a separate dissenting opinion.


        
         The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting
by designation.




                                                        1
Nos. 13-6558/6559/6560                    United States v. Mize, et al.                Page 2


                                              _________________

                                                    OPINION

                                              _________________

       CLAY, Circuit Judge.               Kelvin Mize, James Mize, and Jackie Mize (collectively
“Defendants”) were convicted, following a jury trial, of conspiracy to distribute and possession
with intent to distribute oxycodone in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C), and
conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i),
(a)(1)(B)(i), and 1956(h).           Those charges arose from the Defendants’ involvement in a
prescription pill conspiracy organized by Jackie Mize (the “Mize conspiracy”), the father of
Kelvin and James. The Mize conspiracy operated similarly to a separate conspiracy organized
by Kevin Bussell (the “Bussell conspiracy”). Because we find a prejudicial variance between the
charges in the indictment and the proof offered at trial, we REVERSE and VACATE all three
convictions and REMAND for a new trial.

                                                          I.

                                                BACKGROUND

       To explain how the Mize conspiracy began and operated, the government at trial
presented evidence about the separate Bussell conspiracy. The Bussell conspiracy operated as
follows: groups of individuals from Tennessee, many of whom were drug addicts, would travel
to doctors’ offices and pain clinics in Florida, visiting several doctors and pain clinicians at a
time. Kevin Bussell,1 the conspiracy’s ringleader, paid for their travel expenses, including hotel
costs, and even provided them with drugs. These “doctor shoppers” would present false reports
of pain to examining doctors in order to obtain prescription medication pills—mainly opiates and
oxycodone. They would then bring those pills back to Tennessee, keep half of them, and give
the other half to Bussell, who would sell his share for a profit.

       The Bussell conspiracy was formed in 2009 when Bussell assembled a group of people to
travel from Tennessee to Florida and obtain prescription medication pills. Bussell’s first group


       1
           Kevin Bussell was sometimes referred to during trial as “Trent Bussell.”
Nos. 13-6558/6559/6560             United States v. Mize, et al.                         Page 3


of shoppers consisted of three people, one of whom was James Mize. But because James had to
wait six months before he could refill his prescription, he did not accompany Bussell on the
second trip to Florida. Instead, the trip was made by James’ brother, Kelvin Mize.

       Eventually, Bussell started doctor shopping—i.e., his doctor shoppers would visit
multiple doctors in order to obtain multiple controlled substance prescriptions. This also allowed
Bussell’s doctor shoppers to circumvent Florida’s six-month waiting time for filling new
prescriptions. Because of the doctor shopping scheme, Bussell increased the number of shoppers
he took on each trip to Florida. At its peak, the Bussell conspiracy sent forty people to Florida at
a time, each of whom visited anywhere from two to five doctors per trip.

       Both James and Kelvin went to Florida with Bussell as doctor shoppers. Jackie, on the
other hand, was not one of Bussell’s doctor shoppers. Instead, Jackie asked Bussell to take him
on a trip to Florida to learn how the operation worked. Jackie accompanied Bussell on his next
trip and Bussell showed him how the operation worked. But because Jackie was not one of
Bussell’s doctor shoppers, he paid for his own trip expenses.

       After seeing Bussell and his shoppers in action, Jackie assembled his own group to travel
to Florida and essentially do the same thing—i.e., obtain prescription pills for opiates and
oxycodone and return to Tennessee to sell them on the black market. Jackie’s group of doctor
shoppers included Kelvin and his ex-wife Donna Webb, James, and Jackie’s two other sons,
Jonathan and Ryan.

       The conspiracy organized by Jackie, the Mize conspiracy, would eventually grow to ten
doctor shoppers, and did in fact operate just like the Bussell conspiracy. Upon returning from
Florida, Jackie’s doctor shoppers gave him half of their prescription pills. Either Jackie himself
or Kelvin would then sell those pills for money in Tennessee. For example, Crystal Mason, one
of Bussell’s doctor shoppers, testified that she bought pills from Kelvin. On the other hand,
Johnny Harvey, another one of Bussell’s doctor shoppers, testified that he bought pills from
Jackie. James, for his part, was mainly a drug user and doctor shopper—he did not sell very
many pills.
Nos. 13-6558/6559/6560             United States v. Mize, et al.                       Page 4


       According to the testimony at trial, Florida doctors and pharmacists started to adopt more
stringent screening measures for prescription medication. One such measure was that clinics
would not see patients, and pharmacists would not fill a prescription, absent proof of a valid
Florida driver’s license. Bussell responded by leasing residential property in Florida, which he
used to establish residency in Florida for his doctor shoppers. This had the added benefit of
housing his doctor shoppers when they travelled to Florida, thus eliminating hotel costs. Soon
after Bussell entered into his lease, Jackie followed suit, leasing his own Florida property for
purposes of establishing residency in Florida for his doctor shoppers.

