                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              October 10, 2006
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                        ))))))))))))))))))))))))))                 Clerk

                              No. 05-30564

                        ))))))))))))))))))))))))))


UNITED STATES OF AMERICA

                  Plaintiff - Appellee

     v.

GARY D. HOOVER

                  Defendant - Appellant



              Appeal from the United States District Court
             for the Western District of Louisiana, Monroe
                          No. 3:03-CR-30041-02


Before JOLLY, PRADO, and OWEN, Circuit Judges.

PRADO, Circuit Judge:

     Defendant-appellant Gary D. Hoover appeals his conviction of

making a false statement to a federal agent in violation of 18

U.S.C. § 1001.     In addition to attacking the sufficiency of his

indictment and the evidence supporting his conviction, Hoover

challenges the district court’s denial of his motion for

severance.     He further argues that the district court

constructively amended his indictment, split a single count of

the indictment into two counts, and submitted a confusing verdict

form.     Finally, Hoover argues that, even if none of these errors
alone warrants reversal, cumulatively, the errors require

reversal.    For the reasons that follow, we REVERSE and REMAND for

further proceedings not inconsistent with this opinion.

                            I. BACKGROUND

     On July 17, 2002, Special Agent Bill Chesser of the Federal

Bureau of Investigation (“FBI”) executed a search warrant at

Ruston Ford, a dealership in which the Hoover Group, a family

investment group that includes Gary Hoover, owned a ninety-

percent interest.   After learning of the search from Ruston

Ford’s service manager, Hoover drove to the dealership to speak

with Agent Chesser.   Hoover and Agent Chesser spoke for a few

minutes about the dealerships owned by the Hoover Group and

Hoover’s knowledge of, inter alia, “double floorplanning” or

“double flooring” of vehicles, an illegal practice whereby a

single vehicle is used as collateral for more than one loan.

According to Agent Chesser, when he asked Hoover about his

knowledge of double floorplanning, Hoover indicated that one

employee who had been fired for malfeasance, Steve Howard, had

made an allegation of double flooring at the dealership and that

Hoover considered it “sour grapes.”   Agent Chesser testified that

the issue was addressed once more during the interview, and

Hoover said that Howard was the “one and only person who had

raised double floorplanning to him as a[n] issue of the

business.”   This statement forms the basis for Hoover’s false


                                  2
statement conviction.1

     The government charged Hoover, along with three others, in

an eight-count indictment.    Hoover was implicated in count one,

conspiracy to commit bank fraud, and count seven, making false

statements to a federal agent.    The alleged object of the

conspiracy was to “artificially inflate the balances of the

dealerships’ bank accounts” through bogus drafting, check kiting,

and double floorplanning.    The indictment also alleged that

Hoover made two false statements in an effort to cover up the

conspiracy, one of which related to double floorplanning and the

other to the Hoover Group’s ownership interest in another car

dealership.   The jury acquitted Hoover of the conspiracy charge

and the false statement relating to the ownership interest, but

found him guilty of making a false statement about double

floorplanning.

     On appeal, Hoover attacks: (1) the sufficiency of the

indictment; (2) the district court’s jury instructions as an

unconstitutional constructive amendment of the indictment; (3)

the sufficiency of the evidence underlying his conviction; (4)


     1
        Mike McHale, the owner of a ten-percent interest in
Ruston Ford and general manager of the dealership, testified that
he, too, discussed double floorplanning with Hoover.
Additionally, William (Billy) Hulsey, a certified public
accountant who prepared tax returns for the dealership, testified
that he met with Hoover to discuss the issue. G.G. Grant, a
former Ruston Ford owner who still oversaw the dealership’s
finances, also testified that he told Hoover that the dealership
had a double floorplanning problem.

                                  3
the district court’s denial of his motion for severance; and (5)

the district court’s decision to split count seven into two

counts.    Finally, Hoover argues that, even if none of these

errors alone warrants reversal, cumulatively, the errors require

reversal.

                           II. DISCUSSION

A.   Sufficiency of the Indictment

     As an initial matter, we address Hoover’s argument that

count seven of his indictment, making a false statement to a

federal agent in violation of 18 U.S.C. § 1001, is insufficient.

Count seven of the indictment alleged, inter alia, that Hoover

“did knowingly and willfully make fictitious and fraudulent

material statements and representations . . . during the course

of an interview being conducted by [Agent Chesser of the FBI]”

when Hoover “stated and represented that only one person had

complained of ‘double flooring’ of vehicles . . . when in truth

and in fact [Hoover], then and well knew that more than one

individual had told him about the ‘double flooring’ of vehicles

. . . .”    Hoover claims that the indictment failed to allege a

false statement because more than one person could have “told”

him about the double flooring of vehicles at the car dealership

without “complaining” about it.    In other words, Hoover maintains

that “complain” and “told” are not synonymous terms.    Moreover,

Hoover argues that the indictment is defective because it alleged



                                  4
that the statement was material without adducing any facts or

circumstances to establish materiality.

