United States v. Soerbotten, 398 F. App'x 686

Soerbotten was convicted after a jury trial in the Eastern District of New York of importation of a controlled substance and possession with intent to distribute, with sentences of 60 months on each count to run concurrently.
The superseding indictment alleged involvement with 100 grams or more of a substance containing heroin; the district court instructed the jury that heroin and cocaine are controlled substances.
Soerbotten believed the substance he transported was cocaine, not heroin, creating a dispute over the substance’s identity.
On appeal, Soerbotten challenged a constructive amendment of the grand jury indictment based on the jury instruction.
The government argued no constructive amendment occurred and that knowledge of the exact substance was not essential to the charged offenses.
The Second Circuit affirmed, holding no error, plain or otherwise, and that knowledge of the specific drug type was not an essential element.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the district court constructively amend the indictment?	Soerbotten argues the instruction enlarged the indictment to require heroin rather than cocaine.	Government contends there was no constructive amendment; flexibility allowed and notice given of core criminality.	No constructive amendment; no error.

United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) (constructive amendment standard; de novo review on dedicated issue)
United States v. Vebeliunas, 76 F.3d 1283 (2d Cir. 1996) (plain error standard for constructive amendment when not objected)
United States v. Milstein, 401 F.3d 53 (2d Cir. 2005) (essential elements and substantial likelihood of prejudice standard)
United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003) (definition of constructive amendment and essential elements)
United States v. Rosenthal, 9 F.3d 1016 (2d Cir. 1993) (essential element analysis in constructive amendments)
United States v. Jespersen, 65 F.3d 993 (2d Cir. 1995) (notice of core criminality; proof flexibility)
United States v. Knuckles, 581 F.2d 305 (2d Cir. 1978) (variance in substance type not prejudicial when same offense)
United States v. Wozniak, 126 F.3d 105 (2d Cir. 1997) (time, place, and object aligned with indictment; prejudice not shown)
United States v. Thomas, 274 F.3d 655 (2d Cir. 2001) (substantial likelihood standard for conviction of different offense)
United States v. Flaherty, 295 F.3d 182 (2d Cir. 2002) (plain-error review framework for constructive amendment)
United States v. Abdulle, 564 F.3d 119 (2d Cir. 2009) (knowledge of exact drug not essential for § 841(a)(1))
United States v. Morales, 577 F.2d 769 (2d Cir. 1978) (possession of some controlled substance suffices for § 841(a)(1))