                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                               File Name: 07a0312p.06

                        UNITED STATES COURT OF APPEALS
                                          FOR THE SIXTH CIRCUIT
                                            _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 05-4098
          v.
                                                     ,
                                                      >
 MICHAEL J. BUDD,                                    -
                            Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                   for the Northern District of Ohio at Youngstown.
                  No. 04-00508—Lesley Brooks Wells, District Judge.
                                            Argued: March 15, 2007
                                    Decided and Filed: August 13, 2007
             Before: COOK and McKEAGUE, Circuit Judges; EDGAR, District Judge.*
                                               _________________
                                                     COUNSEL
ARGUED: Sebastian Rucci, Poland, Ohio, for Appellant. Gregory B. Friel, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Sebastian Rucci,
Poland, Ohio, for Appellant. Gregory B. Friel, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
         McKEAGUE, J., delivered the opinion of the court, in which EDGAR, D. J., joined. COOK,
J. (pp. 14-17), delivered a separate dissenting opinion.
                                               _________________
                                                   OPINION
                                               _________________
       McKEAGUE, Circuit Judge. Michael J. Budd appeals his conviction of one count of
conspiracy and three counts of depriving another of constitutional rights under color of law. For the
reasons set forth below, we affirm.




         *
         The Honorable R. Allan Edgar, Senior United States District Judge for the Eastern District of Tennessee, sitting
by designation.


                                                           1
No. 05-4098                      United States v. Budd                                                          Page 2


                                               I. BACKGROUND
        A grand jury indicted Budd, once second-in-command of the Mahoning County, Ohio
Sherriff’s Department, on four counts related to his alleged use of excessive force against inmates
and pretrial detainees in his custody. Count 1 charged conspiracy to commit any offense against the
United States in violation of 18 U.S.C. § 371, and listed two object offenses: (1) depriving Tawhon
Easterly of his constitutional rights under color of law in violation of 18 U.S.C. § 242; and (2)
witness tampering, in violation of 18 U.S.C. § 1512(b)(2). Counts 2, 3, and 4 respectively charged
Budd with depriving Easterly (a pretrial detainee), Brandon Moore (a sentenced inmate), and
Stephen Blazo (a pretrial detainee) of their constitutional rights under color of law, in violation of
18 U.S.C. § 242. In Budd’s first trial, the jury convicted him on Count 1 but deadlocked on the other
counts. The court entered the conviction      on Count 1 and declared a mistrial on the other counts.
Upon retrial of Counts 2, 3, and 4,1 Budd was convicted on each. He now appeals.
                  II. CONSTRUCTIVE AMENDMENT TO MOORE CHARGE
        Budd was convicted of using excessive force against inmate Brandon Moore in violation of
18 U.S.C. § 242. Budd argues that because the indictment referred to a Fourteenth Amendment
basis for the right to be free from excessive force, while the jury instructions referred to an Eighth
Amendment basis for the right, the indictment was constructively amended. We review the question
of whether an amendment or a variance occurred de novo. United States v. Prince, 214 F.3d 740,
756 (6th Cir. 2000) (citing United States v. Flowal, 163 F.3d 956, 962 (6th Cir. 1998)).
       An indictment may be the subject of an actual amendment, a constructive amendment, or a
variance. An actual amendment occurs when the prosecutor actually changes the text of the
indictment. Id. at 757 (citing Martin v. Kassulke, 970 F.2d 1539, 1542 (6th Cir. 1992)). By contrast,
         [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 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. Smith, 320 F.3d 647, 656 (6th Cir. 2003) (citing United States v. Stirone, 361 U.S.
212 (1960)). Both actual and constructive amendments are considered per se prejudicial and are
reversible error. Prince, 214 F.3d at 757.
        Variances, by contrast, are not per se prejudicial. Id. 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. at 756-57 (alteration in original)
(internal quotations omitted) (quoting United States v. Flowal, 163 F.3d 956, 962 (6th Cir. 1998)).
However, as this court observed in United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002)
(vacated and remanded by the Supreme Court for reconsideration in light of Booker), “the distinction
between a variance and a constructive amendment is sketchy . . . .”2

         1
          In the second trial, the court redacted the conspiracy count (the former Count 1 for which Budd was already
convicted), and renumbered the substantive counts as Counts 1, 2, and 3. To avoid confusion, the parties’ briefs number
the substantive counts as in the first trial—that is, as Counts 2, 3, and 4—and we will do the same.
         2
           The dissent complains of the majority’s decision to follow this court’s “inscrutable” precedent regarding the
distinction between a variance and a constructive amendment. However, contrary to the dissent’s suggestion, this
precedent does not contradict Supreme Court case law on the subject, but only defines the application of Supreme Court
precedent in particular situations; and, though our precedent in this area may not be easy to follow, we nevertheless are
obliged to do so. See 6th Cir. R. 206(c).
No. 05-4098                       United States v. Budd                                                           Page 3


        One complication is created by the fact that, under Sixth Circuit law, “[i]f a variance
infringes too strongly upon the defendant’s Sixth Amendment right to be informed of the nature and
cause of the accusation, the variance is considered a ‘constructive amendment.’” Prince, 214 F.3d
at 757 (citing Martin, 970 F.2d at 1542). Thus, a variance in some cases is not different in kind from
a constructive  amendment, but merely in degree; if it is serious enough, it becomes a constructive
amendment.3 “To obtain reversal of a conviction because of a variance between the indictment and
the evidence produced at trial, a defendant must satisfy a two-prong test: (1) the variance must be
demonstrated and (2) the variance must affect some substantial right of the defendant.” Id. (citing
United States v. Maliszewski, 161 F.3d 992, 1014 (6th Cir. 1998)); see also United States v. Hynes,
467 F.3d 951, 962 (6th Cir. 2006); United States v. Suarez, 263 F.3d 468, 478 (6th Cir. 2001);
Prince, 214 F.3d at 757; United States v. Manning, 142 F.3d 336, 339 (6th Cir. 1998); United States
v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989).
         In Hynes, this court offered one manner of distinguishing between a constructive amendment
and a variance that may become a constructive amendment by reason of its effect on substantial
rights: “defendants can establish a variance by referring exclusively to the evidence presented at
trial, but cannot demonstrate a constructive amendment — which is per se prejudicial — without
proof that the important functions of an indictment were undermined by both the evidence presented
and the jury instructions.” 467 F.3d at 962. This reflects the rule that “[o]nce the indictment
presents a factual basis for an element of a crime, the prosecution may not rest its proof of that
element of the crime at trial on other facts.” United States v. Caldwell, 176 F.3d 898, 902 (6th Cir.
1999).
        However, a different distinction operates in cases in which the difference between indictment
and jury instructions is not the facts of the offense, but the legal theory. The “‘key question’ in
determining whether [such a] case involve[s] a variance or a constructive amendment [i]s whether”
the offense described by the indictment and the one described by the jury instructions are “two
alternative crimes or merely two alternative methods by which the one crime . . . could have been
committed.” Prince, 214 F.3d at 758 (quoting Martin, 970 F.2d at 1543). The Sixth Circuit first
explained this distinction in Martin v. Kassulke, 970 F.2d 1539, 1540 (6th Cir. 1992), in which the
defendant was convicted of first-degree rape. Under Kentucky law, first-degree rape consists of
either “‘sexual intercourse with another person by forcible compulsion,’” or “‘sexual intercourse
with another person who is incapable of consent because he . . . [i]s physically helpless; or [i]s less
than twelve years old.’” Id. at 1541-42 (quoting Ky. Rev. Stat. § 510.040). The indictment stated
that the defendant “committed the offense of RAPE IN THE FIRST DEGREE by knowingly and
unlawfully engaging in sexual intercourse with [the victim] by forcible compulsion and further
causing said [victim] serious physical injury.” Id. at 1542. The jury was instructed to find the
defendant guilty “if, and only if, you believe from the evidence beyond a reasonable doubt” that the
defendant engaged in sexual intercourse with the victim and “[t]hat he did so by forcible
compulsion, OR [t]hat [the victim] was incapable of consent because she was physically helpless.”
Id.
       The Martin court first noted that there was a variance between the jury instructions and the
indictment, as “[t]he jury instruction . . . mentions the possibility that [the victim] was incapable of
consent because of physical helplessness, a possibility that had not been mentioned in the
indictment.” Id. The court rejected the defendant’s argument that “the due process right to clear

