OPINION OF THE COURT
This is an appeal by defendant Robert U. Syme, who owned and operated a number of individually incorporated ambulance companies which, according to the 31-count superseding indictment, fraudulently sought over-reimbursement through the Medicare and Medicaid programs. Syme was convicted on several counts of wire fraud, mail fraud, and False Claims Act violations, and on one count of making a false statement relating to a health care matter. Syme’s corporate co-defendants were convicted on all counts and are not involved in this appeal. Each of the fraud and False Claims Act counts alleged that Syme engaged in two or more of the following forms of fraud when he billed the government for ambulance trips: (1) falsely identifying a Pennsylvania address for his companies and seeking reimbursement at the rate paid to Pennsylvania companies, when the claim should have been billed at the (lower) Delaware or Maryland rates; (2) falsely representing that ambulance transport was medically necessary; (3) providing false information about the destination of the ambulance trip; and (4) providing false information about the type of treatment that the patient being transported was going to receive.
*136
Syme raises several challenges to his convictions. The principal challenge is that the indictment alleged and the District Court instructed the jury on a theory of fraud that is invalid as a matter of law. More particularly, Syme contends that the government’s theory that he committed fraud by misrepresenting that Pennsylvania was the “home station” of his ambulance companies, thereby getting reimbursed at the Pennsylvania rate, is invalid as a matter of law because the term “home station” had not been authoritatively defined during the time covered in the indictment. We conclude, however, that this fraud theory is not legally invalid, but rather, at most, may have been unsupported by the evidence presented at trial. Because each challenged count also rests on a fraud theory that Syme does not challenge on appeal, we must affirm the convictions that Syme challenges on this basis.
See Griffin v. United States,
We will, however, vacate and remand for a new trial Syme’s False Claims Act conviction on count 25 of the superseding indictment. Albeit quite inadvertently, the District Court committed plain error with respect to that count, constructively amending the indictment by instructing the jury on a fraud theory that was not alleged in the count. In noticing plain error in this case, we hold that constructive amendments, which are per se reversible under harmless error review, are presumptively prejudicial under plain error review. Because we find that the government failed to present sufficient evidence during the first trial for the jury to convict on the “medical necessity” theory on Count 25, the “medical necessity” theory must be removed from the scope of the new trial thereon. To retry count 25 based on that theory would violate the Double Jeopardy Clause.
Syme also attacks all counts of conviction on the grounds that the District Court erred in the admission of certain evidence. Primarily, he challenges the admissibility of the testimony of a physician expert witness on the grounds that it could not “assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Ev. 702. We disagree, concluding that his testimony that an ambulance trip is actually medically necessary is an issue on which the average juror could benefit from a physician’s expert testimony. We reject Syme’s other evidentiary objections summarily. See infra note 2.
Turning from the convictions to the sentence, we agree with Syme that the sentence imposed by the District Court needs be vacated because the District Court committed plain error in violation of the Ex Post Facto Clause by applying the Sentencing Guidelines’ enhancement for fraud committed by “sophisticated means,” which was not included in the Guidelines until after Syme committed the offenses in this case. We will remand for resentenc-ing on this count. We reject, however, Syme’s claim that the restitution order that the District Court imposed on him violates
Apprendi v. New Jersey,
I. Facts and Procedural History
From 1987 through late 1996, Syme owned and operated an ambulance company called Medical Services Corps, Inc. (“MSC”), which had its main office first in Stanton, Delaware, and after 1995, in Wilmington, Delaware. Syme created three *137 corporate subsidiaries to MSC. In 1989, he founded NCC Transportation, Inc. (“NCC”) and Elk Transportation, Inc. (“Elk”). In 1992 he created Independence EMS, Inc. (“Independence”). All three subsidiaries operated from MSC’s Delaware offices and engaged in the business of providing ambulance transportation services. Ambulances from Syme’s companies sometimes also operated in Pennsylvania, New Jersey, and Maryland. Syme exercised day-to-day control over MSC and all of its subsidiaries, including oversight of the ambulance dispatch and billing operations. One of the mainstays of Syme’s ambulance businesses was transporting patients to and from regularly scheduled medical treatments. For example, his companies had contracts with the Delaware State Hospital to transport patients to the hospital for treatment.
The majority of the patients that Syme’s companies transported were covered either by Medicare, the federally funded program that funds medical services for the elderly, or by Medicaid, a similar program that funds services for low-income people. The Health Care Financing Administration (“HCFA”), a federal agency within the Department of Health and Human Services (“HHS”), is responsible for coordinating and financing the reimbursement of health care service providers under the Medicare and Medicaid programs. During the period relevant to this case, HCFA contracted first with Pennsylvania Blue Shield and later with its subsidiary, Xact Medicare Services (“Xact”), to administer the reimbursement of Medicare claims. Xact was responsible for claims arising in Pennsylvania, New Jersey, and Delaware, and processed the claims for Medicare reimbursement submitted by Syme’s ambulance companies.
