                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                              Argued November 13, 2019
                              Decided December 6, 2019

                                        Before

                        WILLIAM J. BAUER, Circuit Judge

                        MICHAEL B. BRENNAN, Circuit Judge

                        MICHAEL Y. SCUDDER, Circuit Judge

No. 18-2843

UNITED STATES OF AMERICA,                        Appeal from the United States District
     Plaintiff-Appellee,                         Court for the Southern District of Illinois.

      v.                                         No. 3:17-cr-30001-DRH-1

JASON LAUT,                                      David R. Herndon,
     Defendant-Appellant.                        Judge.

                                      ORDER

       Jason Laut, formerly a paramedic supervisor for an ambulance company, was
convicted of tampering with prescription fentanyl and then covering his tracks by
doctoring business records. He argues for the first time on appeal that the government’s
evidence on the tampering charge varied so much from the operative indictment that it
amounted to an impermissible constructive amendment. He also challenges the
admission of evidence suggesting he was addicted to fentanyl, which he sees as
propensity-based. We affirm because Laut has not shown plain error as to the
purported constructive amendment, and because he has not met his burden of showing
that the evidence of addiction affected his substantial rights.
No. 18-2843                                                                      Page 2

                                          I.

      From 2013 through much of 2015, Laut was a paramedic supervisor for MedStar,
an ambulance service in southern Illinois. In this role, he managed scheduling and
paperwork and sometimes did paramedic duty.

       Memorial Hospital supplied MedStar ambulances with narcotics that its
paramedics would use to treat patients. The narcotics boxes contained specified
quantities of fentanyl, morphine, and other drugs. A paper form in the box, a “Narcotics
Log,” was used to track all administered or wasted drugs. After paramedics used some
of the narcotics in a box, they would visit the hospital, where a pharmacist would
replace the box with a full one. Later, the pharmacist would examine the returned box
to ensure that the remaining vials were full and unexpired, and then would restock the
drugs that had been reported as used. The pharmacist would issue this restocked box to
the next paramedic who needed a refill.

        But things did not always go as planned. Around September 2014, a pharmacist
suspected someone had tampered with vials of fentanyl, prompting Memorial to issue a
fentanyl recall for all ambulances. The pharmacist had noticed pinholes in the tops of
two fentanyl vials when MedStar paramedics working under Laut exchanged their
narcotics box. Upon further investigation, the hospital detected tampering in
57 fentanyl vials; 54 came from MedStar ambulances. A lab test later revealed that in
52 of the 54 tampered vials from MedStar, fentanyl had been replaced with water or
saline solution. Memorial began placing fentanyl back in the narcotics boxes in
January 2015. Several months passed. Then, in May 2015, Laut visited Memorial to
exchange a narcotics box for which the log indicated that he had administered two vials
of fentanyl to patients. Consistent with that report, the box contained no fentanyl. The
pharmacist on duty pulled a new narcotics box and inspected its contents. As she was
checking the expiration dates, Laut commented that he had heard that tampering was
happening again. The pharmacist then checked the tops of the fentanyl vials and
discovered pinholes in them. She removed the vials, put two new ones in the narcotics
box, and gave it to Laut. The pharmacist notified her supervisors that she had found
more tampered vials, and the hospital implemented a second fentanyl recall. This recall
revealed 28 tampered vials; 26 were from MedStar ambulances.

      This time, Memorial further investigated the source of the tampering. It made
MedStar drug-test its employees, and only Laut’s test came back positive for fentanyl.
The hospital also required MedStar to comply with an audit of its Trip Detail Reports
(automatically generated reports tracking ambulance location), Prehospital Care
No. 18-2843                                                                        Page 3

Reports (electronic forms completed by paramedics describing their treatment of
patients), and Narcotics Logs. All entries in the Prehospital Care Reports were
automatically coded with a time stamp and the name of the person making the entry;
Narcotics Logs also required dates and paramedic signatures.

