United States v. Kelvin Mize, 814 F.3d 401

Background

Jackie Mize organized a doctor‑shopping scheme (the “Mize conspiracy”) in which Tennessee residents traveled to Florida to obtain opioid prescriptions, returned half the pills to Jackie, and sold them in Tennessee; his sons Kelvin and James participated as shoppers/sellers.
A separate, larger scheme led by Kevin (Trent) Bussell (the “Bussell conspiracy”) operated similarly; Jackie observed Bussell’s operation and then formed his own group.
At trial the government presented extensive evidence about the Bussell conspiracy (witnesses, wiretaps, surveillance, leases, controlled buys), in addition to evidence specific to the Mize conspiracy (prescription bottles in Jackie’s name, drug histories, handwritten notes).
Defendants were indicted for a single conspiracy (the Mize conspiracy) and convicted by a jury of drug and money‑laundering conspiracy charges; district court adopted heavy drug‑quantity findings and imposed long sentences.
On appeal Defendants challenged (inter alia) that the government’s heavy reliance on evidence of the Bussell conspiracy constituted a constructive amendment or prejudicial variance from the indictment and thus deprived them of fair notice and a proper grand‑jury charging function.
The Sixth Circuit majority concluded the evidence at trial established two separate conspiracies and that the government’s voluminous presentation about the Bussell conspiracy created a prejudicial variance that likely caused guilt transference; it reversed and vacated all convictions and remanded for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the government’s evidence constructively amended the indictment or created a prejudicial variance by proving a different/multiple conspiracies	Government: Evidence of Bussell conspiracy was relevant background and shows the Mize conspiracy operated in the same manner; jury instructions limited conviction to the charged conspiracy	Kelvin et al.: Presentation of extensive evidence about Bussell effectively tried them for a different (or additional) conspiracy, causing guilt transference and violating indictment/grand jury rights	No constructive amendment (jury instructions tracked the indictment), but yes a prejudicial variance; reversal and vacatur of convictions; remand for new trial
Standard of review for variance/constructive amendment claims	N/A	Kelvin preserved claim → de novo; Jackie preserved objection at trial → de novo; James did not → plain‑error review	Applied de novo to Kelvin and Jackie; plain error standard noted for James but majority reached all defendants on merits to avoid miscarriage of justice
Whether jury instructions cured any prejudice from evidence of a separate conspiracy	Government: Instructions told jury to convict only if they found membership in the indicted conspiracy; that guards against transference	Defendants: Instructions insufficient given the sheer volume of extraneous evidence about Bussell	Court: Instructions helped but were not sufficient given volume and prejudicial impact of Bussell evidence; danger of guilt transference remained
Whether error (variance) was harmless	Government: Any error was harmless because evidence supported convictions	Defendants: Prejudice in convicting for a different conspiracy cannot be harmless; reversal required	Court: Error was plain, affected substantial rights, and seriously affected trial fairness; not harmless → reversal and remand

Key Cases Cited

United States v. Kotteakos, 328 U.S. 750 (U.S. 1946) (variance/guilt‑transference risk and prejudice inquiry)
Hynes v. United States, 467 F.3d 951 (6th Cir. 2006) (constructive amendment requires evidence and instructions undermining indictment functions)
United States v. Kuehne, 547 F.3d 667 (6th Cir. 2008) (distinction between constructive amendment and variance; review standards)
United States v. Budd, 496 F.3d 517 (6th Cir. 2007) (variance not per se prejudicial; reversal requires showing prejudice)
United States v. Martinez, 430 F.3d 317 (6th Cir. 2005) (definition of constructive amendment)
United States v. Prince, 214 F.3d 740 (6th Cir. 2000) (standard for reviewing indictment variances)
United States v. Blackwell, 459 F.3d 739 (6th Cir. 2006) (volume of extraneous evidence can make instructions insufficient; factors for prejudice analysis)
United States v. Caver, 470 F.3d 220 (6th Cir. 2006) (guilt‑transference risk increases with number of conspiracies and defendants)
United States v. Hughes, 505 F.3d 578 (6th Cir. 2007) (prejudice inquiry focuses on danger that defendant convicted for conspiracy he did not join)
Johnson v. United States, 520 U.S. 461 (U.S. 1997) (plain‑error review elements)