United States v. McBride, 962 F.3d 25

June 26, 2016: an altercation/shooting occurred in a Walmart parking lot in Augusta, Maine; bullet casings and a bullet hole in a Volkswagen were recovered.
Officers recovered a Kel‑Tec 9mm pistol (with magazine found nearby) in the parking lot; McBride had an empty holster on his waist and about 40 grams of heroin in his pocket when arrested.
Three additional firearms and drug‑paraphernalia were found in the Ford Taurus McBride had been in (in the trunk and under the passenger seat).
Second superseding indictment charged McBride with: (1) possession of a firearm by a felon (§ 922(g)(1)); (2) possession with intent to distribute heroin (§ 841(a)(1)); and (3) using/carrying and possessing in furtherance a Kel‑Tec 9mm during a drug trafficking offense (§ 924(c)), alleging the Kel‑Tec was discharged.
At trial the government introduced all four firearms and forensic evidence; jury convicted on all counts but answered a special interrogatory that the government had not proven the Kel‑Tec was discharged.
McBride appealed arguing (A) the indictment was constructively amended by admission of the other guns, closing argument, and jury instructions; and (B) the guilty verdict on Count Three is irreconcilably inconsistent with the jury’s “no” answer to the discharge interrogatory.

Issue	McBride's Argument	Government's Argument	Held
Constructive amendment of the indictment by admission of three uncharged firearms, closing argument, and jury instructions	Admission and prosecutor’s references to the other guns and the court’s instructions effectively altered the indictment to allow conviction based on guns other than the Kel‑Tec, violating the Grand Jury Clause	The other firearms were relevant to intent to distribute and to in‑furtherance analysis for Count Three; jury was instructed to consider only the crimes charged and the indictment/ verdict form identified the Kel‑Tec	No constructive amendment: other guns were admissible and within indictment’s scope; closing and instructions did not alter charging terms
Irreconcilable inconsistency between guilty verdict on § 924(c) (Count Three) and jury’s answer that the Kel‑Tec was not discharged	A guilty verdict that explicitly relied on discharge is inconsistent with the jury’s finding that the Kel‑Tec was not discharged, so conviction must be vacated	Discharge is not an element of § 924(c) — guilt can be based on carrying/using or possession-in‑furtherance without proof of discharge; verdicts are reconcilable	No irreconcilable inconsistency: jury could find McBride carried/used/possessed in furtherance of the offense but did not discharge the gun

Holguin‑Hernandez v. United States, 140 S. Ct. 762 (2020) (explains how a party preserves objections by informing the court of the action sought)
United States v. Valdés‑Ayala, 900 F.3d 20 (1st Cir. 2018) (defines constructive amendment and its constitutional concerns)
United States v. Muñoz‑Franco, 487 F.3d 25 (1st Cir. 2007) (admission of evidence that is directly relevant to charged offenses does not constitute constructive amendment)
United States v. Bobadilla‑Pagán, 747 F.3d 26 (1st Cir. 2014) (presence of firearms is relevant to intent to distribute)
United States v. Lnu, 544 F.3d 361 (1st Cir. 2008) (evidence admissible to show mens rea for charged offense does not amend indictment)
Jones v. United States, 527 U.S. 373 (1999) (jury instructions evaluated in context of entire charge)
United States v. Spencer, 873 F.3d 1 (1st Cir. 2017) (presumption that jurors follow instructions)
Dean v. United States, 556 U.S. 568 (2009) (distinguishes elements of § 924(c) from sentencing subsections)
United States v. Pierce, 940 F.3d 817 (2d Cir. 2019) (example of an irreconcilable special‑interrogatory situation in a different context)