Xact developed operational guidelines governing which claims would be reimbursed under Medicare consistent with HCFA policy memoranda. In order to get paid for transporting Medicare patients, ambulance companies were required to submit standard reimbursement requests to Xact with information about the patient, the purpose of the trip, and the starting point and destination. Xact would determine whether to reimburse an ambulance service for a trip depending on whether the trip met certain criteria. First, the ambulance trip had to be “medically necessary” as defined by Xact’s guidelines. Second, the patient had to be transported for a treatment covered by Medicare’s ambulance reimbursement guidelines. Third, the ambulance trip had to be to a covered destination. Certain destinations, such as hospitals, were covered by Xact’s reimbursement program, while others, such as dental offices, were not.
Ambulance services were also required to record on their reimbursement forms a provider number that indicated the state in which their service was located. Most importantly, the rate of reimbursement that Medicare paid varied widely according to which state provider number the ambulance service used. The reimbursement rates for Pennsylvania ambulance services, for example, were almost twice as high as the rates for Delaware services.
Syme and his companies have long had a rocky relationship with HCFA and its subcontractors. In February 1982, Xact’s predecessor, Pennsylvania Blue Shield, became concerned that Delaware Medical Services, Inc. (“DMS”), a separate company that Syme had formed around the same time as MSC, was filing duplicate claims for the same ambulance trip and billing at the higher Pennsylvania rate rather than at the Delaware rate. According to an affidavit by an employee in the HHS Office of the Inspector General, representatives from Pennsylvania Blue Shield spoke with *138 Syme “in an attempt to educate [him] in the appropriate claim filing policies and procedures.” Syme represented in this meeting that “he was inadequately reimbursed for ambulance service in Delaware.”
In 1987, the government filed a civil suit against Syme and DMS, alleging, among other things, that DMS had falsely filed claims for Delaware ambulance trips using a Pennsylvania provider number in order to get reimbursed at the higher Pennsylvania rate. Syme settled the suit for $4,000 in May 1992, but did not admit any wrongdoing.
In April 1992, Donald Baxter, a Pennsylvania Blue Shield investigator, started looking into the location of MSC’s three subsidiary companies. He visited the locations in Philadelphia that Syme had listed as the addresses for his three companies in the applications that he had submitted for Medicare provider numbers. At 4700 Cedar Avenue, the address listed on NCC’s provider number application, Baxter found neither a garage, nor ambulances, but rather an apartment building. He also attempted to visit 3255 A Street, the address listed on Elk’s provider number application, but found that the address did not exist. Finally, Baxter visited 3300 Fairmount Avenue, the address listed on Independence’s application. At that address, he found a number of garages that appeared to be vacant.
Baxter then contacted Syme to ask him where his companies’ ambulances were located. Syme told him that two ambulances were housed at 3300 Fairmount Avenue at the time, but that no ambulances were housed at 3255 A Street. In a follow-up letter to Baxter, Syme wrote that Elk and NCC had moved from 3225 A Street to 3300 Fairmount Avenue about one year earlier, and that all of the administrative offices and dispatching operations for all three of the subsidiaries had been moved to Stanton, Delaware. On April 13, 1992, after receiving the letter from Syme, Baxter returned to 3300 Fairmount Avenue. He visited the site twice, once at 12:30 a.m., and again from 4:25 p.m. until approximately 4:45 p.m., but saw no activity either time. Before leaving the site, Baxter taped the garage doors so that he could tell if anyone opened them while he was away. When he returned three days later, the tape had not been disturbed.
Baxter returned to 3300 Fairmount Avenue in July 1994 along with Klaus Placke, an investigator from Xact, and found that the garages and attached office space appeared to be empty. Following their visit to 3300 Fairmount Avenue, the investigators went to see Syme at his office in Stanton, Delaware. They asked him where the ambulances for NCC and Elk were located, and he replied that they were still housed at 3300 Fairmount Avenue. When the investigators told him that they had just been to the location and that it had looked empty, Syme replied that he had moved most of his operation to Delaware, but that he still housed one of NCC’s ambulances at the Fairmount Avenue location. He added that NCC’s one Philadelphia-based ambulance was then in Delaware for servicing and he showed it to the investigators. The investigators asked Syme why the supposedly Philadelphia-based ambulance had Maryland tags and a Maryland certification sticker, but he could not explain the discrepancy.
