United States v. DAmelio
683 F.3d 412
| 2d Cir. | 2012Background
- D’Amelio was convicted by jury of attempted enticement of a minor under 18 U.S.C. § 2422(b).
- Indictment charged use of a facility of interstate commerce to entice a minor, specifically the Internet.
- Government planned to introduce telephone conversations; defense objected to telephone use as a non-indictment conduct.
- District court held the jury charge created no constructive amendment, but viewed it as a variance.
- Jury was instructed that both Internet and telephone qualify as facilities of interstate commerce; verdict stood.
- On appeal, district court’s constructive amendment ruling was reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment was constructively amended | Government | D’Amelio | No constructive amendment; variance conclusion supported |
| Whether using multiple facilities altered the core of criminality | Government | D’Amelio | Core of criminality not altered; use of any facility satisfies the statute |
| Whether the essential element was altered by proof of telephone use | Government | D’Amelio | No essential-element alteration; indictment and proof correspond |
Key Cases Cited
- Stirone v. United States, 361 U.S. 212 (1960) (constructive amendment concerns beyond the charged scope when proof expands beyond indictment)
- Knuckles, 581 F.2d 305 (2d Cir. 1978) (single set of facts; no constructive amendment where notice is preserved)
- Wozniak, 126 F.3d 105 (2d Cir. 1997) (constructive amendment when proof introduces substantially different uncharged conduct)
- Stirone, 361 U.S. 212 (1960) (reiterates limits of variance vs constructive amendment in Stirone’s context)
- Knuckles, 581 F.2d 305 (2d Cir. 1978) (analysis of notice and single course of conduct)
- Salmonese, 352 F.3d 608 (2d Cir. 2003) (variance vs constructive amendment; substantial correspondence with indictment)