       The audit revealed 91 discrepancies attributable to Laut between 2013 and 2015.
These included instances where Laut reported that he had administered narcotics to
patients who were not transported in his ambulance. He also had edited Prehospital
Care Reports long after treatment to show that he had given narcotics to patients who
had, in fact, reported that they were not in pain when they were in his care.

      Federal prosecutors charged Laut with several crimes. The operative, 38-count
Second Superseding Indictment included charges of wire fraud, 18 U.S.C. § 1343,
making false statements, 18 U.S.C. § 1001(a), aggravated identity theft, 18 U.S.C.
§ 1028A(a)(1), and one count of tampering, 18 U.S.C. § 1365(a)(4). Although the
tampering charge was limited to 2015, some of the cover-up counts involved Laut’s
conduct during the 2014 tampering incident as well.

      At a pretrial conference, the district court granted the government’s request to
admit testimony suggesting that Laut struggled with drug addiction following a 2013
surgery. The court overruled Laut’s objection that this testimony amounted to
impermissible propensity evidence, reasoning that the evidence about Laut’s
withdrawal symptoms was relevant to his motive to steal narcotics.

       At trial, the government presented extensive evidence. It painstakingly walked
through the 91 discrepancies detected by Memorial’s audit and presented testimony
from pharmacists who discovered the tampering in September 2014 and May 2015. It
also submitted evidence that Laut alone tested positive for fentanyl during the
mandatory drug test, although an expert witness testified that Laut’s hair sample could
have been contaminated. And the government showed that investigators found empty
narcotics vials and extraction tools in Laut’s MedStar vehicle after it had been taken out
of service and locked in a garage when Laut was suspended. Finally, friends and
coworkers testified that Laut’s behavior and physical appearance changed after his 2013
surgery, and that he had shaved his entire body before the mandatory, hair-based drug
test.

      The closing arguments and jury instructions that followed give rise to the
constructive-amendment claim that Laut presses on appeal. In its closing, the
government referred to evidence of fentanyl tampering in 2014 to support its contention
No. 18-2843                                                                          Page 4

that the jury should convict Laut of the tampering charge in the Second Superseding
Indictment—a count that cited only tampering in 2015. Specifically, the government
stated that Laut had tampered with fentanyl vials “57 times in 2014, 28 times in 2015”
and repeatedly referred to the “85 tampered vials.” Also, when describing the 2015
tampering, the government stated that pharmacists discovered the tampered vials
“after Jason Laut’s tampering had already been caught once … but he got away with it.”

       The district court, meanwhile, did not provide a limiting instruction regarding
the evidence of 2014 tampering (which was relevant to some of the cover-up charges
that occurred throughout 2013 and 2014). But the court did instruct that “[t]he
government must prove that the crime happened reasonably close to the dates” set
forth in the Second Superseding Indictment, which was provided to the jury. And the
verdict form for the tampering charge directed the jury to “Count 38 of the Second
Superseding Indictment,” which, again, referred only to tampering in 2015.

      Laut did not object to these arguments or the jury instructions. The jury found
Laut guilty on all 38 counts.

                                          II.

        On appeal, Laut first argues that the district court erred in allowing the
government to rely on evidence of 2014 tampering to support the tampering charge in
the Second Superseding Indictment, which was limited to conduct that occurred in
2015. He contends that the government’s use of this evidence constructively amended
the operative indictment, and, therefore, that remand is required. Because Laut did not
raise this issue in the district court, he concedes that we review only for plain error.
See United States v. Olano, 507 U.S. 725, 732–37 (1993); United States v. Pierson, 925 F.3d
913, 919 (7th Cir. 2019).