During the same visit, the investigators asked to see NCC and Elk’s state licenses to operate ambulance services in Pennsylvania. Syme was unable to find the licenses, but asked the investigators to return the next day so that he could give them copies. When the investigators returned the next day, Syme told them that he had been mistaken, and that NCC and Elk *139 were not licensed in Pennsylvania and consequently had no ambulances housed in Philadelphia. He said that Independence was licensed in Pennsylvania and operated one ambulance out of 3300 Fairmount Avenue. Following the visit, Placke, the Xact investigator, changed NCC and Elk’s provider numbers to indicate that the two companies were Delaware providers that could be reimbursed only at the Delaware rate. He left Independence’s provider number unchanged, and Independence continued to bill at the Pennsylvania rate.
The Pennsylvania state ambulance licensing authority was also investigating Syme’s Philadelphia operations during the early- to mid-1990s. Independence originally received an ambulance license from Pennsylvania in 1992. In September 1993, however, Michael Tunney of the Philadelphia region of Pennsylvania’s ambulance licensing authority, prompted by a call from his supervisor at the state licensing board, inspected Syme’s purported 3300 Fairmount Avenue location. Tunney saw no employees and no activity at the location. He knocked on a door located next to the garages, but received no response.
Tunney also received applications signed by Syme for Pennsylvania ambulance licenses for NCC and Elk in September 1993. Each application listed 3300 Fair-mount Avenue as a location out of which the company operated. Because he had visited the Philadelphia address only a few weeks earlier and found no activity, Tunney called Syme to inquire about the location that he had listed. Syme told him that there was not much activity at 3300 Fairmount Avenue. Tunney did not process the applications for NCC and Elk because, following his conversation with Syme, he had “a question in [his] mind about the veracity of the information in the application ... as to whether or not [Syme] was really operating in Philadelphia.”
Tunney visited the 3300 Fairmount Avenue location again soon after February 1995, after receiving Independence’s application for relicensing, which Pennsylvania requires ambulance companies to submit every three years. He found that the building located at that address appeared to be empty and received no response when he knocked. Tunney therefore denied Independence’s application for reli-censing.
On March 10, 1998, a grand jury in the District of Delaware returned a 30-count indictment against Syme and his corporations, MSC, NCC, Elk, and Independence. The grand jury later returned a 31-count superseding indictment against the same defendants for offenses that allegedly occurred between October 1993 and March 1997. Our references hereafter are to the superseding indictment. Syme was charged in all counts of the indictment. Counts 1-4 allege mail fraud in violation of 18 U.S.C. § 1341. The indictment alleges that for each count in this group, Syme engaged in a “scheme to defraud” the HCFA in at least two of the following ways: (1) by falsely identifying a Pennsylvania address for his companies and fraudulently seeking reimbursement at the higher Pennsylvania rate when the claims should have been billed at the Delaware or Maryland rates (the “Pennsylvania rate theory”); (2) by falsely representing that ambulance transport was medically necessary (the “medical necessity theory”); (3) by providing false information about the destination of the ambulance trip (the “destination theory”); and (4) by providing false information about the type of treatment that the patient being transported was receiving (the “treatment theory”).
Counts 1-4 allege that Syme’s scheme to defraud caused the HCFA to send him *140 checks through the U.S. Mail on four separate occasions to reimburse his companies for the ambulance trips in question. Counts 5-9 allege wire fraud in violation of 18 U.S.C. § 1343, pleading that Syme’s companies electronically transmitted reimbursement requests to Pennsylvania Blue Shield that Syme knew contained false information. In each count, the indictment alleges two or more of the four theories of fraud described above.
Counts 10-29 allege violations of the False Claims Act, 18 U.S.C. § 287. The indictment divides these counts into three groups. Counts 10-12 apply to the Medicare payments that the defendants are alleged to have received fraudulently. Counts 13-17 apply to the reimbursement and copayments from Medicaid that the defendants are alleged to have fraudulently received. Counts 10-17 rely on all four theories of fraud: the Pennsylvania rate theory, the medical necessity theory, the destination theory, and the treatment theory. Counts 18-29 allege that Syme and his companies violated the False Claims Act by submitting duplicate bills for the same ambulance trip. In addition to the duplicate billing theory, each count in the 18-29 group also alleges one or more of the four fraud theories described above.
Count 30 alleges that Syme obstructed justice in violation of 18 U.S.C. § 1505 by failing to respond properly to a subpoena duces tecum issued by the Office of the Inspector General of the Department of Health and Human Services. Count 31 alleges that Syme made a false statement relating to a health care matter in violation of 18 U.S.C. § 1035 when he prepared a letter concerning the application for a provider number by Lifestar Ambulance Services, the renamed company that he had sold to one of the former managers of MSC, in which he falsely stated that “Mr. Robert Syme has no role whatsoever in Lifestar,” when in fact he remained active in managing the company.
