Constructive Amendment of The Indictment
Robert Earl Tucker, Jr., was found guilty of three counts of making false statements to a federally licensed firearms dealers in violation of 18 U.S.C. 922(a)(6) and two counts of possession in violation of 18 U.S.C. 922(g)(4). The primary issue in his pro se appeal was whether the district court plainly erred by allowing constructive amendment of his indictment. The Fifth Circuit said it did, and reversed Tucker’s convictions.
A decade earlier, Tucker had been involuntarily transported to an emergency room under an order for protective custody. A doctor at the hospital concluded he presented a danger to himself and others. So the doctor ordered a physician emergency certificate that authorized Tucker’s involuntary hospitalization for up to 15 days.
Two weeks after his release, the Morehouse Parish coroner issued a new order for protective custody so that yet another doctor could “determine if [Tucker] should be voluntarily admitted, admitted by emergency certificate, admitted as a non-contested admission, or discharged.” Another doctor determined he was in need of immediate psychiatric treatment, and Tucker was again hospitalized. He was diagnosed with paranoid schizophrenia during this period of treatment.
In 2019, Tucker bought a pistol from a firearms dealer in Baton Rouge. He stated on the ATF form that he had neither “been adjudicated as a mental defective” nor “committed to a mental institution.” He got his gun a few days later.
Law enforcement detained Tucker on an unrelated matter, and the ATF joined the investigation. Tucker reported that he had been hospitalized and held for a 72-hour observation after his mother called the police about his marijuana use. He later admitted he had lied about the length of his prior hospitalization out of concern that he could lose his gun over it.
He tried to buy another gun a year later, and noted that he had never been adjudicated as a “mental defective” or committed to a mental institution. An ATF agent warned him that he was prohibited from possessing firearms or ammunition. The agent explained that this was because Tucker had been “admitted into a mental institution for a lengthy period of time.” Tucker asked whether he could rent guns to shoot at a range or whether he could buy a gun if he stated he had been adjudicated as a mental defective. The agent said no to both questions.
Tucker later texted the agent, saying, “I am not prohibited from purchasing or possessing a firearm.” He went to buy a gun, and put on the ATF form that he had never been adjudicated as a mental defective or committed.
Tucker was later arrested and indicted for three counts of false statements to a federally licensed dealer (for representing “that he had not been adjudicated as a mental defective” three times) in violation of Section 922(a)(6) and two counts of possession in violation of Section 922(g)(4). He was convicted of all the counts.
On appeal, Tucker complained that the jury instructions constructively amended the indictment. He had been charged under a statute that prohibits a person from possessing a firearm or ammunition if he “has been adjudicated as a mental defective or . . . has been committed.” 18 U.S.C. 922(g)(4). Yet his indictment alleged only that he had been adjudicated as a “mental defective”; it did not mention commitment. This wouldn’t have posed a problem had the jury charge not that guilt could rest on either adjudication or commitment. But the instructions granted the jury license to “paint Tucker’s guilt with too broad a brush.”
The Fifth Circuit held the district court’s jury instructions constituted plain error. The district court had enlarged the grounds upon which the jury could find Tucker guilty. This, the Court said, constituted plain error, and it vacated Tucker’s convictions.