United States v. John Herrin
20-30130
| 9th Cir. | Jun 23, 2021Background:
- John Herrin appealed convictions for interstate transportation of stolen property (18 U.S.C. § 2314) and money laundering following a jury trial.
- Herrin argued the indictment was constructively amended (Grand Jury Clause violation) because evidence at trial suggested a bank-theft theory he was not charged with.
- He moved in limine to exclude certain evidence; the district court denied the motion and admitted the evidence as relevant to charged offenses (transportation and knowledge that property was stolen).
- Herrin objected to the court’s jury instruction; the court gave a model Ninth Circuit 404(b)-style limiting instruction rather than Herrin’s proposed form.
- The Ninth Circuit reviewed the indictment/amendment and instruction de novo and evidentiary rulings for abuse of discretion, and affirmed the convictions.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive amendment / Grand Jury Clause | Evidence did not change charges; indictment matched proof | Trial evidence effectively tried Herrin for uncharged bank theft | No constructive amendment; indictment not altered; conviction stands |
| Admissibility of contested evidence (Rule 401 vs Rule 404(b)) | Evidence was directly relevant to elements (interstate transport, knowledge of theft) | Evidence was impermissible other-act evidence under Rule 404(b) | Evidence was relevant under Rule 401, not subject to 404(b); district court did not abuse discretion |
| Jury instruction (limiting instruction / proposed instruction) | Model 404(b)-style instruction properly limited jury use of evidence | Herrin’s proposed instruction was necessary to protect his theory | Court permissibly gave model instruction; no error in refusing particular form |
Key Cases Cited
- United States v. Ward, 747 F.3d 1184 (9th Cir. 2014) (standard of de novo review for certain issues)
- United States v. Adamson, 291 F.3d 606 (9th Cir. 2002) (constructive amendment principles)
- United States v. Hartz, 458 F.3d 1011 (9th Cir. 2006) (proof must match indictment to avoid amendment)
- Batchelder v. United States, 442 U.S. 114 (1979) (prosecutorial charging discretion)
- United States v. Loftis, 843 F.3d 1173 (9th Cir. 2016) (Rule 404(b) applies only to other acts, not charged conduct)
- United States v. Dorsey, 677 F.3d 944 (9th Cir. 2012) (Rule 404(b) scope reviewed de novo)
- United States v. Dixon, 201 F.3d 1223 (9th Cir. 2000) (review of jury instructions)
- United States v. Thomas, 612 F.3d 1107 (9th Cir. 2010) (proper use of model limiting instructions)