Following a seven-day trial, a jury convicted Syme on all of the mail and wire fraud counts (1-9), many of the False Claims Act counts (10-17,19, 21, 23-25, 27, and 29), and the false statement count (31). Syme was acquitted on several of the False Claims Act counts (18, 20, 22, 26, and 28) and on the obstruction of justice count (30). The corporate defendants were convicted on all counts. After the trial, all defendants moved for a new trial and for judgment of acquittal, which the District Court denied in a published opinion.
See United States v. Med. Sens. Corps, Inc.,
*141 II. Validity of the Pennsylvania Rate Theory
A. The Parties’ Contentions
The superseding indictment al *142 leges that Syme and his companies fraudulently overcharged Medicare and Medicaid by submitting false bills that stated that the “home stations” of the ambulance companies were located in Philadelphia rather than in Delaware or Maryland, thereby getting reimbursed at the higher Pennsylvania rate. The indictment states that:
At all times material to this indictment, Medicare authorized reimbursement for ambulance services at pre-established rates based upon the home station of the ambulance. If an ambulance’s home station was in Philadelphia, Pennsylvania, the ambulance company would be reimbursed at the rate for that part of Pennsylvania. If the ambulance’s home station was in Delaware, the ambulance company would be reimbursed at the Delaware rate, which was lower than the rate for Philadelphia, Pennsylvania.
The indictment then goes on to allege that Syme and all of his companies:
submit[ted] bills to Medicare for ambulance services under a provider number which would be reimbursed at a Pennsylvania rate (which was substantially higher than the Maryland or Delaware rates) although the home station for the ambulances were [sic] either in Delaware or Maryland. Such bills should have been submitted under a Delaware or Maryland provider number, not under a Pennsylvania provider number.
The District Court also used the term “home station” in its jury instructions. The Court instructed the jury that in order to convict on the mail or wire fraud counts, it had to find that the defendants “knowingly submitted each claim for reimbursement at a higher Pennsylvania rate, although the ambulances’ home station was in Delaware.” 3
Syme bases his current challenge on the use of the term “home station.” He contends that defects in the government’s use of the term render the Pennsylvania rate theory both legally invalid and insufficiently supported by the evidence presented at trial. Syme submits three arguments attacking the legal validity of the Pennsylvania rate theory based on the use of the term “home station.” First, he contends that neither the HCFA nor Xact had established a clear definition of the term “home station” during the period at issue in this case. Second, he asserts that even if “home station” had been defined, there was no official determination that an ambulance’s “home station” would be the governing standard for determining reimbursement rates. Third, Syme argues that the application forms supplied by Xact, which he submitted in order to get Pennsylvania provider numbers for his ambulance companies, never asked for the companies’ “home stations,” but rather *143 asked for their addresses. Syme contends that he therefore cannot be convicted of a scheme to defraud based on the fact that he misrepresented his companies’ “home stations,” because he never made any representations about their “home stations” at all.
Finally, Syme asserts that for the same reasons that he claims the Pennsylvania rate theory of fraud is legally invalid, the evidence presented at trial is also insufficient factually to support his conviction based on the Pennsylvania rate theory. In addressing these arguments, we must of course first define our standard of review, which we set forth in the margin. 4
We agree with Syme that the evidence presented at trial shows little beyond the fact that there was a general understanding in the ambulance community of the definition of the term “home station.” The earliest document that the prosecution presented that defines “home station” in the reimbursement context is a February *144 2, 1995 letter from Xact to an ambulance provider that defines a transporting vehicle’s “home station” as its “point of departure.” Testimony presented at trial also shows that there was a debate within the ambulance community during the time relevant to this case as to whether “home station” was the correct reimbursement standard.
Syme is also correct that none of the forms that he completed in order to get Pennsylvania provider numbers asked for the “home stations” of his ambulance companies. However, two of the provider number applications asked for both an “address” and a “mailing address;” another form asked for both a “physical location” and a “mailing address.” Syme supplied Philadelphia addresses as the “address” and “physical location” as well as the “mailing addresses” on these forms.
The government counters that “home station” was sufficiently defined and understood to be the governing reimbursement standard during the time relevant to the case. Alternatively, the government argues that Syme’s behavior would constitute fraud under any of the meanings of “home station” or alternative reimbursement standards that may have been debated during the relevant period. The government also contends that it demonstrated a pattern of deception that is sufficient to demonstrate Syme’s intent to defraud Medicare and Medicaid.
B. Griffin and Yates
As we noted above, the prosecution has presented alternative theories of guilt to support each count in the indictment. Each count rests on two or more of the four main theories that the government presented: the Pennsylvania rate theory, the medical necessity theory, the destination theory, and the treatment theory.