        A constructive amendment occurs when the government offers evidence or
instructions from which a jury could convict a defendant of a crime different than the
one charged in the indictment. See Stirone v. United States, 361 U.S. 212, 215–19 (1960);
Pierson, 925 F.3d at 919–20. Whether the government’s conduct adds up to a
constructive amendment is a “fact-intensive question” that focuses on the trial evidence
and the jury instructions. Pierson, 925 F.3d at 922–23. We first ask whether the evidence
“created an exit ramp that might have tempted the jury to veer outside the confines of
[the] indictment.” Id. at 920. If so, then the next question is whether the court
nonetheless prevented confusion by instructing the jury to limit its consideration of that
evidence. Id.; see also United States v. Haldorson, 941 F.3d 284, 297 (7th Cir. 2019).
No. 18-2843                                                                         Page 5

A constructive amendment, however, is plainly erroneous only “if the law at the time of
appellate review shows clearly that it was an error,” and if the defendant shows that
allowing the amendment prejudiced the proceedings. Pierson, 925 F.3d at 919;
see id. at 924; see also Olano, 507 U.S. at 734.

       Without ruling on whether the government constructively amended the
indictment here, we conclude that there was no plain error for two reasons. First, no
precedent squarely addresses whether the court’s provision to the jury of the indictment
and a verdict form (specifying that the jury should convict based only on the actions
alleged in the indictment) mitigates the potential harm from the prosecution’s
arguments and evidence. See Pierson, 925 F.3d at 922–24. Second, Laut has not borne his
burden of showing that he was prejudiced. Id. at 924. We set “a high bar for reversal on
plain-error review,” and will find it only if the conviction rests on thin evidence. See id.
at 925–26. Here we see strong evidence that Laut was doctoring Narcotics Logs and
Patient Care Reports throughout 2015—not to mention the positive drug test and the
discovery of empty fentanyl vials and extraction tools in his vehicle after the second
fentanyl recall. Thus, we are confident that, even absent the putative constructive
amendment, the jury almost certainly would have found Laut guilty of the 2015
tampering charge. See id. at 924–26 (observing that in the constructive-amendment
context, plain error requires a showing that defendant probably would have been
acquitted absent the error).

       Laut next contends that the district court abused its discretion in granting the
government’s motion to admit evidence of his prior drug use. He argues that the
government failed to identify a propensity-free chain of reasoning to support its
contention that his drug use was relevant to his motive to steal fentanyl.
See United States v. Gomez, 763 F.3d 845, 860 (7th Cir. 2014). But at the final pretrial
hearing, the government proposed that the evidence of Laut’s drug addiction—that his
behavior and appearance changed after his injury—offered a motive for stealing
fentanyl. Specifically, he needed drugs to feed that addiction. Indeed, evidence of drug
addiction can demonstrate a motive to steal prescription narcotics because it shows a
desire for an “advantage to which the crime is instrumental,” as opposed to just a
generalized propensity toward crime. United States v. Cunningham, 103 F.3d 553, 556–57
(7th Cir. 1996); see also United States v. Schmitt, 770 F.3d 524, 534–35 (7th Cir. 2014)
(applying reasoning from Cunningham).

      Laut’s related argument on this point—that the probative value of his supposed
drug addiction was outweighed by its prejudicial impact—also is meritless. To be sure,
No. 18-2843                                                                         Page 6

evidence is inadmissible if its probativeness is outweighed by unfair prejudice. FED. R.
EVID. 403; Gomez, 763 F.3d at 856–57. A district court must assess that danger, taking
into account “the extent to which the non-propensity fact for which the evidence is
offered actually is at issue in the case.” Gomez, 763 F.3d at 860. Here, the district court
did not directly address the topic of unfair prejudice. But even if the district court erred
in its discussion, reversal would be appropriate only if admitting the drug-addiction
evidence affected Laut’s substantial rights. Schmitt, 770 F.3d at 532. Given the other
evidence of Laut’s crimes, and the relatively small role that the evidence of his addiction
played at trial, we cannot conclude that the jury would have found the prosecution’s
case “significantly less persuasive” without evidence of Laut’s addiction. Id. (quoting
United States v. Garcia–Avila, 737 F.3d 484, 490 (7th Cir. 2013)).

       For the foregoing reasons, we affirm.
