                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                          No. 12-50536
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           2:11-cr-01067-
                                                       TJH-1
 DOREN HAROLD WARD, AKA
 Gemini Havorro Jones,                                OPINION
               Defendant-Appellant.


         Appeal from the United States District Court
            for the Central District of California
          Terry J. Hatter, District Judge, Presiding

                  Argued and Submitted
           December 4, 2013—Pasadena, California

                        Filed April 3, 2014

 Before: Paul J. Watford and Andrew D. Hurwitz, Circuit
   Judges, and William E. Smith, Chief District Judge.*

                     Opinion by Judge Smith




  *
    The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
2                   UNITED STATES V. WARD

                           SUMMARY**


                           Criminal Law

    Reversing a conviction on two counts of aggravated
identity theft in violation of 18 U.S.C. § 1028A(a)(1) and
remanding for further proceedings, the panel held that the
district court constructively amended the indictment by
permitting the jury to convict the defendant of stealing the
identities of victims other than the specific victims whose
identities the indictment accused the defendant of stealing.


                             COUNSEL

Davina T. Chen (argued), Glendale, California, for
Defendant-Appellant.

Cathy J. Ostiller (argued), Robert E. Dugdale, Assistant
United States Attorneys, and André Birotte Jr., United States
Attorney, Los Angeles, California, for Plaintiff-Appellee.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. WARD                      3

                         OPINION

SMITH, Chief District Judge:

    Following a jury trial, Doren Harold Ward was convicted
on numerous charges, including two counts of aggravated
identity theft in violation of 18 U.S.C. § 1028A(a)(1). Ward
appeals the aggravated identity theft convictions, arguing that
the district court constructively amended the indictment in
violation of the Fifth Amendment. We agree.

I. Factual Background

   A. The Scheme

    In 2011, Ward and several co-conspirators were involved
in a scheme to defraud Chase Bank USA, N.A. and its
customers. The co-conspirators gathered victims’ personal
information and transmitted it to a co-conspirator in the
United Kingdom (“UK”). The UK co-conspirator would then
phone Chase and impersonate the victim, using the personal
information to respond to Chase’s security questions and
corroborate the falsified identity. At the request of the UK
co-conspirator, Chase would mail a replacement credit card
to an address in California. Ward and his co-conspirators
then used these replacement credit cards to make expensive
purchases. In total, Chase’s losses amounted to some
$299,000.

   B. Pretrial Events

   In a first superseding indictment, Ward was charged with
one count of conspiracy to commit bank fraud in violation of
18 U.S.C. § 1349, two counts of bank fraud in violation of
4                  UNITED STATES V. WARD

18 U.S.C. § 1344(1), one count of access device fraud in
violation of 18 U.S.C. § 1029(a)(2), and one count of
aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1). Count VI, charging aggravated identity theft,
accused Ward of “knowingly possess[ing] and us[ing],
without lawful authority, a means of identification of another
person, that is, names and account numbers of customers of
[Chase].”

    After Ward moved to dismiss Count VI because no
specific victim was named, a second superseding indictment
was returned, separating former Count VI into Counts VI and
VII. Count VI charged Ward with aggravated identity theft
related to Chase customer “G.G.,” identified elsewhere in the
record as Gerald Glen. Count VII charged Ward with
aggravated identity theft related to Chase customer “C.H.,”
identified elsewhere in the record as Chris Hagler.

   Ward attempted to plead guilty to all charges but the two
counts of aggravated identity theft. The district court
declined to accept the plea, reasoning that it could not accept
a plea to the conspiracy charge without it effectively
becoming an admission to the identity theft charges.

    C. The Trial

    Ward proceeded to trial on all six counts. At the outset of
the trial, Ward stipulated to his guilt on the conspiracy, bank
fraud and access device charges, contesting only the
aggravated identity theft charges.