See supra
at 139. When a criminal defendant appeals a conviction in which the prosecution presented more than one theory of guilt and the jury returned a general verdict, we apply the holding of
Griffin v. United States,
The rationale for this distinction is that a jury is presumed to be able to distinguish factually sufficient evidence from factually insufficient evidence. That function is central to its role as fact finder. The jury is not presumed, however, to be able to distinguish accurate statements of law from inaccurate statements.
Id.
at 59,
In one sense “legal error” includes inadequacy of evidence — namely, when the phrase is used as a term of art to designate those mistakes that it is the business of judges (in jury cases) and of appellate courts to identify and correct. In this sense “legal error” occurs when a jury, properly instructed as to the law, convicts on the basis of evidence that no reasonable person could regard as sufficient. But in another sense — a more natural and less artful sense — the term “legal error” means a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence.... [W]e are using “legal error” in the latter sense.
A theory upon which a criminal charge rests is legally invalid under
Griffin
if the indictment or the district court’s jury instructions are based on an erroneous interpretation of law or contain a mistaken description of the law. This “invalid legal theory” exception to the longstanding rule that general verdicts will stand even if one of the possible grounds for conviction was unsupported by the evidence, comes from
Griffin’s
attempt to rationalize
Yates v. United States,
Because the Supreme Court held that the term “organize” referred to the initial establishment of the Communist Party, and it was undisputed that the three-year
*146
statute of limitations had run between the time the Communist Party was initially organized and when the defendants were indicted, it held that the “organizing” charge was time-barred. Because it was “impossible to tell which ground the jury selected,” either the “organizing” charge, or the alternative charge, the Court set aside the jury verdict and remanded for a new trial.
Id.
at 312,
There does not appear to have been any dispute in Yates over the factual issue of when the Communist Party was initially organized. It was not as if the prosecution in that case simply failed to present sufficient evidence that the establishment of the Communist Party took place within three years prior to the indictment. If that were the case, then the jury would have been capable of determining that the facts were insufficient to show that the statute of limitations had not run and the Court would have presumed that the jury rested its general verdict on one of the factually supported grounds. However, because the lower court misinterpreted the meaning of the statutory term “to organize,” erroneously permitting the “organizing” charge to go to the jury, the jury was faced with a potential ground for conviction that was based on an invalid interpretation of the statute. Because the jury is not assumed to be able to distinguish between correct and incorrect legal interpretations, the Yates Court reversed the jury’s general-verdict conviction.
Griffin,
in addition to referencing a claim that was time barred as an example of a legally inadequate ground for conviction, also cited the example of a theory of conviction that “fails to come within the statutory definition of a crime.”
C. Analysis
In the present case, neither the indictment nor the District Court’s instructions to the jury relied on erroneous interpretations of the law or contained mistaken descriptions of the relevant legal standards regarding the Pennsylvania rate theory of fraud as an element of Syme’s fraud and False Claims Act charges. The indictment alleges that Syme’s misrepresentation of his companies’ home stations was a “scheme to defraud” within the meaning of the mail and wire fraud statutes, and a “false or fraudulent claim” under the False Claims Act, and the prosecution undertook to demonstrate the existence of that scheme and Syme’s specific intent to engage in the' scheme. See supra note 3 (listing the elements of mail and wire fraud and False Claim Act violations). Concomitantly, the District Court instructed the jury that in order to convict Syme for mail or wire fraud, the prosecution had to demonstrate that Syme “knowingly submitted each claim for reimbursement at a higher Pennsylvania rate, although the ambulances’ home station was in Delaware.”
The “home station” theory of fraud on which the District Court instructed the jury certainly falls within the scope of the fraud statutes and the False Claims Act. To prove the existence of this scheme and Syme’s intent to engage in the scheme, the government needed to demonstrate that a definition of the term “home station” existed and that Syme was aware of the meaning of “home station” when he submitted his claims for reimbursement from Medicare and Medicaid using a Pennsylvania provider number. But even if there was *147 no HCFA regulation or written instruction from Xact on the definition of “home station,” and no clear indication that “home station” was the appropriate standard for reimbursement, the prosecution could still have demonstrated that Syme knew that this was the standard that Xact wanted ambulance companies to apply and that he knowingly used a Pennsylvania provider number in order to get paid at a higher rate.
The meaning of the term “home station” and Syme’s intent with respect to falsifying the “home station” of his ambulance companies was an issue on which both sides focused at trial. The government presented witnesses to attempt to show both (1) that “home station” had a generally recognized meaning during the times relevant to this case; and (2) that Syme understood the meaning of the term “home station.” For example, the prosecution presented testimony from Jill Shaffer, a policy coordinator from Xact, that from 1990-95 “the home station requirement was that [Xact] reimbursed an ambulance company based on where [its] ambulance vehicles were garaged or housed.” On cross examination, however, Shaffer admitted that the definition that she provided for “home station” came from a section of the Medicare manual defining “carrier jurisdiction,” which referred to the insurance company with jurisdiction over processing a claim.