       In November 2010, law enforcement officers executed search warrants at both Bussell’s
rental houses in Florida and at Jackie’s farmhouse in Harrogate, Tennessee. At trial, the items
seized at Jackie’s residence were admitted into evidence. Those items included prescription pill
bottles for oxycodone in Jackie’s name that had been filled at a pharmacy in Florida, and a folder
containing several pages of the names and addresses of pain management clinics in Florida. Law
enforcement officers also found a printout of Kelvin’s patient drug history, which showed
payment of $1,798.80 for 80 milligrams of oxycodone, and various pieces of notebook paper that
contained handwritten notations about several kinds of drugs. There were handwritten notes
about “TP,” which was a reference to Xanax pills, and also about “30s,” which were references
to 30-milligram Roxycodone pills. One of those notes read: “I sold ten TPs plus three 30s.
I sold one 30.” (R. 115, Jury Trial Transcript, Volume 1, PageID# 468.) Another note read:
“I paid dad 550 more dollars.” (Id.)

       Following the government’s case-in-chief during the Mize conspiracy trial, Defendants
moved for acquittal under Rule 29 of the Federal Rules of Criminal Procedure, arguing, among
other things, that the government had not presented any physical evidence of pills or large
amounts of cash. Kelvin also argued that the government improperly presented evidence about
the separate Bussell conspiracy in an attempt to prove that he and James and Jackie were
involved in a much larger drug-trafficking conspiracy. The district court denied Defendants’
motions for acquittal. At the close of evidence, a jury convicted Defendants of both counts.

       Over Defendants’ objections, the district court adopted the presentence investigation
report’s findings with respect to the amount-of-loss and drug quantities attributable to
Nos. 13-6558/6559/6560              United States v. Mize, et al.                        Page 5


Defendants. The court sentenced both Kelvin and Jackie to 360 months’ imprisonment and
sentenced James to 300 months’ imprisonment.            This appeal then followed.     We discuss
additional facts as necessary below.

                                                 II.

                                          DISCUSSION

        Defendants present three issues on appeal. First, Kelvin argues constructive amendment
of the indictment and prejudicial variance in the proofs. He argues that the government’s
presentation of evidence about the separate Bussell conspiracy effectively amended the
indictment, putting him on trial for a crime for which he was never formally charged. Second, he
challenges the district court’s calculation of the drug quantity attributable to him. And third, all
defendants challenge the factual sufficiency of the evidence to support their convictions.

        Because we reverse and vacate Defendants’ convictions on the grounds that a prejudicial
variance existed between the single conspiracy charged in the indictment and the government’s
proofs at trial, we need not reach Defendants’ other contentions on appeal.

        A. Reaching the Unpreserved Issue

        We note initially that Kelvin is the only defendant to raise a constructive amendment and
variance argument on appeal.        And as discussed above, he also objected at trial to the
government’s presentation of evidence regarding the Bussell conspiracy, thereby preserving his
claim for appellate review. While Jackie does not raise a constructive amendment and variance
argument on appeal, he did, however, object at trial to the substantial amount of evidence about
the Bussell conspiracy. James, on the other hand, does not raise this argument on appeal, nor did
he raise this challenge at trial.

        “The general rule of appellate procedure is that issues not presented in an appellant’s
initial merits brief are waived.” Citizens Coal Council v. U.S. E.P.A., 447 F.3d 879, 905 (6th
Cir. 2006) (en banc) (citation omitted). But this rule is not jurisdictional, and we may choose to
entertain arguments not raised by the parties when the failure to do so would constitute a
miscarriage of justice. See Mayhew v. Allsup, 166 F.3d 821, 823-24 (6th Cir. 1999) (holding that
Nos. 13-6558/6559/6560                   United States v. Mize, et al.                                  Page 6


the court would consider the application of a statute helpful to the defendant despite his failure to
address it either at trial or on appeal when the failure to do so would constitute a miscarriage of
justice).

        We recognize that the rule in Mayhew applies only to “exceptional” cases. See id. This
case, however, meets that exception because, if successful, Defendants’ appeal on this issue
would result in reversal of their convictions. Moreover, because the issue has been briefed by
both sides and discussed at oral argument, the government is not prejudiced by Jackie’s and
James’ neglect in not raising the issue in their briefs.2 Finally, because Defendants were tried
together for a single conspiracy, it would be a miscarriage of justice to affirm Jackie’s and
James’ convictions while reversing Kelvin’s conviction based on a constitutional error that
tainted Defendants’ joint jury trial. We will therefore exercise our discretion to reach the merits
as to whether a constructive amendment or variance occurred as to all defendants, because we
believe that a failure to do so would constitute a miscarriage of justice. See id.