    Over Ward’s objection, the district court permitted
testimony from victims in addition to Gerald Glen and Chris
Hagler about the theft of their identities in the scheme.
                   UNITED STATES V. WARD                         5

Specifically, the district court permitted the testimony of
Rufus and Janey Brandt, a married couple from Wisconsin,
Robert Bitter, and Kimberly Franklin. Ward and his co-
conspirators had ordered replacement credit cards for the
Brandts and for Bitter, and had used those cards to make
sizeable purchases. Computer printouts bearing Franklin’s
personal information had been found during the execution of
a search warrant at Ward’s apartment. While no evidence
was introduced that Franklin’s account had been
compromised, it was assumed that Ward obtained her
personal information for purposes of stealing her identity.

    Ward’s objection to the testimony of the Brandts, Bitter
and Franklin was premised on his contention that the
testimony was relevant only to the conspiracy, bank fraud and
access device charges to which he was admitting guilt, and
was thus unduly prejudicial. The government responded by
arguing that this testimony was important circumstantial
evidence necessary to establish that Ward knew his victims
to be real people, an element of aggravated identity theft.
The district court overruled Ward’s objection and permitted
the additional victims to testify.

     Glen, Hagler, Franklin, Bitter and Rufus and Janey Brandt
all testified during the trial as to the theft of their identities.
In its closing argument, while discussing the aggravated
identity theft counts, the government contended that Ward
knew Glen and Hagler to be real people, but also referred to
other victims including the Brandts and Franklin, suggesting
that Ward knew that they too were real people. With respect
to Rufus Brandt, the government noted that “we saw Rufus
Brandt’s . . . Mileage Plus card. Real people have these
rewards programs. . . . These are real people’s credit cards.”
With respect to Franklin, the government reminded jurors that
6                 UNITED STATES V. WARD

“[y]ou met Kimberly Franklin. She told you that the Social
Security number, the address, the driver’s license, the DOB,
on this email printout found at the defendant’s home were all
hers. That was her information that the defendant knew and
had sitting in his apartment.”

    Following closing arguments, the district court instructed
the jury. On Count VI, charging aggravated identity theft
with respect to Gerald Glen, the district court instructed the
jury as follows:

       Now, the defendant is charged in Count Six of
       the indictment with aggravated identity theft,
       in violation of Section 1028A of Title 18 of
       the United States Code. For the defendant to
       be found guilty of that charge, the government
       must prove each of the following elements
       beyond a reasonable doubt:            One, the
       defendant knowingly transferred, possessed,
       or used without lawful authority a means of
       identification of another person, that is, a
       credit card account number; two, the
       defendant knew that the means of
       identification belonged to a real person; and,
       three, the defendant did so . . . during and in
       relation to committing bank fraud . . . .

The instructions on Count VII, charging aggravated identity
theft with respect to Chris Hagler, were substantively
identical.

   At a sidebar discussion after the instructions, both parties
expressed concern that the instructions for Counts VI and VII
                 UNITED STATES V. WARD                     7

did not identify the specific victim or the date on which the
conduct took place, as alleged in the indictment:

       THE COURT: Do you have any comments or
       objections with regard to the instructions?

       [DEFENSE COUNSEL]: Your Honor, I have
       a concern in Count Six and Seven. It doesn’t
       identify –

       [GOVERNMENT COUNSEL]: We have the
       same concern.

       [DEFENSE COUNSEL]: – the date of the
       offense or the actual credit card numbers
       possessed, so I would just ask that it identify
       that the defendant’s charged in Count Six with
       committing this offense on or about a certain
       date.

       THE COURT: They’ll have the indictment
       with them, and it’s not necessary.

       [DEFENSE COUNSEL]: I’m very worried
       that they will look at this instruction, and the
       jury will think that it can consider uncharged
       conduct, and whether there’s evidence that he
       might have known a different identity rather
       than one that’s charged.

       THE COURT: It says Count Six, Count
       Seven. They can look at the indictment and
       see.
8                 UNITED STATES V. WARD

       [GOVERNMENT COUNSEL]: Your Honor,
       our proposal was just to modify the second
       element, to add the victim’s name for each
       count, to clarify.