         3
           The dissent disparages this fact as logically flawed, and a misapprehension on the part of the majority
“result[ing] from loose language in past cases.” Infra at __. However, whether or not it is appealing as a legal rule, this
court’s published cases have clearly held that a variance can become a constructive amendment by reason of its
seriousness . See, e.g., United States v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006); United States v. Suarez, 263 F.3d 468,
478 (6th Cir. 2001); Prince, 214 F.3d at 757; United States v. Manning, 142 F.3d 336, 339 (6th Cir. 1998); United States
v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989).
No. 05-4098                 United States v. Budd                                               Page 4


notice of criminal charges guaranteed by the fourteenth amendment includes notice of the exact
method by which the criminal actions were alleged to have been committed,” and held that
       the Kentucky rape statute . . . provides only one offense of rape with two different
       methods of commission. . . . [The statute] was drafted to define all kinds of forcible
       rape, by whatever mode or method. “It actually makes no difference to the law, the
       victim, nor even the defendant, how he committed the act, it is the violation that is
       defined and prohibited.”
Id. at 1543, 1545-46 (citation omitted) (quoting Clayborn v. State, 647 S.W.2d 433, 436 (Ark. 1983)
(Hickman, J., dissenting)). The Martin court therefore reversed the district court’s grant of a writ
of habeas corpus. Id. at 1547.
         This court followed Martin in Suarez, in which the defendant, a former police officer, was
convicted for converting “victim restitution money to his own benefit” in violation of 18 U.S.C.
§ 666(a)(1). 263 F.3d at 471-72. That statute provides that “[w]hoever . . . being an agent of an
organization [including a government or government agency] . . . embezzles, steals, obtains by fraud,
or otherwise without authority knowingly converts . . . property that . . . is owned by, or is under the
care, custody, or control of such organization, government, or agency” shall be fined or imprisoned,
or both. 18 U.S.C. § 666(a)(1). The statute does not define embezzlement, theft, or fraud; the
definitions of these offenses therefore must come from another source of state or federal law. See
Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 818, 822 (2007) (holding that “theft offense” in the
Immigration and Nationality Act should be understood to correspond to the “generic definition of
[the] crime”); Taylor v. United States, 495 U.S. 575, 595 (1990) (in the Travel Act, “Congress made
no attempt to define the statutory term ‘bribery,’ but relied on the accepted contemporary meaning”)
(quoting Perrin v. United States, 444 U.S. 37, 45 (1979)); Moore v. United States, 160 U.S. 268, 269
(1895) (supplying common-law definitions of embezzlement and larceny for a federal statute which
used the terms but did not define them).
        The Suarez court recognized that the “defendant appears to have demonstrated the existence
of a variance. The indictment makes much of Suarez’s deception . . . as constituting the act of
conversion, while the jury instructions make nothing of it.” 263 F.3d at 478. Thus, the indictment
indicated that the defendant obtained the property through larceny by trick; the jury instructions
“describ[ed] conversion generally,” and thereby “may have opened up the possibility in the jury’s
mind that the conversion was accomplished by something more akin to embezzlement. It is even
arguable that they did find this was what Suarez did, since he was acquitted of money laundering.”
Id. at 479. However, the court held, “under the statute, embezzlement is not a crime alternative to
the one charged, but simply another of a number of types of knowing conversion.” Id. The court
held that “Suarez’s defense would not, under our case law, have been prejudiced by the variance,”
and affirmed the conviction. Id. at 479, 489.
         In other Sixth Circuit cases, this court has held that the offense described in the indictment
and that described in the jury instructions are two different offenses, not two methods of committing
one offense, and therefore that a constructive amendment occurred. Budd cites United States v.
Combs, 369 F.3d 925, 930 (6th Cir. 2004), in which the defendant was indicted for unlawful
possession of firearms in conjunction with a drug trafficking offense. The jury instructions were
drawn, in somewhat disorganized fashion, from both the definitions of “possession” and of “use”
of a firearm. 369 F.3d at 935. Both offenses are prohibited by the same statute, which provides for
punishment of “any person who, during and in relation to any crime of violence or drug trafficking
crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A)
(emphasis added).
No. 05-4098                       United States v. Budd                                                            Page 5