        B. The Indictment Versus the Proof at Trial

                 a. Standard of Review

        Generally, we evaluate claims of constructive amendments to or variances from an
indictment de novo. United States v. Prince, 214 F.3d 740, 756 (6th Cir. 2000). However, when
a defendant fails to preserve an argument for appeal, we review only for plain error. To obtain
relief under that standard, a defendant must establish “(1) error, (2) that is plain, and (3) that
affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67 (1997) (internal
citations and quotations omitted). If a defendant can show all three conditions, we will “exercise
[our] discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. at 467 (alteration in original). The
defendant bears the burden of demonstrating that a constructive amendment or variance has
occurred. United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002).


        2
           The dissent accuses the majority of “misconstru[ing] the record,” writing that “[t]he majority’s assertion
that the ‘issue has been briefed by both sides and discussed at oral argument’ is misleading.” Dissent at 1. But this
is incorrect; we would encourage the dissent to listen to the oral argument audio in this case (which is available on
Judge Point), and to take another look at the briefs filed on behalf of Kelvin and the government.
Nos. 13-6558/6559/6560              United States v. Mize, et al.                        Page 7


       Because Kelvin preserved his claim of constructive amendment or variance at trial (and
also on appeal), we review his claim de novo. We also apply this standard to Jackie because he
objected at trial to the introduction of extensive evidence about the Bussell conspiracy, thus
preserving his claim on appeal. But since James did not preserve this issue, we apply plain error
review as to him. See United States v. Kuehne, 547 F.3d 667, 682 (6th Cir. 2008) (“[W]here no
specific objection is raised regarding a constructive amendment or a variance before the district
court, we are limited to ‘plain error’ review on appeal.”).

               b. Constructive Amendment of the Indictment/Variance

       Defendants argue that the evidence introduced by the government at trial so diverged
from the charges set forth in the indictment as to violate their rights under the Fifth and Sixth
Amendments. “An indictment may be the subject of an actual amendment, a constructive
amendment, or a variance.” United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007). Thus,
constructive amendments and variances are two types of modifications to indictments that we
have recognized. United States v. Hynes, 467 F.3d 951, 961 (6th Cir. 2006). However, these
two concepts—constructive amendments and variances—differ “with respect to the burden
placed upon the defendant and the remedy mandated upon a showing that a constructive
amendment or variance has occurred.” Kuehne, 547 F.3d at 683.

       A constructive amendment “results 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 such that there is a substantial likelihood that the defendant may have been
convicted of an offense other than the one charged in the indictment.” United States v. Martinez,
430 F.3d 317, 338 (6th Cir. 2005). Constructive amendments are “per se prejudicial because
they infringe upon the Fifth Amendment’s grand jury guarantee.” Hynes, 467 F.3d at 962
(internal citations and quotations omitted). “Because of the constitutional injury that results from
a constructive amendment, when proven, a defendant is entitled to a reversal of his conviction.”
Kuehne, 547 F.3d at 683 (citation omitted).

       In contrast, a variance is “not per se prejudicial.” Budd, 496 F.3d at 521. Instead,
reversal is only warranted when a defendant proves that “(1) a variance occurred and (2) that the
Nos. 13-6558/6559/6560              United States v. Mize, et al.                       Page 8


variance affected a substantial right of the defendant.” Kuehne, 547 F.3d at 683 (citing Prince,
214 F.3d at 757). Generally speaking, a variance “occurs when the charging terms [of the
indictment] are unchanged, but the evidence at trial proves facts materially different from those
alleged in the indictment.” Id. (alteration in original). A defendant’s substantial rights are
affected “only when the defendant shows prejudice to his ability to defend himself at trial, to the
general fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions.”
Id. (citations and quotations omitted).

               c. Analysis

       We are not convinced that a constructive amendment, as opposed to a prejudicial
variance, occurred in this case. Although our precedent recognizes that the difference between
the two is “shadowy,” United States v. Barrow, 118 F.3d 482, 488 (6th Cir. 1997), we have held
that a constructive amendment requires a showing “that the important functions of an indictment
were undermined by both the evidence presented and the jury instructions.” Hynes, 467 F.3d at
962 (emphasis in original).