       [DEFENSE COUNSEL]: So that – it sounds
       like I would agree with that proposal, that is,
       a credit card account number belonging to
       Gerald Glen, for example.

       [GOVERNMENT COUNSEL]: Or belonging
       to a real person, comma, Gerald Glen.

       [DEFENSE COUNSEL]: Okay. That works,
       also.

       THE COURT: All right. . . . It’s all in the
       indictment, but we’ll do that.

    The district court later had a change of heart, indicating
to counsel that no change would be made to the instructions:

       THE COURT: And I’ve given second thought
       to what I’d indicated with regard to the
       instructions that go to Counts Six and Seven.
       I’m not going to change it. The jury will have
       [the indictment] and they can refer to it.
       That’s the way we always do it. We refer to
       those counts. They’ll look at them and that’s
       it. I just wanted you to know that. If you both
       have objections, they’re on the record. All
       right.

    The jury returned a verdict of guilty on all counts.
                  UNITED STATES V. WARD                      9

II. Standard of Review

    When a defendant raises a constructive amendment claim
before the district court, we review de novo. United States v.
Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006). However, where
the defendant fails to object to the district court’s jury
instructions, a constructive amendment claim is reviewed for
plain error. Id.

     The government argues that Ward failed to preserve his
constructive amendment objection because he did not
specifically assert a violation of his Fifth Amendment right
below. We conclude, however, that Ward objected at trial on
the same basis that he now raises – that the instructions would
improperly allow him to be convicted for conduct not charged
in the indictment. At the post-instruction sidebar, defense
counsel stated, “I’m very worried that they will look at this
instruction, and the jury will think that it can consider
uncharged conduct, and whether there’s evidence that he
might have known a different identity rather than one that’s
charged.” In declining to modify the instructions, the district
court later confirmed that, “[i]f you both have objections,
they’re on the record.” Although defense counsel did not use
the term “Fifth Amendment,” the substance of the objection
was patently clear. See United States v. Bostic, 371 F.3d 865,
871 (6th Cir. 2004) (“A specific objection provides the
district court with an opportunity to address the error in the
first instance and allows [the appeals court] to engage in more
meaningful review.”).
10                 UNITED STATES V. WARD

III.      Discussion

       A. Introduction

     “No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury . . . .” U.S. Const. amend. V. “It
is the exclusive prerogative of the grand jury finally to
determine the charges, and once it has done so neither a
prosecutor nor a judge can change the charging part of an
indictment to suit [his or her] own notions of what it ought to
have been, or what the grand jury would probably have made
it if their attention had been called to suggested changes.”
United States v. Leichtnam, 948 F.2d 370, 375–76 (7th Cir.
1991) (quoting Ex parte Bain, 121 U.S. 1, 10 (1887))
(alteration in original) (internal quotation marks omitted); see
also Stirone v. United States, 361 U.S. 212, 216 (1960);
Hartz, 458 F.3d at 1019–20. “If an indictment could be so
lightly departed from, then the great importance which the
common law attaches to an indictment by a grand jury, as a
prerequisite to a prisoner’s trial for a crime, and without
which the Constitution says ‘no person shall be held to
answer,’ [might] be frittered away until its value is almost
destroyed . . . .” Leichtnam, 948 F.2d at 376 (quoting Ex
parte Bain, 121 U.S. at 10) (alteration in original) (internal
quotation marks omitted).

     Objections that the trial court improperly instructed the
jury about the contents of the indictment generally fall into
one of two categories: a constructive amendment or a
variance. “An amendment of the indictment occurs when the
charging terms of the indictment are altered, either literally or
in effect, by the prosecutor or a court after the grand jury has
last passed upon them.” United States v. Von Stoll, 726 F.2d
                  UNITED STATES V. WARD                       11

584, 586 (9th Cir. 1984) (quoting United States v. Cusmano,
659 F.2d 714, 718 (6th Cir. 1981)). A variance, on the other
hand, “occurs when the charging terms of the indictment are
left unaltered, but the evidence offered at trial proves facts
materially different from those alleged in the indictment.” Id.