Similarly, government witness Patrick Kennedy, the founder of the Ambulance Association of Pennsylvania, also testified that there was an understanding in the ambulance industry that “home station” meant “where your major business center would be,” i.e., “where your major offices are ... where your billing center is ... [and][m]ost importantly, where your communication center is.” However, on cross-examination, Kennedy admitted that during the times relevant to this case, there was no written definition of “home station” as it relates to reimbursement rates. Prosecution witnesses also testified that Syme knew of the different rates paid to Pennsylvania and Delaware providers and had complained that they were unfair, and that Xact officials had met with Syme to instruct him on the proper practices for submitting reimbursement claims. Thus, the questions whether “home station” had a meaning, and whether Syme knew that meaning, were highly disputed issues of fact in this trial, and were presented to the jury as such.
Because the District Court correctly instructed the jury that it must find that Syme knowingly engaged in a scheme to defraud (in the case of the fraud counts) or made a false claim (in the case of the false claims counts), and because the jury was presented with conflicting testimony about whether the term “home station” had a meaning that Syme was aware of, we presume under Griffin that the jury focused on and was able to decide this disputed factual issue. There was a factual dispute regarding the term “home station,” which the jury was competent to resolve. Under Griffin, we will presume that the jury did resolve this factual dispute, and that it relied on the Pennsylvania rate theory only if it found that the government presented sufficient evidence that the term “home station” had a meaning that Syme knew. 5
*148
We conclude that, while the government simply may have failed to present sufficient evidence on the definition of the term “home station” to make out the elements of the fraud and False Claims Act charges, neither the indictment nor the District Court’s instructions contained a “mistake about the law” regarding the Pennsylvania rate theory that, under
Griffin,
would require reversing the counts in question.
Because we will not remand these counts for a new trial (except for count 25, which we will remand because the District Court constructively amended it,
see infra
Part III), we need not reach Syme’s challenges to the factual sufficiency of the medical necessity, destination, and treatment theories of fraud, which he challenges for some of the counts for which he was convicted. If we were to vacate and remand any other counts for a new trial, then we would need to evaluate each challenged theory of guilt to determine whether the evidence presented at the first trial was sufficient. If we found that it was not sufficient, then we would be required to remove that theory from the scope of the new trial.
See Burks v. United States,
III. Constructive Amendment to Counts 18-29
Syme contends that the District Court erred by instructing the jury on the Pennsylvania rate theory of fraud for counts 18-29, even though the indictment does not allege the theory in those counts. Syme did not raise this argument in the District Court and we therefore apply the plain error standard of review. See Fed. R.Crim.P. 52(b); see also supra note 4.
A. Did the District Court Err by Constructively Amending the Indictment?
A constructive amendment occurs where a defendant is deprived of his “substantial right to be tried only on charges presented in an indictment returned by a grand jury.”
United States v. Miller,
In their text, counts 18-29 of the superseding indictment charge Syme under three alternative theories of fraud: (1) that he submitted Medicare forms indicating that ambulance trips were medically neces *149 sary when they were not (“medical necessity”); (2) that he falsified the description of the treatment, service, or destination of the ambulance trip (“treatment, service, or destination”); and (3) that he submitted duplicate bills for single ambulance trips, one using a Delaware ambulance provider number, and one using a Pennsylvania ambulance provider number (“duplicate billing”). The text of the indictment for counts 18-29 does not specifically charge Syme under the Pennsylvania rate theory of fraud. However, a chart accompanying these counts, which lists the various theories supporting each charge, does list the Pennsylvania rate theory in the sections for counts 19, 21, 23, 24, 27, and 29. The chart appeared in the superseding indictment as follows:
[[Image here]]
*150 Although the Pennsylvania rate theory was neither mentioned in the text of the indictment, nor listed in the accompanying chart for several of the counts in the 18-29 group, the District Court instructed the jury that it could convict on all of the counts in this group based on the Pennsylvania rate theory. . In its jury instructions, the Court stated:
The next criminal act that has been charged is false claims. Counts 10 through 29 of the indictment charge that the defendants did make and present and caused to be made and presented to the Health Care Financing Administration, ... claims for services provided to Medicare and/or Medicaid patients, the defendants knowing the claims to be false and fraudulent, which is prohibited by federal law.
The indictment charges that defendants falsely submitted bills that were not medically necessary and were not for covered services, and that bills were improperly submitted at the higher Pennsylvania rate.