       In this case, all of the harm was done by the introduction of extraneous and highly
prejudicial evidence about the separate Bussell conspiracy. The jury instructions, on the other
hand, do not support Defendants’ claim that the indictment was constructively amended. In
relevant part, the jury instructions provided as follows:

       The indictment charges that the defendants were all members of one single
       conspiracy to commit the crimes of distributing prescription drugs and money
       laundering. Defendants Kelvin Mize and James Mize have argued that there were
       really two separate conspiracies, one involving Kevin Trent Bussell and his co-
       conspirators; and another one involving Jackie Mize and his co-conspirators.

       To convict any one of the defendants of the conspiracy charge, the government
       must convince you beyond a reasonable doubt that the defendant was a member
       of the conspiracy charged in the indictment. If the government fails to prove this,
       then you must find that defendant not guilty of the conspiracy charge, even if you
       find that he was a member of some other conspiracy. Proof that a defendant was
       a member of some other conspiracy is not enough to convict, but proof that a
       defendant was a member of some other conspiracy would not prevent you from
       returning a guilty verdict, if the government also proved that he was a member of
       the conspiracy charged in the indictment.
Nos. 13-6558/6559/6560             United States v. Mize, et al.                        Page 9


(R. 117, Jury Trial Transcript, Volume 3, PageID# 1110-11.)

       While not necessarily a model of simplicity and clarity, these jury instructions do seem
calculated to mitigate, to the extent possible, any potential for prejudice from the evidence about
the Bussell conspiracy. The instructions specifically explained that the only way the jury could
convict Defendants was to find beyond a reasonable doubt that they were members “of the
conspiracy charged in the indictment”—i.e., the Mize conspiracy. Moreover, we have in the past
approved of similar instructions in this context. See, e.g., United States v. Gioiosa, 924 F.2d
1059, 1991 WL 15149 at n.4 (6th Cir. 1991) (unpublished table opinion); United States v.
Battista, 646 F.2d 237, 243 (6th Cir. 1981). Therefore, under these circumstances, we find that
there was no constructive amendment here.

       We do, however, find that there was a prejudicial variance between the charges in the
indictment and the evidence produced at trial. To determine whether reversal is required, we
must engage in a two-step inquiry: was there a variance, and if so, was it prejudicial. Kuehne,
547 F.3d at 683 (citing Prince, 214 F.3d at 757). To determine whether a variance has occurred,
we look to whether the evidence can “reasonably be construed only as supporting a finding of
multiple conspiracies” rather than the single conspiracy alleged in the indictment. United States
v. Warner, 690 F.2d 545, 548 (6th Cir. 1982) (citing Kotteakos v. United States, 328 U.S. 750
(1946)). Moreover, “defendants can establish a variance by referring exclusively to the evidence
presented at trial.” Hynes, 467 F.3d at 962.

       The evidence in this case undoubtedly established two conspiracies, not just the one
charged in the indictment. The government presented an extraordinary volume of evidence
about the Bussell conspiracy. Even in its opening statement, the government began by giving the
jury extensive information about the Bussell conspiracy. It then introduced testimony about the
volume of drug transactions effected by the Bussell conspiracy. The government also presented
a history of the investigation of the Bussell conspiracy which included wiretaps, surveillance,
controlled buys, drug deals, and even surveillance photographs of members of the Bussell
conspiracy. Even Bussell himself—along with several of his convicted collaborators—testified
about the operation of his conspiracy. Bussell even went so far as to credit the government for
his rehabilitation from being a drug user.
Nos. 13-6558/6559/6560                 United States v. Mize, et al.                     Page 10


       The government then argued to the jury that the Mize conspiracy operated in the same
manner to commit the same crimes. By the close of its case-in-chief, the government had
presented eleven witnesses—eight of whom discussed the Bussell conspiracy at some length.
Indeed, during its direct examination of Drug Enforcement Administration (“DEA”) Agent
Bethel Poston, the government even acknowledged that the majority of Poston’s testimony was
about Bussell:

       Q [government]:        That’s the Trent Bussell you have been talking about since
                              you hit the witness stand practically?

       A [Poston]:            It is.

(R. 115 at 498.)

       We think that if the testimony introduced by the government established anything, it was
that Kevin Bussell operated a large scale drug trafficking organization responsible for the
importation and distribution of hundreds of thousands of dollars’ worth of pills from Florida to
Tennessee.    It is clear from our reading of the record that the government introduced
significantly more evidence than it should have about the separate Bussell conspiracy. We
therefore find that the government’s evidence rises to the level of a variance. We turn then to
whether the variance was prejudicial.

       To demonstrate substantial prejudice, a defendant must show that the variance prejudiced
either his ability to defend himself or the overall fairness of his trial. United States v. Manning,
142 F.3d 336, 339 (6th Cir. 1998). Prejudice exists “where the defendant is unable to present his
case and is taken by surprise by the evidence offered at trial”; “where the defendant is convicted
for substantive offenses committed by another”; or “where spillover [occurs] because of a large
number of improperly joined defendants.” United States v. Swafford, 512 F.3d 833, 842-43 (6th
Cir. 2008) (internal citations and quotations omitted).