    The line that separates a constructive amendment from a
variance is not always easy to define, United States v.
Adamson, 291 F.3d 606, 615 (9th Cir. 2002); see also United
States v. Antonakeas, 255 F.3d 714, 722 (9th Cir. 2001), but
characterizing an instruction as a constructive amendment
typically mandates reversal, while “a variance requires
reversal only if it prejudices a defendant’s substantial rights.”
Adamson, 291 F.3d at 615 (quoting United States v. Olson,
925 F.2d 1170, 1175 (9th Cir. 1991) abrogated in part by
United States v. Cotton, 535 U.S. 625, 630 (2002)).

    B. Variances

    A variance involves a divergence between the allegations
set forth in the indictment and the proof offered at trial.
Where this divergence acts to prejudice the defendant’s
rights, the conviction must be reversed. For example, in
United States v. Tsinhnahijinnie, the defendant was indicted
for engaging in abusive sexual contact with a minor over a
two-month period within the confines of an Indian
reservation. 112 F.3d 988, 989 (9th Cir. 1997). The trial
testimony, however, suggested that the defendant had
perpetrated the sexual abuse over a significantly different
period of time at locations both on and off the reservation. Id.
at 990–91. We found the defendant’s rights had been
prejudiced by this variance, reasoning that federal jurisdiction
was premised on the events having occurred on the
reservation. Id. at 991.
12                 UNITED STATES V. WARD

    A non-prejudicial variance, which occurs when
divergence between the facts alleged in the indictment and
those offered at trial is immaterial or otherwise does not
prejudice a defendant, will not justify reversal. For example,
in Von Stoll, the indictment charged the defendant with
transporting in interstate commerce $10,000 that was taken
from a Mr. McCallum. 726 F.2d at 585. The evidence
presented at trial, however, showed that the defendant had
met with McCallum and his partner, Mr. Hofer, and had taken
the $10,000 from Hofer. Id. at 585–86. The jury charge
allowed jurors to find the defendant guilty if they found that
the $10,000 was taken from “the owner.” Id. at 586. This
Court found a non-prejudicial variance, reasoning that the
identity of the victim was irrelevant to the defendant’s
culpability. Id. at 586–87.

    This case does not involve a variance, because the
allegations set forth in the indictment did not differ from the
facts proven at trial. The trial evidence established that Ward
appropriated the identities of Gerald Glen and Chris Hagler.
Thus, the question before us is whether the district court’s
instruction resulted in a constructive amendment of the
charges in Counts VI and VII.

     C. Constructive Amendments

    A constructive amendment occurs “when the charging
terms of the indictment are altered, either literally or in effect,
by the prosecutor or a court after the grand jury has last
passed upon them.” Id. at 586 (quoting Cusmano, 659 F.2d
at 718). The seminal case is Stirone, in which the defendant
was indicted for extortion relating to interference with
interstate shipments of sand. 361 U.S. at 213–14. Over
defendant’s objections, the district court admitted evidence
                  UNITED STATES V. WARD                       13

relating to his interference with interstate steel shipments,
then instructed the jury that a finding of guilt could be
premised on either the sand- or steel-related conduct. Id. at
214. The Supreme Court found that the district court had
constructively amended the indictment by expanding the
conduct for which the defendant could be found guilty
beyond its bounds. Id. at 219.