     This court generally reviews a challenge to the sufficiency

of the indictment de novo, but where, as here, the defendant

failed to object below, the appropriate standard of review is

plain error.2   See United States v. Partida, 385 F.3d 546, 554

(5th Cir. 2004); see also United States v. Cotton, 535 U.S. 625,

631 (2002) (applying the plain-error test to the defendant’s

claim that the indictment failed to allege drug quantity where

the defendant failed to object in the district court).   “Under

that test, before an appellate court can correct an error not

raised at trial, there must be (1) error, (2) that is plain, and

(3) that affects substantial rights”–-i.e., the error affected

the outcome of the district court proceedings.   Cotton, 535 U.S.

     2
        Although Hoover moved the district court for a bill of
particulars in order to seek more specific information from the
government concerning the false statement count of the
indictment, a bill of particulars cannot cure a deficient
indictment. We conclude, as did the Fourth Circuit, “that
seeking this remedy–-without objecting to the sufficiency of the
indictment–-does not preserve for review an alleged defect in the
indictment.” United States v. Quinn, 359 F.3d 666, 672 n.2 (4th
Cir. 2004) (reviewing sufficiency of the indictment challenge for
plain error where the defendants moved only for a bill of
particulars before the district court); cf. Russell v. United
States, 369 U.S. 749, 770 (1962) (“[I]t is a settled rule that a
bill of particulars cannot save an invalid indictment.”).
       Likewise, Hoover’s post-verdict FED. R. CRIM. P. 34 motion
to arrest judgment does not preserve a sufficiency of the
indictment challenge. See United States v. Rodriguez, 360 F.3d
949, 958 (9th Cir. 2004) (reviewing claim of insufficiency of the
indictment raised for the first time in a Rule 34 motion for
plain error); see also United States v. Serag, No. 05-4927, 2006
WL 1525950, at *3 (4th Cir. May 30, 2006) (same).

                                 5
at 631-32 (internal quotation marks, alteration, and citations

omitted).   “If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but

only if (4) the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings.”     Id. (internal

quotation marks, alteration, and citation omitted).

     The basic purpose behind an indictment is to inform a

defendant of the charge against him.     United States v.

Fitzgerald, 89 F.3d 218, 222 (5th Cir. 1996).     As we recently

explained in United States v. Partida,

     [t]o be sufficient, an indictment must conform to minimal
     constitutional standards, standards that are met where
     the indictment alleges every element of the crime charged
     and in such a way as to enable the accused to prepare his
     defense and to allow the accused to invoke the double
     jeopardy clause in a subsequent proceeding.

385 F.3d at 554 (citing United States v. Bieganowski, 313 F.3d

264, 285 (5th Cir. 2002)).

     Keeping these principles and the plain-error test in mind,

the allegation in count seven of the indictment satisfies the

minimal constitutional requirements.   To violate § 1001, the

defendant must have: (1) made a statement; (2) that was false;

(3) and material; (4) knowingly and willfully; and (5) that falls

within agency jurisdiction.   18 U.S.C. § 1001(a); see also United

States v. Lange, 528 F.2d 1280, 1287 (5th Cir. 1976).       Count

seven of the instant indictment alleged each element of § 1001

that the government was required to prove.    In doing so, the


                                 6
indictment apprised Hoover of the charges against him, and it was

sufficiently specific for double jeopardy purposes.       See United

States v. Crow, 164 F.3d 229, 235 (5th Cir. 1999).

     We are not persuaded by Hoover’s argument that the

indictment failed to allege a false statement because

“complained” and “told” are not synonymous terms.       Although the

terms are not generally thought of as synonyms, they can have the

same connotation in certain contexts.      For example, both words

are listed as synonyms for “squeal,” meaning inform.3       The context

of words is important because no two words are directly

interchangeable.4   Here, the context of “complained” and “told”

involved statements concerning the illegal practice of double

flooring at the car dealership of which Hoover was an owner.

Telling or informing Hoover of such an illegal practice could

reasonably be characterized as making a complaint, especially

where, as here, the subject matter is an improper business

practice and the party being told is an owner of the business.