       At least one of these conditions has occurred here. The primary risk that the variance
doctrine is designed to alleviate is guilt transference—“that the appellant was convicted based on
evidence of a conspiracy in which the appellant did not participate.” United States v. Hughes,
505 F.3d 578, 587 (6th Cir. 2007) (citing United States v. Blackwell, 459 F.3d 739, 762 (6th Cir.
Nos. 13-6558/6559/6560             United States v. Mize, et al.                         Page 11


2006)). “This risk increases in direct proportion to the number of defendants, and the number of
conspiracies demonstrated at trial.” United States v. Caver, 470 F.3d 220, 237 (6th Cir. 2006)
(citing Kotteakos, 328 U.S. at 766).

       Even if a defendant can show that a variance resulted in guilt transference, “typically any
danger of prejudice can be cured with a cautionary instruction to the jury that if it finds multiple
conspiracies, it cannot use evidence relating to one conspiracy in determining another
conspiracy.” Hughes, 505 F.3d at 587 (citing Blackwell, 459 F.3d at 762). However, as we
noted in Blackwell, “the more evidence presented at trial that is unrelated to the defendant’s
conduct, or a conspiracy in which the defendant took part, the less likely instructions are to cure
the danger of guilt transference.” 459 F.3d at 762.

       “Whether or not a variance is prejudicial is a judgment that must be made on the facts of
each case.” United States v. Mills, 366 F.2d 512, 514 (6th Cir. 1966) (citations and internal
quotation marks omitted).       This is an incredibly fact-intensive analysis requiring the
consideration of what occurred in each case. And in this case, we do not see any other way but
to find that Defendants were prejudiced by the material variance. They were forced to defend
against a conspiracy, i.e., the Bussell conspiracy, that was totally separate from the conspiracy
alleged in the indictment, i.e., the Mize conspiracy. The evidence from a different scheme was
used to portray Defendants in a grossly prejudicial light before the jury. This error enabled the
government to bombard the jury with evidence of the Bussell conspiracy and its cast of
characters and recorded conversations and photographs, when, in fairness, those things had little
to do with the charged Mize conspiracy. We do not see any reason why the government should
not have been required to prove its charges against Defendants without all of this prejudicial and
irrelevant evidence about a totally different conspiracy involving Bussell.

       We think that we understand why the government did what it did—the theme of its case
was that Defendants were inspired by the Bussell conspiracy to create their own conspiracy
operating in a substantially similar manner. But this theme could have been told differently. The
government could have easily explained to the jury that this case involves a conspiracy which
was formed by Jackie Mize and that the idea for the conspiracy originated when Jackie learned
of the Bussell conspiracy.     That was really all that needed to be said about the Bussell
Nos. 13-6558/6559/6560              United States v. Mize, et al.                           Page 12


conspiracy. Instead, the extensive proof presented by the government on the Bussell conspiracy
likely distracted the jury from the relevant issues—all to Defendants’ prejudice.

         What this case really comes down to is balance—i.e., the balance between the
government’s need to introduce evidence about the Bussell conspiracy and its need to introduce
evidence about the Mize conspiracy. And in trying to find that balance, the government leaned
too heavily on establishing the existence and intricacies of the Bussell conspiracy, rather than
focusing on the conspiracy for which Defendants stood trial. The government’s extraordinary
amount of evidence about the Bussell conspiracy enabled the jury to transfer the guilt of that
conspiracy to the charged Mize conspiracy.

         Moreover, we reject the government’s argument that any error was harmless. “[T]his is
not and cannot be the test.” Kotteakos, 328 U.S. at 767. Prejudice in this context means whether
Defendants were found guilty of a different conspiracy from that charged in the indictment, not
whether the evidence was sufficient to justify the verdict. And in any event, harmless error
should not be what stands in the way of a seemingly unconstitutional conviction. We likewise
reject the government’s argument that any danger of prejudice was minimized by the district
court’s instructions to the jury. While that may be the general rule, it does not apply here.
Because of the sheer volume of evidence introduced to establish the Bussell conspiracy, it is
substantially less likely that the court’s instructions cured the danger of creating unfair prejudice.
See Blackwell, 459 F.3d at 762.

         For all of these reasons, we find a prejudicial variance between the charges in the
indictment and the proof offered at trial. Moreover, we find that the error was plain, that it
affected the substantial rights of all three defendants, and that it seriously affected the fairness of
the trial.

