John Swanigan v. Jeri Sherry, 502 F. App'x 544

Swanigan was arrested after a late-night search of his Wayne County home, where police found a nine-millimeter handgun in the living room and more than 408 grams of cocaine and a forty-caliber firearm in a basement container.
Swanigan was charged with possession with intent to distribute cocaine and marijuana and with possessing a firearm during the commission of a felony under Michigan law; Count 3 charged possession of a firearm with respect to a 9mm firearm.
The jury was instructed that Swanigan could be convicted if it found he possessed a firearm, without limiting the verdict to the 9mm specifically identified in the charging document.
Swanigan challenged the jury instruction on direct appeal, arguing it effectively amended the indictment by allowing conviction on an alternative firearm.
The Michigan courts rejected his claims, and his habeas petition in district court was deemed exhausted only after reinstating the claim; the district court then denied relief, and this court affirmed."
The central issue on appeal is whether the trial court’s broader firearm instruction violated due process by permitting a conviction based on evidence outside the charged firearm, in light of Stirone and related cases, and whether the state court’s resolution was unreasonable under AEDPA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury instruction allowed conviction on a broader firearm than charged, violating Stirone	Swanigan	Swanigan	Not reached; affirmed on merits, not default; instruction not a reversible error under AEDPA.

Stirone v. United States, 361 U.S. 212 (1960) (indictment-to-proof variance requires conviction on charged basis)
Berger v. United States, 295 U.S. 78 (1935) (variance not fatal where substantial correspondence between allegation and proof)
United States v. Robison, 904 F.2d 365 (6th Cir.) (variance not always fatal when proof relates to same events and location)