United States v. Orlando Lasley, 917 F.3d 661

Defendant Orlando Lasley and partner Marlena Griffin lived together; on June 3, 2017 Marlena suffered an eye injury (Lasley admitted) and a broken arm (Lasley denied responsibility).
A grand jury indicted Lasley on two counts under 18 U.S.C. § 113 and § 1153: both counts pleaded the arm injury (ulnar fracture) as the basis for serious/substantial bodily injury.
At trial, Marlena testified; the only corroboration for her account was Marlena’s sister Renee testifying that a minor, J.B., told Renee to check on Marlena because “my uncle was beating her up.”
Lasley moved in limine to exclude Renee entirely or at least exclude J.B.’s reported words as hearsay; the court reserved ruling until trial; at trial the court admitted Renee’s recounting for the limited purpose of explaining Renee’s conduct (with a limiting instruction).
During deliberations the jury asked whether the face (eye) injury was enough to convict both counts or whether the arm was one count and the eye another; the court replied, over Lasley’s objection, “You may consider any injuries allegedly suffered by Marlena Griffin in connection with both counts.”
Jury convicted on both counts; on appeal the Eighth Circuit found the supplemental jury instruction constructively amended the indictment and vacated the convictions, remanding for a new trial; the court also addressed the hearsay ruling but did not reach prejudice because of the reversal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court’s supplemental jury instruction constructively amended the indictment	Lasley: instruction broadened the charged offenses to include the admitted eye injury, allowing conviction on an unindicted theory and violating Sixth Amendment unanimity	Government: statute could encompass multiple injuries; instruction was consistent with the statute	Court: Instruction constructively amended the indictment by expanding counts (which pleaded the arm fracture) to permit conviction based on any injury; reversal and new trial required
Whether admission of J.B.’s out‑of‑court statement (through Renee) was inadmissible hearsay and prejudicial	Lasley: J.B.’s exact words were hearsay, unnecessary to explain Renee’s conduct, and likely influenced the verdict	Government: offered as excited utterance or to explain Renee’s subsequent conduct; limiting instruction given	Court: Statement was inadmissible hearsay because content was unnecessary to explain conduct; prejudice was a close question but court need not decide prejudice due to reversal on other grounds

United States v. Starr, 533 F.3d 985 (8th Cir. 2008) (defines constructive amendment/variance principles)
United States v. Whirlwind Soldier, 499 F.3d 862 (8th Cir. 2007) (explains when indictment elements are altered)
United States v. Holley, 942 F.2d 916 (5th Cir. 1991) (unanimity/general‑verdict instruction may be inadequate when jurors could convict on different acts)
United States v. Bettelyoun, 892 F.2d 744 (8th Cir. 1989) (inadmissible hearsay when content unnecessary to prove sequence of events)
United States v. Bercier, 506 F.3d 625 (8th Cir. 2007) (inadmissible hearsay corroborating victim’s testimony not harmless when sole corroboration)
United States v. Kenyon, 397 F.3d 1071 (8th Cir. 2005) (similar rule on prejudicial corroborative hearsay)
United States v. Jenkins, 792 F.3d 931 (8th Cir. 2015) (standard of review for supplemental jury instruction)
United States v. Gill, 513 F.3d 836 (8th Cir. 2008) (discusses harmless‑error approach to constructive amendment doctrine)
United States v. Lomas, 826 F.3d 1097 (8th Cir. 2016) (review standard for evidentiary rulings)