        The Combs court held that possession and use, though defined in the same subparagraph,
were two different offenses. It based this decision on (1) the fact that the statute separates the
offenses with an “or”; (2) the fact that the legislative history indicated that the “in furtherance of”
language applied to the possession offense but not the use offense; and (3) the fact that use involves
different conduct than possession. 369 F.3d at 931, 932-33. The court therefore held that “an
impermissible amendment of . . . the indictment occurred.” Id. at 936.
        Budd also cites United States v. Cusmano, 659 F.2d 714, 719 (6th Cir. 1981), in which the
defendant was indicted for a violation of the Hobbs Act. One element of that offense is extortion.
Id. at 719. Extortion may be by threat of economic loss or by threat of physical harm. Id. at 715.
The indictment specified that the defendant had committed extortion by threatening the victims with
economic loss, while the evidence additionally showed extortion through threats of physical
violence; the district court instructed the jury that it could return a conviction based on either theory.
Id. at 715, 717, 719. This court stated that “when one means of extortion is charged, a conviction
must rest on that charge and not another, even if it is assumed that under an indictment        drawn in
general terms a conviction might rest upon a showing of either form of extortion.”4 Id. at 719.
Thus, the court held that the introduction of evidence that the defendant committed extortion through
physical violence together with the district court’s instruction that the defendant could be convicted
on that theory constituted a constructive amendment. Id. at 718-19.
         In this case, the indictment reads in relevant part,
         [D]efendant herein and others known and unknown to the Grand Jury, while acting
         under color of the laws of the State of Ohio, and while aiding and abetting each
         other, did use and cause to be used excessive force on Brandon Moore, a detainee at
         the Courthouse of a judicial proceeding, resulting in bodily injury, thereby willfully
         depriving him of rights and privileges secured and protected by the Constitution and
         the laws of the United States, to wit: the right to Due Process of law under the
         Constitution, which includes the right to be free from excessive force amounting to
         punishment by one acting under color of law.
                 All in violation of Title 18, United States Code, Sections 242 and 2.
Indictment at 7. The relevant jury instruction provides, “The first element the government must
prove is that the conduct of [the defendant] deprived . . . Brandon Moore . . . of a right or rights
secured by the Constitution or laws of the United States. . . . Among those rights [is] . . . the Eighth
Amendment right to be free from cruel and unusual punishment.” Transcript at 969-70. The
instructions also explained that “[t]he Eighth Amendment provides [that] inmates like Brandon
Moore, who have been sentenced for a crime, possess the right not to be subject to unnecessary and
wanton infliction of pain.” Transcript at 972; see also Whitley v. Albers, 475 U.S. 312, 320 (1986)
(holding that “an Eighth Amendment claimant [must] allege the unnecessary and wanton infliction
of pain,” or allege that “‘force was applied . . . maliciously and sadistically for the very purpose of
causing harm’”) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
       Brandon Moore was a convicted prisoner at the time of the mistreatment for which Budd was
convicted. Thus, as the jury instructions correctly explained, his right to be free from excessive
force derives from the Eighth Amendment. Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002)
(quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). The standard the indictment accuses
Budd of violating, “the right to Due Process of law . . . , which includes the right to be free from

         4
            This holding is clearly in tension with the holding in Martin. Cf. 970 F.2d at 1545-46 (“[T]he Kentucky rape
statute . . . provides only one offense of rape with two different methods of commission. . . . ‘It actually makes no
difference to the law, the victim, nor even the defendant, how he committed the act, it is the violation that is defined and
prohibited.’”) (citations omitted).
No. 05-4098                       United States v. Budd                                                           Page 6


excessive force amounting to punishment,” is the standard applicable to a pretrial detainee, which
Moore was not. Id. at 300 (“[T]he Fourteenth Amendment . . . ‘Due Process Clause protects a
pretrial detainee from the use of excessive force that amounts to punishment.’”) (quoting Graham,
490 U.S. at 395 n.10).
        The indictment and the jury instructions describe the same actions, and they specify an
offense against the same statute, 18 U.S.C. § 242, which prohibits a person acting “under color of
law” from “subject[ing] any person . . . to the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United States.” However, by their respective
citation of Fourteenth Amendment and Eighth Amendment restrictions of the use of excessive force,
they refer to different standards under which a violation of § 242 can be evaluated. Therefore, the
“‘key question’ . . . [is] whether the jury instruction and evidence introduced another crime or an
‘alternative method[] by which the one crime . . . could have been committed.’” Suarez, 263 F.3d
at 478 (second alteration in original) (quoting Prince, 214 F.3d at 758).
        In this case, although it is a close question, based on our prior cases, it seems most
reasonable to conclude that the Fourteenth Amendment and Eighth Amendment excessive force
standards describe two alternative methods by which one crime could be committed, rather than two
crimes. The variance between the indictment and the jury instructions here is most analogous to that
in Suarez, in which the offense of conviction, conversion of the funds of an organization receiving
federal benefits in violation of 18 U.S.C. § 666(a)(1), incorporated as an element the content of other
laws—namely, state or federal laws against conversion of funds, under a variety of legal theories.
In Suarez, the fact that the indictment indicated that the conversion had been effected by larceny by
trick, while the jury instructions permitted conviction if conversion had been accomplished by
embezzlement, entailed only a variance. This is so although the two theories involved         different
times at which the defendant had formed the intention to convert the funds to his use,5 because these
were simply two methods of committing the one crime of conversion of funds. Likewise, in this
case, the indictment and the jury instructions address methods of violating the statute in question that
rest on different legal rules: in this case, different constitutional rights, and in Suarez, different
common-law conversion offenses.




         5
             “Larceny by trick” is committed when a thief acquires possession of an item by telling its rightful owner that
“he intended to use it for one purpose when in fact he intended” to keep it or “to sell it and keep the proceeds.” Bell v.
United States, 462 U.S. 356, 359 (1983). By contrast, embezzlement occurs when the thief first comes into possession
of the property legitimately, and “the fraudulent intent occurs later and the defendant [then] converts the property.”
Skinner v. Oklahoma, 316 U.S. 535, 539 (1942). “Whether a particular act is larceny by [trick] or embezzlement thus
turns . . . on when the felonious intent arose . . . .” Id.
No. 05-4098                       United States v. Budd                                                           Page 7


        The situation here is also distinguishable from that in the cases Budd cites,6 in which this
court held there existed two different offenses, rather than two different methods. Neither Cusmano
nor Combs addressed a situation wherein the definition of a statutory offense is dependent on the
content of other law. In fact, in Combs, the court based its decision in part on the fact that the two
offenses were explicitly set forth in the statute, and separated by the word “or.” 369 F.3d at 931.
In both Cusmano and Combs, this court focused on the fact that the proof at trial showed different
offense conduct than that alleged in the indictment. See 369 F.3d at 932-33; 659 F.2d at 719. In this
case, the government did not present evidence of different offense conduct than that alleged in the
indictment. Though the proceedings before the grand jury are not part of the record on appeal,
before the petit jury, the government offered the testimony of Brandon Moore and of Deputies Sam
Oliver and Jeffrey Tinkey to prove the charge of use of excessive force against Moore. See
Transcript at 66-75, 100-09, 115-24. This testimony consisted simply of a description of Budd’s and
Moore’s words and actions during the incident; the prosecutor carefully prevented the witnesses
from speculating as to Budd’s motives or intent. See Transcript at 117 (“No, not what his reasons
were. What about your observations . . . .”). It is difficult to see how the government’s evidence
regarding this charge was in any way different from what it would have been had Moore been a
pretrial detainee entitled to the protection of the Fourteenth Amendment.
        Thus, the Fourteenth Amendment language in the indictment and the Eighth Amendment
language in the jury instructions describe two different methods of committing the same crime, and
the difference is merely a variance. Budd does not even argue that the variance affected his
“substantial rights,” other than the right to be convicted only of an offense which previously had
been considered by a grand jury, a right which is not implicated by a variance. Rather, in the case
of a variance, prejudice to substantial rights occurs if the defendant is not “enabled to present his
defense and not be taken by surprise by the evidence offered at trial,” or is not “protected against
another prosecution for the same offense.” Berger v. United States, 295 U.S. 78, 82 (1935); see also
Martin, 970 F.2d at 1546-47; Ford, 872 F.2d at 1235. The actions for which Budd was convicted
were the same under both theories, and, as discussed above, the prosecution presented no proof it
would not have presented for a Fourteenth Amendment violation. Budd’s ability to present a
defense thus could not reasonably have been undermined by the change; and there is no suggestion
that he could be subjected to double jeopardy. Therefore, the variance did not cause prejudice to
Budd’s substantial rights, and did not rise to the level of a constructive amendment by reason of its
severity.