     Cases in this circuit finding constructive amendments
follow a similar pattern. For example, in Howard v. Daggett,
the indictment charged that the “[defendant] did knowingly
and wilfully travel in interstate commerce for the purpose of
promoting an unlawful activity, to-wit: prostitution, in that
[defendant] did induce Lucretia Yvonne South and Dolores
Nelson to engage in prostitution . . . .” 526 F.2d 1388, 1389
(9th Cir. 1975) (per curiam). The evidence introduced at
trial, however, suggested that the defendant had relationships
with prostitutes in addition to the two identified in the
indictment. Id. at 1390. The trial court instructed the jury
that in order to convict the defendant, the jury had to find that
he had “the intent to or purpose to promote an unlawful
activity, to-wit: prostitution,” but did not specifically
reference the two women named in the indictment. Id. at
1389. This Court reversed the conviction, reasoning that the
supplemental instruction had constructively amended the
indictment by permitting the defendant to be convicted for
conduct not alleged in the indictment. Id. at 1390; see also
United States v. Dipentino, 242 F.3d 1090, 1092–93 (9th Cir.
2001) (finding constructive amendment when jury was
instructed that conviction could be based either on conduct
alleged in indictment or uncharged conduct violating the
same federal statute).
14                UNITED STATES V. WARD

    We have declined to find a constructive amendment,
however, when the indictment simply contains superfluously
specific language describing alleged conduct irrelevant to the
defendant’s culpability under the applicable statute. See, e.g.,
United States v. Garcia-Paz, 282 F.3d 1212, 1216 (9th Cir.
2002); Antonakeas, 255 F.3d at 722; Olson, 925 F.2d at
1175–76. In such cases, convictions can be sustained if the
proof upon which they are based corresponds to the offense
that was clearly described in the indictment. A part of the
indictment unnecessary to and independent of the allegations
of the offense is considered to be “a useless averment.”
United States v. Miller, 471 U.S. 130, 136 (1985) (quoting
Ford v. United States, 273 U.S. 593, 602 (1927)).

    This Court has rejected constructive amendment claims
when jury instructions diverge materially from the
indictment, but when no evidence was introduced at trial that
would enable the jury to convict the defendant for conduct
with which he was not charged. In Hartz, for example, the
defendant was indicted for use of a firearm during the robbery
of a jewelry store. 458 F.3d at 1015–16. The indictment
alleged that the defendant had used two specific weapons – a
Smith and Wesson .357 and a Chinese model 9mm. The
evidence at trial matched the allegations in the indictment,
but a verdict form asked simply that the jury find whether the
defendant brandished “a firearm.” Id. at 1016. This Court
declined to find a constructive amendment because the
verdict form did not alter the behavior on which the defendant
could be convicted, as no evidence was introduced that the
defendant had used a weapon other than the two referenced
in the indictment, and use of either firearm would have been
sufficient to support conviction of the offense charged in the
indictment. Id. at 1021.
                  UNITED STATES V. WARD                        15

     Read together, these cases instruct that the determination
of whether a constructive amendment has been effected
requires sensitivity to both the jury instructions as a reflection
of the indictment, and to the nature of the proof offered at
trial. More specifically, when conduct necessary to satisfy an
element of the offense is charged in the indictment and the
government’s proof at trial includes uncharged conduct that
would satisfy the same element, we need some way of
assuring that the jury convicted the defendant based solely on
the conduct actually charged in the indictment. Typically,
that assurance will be provided by jury instructions requiring
the jury to find the conduct charged in the indictment before
it may convict. If the jury instructions do not impose that
limitation, however, the defendant’s conviction could be
based on conduct not charged in the indictment. That
possibility results in a constructive amendment of the
indictment, requiring reversal, because it “destroy[s] the
defendant’s substantial right to be tried only on charges
presented in an indictment.” Stirone, 361 U.S. at 217.

    Applying that rationale here, we conclude that the district
court constructively amended the indictment by permitting
the jury to convict Ward on Counts VI and VII based on
conduct not alleged in those counts. Ward was indicted for
aggravated identity theft as to only Gerald Glen and Chris
Hagler, and the identity of the victims was necessary to
satisfy an element of the offense because aggravated identity
theft requires proof that the victim was a real person. See
United States v. Maciel-Alcala, 612 F.3d 1092, 1095–96 (9th
Cir. 2010). But the jury heard testimony that Ward also
victimized the Brandts, Robert Bitter, and Kimberly Franklin.
Similarly, the government’s opening and closing arguments
referenced not just Glen and Hagler, but these other victims
as well. Then, the jury was instructed that it could convict
16                UNITED STATES V. WARD

Ward on Counts VI and VII if he stole the identity of “a real
person,” without further specificity.