         We therefore REVERSE and VACATE all three convictions and REMAND for a new
trial.
Nos. 13-6558/6559/6560             United States v. Mize, et al.                         Page 13


                                       _________________

                                            DISSENT

                                       _________________

       KEITH, Circuit Judge, dissenting. I respectfully dissent. The majority opinion is flawed
in several respects, and I will highlight the most problematic areas here.

       A. Reaching the Unpreserved Issue – Misconstrued Record & Case Law

       As a preliminary matter, the majority misconstrues the record and the case law in their
pursuit to reach the unpreserved issue with respect to James and Jackie. The majority’s assertion
that the “issue has been briefed by both sides and discussed at oral argument” is misleading.
Neither Jackie’s counsel nor James’s counsel even attended oral argument, and neither raised the
issue of a constructive amendment or fatal variance in their briefs. Therefore, the Government
never had an opportunity to respond to any argument that a fatal variance occurred as to James’s
or Jackie’s involvement in the offense. While asserting that the inquiry is “fact-intensive,” the
majority simultaneously applies a cookie-cutter approach to all three defendants, when in fact the
circumstances for each defendant were different. For example, it is undisputed that Jackie was
never a member of the Bussell conspiracy.

       The majority relies on the case of Mayhew v. Allsups, 166 F.3d 821, 823-24 (6th Cir.
1999), to justify addressing an issue that neither James nor Jackie raised. The majority asserts
that Mayhew stands for the proposition that a court can “consider the application of a statute
helpful to the defendant despite his failure to address it either at trial or on appeal when the
failure to do so would constitute a miscarriage of justice.” A close reading of Mayhew reveals
that the majority misconstrued this case in much the same way it misconstrued the record. In
Mayhew, the plaintiff, who was the appellant, failed to raise an argument before the trial court
regarding a statute that was not enacted until after the trial court issued its judgment. See id. at
823. But the appellant did raise the issue before this court in its appellate brief. See id. The
defendant, a corporate entity, was the appellee in that civil case. See id. It failed to directly
respond to the issue raised by the appellant, instead arguing that the issue was not preserved. See
id. This court determined that the issue could still be addressed in order to avoid a miscarriage
Nos. 13-6558/6559/6560                     United States v. Mize, et al.                                 Page 14


of justice. See id. at 823-24. Mayhew is inapposite for many reasons, but mainly because the
appellant in Mayhew, raised the issue on appeal, unlike Jackie or James here. See id.1 The
majority misconstrues the record and Mayhew in an attempt to excuse its conduct of acting as
defense counsel rather than impartial judges.2 Fundamentally, I believe we should refrain from
overstepping our bounds under the guise of “justice.”

         Additionally, the majority purports to apply a different standard of review to the fatal
variance claim it constructed for James, noting that “plain error” review was required. However,
the majority, in perfunctory fashion, devotes one sentence to the “plain error” inquiry that
amounts to nothing more than a bare recitation of the “plain error” elements without any analysis
or citation to legal authority.

         Because neither James nor Jackie raised the issue on appeal, the remainder of my dissent
will address the fatal variance claim as raised by Kelvin Mize.

         B. No Guilt Transference Occurred by Definition of the Term

         I agree that a variance occurred with respect to Kelvin because multiple conspiracies
were discussed at trial. However, as the majority points out, not every variance is a fatal one
(i.e., not every variance requires reversal). See United States v. Budd, 496 F.3d 517, 522 (6th
Cir. 2007) (noting that a variance is not prejudicial per se, and thus, a variance will not always
require reversal). A liberal reading of the majority opinion suggests that the majority believes
guilt transference occurred with respect to Kelvin, rendering the variance fatal. I respectfully
disagree. By definition, guilt transference occurs where there is a risk that the defendant was
convicted “based on evidence of a conspiracy in which the [defendant] did not participate.”
United States v. Hughes, 505 F.3d 578, 587 (6th Cir. 2007) (emphasis added). In other words, it
occurs where guilt is transferred from one defendant to another defendant. See id; see also
United States v. Caver, 470 F.3d 220, 237 (6th Cir. 2006) (“The primary risk is the transference


         1
           Additionally, the majority asserts that the issue in Mayhew was “helpful to the defendant[,]” the appellee.
However, that statement is also incorrect. Mayhew never characterized the issue as being helpful to any party, much
less the appellee. See id. In any event, the issue did not help the defendant-appellee because the court reversed the
district court’s order granting summary judgment to the defendant-appellee. See id. at 824.
         2
             Notably, both defendants were represented by counsel.
Nos. 13-6558/6559/6560                United States v. Mize, et al.                      Page 15


of guilt from defendants involved in one conspiracy to defendants in another conspiracy.”)
(emphasis added). In essence, when guilt transference occurs, a defendant is convicted of the
“substantive acts of another” person. United States v. Bakri, 505 F. App’x 462, 468-69 (6th Cir.
2012).