         6
           Other Sixth Circuit cases finding a constructive amendment based on the existence of two offenses are also
distinguishable. In United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002), the defendant pled guilty to a violation of
18 U.S.C. § 924(o), which prohibits conspiracy to possess a firearm in connection with a drug trafficking offense or a
crime of violence. However, at sentencing, the district court selected an appropriate sentence based on the conclusion
that the defendant had actually violated § 924(c). That subsection criminalizes the possession of a firearm in conjunction
with a crime of violence or a drug trafficking crime, and provides for a minimum sentence, rather than a maximum. Id.
§ 924(c)(1)(A). The Stubbs court held, “There can be no doubt that § 924(c) and § 924(o) charge different offenses.
Each statute requires different levels of proof as to conduct and mens rea. And, most notably, these two statutory
provisions call for significantly different statutory penalties, which under Jones [v. United States, 526 U.S. 227 (1999),]
makes them different offenses.” 279 F.3d at 409. In this case, there is no question of different statutory penalties for
excessive force under the Eighth Amendment and the Fourteenth Amendment.
          In Watson v. Jago, 558 F.2d 330 (6th Cir. 1977), the indictment charged the defendant with first-degree murder
under a premeditation theory. Id. at 331. The jury instructions mirrored the charge in the indictment, but the prosecution
offered at trial evidence of first-degree murder under a felony murder theory. Id. at 336, 339. Though the two types of
first-degree murder were prohibited by the same statute, Ohio case law held that the two were different offenses. Id. at
334-35 (citing Ohio v. Ferguson, 195 N.E.2d 794 (Ohio 1964)). Therefore, the Watson court held that the indictment
had been constructively amended. Id. at 339. However, in that case, the court did not make a determination that
premeditated murder and felony murder were two different offenses; rather, it simply followed a state court ruling to that
effect. The holding therefore is not helpful here.
No. 05-4098                  United States v. Budd                                                Page 8


             III. CONSTRUCTIVE AMENDMENT TO EASTERLY CHARGE
A. Conspirator Liability Instruction
         In the first trial, Count 1 charged Budd with participation in a conspiracy to violate Easterly’s
constitutional rights, and Count 2 charged Budd with the substantive offense of violating Easterly’s
constitutional rights. The jury convicted on the Count 1 conspiracy, but deadlocked on Count 2 (as
well as on the substantive offenses in Counts 3 and 4). At retrial on the substantive offenses, the
court instructed the jury on co-conspirator liability under Pinkerton v. United States, 328 U.S. 640,
646-48 (1946), which holds that a defendant is liable for a co-conspirator’s crimes if they are
foreseeably committed in furtherance of the conspiracy. Budd argues that this instruction amounted
to a constructive amendment, on the theory that by instructing the jury on a conspiracy theory of
liability under Pinkerton, the district court constructively amended the violation of constitutional
rights charge to a (duplicative) conspiracy charge. As noted above, we review de novo the question
of whether a constructive amendment occurred.
         The majority of circuits have held that district courts may give a Pinkerton co-conspirator
liability instruction for a substantive charge, even for a defendant who has not been charged with
conspiracy. See, e.g., United States v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001); United States v.
Macey, 8 F.3d 462, 468 (7th Cir. 1993) (“We have long recognized that ‘[i]t is not essential that the
indictment contain a separate count charging conspiracy in order to take advantage of the doctrines
peculiar to conspiracy.’”) (quoting United States v. Wilson, 506 F.2d 1252, 1257 (7th Cir. 1974));
United States v. Jackson, 627 F.2d 1198, 1216-17 (D.C. Cir. 1980) (“Experienced prosecutors alert
court and counsel that they are relying on [a Pinkerton theory] in cases where only substantive
crimes are charged by announcing that they are proceeding on a conspiracy theory.”); Davis v.
United States, 12 F.2d 253, 257 (5th Cir. 1926) (“Although conspiracy be not charged, if it be shown
by the evidence to exist, the act of one or more defendants in furtherance of the common plan is in
law the act of all.”). As Budd notes, the Ninth Circuit recently held the opposite: “It is error to use
a Pinkerton instruction in a case in which the indictment does not allege a conspiracy.” United
States v. Nakai, 413 F.3d 1019, 1023 (9th Cir. 2005). The Sixth Circuit has not yet addressed this
issue. See United States v. Min Nan Wang, 222 F.3d 234, 240 (6th Cir. 2000) (“We need not resolve
these thorny questions.”). We find the rule of the majority of circuits more persuasive, and hold that
a district court may properly provide a Pinkerton instruction regarding a substantive offense, even
when the defendant is not charged with the offense of conspiracy. Thus, the district court’s
instructions were proper with regard to the substantive § 242 offense, and the indictment was not
constructively amended.
        Budd also insists that United States v. Henning, 286 F.3d 914 (6th Cir. 2002), requires
reversal. In that case, the trial court gave a Pinkerton instruction, and the defendant was convicted
of both conspiracy and several substantive counts. Id. at 918-19. The defendant moved for and was
granted a post-verdict judgment of acquittal on the conspiracy count based on insufficient evidence.
Id. at 919. This court later found plain error in the district court’s failure to reconsider the
substantive charges as well, because the Pinkerton instruction may have produced a conviction on
the substantive charges based on a non-existent conspiracy. See id. at 921. In this case, however,
there was sufficient evidence that a conspiracy existed; in fact, Budd was convicted of conspiracy
in the first trial. It was not the absence of a conspiracy charge that led this court to reverse in
Henning; it was the absence of a conspiracy.
B. Substitution of “or” for “and”
        Count 1 charged Budd with conspiracy under 18 U.S.C. § 371 as follows:
        Michael J. Budd . . . did knowingly conspire . . . to: a) deprive Tawhon Easterly of
No. 05-4098                       United States v. Budd                                                            Page 9