Hoover’s argument that “complain” is a subset of “tell,” rather

than a reasonable substitution, is overly technical, and we

decline to use that as the test for determining the sufficiency


     3
       See ROGET’S NEW MILLENNIUM THESAURUS, FIRST EDITION, available at
http://thesaurus.reference.com/browse/squeal (last visited Sept.
29, 2006).
     4
       See ROGET’S NEW MILLENNIUM THESAURUS, FIRST EDITION, available
at http://thesaurus.reference.com/features/howtousethesaurus.html
(last visited Sept. 29, 2006).

                                   7
of his indictment.   Cf. Crow, 164 F.3d at 235 (noting that “[t]he

validity of an indictment is governed by practical, not technical

considerations”).

     Nor are we persuaded by Hoover’s argument that the

indictment is insufficient because it failed to include specific

facts and circumstances to establish materiality.        Although the

indictment must allege the essential elements of the charged

offense, “‘[i]t is not necessary for an indictment to go further

and to allege in detail the factual proof that will be relied

upon to support the charges.’”    United States v. Caldwell, 302

F.3d 399, 412 (5th Cir. 2002) (quoting United States v. Crippen,

579 F.2d 340, 342 (5th Cir. 1978)).

     We therefore conclude that count seven of the indictment

sufficiently stated the falsity and materiality elements under

§ 1001 and provided Hoover with notice of the offense charged.

See United States v. Berrios-Centeno, 250 F.3d 294, 297 (5th Cir.

2001) (stating that “the core idea underlying an indictment is

notification”).   We do note that this analysis is made under the

plain-error standard of review.

B.   Constructive    Amendment   of   the   Indictment    in   the   Jury
     Instructions

     Having determined that the indictment was sufficient under a

plainly erroneous standard, we next consider whether the district

court erred when it instructed the jury that it could convict

Hoover if it found that he “stated that only one person had


                                  8
complained of ‘double flooring’ of vehicles and that such

statement was intentionally false.”    Hoover contends that by

replacing the “truth and in fact” clause of the indictment with a

generic intent instruction, the district court constructively

amended the indictment and, in turn, violated his Fifth Amendment

right to a grand jury indictment.     See United States v. Rubio,

321 F.3d 517, 521 (5th Cir. 2003) (“A constructive amendment

violates the defendant’s right under the Fifth Amendment to a

grand jury indictment.”).    Stated another way, Hoover argues that

while the indictment required the government to prove that he

knew his statement was false because “more than one individual

told him about the double flooring,” the court’s jury instruction

allowed the government to obtain a conviction if it proved he

knew his statement was false even if he knew it for some reason

other than that more than one individual had told him about the

double flooring of vehicles.    Because Hoover objected at trial,

we review the court’s jury instructions for an abuse of

discretion.   See United States v. Pankhurst, 118 F.3d 345, 350

(5th Cir. 1997).

     “The Fifth Amendment provides for criminal prosecution only

on the basis of a grand jury indictment.”     United States v.

Doucet, 994 F.2d 169, 172 (5th Cir. 1993); see U.S. CONST. amend.

V (“No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury . . . .”).    “It is a long-established principle of our

                                  9
criminal justice system that, after an indictment has been

returned, its charges may not be broadened through amendment

except by the grand jury itself.”      United States v. Young, 730

F.2d 221, 223 (5th Cir. 1984).    This court has held that “[a]n

implicit or constructive amendment . . . occurs when it permits

the defendant to be convicted upon a factual basis that

effectively modifies an essential element of the offense charged

or permits the government to convict the defendant on a

materially different theory or set of facts than that with which

she was charged.”     United States v. Reasor, 418 F.3d 466, 475

(5th Cir. 2005).

     This court has addressed constructive amendment issues on

numerous occasions.    See, e.g., United States v. Chambers, 408

F.3d 237, 247 (5th Cir. 2005) (reversing a conviction for being a

felon in possession of ammunition, where the indictment charged

possession of whole ammunition “in or affecting commerce” and the

jury was allowed to convict based on the travel of component

parts, rather than the whole, of the ammunition in interstate

commerce); United States v. Adams, 778 F.2d 1117, 1123 (5th Cir.

1985) (reversing a conviction for making a false statement and

providing false identification in connection with the purchase of

a firearm, where the indictment charged Adams with using a false

name, but the jury was allowed to convict based on his use of a

false address).    And, while this court has never addressed the



                                  10
issue in this case, the Third Circuit has.    In United States v.

