United States v. Bastian, 770 F.3d 212

Background

Jasaan Bastían participated in a crack-distribution conspiracy (2009–2011) and sold between 2.8 and 8 kg of crack; on Nov. 23, 2010 he sold 2.3 g of crack and a .32-caliber revolver to a customer.
A federal grand jury indicted Bastían on three counts: conspiracy to distribute crack (Count One), being a felon in possession (Count Two), and using/possessing a firearm in furtherance of a drug-trafficking crime under 18 U.S.C. § 924(c)(1) (Count Three). Count Three’s "to wit" clause named an Excel 20-gauge shotgun and alleged possession between about Jan.–Apr. 2011.
Bastían pled guilty to Counts One and Three before a magistrate judge; the parties and the court accepted Bastían’s allocution that he possessed and sold a .32-caliber revolver (the revolver differed in type and date from the shotgun alleged in the indictment).
Bastían did not seek a superseding indictment or formally waive indictment rights in open court, nor did he object to using the revolver as the basis for the § 924(c) conviction at the plea proceeding.
On appeal (unpreserved), Bastían argued the substitution of a different weapon constructively amended the indictment in violation of the Grand Jury Clause and that his plea was not knowing and voluntary because he was not advised of Grand Jury Clause rights; the Second Circuit reviewed for plain error and affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether convicting Bastían under § 924(c)(1) based on a different weapon than the indictment’s "to wit" weapon constructively amended the indictment and violated the Grand Jury Clause	Bastían: substitution of the .32 revolver for the Excel 20‑gauge shotgun constructively amended Count Three, a per se Fifth Amendment violation requiring vacatur	Government: guilty plea waived non‑jurisdictional defects; moreover, Bastían invited the error by agreeing to plead to the revolver	Court: rejected as plain error — Second Circuit has not squarely held such substitution is a constructive amendment; legal question unsettled, so no plain error reversal
Whether Bastían’s guilty plea was knowing and voluntary absent an explicit waiver or superseding indictment for the altered weapon basis	Bastían: plea was not knowing/voluntary because he was not informed of or did not waive his right to a grand jury indictment as to the revolver-based charge	Government: plea and allocution foreclosed challenge; any defect was invited or waived	Court: plea validity challenged the plea itself (so not waived), but court did not find plain error because it was not clearly established that a superseding indictment was required for a different weapon
Whether invited‑error doctrine bars review because the parties "conferred and agreed" to use a different weapon at plea	Bastían: N/A (argues relief)	Government: Bastían and prosecutors agreed to the substitution, so appellate relief should be barred	Court: invited‑error doctrine inapplicable — no evidence Bastían deliberately provoked error or sought tactical advantage; oversight rather than deliberate waiver
Standard of review for unpreserved constructive‑amendment claim	Bastían: constructive amendment is a per se fatal Fifth Amendment error requiring reversal	Government: claim unpreserved; review should be plain error	Court: applies plain error review (per Olano) for unpreserved claims and finds no plain error here

Key Cases Cited

United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) (indictment must inform defendant of charged elements and prevent double jeopardy)
United States v. D'Amelio, 683 F.3d 412 (2d Cir. 2012) (flexibility in proof permitted so long as core of criminality is noticed)
United States v. Danielson, 199 F.3d 666 (2d Cir. 1999) (minor deviations in firearm description do not alter core criminality)
United States v. Patino, 962 F.2d 263 (2d Cir. 1992) (type of firearm not necessarily an essential element under related statutes)
United States v. Robison, 904 F.2d 365 (6th Cir. 1990) (type of firearm not an essential element; variance vs. constructive amendment)
United States v. Leichtnam, 948 F.2d 370 (7th Cir. 1991) (permitting conviction on a different firearm may constitute constructive amendment)
United States v. Bishop, 469 F.3d 896 (10th Cir. 2006) (departure from weapon named in indictment can be constructive amendment)
Stirone v. United States, 361 U.S. 212 (U.S. 1960) (constructive amendment is a fatal error that undermines conviction)
United States v. Olano, 507 U.S. 725 (U.S. 1993) (unpreserved errors reviewed for plain error)
Marcus v. United States, 560 U.S. 258 (U.S. 2010) (four‑part plain‑error test)