         rights and privileges secured and protected by the Constitution . . . in violation of
         Title 18, United States Code, Section 242, and b) corruptly persuade . . . another
         person with intent to hinder [a federal criminal investigation], in violation of Title
         18, United States Code, Section 1512(b)(3).
Indictment at 3-4. Budd again complains of a constructive amendment. Although this court
generally reviews de novo the legal issue of whether there was a constructive amendment, if the
defendant fails to object at trial to an instruction claimed on appeal to represent a constructive
amendment, this court reviews only for plain error. See, e.g., United States v. Brown, 332 F.3d 363,
371 (6th Cir. 2003) (citing Cotton, 535 U.S. at 631). Budd cannot show any error, let alone plain
error, and we reject this challenge.
        Budd argues that because the object offenses are separated by the word “and,” the trial court
impermissibly 7broadened the possible bases for conviction—and thereby constructively amended
the indictment —when it instructed the jury to convict on Count 1 if it found either that Budd
conspired to violate Easterly’s constitutional rights or that Budd conspired to tamper with a witness.
This challenge must fail. United States v. Hathaway, 798 F.2d 902, 913 (6th Cir. 1986) (finding no
constructive amendment where the indictment charged receipt of checks known to be “stolen,
converted, and taken by fraud,” but the court instructed the jury to convict if it found the checks
were known to be “stolen, converted, or taken by fraud”); see also United States v. Barrios-Perez,
317 F.3d 777, 779-80 (8th Cir. 2003) (finding no constructive amendment where the drug-
conspiracy indictment   was phrased in the conjunctive, but the court instructed the jury in the
disjunctive).8
                                          IV. JURY INSTRUCTIONS
       Counts 2 and 4 charged Budd with violating the constitutional rights of Tawhon Easterly and
Steven Blazo, respectively, in violation of 18 U.S.C. § 242. Both Easterly and Blazo were pretrial
detainees, so the relevant inquiry is whether Budd’s use of excessive force violated their Fourteenth
Amendment due process rights. See Bell v. Wolfish, 441 U.S. 520, 535 & n.16 (1979). Budd
complains that the district court misstated the law by failing to instruct the jury that his conduct
would need to “shock the conscience” to violate the Fourteenth Amendment.
        We believe Budd waived the objection. Defense counsel initially objected to the court’s
omission of the words “shocks the conscience” from its Fourteenth Amendment jury instructions,
but at a very late stage of the proceedings counsel told the court, “[A]s I see the Fourteenth
Amendment [instruction] I’m getting more comfortable with it, but the Eighth Amendment one I
believe has this subjective stuff that’s missing . . . .” Transcript at 764. Although at the close of trial
defense counsel summarily rested on his prior objections, he did not contradict his earlier statement
that he was “comfortable” with the Fourteenth Amendment instructions. Budd cannot now complain
about the court’s explanation of the Fourteenth Amendment standard.
       However, even if Budd had preserved the objection, it lacks merit. This court “review[s] a
properly preserved objection to a jury instruction by determining ‘whether the charge, taken as a


         7
          See, e.g., United States v. Miller, 471 U.S. 130, 138 (1985) (citing Stirone, 361 U.S. at 213, for the proposition
that a constructive amendment may result when the trial court “broaden[s] the possible bases for conviction from that
which appeared in the indictment”).
         8
          Budd’s brief also disputes the government’s position that Count 1 of the indictment involves “not two distinct
conspiracies, but only one conspiracy with different means of violating the same.” Appellant’s Reply Brief at 1. The
conspiracy statute, 18 U.S.C. § 371, makes it a crime for two or more persons to agree “to commit any offense against
the United States”; therefore, “any offense against the United States” is a “different means” of violating 18 U.S.C. § 371.
No. 05-4098                       United States v. Budd                                                           Page 10


whole, fairly and adequately submits the issues and applicable law to the jury.’” United States v.
Blood, 435 F.3d 612, 623 (6th Cir. 2006) (quoting United States v. Pensyl, 387 F.3d 456, 458 (6th
Cir. 2004)). This court “may reverse the trial court based on a faulty charge ‘only if the instructions,
viewed as a whole, were confusing, misleading, or prejudicial.’” Id. (quoting Pensyl, 387 F.3d at
458).
        The substantive component of Fourteenth Amendment due process protects citizens against
conduct by law enforcement officers that “shocks the conscience.” County of Sacramento v. Lewis,
523 U.S. 833, 846 (1998). Budd stops there, arguing that the failure to mention    the words “shocks
the conscience” renders the instruction deficient and entitles him to acquittal.9 But the concept of
what “shocks the conscience” varies with context. See, e.g., id. at 850-51. Cases such as Graham,
490 U.S. at 395 n.10, and its precursor, Wolfish, 441 U.S. at 535 & n.16, specifically address
substantive due process in the context of pretrial detention. This circuit has relied on Graham for
the proposition that the Due Process Clause protects a pretrial detainee from “excessive force that
amounts to punishment.” See, e.g., Phelps, 286 F.3d at 300. By adhering to cases such as Graham
and Wolfish in its instructions, the district court fairly and adequately stated the law pertinent to
pretrial detainees’ substantive-due-process rights. See Blood, 435 F.3d at 623.
        V. MOTION FOR JUDGMENT OF ACQUITTAL AS TO BLAZO CHARGE
       Budd argues that the district court erred in denying his motion for acquittal on Count 4,
which charged him with violating the Fourteenth Amendment rights of pretrial detainee Steven
Blazo by using excessive force amounting to punishment in violation of 18 U.S.C. § 242. This court
reviews de novo the denial of a motion for judgment of acquittal. United States v. Meyer, 359 F.3d
820, 826 (6th Cir. 2004). The issue is “‘whether, after reviewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Id. (quoting United States v. Humphrey, 279 F.3d 372, 378 (6th
Cir. 2002)); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
         Bell v. Wolfish and its progeny govern whether Budd’s behavior represented “excessive force
amounting to punishment.” Under Wolfish, in the absence of “an expressed intent to punish,” the
question is whether the challenged practice or behavior “is reasonably related to a legitimate
government objective.” 441 U.S. at 538, 539; see also Thompson v. County of Medina, 29 F.3d 238,
242 (6th Cir. 1994). If the action is “arbitrary or purposeless[,] a court permissibly may infer that
the purpose of the governmental action is punishment that may not constitutionally be inflicted upon
detainees qua detainees.” Wolfish, 441 U.S. at 539. Although retribution and deterrence are not
legitimate nonpunitive purposes, id. at 539 n.20, the maintenance of security and order at detention
facilities is, id. at 540, 546-47. “Prison administrators . . . should be accorded wide-ranging
deference in the adoption and execution of policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain institutional security.” Id. at 547 (citing
cases).
        Budd’s brief identifies no legitimate nonpunitive purposes for his actions; rather, he argues,
correctly, that de minimis injuries do not support a constitutional violation, even if intentionally
inflicted. Although a pretrial detainee’s injuries must be more than de minimis to support a
constitutional violation, they need not be “serious” or “significant,” cf. Hudson v. McMillian, 503
U.S. 1, 8-10 (1992) (convicted prisoner); see also United States v. Walsh, 194 F.3d 37, 47-48 (2d

         9
           With his citation to Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 1999), Budd also implicitly objects
to the court’s failure to instruct the jury to convict only if he acted “maliciously and sadistically for the very purpose of
causing harm,” but this formulation applies only in emergency-type situations such as a prison riot or a high-speed police
chase. See, e.g., Lewis, 523 U.S. at 853-54. None of the incidents at issue under Counts 2 and 4 occurred under such
conditions.
No. 05-4098                     United States v. Budd                                                       Page 11