Crocker, the Third Circuit held that “when a grand jury has

specifically charged the manner in which testimony is untruthful,

permitting the government to prove that it is untruthful in an

entirely different manner amounts to a constructive amendment of

the indictment rather than a mere variance.”    568 F.2d 1049, 1060

(3d Cir. 1977).   In that case, a radio disc jockey testified to a

grand jury that he had never received cash or merchandise from a

record company to play its records.    However, a radio executive

later admitted paying the defendant to play his company’s new

song releases.    The disc jockey was indicted for making the false

statements.   The indictment alleged that “[t]he declarations of

the defendant . . . as set forth in [the indictment], were false

in that, during the years 1974 and 1975, Ellsworth

Groce . . . gave in excess of $10,000 in cash to the

defendant . . . to promote the musical records of the companies

referred to in [the indictment].”     Id. at 1052.   At trial, over

the timely objection of defense counsel, the government produced

a witness, Charles Bobbit, who testified that he had also given

the defendant money for playing specific records.     Additionally,

the trial court instructed the jury that it could convict the

defendant if it concluded he testified falsely.      On appeal, the

Third Circuit reversed the defendant’s judgment of conviction and

remanded for a new trial because the trial court permitted the

government to charge an entirely different factual basis for

                                 11
falsity, and, consequently, constructively amended the

defendant’s indictment.   Id. at 1060.   We agree with the Third

Circuit’s analysis in Crocker, as it is consistent with our prior

constructive amendment jurisprudence.    See, e.g., Reasor, 418

F.3d at 475.

     An essential element of an 18 U.S.C. § 1001 violation is

that the defendant knowingly make a false statement.     See Lange,

528 F.2d at 1287.   Hoover claims that the court’s charge

broadened the factual bases on which the government could prove

that he knowingly made a false statement.    He contends that the

indictment required the government to prove that he knew his

statement was false because “more than one individual told him

about the double flooring”; whereas, the court’s jury instruction

allowed the government to obtain a conviction if it proved he

knew his statement was false, even if he knew it was false for

some reason other than that “more than one individual had told

him” about the double flooring personally.   The government

counters by noting that § 1001 only requires that the government

prove that the defendant knowingly made a false statement, not

that the defendant knew what the true statement would have been.

Because the instruction did not modify any element of the

offense, the government contends that Hoover’s indictment was not

constructively amended.

     In accordance with the Supreme Court’s decision in Stirone



                                12
v. United States,5 when the government chooses to specifically

charge the manner in which the defendant’s statement is false,

the government should be required to prove that it is untruthful

for that reason.    361 U.S. at 219.   To allow otherwise would

permit the jury to convict the defendant on a basis broader than

that charged in the grand jury’s indictment.    Hoover may have

reasonably relied on the indictment and only prepared a defense

that only one person had told him about the double flooring of

vehicles, and, therefore, he did not knowingly make a false

statement.    However, based on the trial court’s jury

instructions, the government could have sustained a conviction by

showing that Hoover knew that his statement was false for any

reason, rather than being limited to the reason provided in the

indictment.    Importantly, under the language in the jury

instructions, the government only needed to prove that Hoover

knew that more than one person had complained about double


     5
       In Stirone v. United States, the defendant was indicted
for obstructing the interstate movement of sand in violation of
the Hobbs Act. 361 U.S. 212, 215-16 (1960). The district court,
however, instructed the jury that it could convict the defendant
if it found that he had obstructed an interstate shipment of sand
or steel. The Supreme Court reversed the defendant’s conviction
because it did not know whether the grand jury would have charged
the defendant with obstructing the shipment of steel. Id. at
219. Therefore, “it c[ould not] be said with certainty that with
a new basis for conviction added, [the defendant] was convicted
solely on the charge made in the indictment the grand jury
returned.” Id. at 217. Moreover, the Court stated that even
though the Hobbs Act does not require that an indictment specify
the type of interstate commerce burdened, a conviction must rest
on the charge specified in the indictment. Id. at 218.

                                 13
flooring, not that he knew that more than one person complained

to him.   For instance, the government could have shown that one

person had told Hoover that two people had complained or that

Hoover read two separate complaints.   Therefore, we conclude that

because the indictment charged Hoover with making one false

statement, and the jury instructions allowed the jury to convict

him for making a different false statement, the trial court

constructively amended Hoover’s indictment.

     “Where the indictment has been constructively amended, by

prosecution evidence wholly outside the proper scope of the

indictment and/or by a jury charge authorizing a verdict of

guilty thereon, but there is evidence within the proper scope of

the indictment which supports the verdict, then the normal remedy

is to reverse for a new trial.”    Chambers, 408 F.3d at 247 n.6;

see Doucet, 994 F.2d at 172 (“Constructive amendment requires

reversal of the conviction.”).    Accordingly, we reverse Hoover’s

false statement conviction and remand for further proceedings not

inconsistent with this opinion.

     Because we reverse and remand for further proceedings, we

need not reach Hoover’s other points of error.

                          III. CONCLUSION

     For the foregoing reasons, we REVERSE and REMAND for further

proceedings not inconsistent with this opinion.

     REVERSED and REMANDED.



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