United States v. Omar Banks, 29 F.4th 168

Background

On Feb. 7, 2019, Banks was at a motel where police later recovered two bags: a red duffel in his car (70 g meth + gun + scales + phone) and a white tote in the motel (82 g meth + gun + $836). Video and witness testimony placed him handling the bags.
A phone recovered had a Facebook account under the name "Omar Banks" and email usernames linked to "Omar." Facebook messages referenced drug activity.
A federal grand jury indicted Banks on Count 10 (possession with intent to distribute ≥50 g methamphetamine) and Count 11 (18 U.S.C. § 924(c): use/carry and possession in furtherance of a drug trafficking crime related to Count 10).
At trial the district court instructed the jury that the government must prove Banks “possessed with the intent to distribute or distributed” the controlled substance; the verdict form, however, asked only about possession with intent to distribute.
Banks did not object to the instruction at trial, was convicted on all counts, and sentenced to the statutory minimum 240 months; he appealed raising constructive-amendment, duplicity, and authentication challenges.

Issues

Issue	Plaintiff's Argument (Banks)	Defendant's Argument (Government)	Held
Whether the jury instruction that added “or distributed” constructively amended the indictment in violation of the Grand Jury Clause	The two words broadened the bases of conviction to include distribution, an offense not charged, requiring automatic reversal under Floresca	The court should apply plain-error review; even if an amendment occurred, the error was not reversible because the evidence overwhelmingly supported conviction for the charged offense	Court holds Floresca's per se reversal rule is no longer tenable; plain-error review applies and reversal is not warranted because the fourth Olano prong fails (overwhelming, uncontroverted evidence supports possession with intent)
Whether the instruction made Count 10 duplicitous (risk jury convicted on possession w/ intent or distribution)	The instruction created a duplicitous charge allowing conviction on either offense	No plain-error showing on the fourth Olano prong; Banks did not show prejudice or argue the fourth prong	Rejected under plain-error review — no successful showing on plain error grounds
Whether Count 11 (§ 924(c)) was duplicitous by charging both “use and carry” and “possession in furtherance” in one count	Combining two distinct § 924(c) offenses risked a non-unanimous verdict and violated unanimity	Count 11 could permissibly encompass related acts; record shows same evidence supports both theories, so no prejudice/unanimity problem	Rejected: no plain error; even if duplicitous, no prejudice because same evidence supports conviction
Whether Facebook records/certificates were inadequately authenticated	Facebook records were not tied to Banks; government failed to show the account/messages were his	Foundation (phone with account recovered from Banks' car, usernames, messages referencing "O, from Coeburn," link to co‑conspirator communications) sufficed under Rule 901	Admission affirmed: authentication burden is low and district court did not abuse discretion

Key Cases Cited

United States v. Floresca, 38 F.3d 706 (4th Cir. 1994) (held constructive amendments to an indictment required automatic reversal)
Johnson v. United States, 520 U.S. 461 (1997) (applied plain-error review and declined automatic reversal despite serious error)
United States v. Cotton, 535 U.S. 625 (2002) (indictment defects are subject to Olano plain-error review; did not require automatic reversal)
United States v. Marcus, 560 U.S. 258 (2010) (rejected automatic reversal rules that bypass Olano plain-error analysis)
United States v. Olano, 507 U.S. 725 (1993) (established four-prong plain-error framework)
Stirone v. United States, 361 U.S. 212 (1960) (a defendant cannot be tried on charges not in the indictment; distinguished when objections are preserved)
Puckett v. United States, 556 U.S. 129 (2009) (noting difficulty of meeting all four Olano prongs)