United States v. Maurice Withers, 960 F.3d 922

Defendant Maurice Withers recruited, transported, and controlled multiple women (including minors) to engage in commercial sex acts across state lines; charged in a superseding indictment with nine sex‑trafficking counts under 18 U.S.C. § 1591.
At a pretrial conference the court and parties agreed jury instructions would include only the charged mens rea of "knowing" (the indictment omitted any "recklessly disregarded" language).
At trial the court’s written and oral jury instructions (and the prosecutor in closing) mistakenly included the alternative mens rea "recklessly disregarded," and neither party objected; the jury convicted Withers on all counts and he was sentenced to 18 years.
On appeal Withers argued the erroneous instruction constructively amended the indictment and, because the lesser mens rea was easier to satisfy, the error was plain and prejudicial; he also argued the prosecutor compounded the error in closing.
The Seventh Circuit held the inclusion of "recklessly disregarded" in the instructions was plainly erroneous but did not constitute a constructive amendment that changed the charged offense; because the trial record contained overwhelming evidence of Withers’ actual knowledge, the error did not affect his substantial rights and was harmless; the convictions were affirmed.
Concurring judge (Easterbrook) agreed with the judgment but critiqued the utility of the "constructive amendment" doctrine, suggesting simple variance analysis is preferable.

Issue	Withers' Argument	Government's Argument	Held
Whether including "recklessly disregarded" in jury instructions constructively amended the indictment	The instruction allowed conviction on a mens rea not charged and thus constructively amended the indictment	The instruction was erroneous but did not prove a different offense than charged	Instruction was erroneous but did not amount to constructive amendment; no new crime proven
Whether Withers waived the objection or merely forfeited it (impacting standard of review)	Counsel’s failure to object was inadvertent — no strategic waiver	Parties agreed omission pretrial; failure to object was a mistake, not tactical	Failure to object was forfeiture (not waiver); plain‑error review applies
Whether the instructional error affected Withers’ substantial rights (plain‑error prong)	The lowered mens rea was prejudicial; reasonable probability jury would acquit absent it	Overwhelming trial evidence showed Withers actually knew of and used force/threats/coercion, so no reasonable probability of a different outcome	Error did not affect substantial rights; overwhelming evidence of actual knowledge; no relief
Whether the prosecutor’s repetition in closing compounded or increased prejudice	Prosecutor’s repetition amplified the error and prejudiced the jury	Prosecutor merely repeated the court’s instruction and did not introduce new or misleading theory	Prosecutor’s repetition did not add prejudice; harmless in light of the evidence

Olano v. United States, 507 U.S. 725 (1993) (plain‑error review framework for unpreserved errors)
Rosales‑Mireles v. United States, 138 S. Ct. 1897 (2018) (requirements for correcting forfeited errors under Rule 52(b))
United States v. Flores, 929 F.3d 443 (7th Cir. 2019) (distinguishing waiver from forfeiture in appellate review)
United States v. Groce, 891 F.3d 260 (7th Cir. 2018) (erroneous reckless‑disregard instruction found harmless where evidence showed actual knowledge)
United States v. Carson, 870 F.3d 584 (7th Cir. 2017) (similar harmless‑error analysis for defective reckless‑disregard instruction)
United States v. Heon Seok Lee, 937 F.3d 797 (7th Cir. 2019) (discussion of constructive amendment and indictment/variance principles)
Stirone v. United States, 361 U.S. 212 (1960) (trial evidence cannot broaden indictment’s charges)
United States v. Galiffa, 734 F.2d 306 (7th Cir. 1984) (variance must present a distinct complex of facts to amount to constructive amendment)