(emphasis added). The District Court repeated its erroneous instruction on the Pennsylvania rate theory in its response to the following question from the deliberating jury (which references the abbreviations for the government’s different theories of fraud in the case, explained in the margin) 6 :
First let me read the question. The question says: “Must we find all elements of the false statement proven?” Then, there is parentheses, “(i.e., PA, MN, treat., dest.),” close parens, “to render a verdict on each count, or would only one element suffice?”
The first part of my answer is this: In your deliberations, to render a verdict on the false statement counts, you must find that the government has proven beyond a reasonable doubt each element of the crime of making a false statement. And in the instructions I provided you, I gave you the law of what the elements are for the crime of false statement.
Now, in the question, the second part of my answer is, when you refer to items such as “PA,” “MN,” “Treat.” and “Dest.” as elements, I interpret your question to mean entries on the statements. In order to find on an entry, you would only have to find one of the entries was proven to be false beyond a reasonable doubt, as long as all the other elements were proven to your satisfaction beyond a reasonable doubt.
So I answer you in two parts. Using the word “element,” all elements of the crime have to be proven beyond a reasonable doubt. One of the elements is there has to be a false entry. It only has to be proven beyond a reasonable doubt that one of the entries entered meets all of the elements.
The government concedes that the District Court “committed error in its instructions to the jury on Counts 18, 20, 22, 25, 26 and 28” because the sections of the indictment corresponding to these counts do not reference the Pennsylvania rate theory. As *151 to the remaining counts in the 18-29 group, the government argues that the District Court did not constructively amend the indictment because the Pennsylvania rate theory was alleged in the indictment for these counts. The government relies on the chart that was included in the indictment. See supra at 149. The chart lists the various charges, and the theories on which each is based. Each horizontal row of the chart represents a different count of the indictment. Each vertical column in the chart has a heading telling which information corresponds to which count (e.g., “Billing Date” or “Money Billed”). One heading labeled “False State.” refers to the category of statement or statements that the count alleges Syme to have falsely made on his reimbursement forms. This box contains abbreviations that correspond with the different categories of information that the government charged Syme with falsifying.
The abbreviation “PA” appears in the “False State.” column for the rows corresponding to counts 19, 21, 23, 24, 27, and 29. As we explained above, see supra note 6, “PA” is defined earlier in the indictment to mean “submitfting] bills ... for transportation services billed at the Pennsylvania rate instead of the Delaware or Maryland rate.” Therefore, argues the government, Syme was effectively indicted in these counts on the Pennsylvania rate theory and the District Court therefore did not amend these counts in its jury instructions or its answer to the jury’s question. Syme responds that including the term “PA” in the chart corresponding to the counts in question was alone insufficient when the theory was not also described in the text of the indictment that corresponded to these counts. It is particularly confusing, argues Syme, because when “the same ‘PA’ abbreviation was used in a chart pertaining to the other fraud and false claims counts, it was used together with charging language.”
Although the indictment is below the level of clarity to which prosecutors should aspire, we agree with the government that the chart sufficiently alleges the Pennsylvania rate theory for counts 19, 21, 23, 24, 27, and 29 for the purpose of determining whether there has been a constructive amendment to the indictment. There is nothing impermissible about setting out allegations in an indictment by a chart as long as the terms used in the chart are clearly defined, as they were here.
Cf. United States v. Heath,
B. Was the Error Clear or Obvious?
The government concedes that the District Court’s error was clear with respect to counts 18, 20, 22, 25, 26, and 28. Cases from the Supreme Court and this court hold that it violates the Grand Jury Clause of the Fifth Amendment when a court instructs a jury on a ground for conviction that is not fully contained .in the indictment.
See Miller,
C. Did the Error Affect Syme’s Substantial Rights?
Under plain error review, a defendant must also show that the clear error “ ‘affected [the defendant’s] substantial rights.’ ”
United States v. Nappi
Syme does not attempt to demonstrate that the constructive amendment to count 25 was prejudicial. Instead, he submits that our holding in
United States v. Castro,
However, even if the general statements from
Castro
and
Somers
must be read to extend to the plain error context, it is uncertain whether this application of the per se rule has survived
Olano,
which recognized broader discretion for appellate courts exercising plain error review.
See United States v. Dipentino,
As noted above,
Olano
stated that in order for an error to “affect substantial rights” under the plain error test, the defendant usually must show that the error was “prejudicial,” that is that it “affected the outcome of the district court proceedings.”
Adams addressed a denial of the right of allocution (i.e., the right of a criminal defendant to make a statement prior to sentencing). Adams did not reach the issue whether the denial of the right of allocution constituted structural error; rather it held that it fell into the other category of errors that should be presumed prejudicial. The question in this case, therefore, *154 is whether constructive amendments fall into either of the two exceptions to the general rule that a defendant must demonstrate prejudice under plain error review.
We turn first to the question whether constructive amendments fall into
Olano’s
category of “those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.”