         Accordingly, there is no guilt transference where the defendant was a participant in all of
the conspiracies presented at trial. See, e.g., Hughes, 505 F.3d at 587 (6th Cir. 2007) (noting that
to demonstrate a prejudicial variance, “[a] reviewing court looks to whether there is a danger that
the appellant was convicted based on evidence of a conspiracy in which the appellant did not
participate (guilt transference)”) (emphasis added); United States v. Blackwell, 459 F.3d 739,
762 (6th Cir. 2006) (same); see also United States v. Martin, 516 F. App’x 433, 443-44 (6th Cir.
2013) cert. denied sub nom. Brooks v. United States, 134 S. Ct. 301 (2013) (holding that no
prejudicial variance occurred because even “assuming the existence of two separate conspiracies,
the evidence overwhelmingly implicated [the defendant] in both”); Bakri, 505 F. App’x at 468-
69 (“Nor was there any possibility of [d]efendant being convicted for the substantive acts of
another. Regardless of how one describes the conspiracy or the conspiracies, [d]efendant was an
active participant.”); United States v. Goff, 400 F. App’x 1, 13 (6th Cir. 2010) (holding that even
though a variance occurred where evidence of two separate conspiracies was introduced, the
variance did not warrant reversal because the defendant “was an integral participant in these
other conspiracies”); United States v. Hettinger, 242 F. App’x 287, 294 (6th Cir. 2007) (holding
that even assuming that multiple conspiracies existed, the defendant “was a member of each
conspiracy and accordingly could not establish any ‘danger . . . that [he] was convicted based on
evidence of a conspiracy in which [he] did not participate’”); United States v. Mitchum, 208 F.3d
216, *3 (6th Cir. 2000) (unpublished table decision) (holding that no fatal variance occurred
because “no matter which conspiracy the jury believed existed, [the defendant] was involved in
each”). Here, “[r]egardless of how one describes the conspiracy or the conspiracies, [Kelvin]
was an active participant” in both of them. See Bakri, 505 F. App’x at 468-69. Therefore, guilt
transference did not occur. See id.

         Even though a fatal variance did not occur, surely the government cannot introduce
mounds of “extraneous and highly prejudicial” evidence, a term used by the majority, without
Nos. 13-6558/6559/6560                    United States v. Mize, et al.                    Page 16


some recourse for the defendant. Intuitively, one would think that something is amiss with the
presentation of the evidence at trial. There is. Where the evidence does not rise to the level of a
fatal variance, the recourse is an objection pursuant to the Federal Rules of Evidence. These
rules govern the admissibility of prejudicial evidence. Fed. R. Evid. 403 (noting that in order for
evidence to be excluded under this rule, the probative value of the evidence must be
“substantially” outweighed by the danger of “unfair prejudice”) (emphasis added). And the rules
also govern the admission of evidence of other crimes or wrongs. Fed. R. Evid. 404(b). As an
initial matter, it is not entirely clear what “highly” prejudicial means as the majority uses the
term here. The majority does not define or quantify this term. If the majority is of the opinion
that “highly” prejudicial actually means that the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice, then the majority’s analysis demonstrates that the
majority is actually applying a Rule 403 analysis to a fatal variance case.

       The majority wrongly assumes that because “prejudice” to a defendant’s substantial
rights is a component of the fatal variance analysis, see Caver, 470 F.3d at 235-36, the
introduction of “highly prejudicial” evidence must be sufficient for a fatal variance. But the
majority attempts to fit a square peg into a round hole. In every case where there is a variance,
by definition, there was evidence of a separate uncharged conspiracy, United States v. Warman,
578 F.3d 320, 341 (6th Cir. 2009), which is undoubtedly prejudicial to some extent.

       In essence, the majority attempts to fit an argument that sounds plainly in the
admissibility of evidence (which is subject to abuse of discretion review)3 into a fatal variance
analysis (subject to de novo review).4 As the majority opinion’s loose language shows, the
pieces do not fit. Cf. United States v. English, 785 F.3d 1052, 1059 (6th Cir. 2015) (Clay, J.,
concurring) (concluding that the trial court’s allowance of evidence that the defendant had been
involved in two prior Medicare fraud schemes during a trial for Medicare fraud was error under
404(b), but nonetheless harmless error, even where the defendant raised the issue of a fatal
variance).