    On those facts, we simply cannot know the basis for the
jury’s aggravated identity theft convictions. The convictions
might have been based on the conduct charged in the
indictment, involving Glen and Hagler. But they could just
as easily have been based on uncharged conduct involving the
Brandts, Bitter, or Franklin. In light of that uncertainty, Ward
may have been “convicted on a charge the grand jury never
made against him,” so a constructive amendment necessarily
occurred here. Stirone, 361 U.S. at 219.

    The government’s arguments to the contrary are easily
dispatched. The government contends that a constructive
amendment requires affirmative representations by the trial
court permitting a finding of guilt based on uncharged
conduct, and in this case the district court merely omitted the
names of the specific individuals named in the indictment.
That contention, however, is squarely foreclosed by United
States v. Shipsey, which held that the district court had
constructively amended the indictment by omitting
information from the jury instructions contained in the
indictment. 190 F.3d 1081 (9th Cir. 1999). In Shipsey, the
defendant was indicted for theft by false pretenses for having
defrauded an ERISA pension fund by making “false and
fraudulent pretenses, representations and promises” to certain
third parties who then relied on the defendant’s statements.
Id. at 1084. The jury instructions, however, permitted the
jury to convict the defendant if the jury merely found that the
defendant had “willfully stole[n] or converted property to his
own use,” and did not specify a requirement that the
defendant have used false and fraudulent pretenses,
representations or promises, nor that the third parties must
                  UNITED STATES V. WARD                      17

have relied on the defendant’s statements. Id. This Court
found that by omitting these requirements from the jury
instructions, the district court constructively amended the
indictment. Id. at 1087.

    Second, the government argues that because the jury had
a copy of the indictment while deliberating, there is no risk it
might have convicted Ward based on uncharged conduct. In
the case the government relies upon, United States v. Nixon,
694 F.3d 623 (6th Cir. 2012), the defendant was indicted for
fraud with respect to her employer’s account with American
Express Bank, which the indictment noted was FDIC-insured.
Id. at 637–38. Evidence was introduced at trial about the
defendant’s theft of funds from the American Express
account, but there was also evidence that the defendant had
issued or altered checks from a separate account at a different
bank. Id. The district court’s instructions required that the
jury find that the defendant had “knowingly executed a
scheme to defraud a financial institution to obtain money” in
order to convict her, but did not specify American Express
Bank. Id. On appeal, the defendant argued that the jury
might have convicted her based on the evidence regarding the
other checks, but not on conduct related to American Express
Bank. The Sixth Circuit disagreed, reasoning that the jury
had a copy of the indictment while deliberating, and that there
had been no evidence that the other bank was FDIC-insured,
unlike American Express Bank. Id. at 638.

    Nixon is inapposite for two reasons. First, because the
defendant had not raised a constructive amendment objection
at trial, Nixon applied only plain error review. Id. at 637.
Second, Nixon emphasized that the jury instructions required
a finding that the financial institution in question be FDIC-
insured, limiting any potential for juror confusion. Id. at 638.
18                UNITED STATES V. WARD

In this case, there is no analogous fact that would distinguish
the victims named in Counts VI and VII from the other
victims who testified at trial.

IV.     Conclusion

    For the foregoing reasons, we conclude that the district
court constructively amended the indictment when it declined
to name the specific victims whose identities the indictment
accused Ward of stealing. We therefore reverse Ward’s
conviction with respect to Counts VI and VII, and remand the
matter to the district court for proceedings consistent with this
opinion.

      REVERSED and REMANDED.