Cir. 1999) (pretrial detainee), as long as there is some degree of actual injury, Walsh, 194 F.3d at
50.
         In this case, the prosecution introduced testimony that Budd rammed Blazo’s head into at
least two different doors, slammed his head into a table, and repeatedly shoved him into a wall.
Although the prosecution introduced no medical evidence of the extent of Blazo’s injuries, Blazo
testified that he requested medical attention, albeit unsuccessfully, and that he had bumps on his
head and bruising on his body. In Hudson v. McMillian, the Supreme Court held that the prisoner’s
“minor bruises and swelling of his face, mouth, and lip,” loosened teeth, and a cracked dental plate
were “not de minimis for Eighth Amendment purposes.” Id. at 4, 10. Viewed in the light most
favorable to the prosecution, the evidence indicates that Blazo’s injuries here are comparable to
those of the prisoner in Hudson.
      VI. MOTION FOR JUDGMENT OF ACQUITTAL AS TO MOORE CHARGE
       Budd argues that the trial court erred in denying his motion for acquittal on Count 3, which
charged Budd with violating the constitutional rights of inmate Brandon Moore. This court reviews
de novo, and asks whether any rational trier of fact could have found beyond a reasonable doubt that
Budd violated the Eighth Amendment rights of Brandon Moore, a convicted and sentenced inmate.
Meyer, 359 F.3d at 826. Budd cannot meet this standard, and we reject this challenge.
        In Hudson, the Supreme Court clarified the law applicable to convicted prisoners’ excessive-
force claims. The Court held that when corrections officials use force to keep order, and this force
is alleged to violate the Eighth Amendment rights of prisoners, “the core judicial inquiry is that set
out in Whitley [v. Albers, 475 U.S. 312 (1986)]: whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” 503 U.S. at 7.
        More recently, the Supreme Court has invoked Whitley to hold that the “‘unnecessary and
wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth
Amendment.’” Hope v. Pelzer, 536 U.S. 730, 737 (2002). Hope went on to reaffirm that “[a]mong
‘unnecessary and wanton’ inflictions of pain are those that are ‘totally without penological
justification.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Controlling an
emergency situation and maintaining order are legitimate penological justifications, see, e.g., Bell,
441 U.S. at 540, 546-47, but when safety concerns have abated or an emergency has been dispelled,
the justification may disappear. See Hope, 536 U.S. at 738.
        In this case, several officials took Moore and his codefendants to wait in a witness room
following their sentencing. Moore’s hands and feet were shackled, and his hands were cuffed to a
bellychain. Moore began “making fun of the whole situation” and “bragging about how many years
he received,” but was not “physically doing anything to threaten any of the deputies.” Transcript
at 68,10
       80-81. Budd told Moore to “shut the f*** up and sit down,” and then forced Moore into a
chair. Id. at 69. Budd then ordered the two codefendants removed, leaving Budd, Deputy Tinkey,
Deputy Oliver, and Moore in the witness room. After “a few short minutes,” Budd grabbed the
seated and compliant Moore by the collar and “slammed” him into the steel frame of a window,
leaving “a crease in [Moore’s] forehead.” Id. at 69-70. Budd then ordered Tinkey to hold Moore
against the window. Budd attempted to pull up Moore’s sagging pants, and Moore, though still
shackled, reacted by “jumping” at Budd. It is unclear whether this reaction was an attempt to harm
Budd, mere surprise at Budd’s actions, or a reflexive response to what was actually an attack by

         10
             Deputy Tinkey testified that Budd forced Moore into the chair because he did not comply with the order to
“shut the f*** up and sit down.” Deputy Oliver, however, did not mention this supposed noncompliance and in fact
testified that when Moore was chatting with his codefendants, he did not “attempt physically to do anything that was
inconsistent with” what he was told to do, nor did he “disobey orders.” Transcript at 119.
No. 05-4098                       United States v. Budd                                                          Page 12


Budd on Moore.11 In any event, Tinkey immediately took Moore to the ground to secure him.
Tinkey then told Moore to remain on the ground and took a few steps back.
        Once on the ground, Moore did not move around, did not try to get back up, and did not
verbally or physically threaten anyone—Tinkey testified that Moore “wasn’t going anywhere” and
“wasn’t a threat12to anyone.” Id. at 73. Budd, agitated and cursing Moore, stepped on Moore’s back
with both feet. Moore testified that his face was scratched up and his back was “starting to feel
numb”; he later unsuccessfully requested medical attention. Id. at 108. Officer Oliver testified that
he saw no law-enforcement reason for Budd’s actions; Officer Tinkey testified that he did not see
“any need” for Budd’s actions and that “being obnoxious” is not a reason to use force on a prisoner.
Id. at 75, 95. Budd disputed this characterization. He testified that when he slammed Moore into
the window, he “was trying to restore order to a volatile situation,” and when he stepped on Moore’s
back, he was “attempt[ing] to protect himself from injury.” Transcript at 45.
        A rational factfinder could have concluded that Budd acted without penological justification
and therefore unnecessarily and wantonly inflicted pain on Moore in violation of the Eighth
Amendment. See Hope, 536 U.S. at 737. Given the other officers’ testimony, the jury reasonably
could have seen Budd’s supposed justifications as incredible. That is, Tinkey testified that when
Budd slammed Moore into the window, a few minutes had passed since Moore had mouthed off, and
that in any event, “being obnoxious” does not justify the use of force. Moreover, Moore was
restrained, compliant, and alone in the room with three officers. The jury rationally could have
disbelieved that this was a “volatile situation.” Similarly, the jury could have disbelieved Budd’s
supposed concern for his safety when he stepped on Moore’s back with both feet, given Tinkey’s
testimony that the prone, restrained inmate “wasn’t going anywhere” and “wasn’t a threat to
anyone.” Moore’s injuries here, which included a dented forehead and numbness to his back, in
which a bullet had previously become permanently lodged, were also comparable to those of the
inmate in Hudson, and thus not de minimis. Therefore, we reject this challenge.
         Budd also argues that the trial court should have granted his motion for judgment of acquittal
on Count 3 because Moore never identified Budd as the person who assaulted him. This claim is
totally meritless. Deputy Tinkey, on both direct and cross-examination, identified Budd as the one
who assaulted    Moore. Deputy Oliver did the same. The fact that Moore did not also identify Budd
is irrelevant.13
                                               VII. CONCLUSION
         For these reasons, we AFFIRM the judgment of the district court.