       3
           Pedigo, M.D. v. UNUM Life Ins. Co. of Am., 145 F.3d 804, 807 (6th Cir. 1998).
       4
           United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006).
Nos. 13-6558/6559/6560             United States v. Mize, et al.                        Page 17


       C. The Majority’s Impracticable Approach to the Volume of the Evidence Test

       The majority opinion suggests that the “volume” of the evidence of the Bussell
conspiracy makes this case unique and that the case “comes down to . . . balance.” While
balance is important, the majority again misses the mark in its analysis.

       In United States v. Blackwell, 459 F.3d 739, 762 (6th Cir. 2006), this court noted that
where the sheer volume of evidence of a separate conspiracy is concerning, we can examine the
following three factors to determine whether a variance was prejudicial: (1) the number of
conspiracies the evidence establishes, (2) the number of non-conspiratorial co-defendants tried
with defendant, and (3) the size of the conspiracy alleged in the indictment. Id. at 762. Indeed,
in United States v. Hughes, 505 F.3d 578, 590-91 (6th Cir. 2006), we held (after applying these
factors) that a variance was not prejudicial where there were three separate conspiracies and six
codefendants. In United States v. Osborne, 545 F.3d 440, 444 (6th Cir. 2008), we held that even
assuming a variance occurred, it did not require reversal where there were two conspiracies and
only three defendants.    In the present case, we similarly have two conspiracies and three
defendants.

       The majority seems to suggest that we need to abandon the three-factor test articulated in
Blackwell, and instead employ a “this-feels-like-too-much-evidence” approach. This approach is
problematic for at least two reasons. First, it advances a test that is non-quantifiable; in other
words, it will be impossible for trial judges to know whether 50% or 60% or 70% of the evidence
admitted is too much evidence of the uncharged conspiracy. Second, it is impracticable in
reality. Trial judges would presumably be forced to keep tally marks of every piece of evidence
of the uncharged conspiracy during the trial, and then presumably declare a mistrial midway
through when the evidence crosses this arbitrary threshold of “too much”—even without defense
counsel having raised the issue.” I believe the problems associated with this approach are the
very reasons this court usually employs a very quantifiable inquiry, such as the one articulated in
Blackwell—the one the majority surreptitiously abandons here.
Nos. 13-6558/6559/6560             United States v. Mize, et al.                         Page 18


       D. Juror Confusion

       The majority also asserts that reversal is warranted because the jury was “distracted” by
the evidence of the Bussell conspiracy. Perhaps the majority meant to rely on juror “confusion,”
which is applicable to the analysis for determining whether a variance was prejudicial. See
United States v. Osborne, 545 F.3d 440, 444 (6th Cir. 2008) (holding that even assuming a
variance occurred, the evidence related to a second conspiracy was “clearly demarcated and not
likely to confuse the jury.”). At oral argument, Kelvin’s counsel conceded that distinctions were
drawn between the Bussell conspiracy and the Mize conspiracy at trial. This made it even less
likely that the jury was confused. See id. Also, as we concluded in Caver, a trial of short
duration also makes it less likely that the jury was confused. United States v. Caver, 470 F.3d
220, 237 (6th Cir. 2006) (concluding that even assuming that the evidence at trial demonstrated
only multiple conspiracies, there was no prejudice requiring reversal because, inter alia, the trial
only lasted a week). In the present case, the trial only lasted four days, further minimizing any
juror confusion.

       E. Conclusion

       In sum, the majority commits many errors: it confuses the admission of prejudicial
evidence with the occurrence of a fatal variance; it ignores the definition of guilt transference
(tellingly, the majority quoted the definition but never applied it to either of the defendants); it
proposes a “this-feels-like-too-much” evidence test that is flawed in theory and impracticable in
reality; and it robs the government of any meaningful opportunity to respond to the issues with
respect to Jackie and James.      In committing these errors, the majority reaches the wrong
conclusion.

   At first blush, it may appear that the majority reaches a “noble” outcome because the
convictions of three defendants are reversed. However, courts should be ever mindful that true
justice requires consistent application of the law for everyone. Undoubtedly, the “this-feels-like-
too-much” evidence approach espoused by the majority will not be applied consistently in trial
courts or even on appeal. Creating these arbitrary tests both invites and justifies discrimination
among defendants, because what “feels like too much evidence” for one person will not “feel
Nos. 13-6558/6559/6560             United States v. Mize, et al.                        Page 19


like too much evidence” for another. The majority opinion will perpetuate confusion and
disorder in the courts, and thus undermine the public’s confidence in the judiciary. As a court of
appellate review, we strive to provide guidance that the district courts can consistently follow in
a fair and meaningful way.        But with today’s opinion, the majority has abdicated that
responsibility altogether.