         11
           Deputy Tinkey testified that he didn’t know whether Moore was merely startled or whether he was attempting
to attack Budd. Deputy Oliver testified that Budd had actually “jammed [Moore’s pants] up into his crotch . . . pretty
hard” and “kind of lifted him up” by his pants.
         12
           Deputy Oliver testified that Budd actually stepped on Moore’s back twice—once before the pants-hiking
incident and once after.
         13
            Budd’s citation to Thigpen v. Cory, 804 F.2d 893, 896-897 (6th Cir. 1986), is inapt. In that case, this court
concluded that an eyewitness’s line-up identification was unreliable under the five-factor test of Neil v. Biggers, 409 U.S.
188 (1972). This has nothing to do with Budd’s claim that the government needed Moore’s eyewitness testimony in
addition to the eyewitness testimony of two officers.
No. 05-4098                      United States v. Budd                                                        Page 13


                                               ________________
                                                   DISSENT
                                               ________________
        COOK, Circuit Judge, dissenting. I concur in all but Part II of the majority’s opinion.
I dissent because I conclude there was a constructive amendment to Count 3—not a mere variance.1
        In deciding how to distinguish a constructive amendment from a mere variance, the majority
favors this court’s inscrutable doctrine2 over clearer commands from the Supreme Court. Having
chosen a framework to decide the issue, the majority misapplies it on its own terms. Because this
topic has troubled this court for years, I offer for consideration my understanding of the doctrine.
        Defendants may invoke one of three theories to complain of inconsistencies between the
indictment and either the jury instructions, the proof at trial, or both: (1) actual amendment,
(2) constructive amendment, or (3) variance. See, e.g., United States v. Hathaway, 798 F.2d 902,
910 (6th Cir. 1986) (identifying these three distinct theories). The first theory, actual amendment,
traces to Ex parte Bain, 121 U.S. 1 (1887), overruled on other grounds by United States v. Cotton,
535 U.S. 625, 629–31 (2002). The grand jury indicted Bain and other bank officials for making
false statements “with intent to deceive the comptroller of the currency and the agent appointed to
examine the [bank’s] affairs.” Id. at 4. Thirteen months later, the prosecution moved the trial court
to strike the words “the comptroller of the currency and” from the indictment. Id. at 5. The trial
court granted the motion and struck the language, and Bain was convicted. The Supreme Court
granted Bain’s habeas corpus petition, concluding that this rewriting of the indictment ran afoul of
the Fifth Amendment’s command 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.” Id. at 6, 13–14.
Specifically, the conviction could not stand because the grand jury had never considered the
government’s new theory that Bain had made false statements intending to deceive the agent, but
not the comptroller. See id. at 13 (“[A]fter the indictment was changed it was no longer the
indictment of the grand jury who presented it.”). The Court reasoned that the grand-jury component
of the Fifth Amendment checks overzealous prosecution and ensures that a citizen is not exposed
to the risks and expense of a trial unless a grand jury composed of his peers determines that he
should. See id. at 12 (citing Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857)); see also United States
v. Beeler, 587 F.2d 340, 342 (6th Cir. 1978) (noting that the most important reason for the rule
barring actual and constructive amendments is “the assurance that a group of citizens independent
of prosecutors or law enforcement officials have reviewed the allegations and determined that the
case is worthy of being presented to a jury for a determination of the defendant’s guilt or
innocence”); United States v. Moore, 129 F.3d 873, 878 (6th Cir. 1997) (citing Beeler, 587 F.2d at
342).
        The second theory, constructive amendment, is a legal fiction developed after Bain—a
prosecutor could no longer physically rewrite the indictment, but he could still effectively rewrite
the indictment by leaving its language untouched, but proposing jury instructions that embody a new
theory or crime. This presents the same evil as an actual amendment: no grand jury passed on the
essential description of the crime that ultimately formed the basis for conviction, a circumstance that


         1
           Because I would reverse based on a constructive amendment to Count 3, I would not reach the issues discussed
in Part VI of the majority’s opinion. That said, I agree with the substance of the majority’s analysis.
         2
          United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002) (“[T]he distinction between a variance and
a constructive amendment is sketchy.”); United States v. Hathaway, 798 F.2d 902, 910 (6th Cir. 1986) (“[T]he distinction
between a variance and a constructive amendment is at best ‘shadowy . . . .’”).
No. 05-4098                      United States v. Budd                                                         Page 14


contravenes the Fifth Amendment.3 Thus, courts developed the legal fiction of a “constructive
amendment” to prevent this mischief. In Stirone v. United States, 361 U.S. 212 (1960), the seminal
Supreme Court    case on constructive amendments, the grand jury indicted the defendant under the
Hobbs Act4 for interfering with interstate commerce in sand, but the trial court permitted the
government to argue that the defendant interfered with interstate commerce in steel, too, and the
defendant was convicted. Id. at 213–14. The Supreme Court reversed the defendant’s conviction,
noting that “[a]lthough the trial court did not permit a formal amendment of the indictment, the
effect of what it did was the same.” Id. at 217. Stirone reveals two distinguishing features of a
constructive amendment. First, a constructive amendment involves not just a “variation between
pleading and proof,” id., but also an irregularity in the jury instructions, see id. at 219 (“[W]e cannot
know whether the grand jury would have included in its indictment a charge that commerce in steel
from a nonexistent steel mill had been interfered with. Yet because of the court’s admission of
evidence and under its charge this might have been the basis upon which the trial jury convicted
petitioner.” (emphasis added)). Second, a constructive amendment is not amenable to harmless-error
analysis. Id. at 217 (“Deprivation of such a basic right is far too serious to be treated as nothing
more than a variance and then dismissed as harmless error.”).
         The third theory, alluded to in Stirone, is the variance. Stirone makes clear that a variance
results when there is a “variation between pleading and proof,” see id., but the jury instructions
properly mirror the language of the indictment, see id. at 215, 217–18 (explaining Berger v. United
States, 295 U.S. 78 (1935)). In Berger, the irregularity came when the prosecution introduced proof
of a second conspiracy in addition to the one charged. 295 U.S. at 79–81. The Court questioned
whether the variance “affect[ed] the substantial rights” of the defendant, id. at 82, and concluded that
it did not, id. at 83–84. Berger confirms that a variance has nothing to do with the defendant’s Fifth
Amendment grand jury right: the Court never mentioned the concept. Instead, a variance issue
turns on whether the defendant (1) has sufficient notice of the allegations to mount a defense, and
(2) will be protected against double jeopardy. Id. at 82. These lesser concerns require reversal only
if the defendant shows prejudice to a substantial right. Id.
        These three cases demonstrate that distinguishing a constructive amendment from a variance
requires review of the jury instructions. When the jury instructions mirror the indictment and the
defendant claims only that the proof at trial diverged from the indictment, he can complain only of
a variance and must show prejudice. But when the jury instructions do not mirror the
indictment—as was true in Budd’s5 case—the defendant’s claim is properly categorized under the
“constructive amendment” rubric. Although Budd’s indictment charged him with violating 18
U.S.C. § 242 by depriving inmate Moore of his Fourteenth Amendment rights, the court instructed
the jury to convict if it found that Budd violated 18 U.S.C. § 242 by depriving Moore of his Eighth
Amendment rights. In other words, after the government secured an indictment premised on a
Fourteenth Amendment deprivation, it switched theories and tried the case—jury instructions and
all—based on an Eighth Amendment deprivation. Following this circuit’s rule that a constructive
amendment is per se prejudicial, see, e.g., United States v. Prince, 214 F.3d 740, 757 (6th Cir. 2000)
(collecting cases), I would reverse Budd’s conviction on this count and remand for resentencing.

         3
          Of course, correction of a scrivener’s error presents no problem. See, e.g., Russell v. United States, 369 U.S.
749, 770 (1962) (“[A]n indictment may not be amended except by resubmission to the grand jury, unless the change is
merely a matter of form.” (citing Bain, 121 U.S. 1) (emphasis added)).
         4
          That statute provided that “[w]hoever in any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or extortion” shall be fined or imprisoned, or both.
18 U.S.C. § 1951(a).
         5
           The proof invariably will differ too—after all, the prosecution has to prove its new theory—but this proof
aspect is not the crucial distinction.
No. 05-4098                       United States v. Budd                                                          Page 15


        The majority avoids the three Supreme Court cases I describe above and instead attempts to
draw from this court’s precedent a principle that “a variance in some cases is not different in kind
from a constructive amendment,      but merely in degree; if it is serious enough, it becomes a
constructive amendment.”6 Ante at 3. For two reasons, I cannot agree. First, the concepts of
“variance” and “constructive amendment” differ in kind, not degree: either the jury instructions
mirror the indictment, or they do not. The principle identified by the majority likely results from
loose language in past cases; that is, labeling what is actually just a prejudicial variance a
“constructive amendment.” If the court reverses based only on irregularities of proof, it is because
the variance prejudiced the defendant’s substantial rights, not because it was a constructive
amendment. Second, the practical implications of a framework where a variance can “rise to the
level” of a constructive amendment reveal its flaw. Presumably, under the majority’s framework,
the defendant must show that a supposed variance “rose to the level” of a constructive amendment
by showing that he was actually prejudiced. If the defendant must show actual prejudice to get per
se treatment, this would eliminate the need for even the concept of prejudice per se—every case
would turn on whether the defendant had shown “enough” actual prejudice.
        The majority ultimately turns to Martin, Prince, and Suarez to decide whether the
irregularities in this case represented a variance or a constructive amendment, inquiring “whether
the jury instruction and evidence introduced another crime or an ‘alternative method[] by which the
one crime . . . could have been committed.’” Suarez, 263 F.3d at 478 (quoting Prince, 214 F.3d at
758). It finds a mere variance, concluding that violating Moore’s Fourteenth Amendment rights is
merely an “alternative method” by which Budd could have violated 18 U.S.C. § 242. I cannot agree.
Moore was a 7convicted inmate whose rights against excessive force sound exclusively in the Eighth
Amendment, so the only “method” by which Budd could have violated 18 U.S.C. § 242 would have
been by depriving Moore of his Eighth Amendment rights against cruel and unusual punishment.
Depriving Moore of Fourteenth Amendment rights against excessive force amounting to
punishment—rights that, based on his inmate status, Moore does       not even have—simply is not a
“method” by which Budd could have violated 18 U.S.C. § 242.8

         6
           I assume the majority traces this principle to cases framing the question as whether a variance “rose to the
level” of a constructive amendment. See, e.g., United States v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006); United States
v. Barrow, 118 F.3d 482, 489 (6th Cir. 1997).
         7
           See, e.g., Gravely v. Madden, 142 F.3d 345, 348–49 (6th Cir. 1998) (noting that Whitley v. Albers, 475 U.S.
312 (1986), “made it clear that the legal status of the victim of the excessive force determines whether the Fourth, the
Eighth, or the Fourteenth Amendment governs his excessive force claims”); Pelfrey v. Chambers, 43 F.3d 1034, 1036–37
(6th Cir. 1995) (noting that after Graham v. Connor, 490 U.S. 386 (1989), convicted prisoners may raise excessive-force
claims only under the Eighth Amendment); Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (“Since [convicted
prisoner] Cornwell’s excessive force claim . . . can only be properly considered under the Eighth Amendment [after
Graham v. Connor], we hold that the district court erred in submitting this claim of excessive force to the jury under the
Fourth Amendment.”).
         8
           In Hynes, this court offered another formulation for distinguishing a variance from a constructive amendment.
The majority mentions Hynes, ante at 3, but quickly brushes it aside, apparently reasoning that Hynes applies only in
cases where “the difference between indictment and jury instructions is not the facts of the offense, but the legal theory,”
ante at 3. Again, I respectfully disagree. Hynes posits that a constructive amendment results “‘when an indictment’s
terms are effectively altered by the presentation of evidence and jury instructions that so modify essential elements of
the offense charged that there is a substantial likelihood the defendant [was] convicted of an offense other than that
charged in the indictment.’” 467 F.3d at 961–62 (quoting United States v. Combs, 369 F.3d 925, 936 (6th Cir. 2004)).
This clearly seems to cover situations where the inconsistency lies not only in the facts, but also in the legal theory. And
applying this formulation to Budd’s case also dictates the conclusion that there was a constructive amendment to his
indictment. The inconsistency between the jury instructions’ Eighth Amendment language (“malicious and sadistic” or
“unnecessary and wanton”) and the indictment’s Fourteenth Amendment language (“excessive force that amounts to
punishment”) plainly modified the mens rea element: it is more difficult to establish that a corrections officer acted
“maliciously and sadistically” toward an inmate—who constitutionally may be punished—than to prove that the officer’s
conduct toward a pretrial detainee “amounted to punishment.” E.g., Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002)
No. 05-4098                     United States v. Budd                                                       Page 16


        In the last few paragraphs of Part II, the majority appears to dismiss any irregularity in this
case by reasoning that the “evidence” or “proof” presented to the grand jury would have been the
same whether the indictment had charged an Eighth or Fourteenth Amendment deprivation. Ante
at 7. I respectfully suggest that by focusing on Budd’s actions and ignoring his mental state, the
majority misses the point. The grand jury never decided that Budd should stand trial for using
“malicious and sadistic” or “unnecessary and wanton” excessive force on inmate Moore. See Bain,
121 U.S. at 10–13 (discussing the protection afforded by the grand jury). And although    widespread
experience suggests that the grand jury was unlikely to tarry over mens rea subtleties,9 the Supreme
Court has explicitly forbidden us from speculating on subjects such as whether the grand jury would
have indicted Budd for an Eighth Amendment deprivation just as it actually indicted him for a
Fourteenth Amendment deprivation. As the Court said in United States v. Russell,
         To allow . . . the court[] to make a subsequent guess as to what was in the minds of
         the grand jury at the time they returned the indictment would deprive the defendant
         of a basic protection which the guaranty of the intervention of a grand jury was
         designed to secure. . . . This underlying principle is reflected by the settled rule in the
         federal courts that an indictment may not be amended except by resubmission to the
         grand jury, unless the change is merely a matter of form.
369 U.S. 749, 770 (1962) (citing Bain, 121 U.S. 1, and Stirone, 361 U.S. 212). No grand jury ever
concluded that Budd should stand trial for the more-serious level of excessive force that the
government needed to prove to the petit jury, and this contravenes the Fifth Amendment. I
respectfully dissent.




(“The question of which amendment supplies Phelps’s rights is not merely academic, for the standards of liability vary
significantly according to which amendment applies.”).
         9
           Empirically, the grand jury returns an indictment in the overwhelming majority of cases. See, e.g., United
States v. Navarro-Vargas, 408 F.3d 1184, 1195 & nn.14–15 (9th Cir. 2005) (en banc). Colloquially, “a grand jury would
indict a ham sandwich.” E.g., id. at 1195.