Olano,
Like a denial of the right of allocution, a constructive amendment also violates a basic right of criminal defendants, the grand jury guarantee of the Fifth Amendment. We follow the holding of Adams that some serious errors should be presumed prejudicial in the plain error context even if they do not constitute structural errors and find that constructive amendments fall into that category. 8 Similar to the plight of a defendant who is denied the right of allocution, it is very difficult for a defendant to prove prejudice resulting from most constructive amendments to an indictment. In the present case, for example, it is nearly impossible for Syme to demonstrate that he was convicted on count 25 based on the Pennsylvania rate theory, rather than on one of the other theories of guilt pleaded in that count (i.e., that the constructive amendment altered the outcome on that count), even though there is a substantial possibility that he was convicted based on the Pennsylvania rate theory. As Syme points out, the District Court identified the Pennsylvania rate theory as the “crux” of the government’s case. Therefore, we will apply in the plain error context a rebuttable presumption that constructive amendments are prejudicial (and thus that they satisfy the third prong of plain error review). 9
*155 Applying the rule that constructive amendments are presumptively prejudicial under plain error review to the present case, we must determine whether the government has effectively rebutted the presumption that the constructive amendment was prejudicial. The government argues that the pattern of counts on which the jury convicted Syme reveals that it did not rely on the District Court’s erroneous instructions, and that Syme was therefore not prejudiced by the constructive amendment. The jury convicted Syme on all of the counts in the 18-29 range in which the Pennsylvania rate theory was alleged in the chart accompanying the indictment but found him not guilty on all but one of the counts in which the Pennsylvania rate theory was not alleged. This pattern holds for all of the counts in this range except for count 25, in which the Pennsylvania rate theory was not allegéd, but on which the jury convicted Syme. Thus, the government contends that the jury actually relied on the chart accompanying the indictment rather than the District Court’s instructions and that Syme therefore could not have been prejudiced by the erroneous jury instructions.
We find this argument unconvincing. We do not believe that the “pattern of convictions” is sufficient to support the conclusion that the government urges us to draw about the jury’s motivations, i.e., that it relied on the chart and ignored the Court’s instructions. As a rule, we presume the opposite — that the jury follows a district court’s instructions.
See, e.g., Jermyn v. Horn,
Applying a presumption of prejudice to our plain error review of this constructive amendment, we conclude that the constructive amendment to count 25 affected Syme’s substantial rights.
10
Leaving
*156
this error uncorrected would seriously affect the fairness and integrity of the proceeding.
See Olano,
D. Was the Evidence Presented Sufficient for the Jury to Convict Syme Based on the “Medical Necessity” Theory of Fraud for Count 25?
Syme challenges the “medical necessity” theory of fraud in several of the fraud and False Claims Act counts for which he was convicted. As we explained above, we need not reach the question whether the evidence was sufficient to support the “medical necessity” theory on all of the counts in which it was alleged because each count contained an alternative theory of fraud that Syme does not challenge on this appeal. Therefore, under the rule from
Griffin v. United States,
Citing
Burks v. United States,
When the sufficiency of the evidence to support a jury’s verdict is challenged, “we must view the evidence in the light most favorable to the government and must sustain the jury’s verdict if a reasonable jury believing the government’s evidence could find beyond a reasonable doubt that the government proved all the elements of the offense.”
United States v. Pressler,
Count 25 refers to an August 3, 1994 ambulance trip in which NCC transported 80-year-old patient Ruth Graham. Dr. Leaser, the government’s expert medical witness, testified that, based on his review of Graham’s medical files, it was his opinion that it was not necessary to transport Graham by ambulance. Leaser based his opinion that ambulance transport was not necessary for Graham largely on notes made by the medical personnel at the nursing home where Graham lived, which indicated that she was ambulatory and could sit up unassisted. He cited a record that stated that as of January 1994, Graham was able to ambulate without assistance. He also noted that Graham’s records indicated that in late March 1994, she was able to sit up without assistance and *157 participate in an occupational therapy session.
But the government asked Leaser only if he had reviewed “the medical records for Graham for [the] dates of service January 20th, 1994 and March 17th, 1994.” Leaser did not mention consulting any medical evidence recorded after March 1994, and his testimony suggests that he did not review Graham’s medical files for dates after March 1994. Leaser noted that, in addition to Graham’s medical records near the January 20, 1994 and March 17, 1994 ambulance trips, he “also looked at
one
other date ... [on which] there was an ambulance transport ... 2/16/94.” (emphasis added). However, Graham’s health could have deteriorated during the more than four months that passed between the date of the last medical record upon which Leaser relied and the August 3, 1994 ambulance trip in question. Therefore, although we “view the evidence and the inferences logically deducible therefrom in the light most favorable to the government,”
McNeill,
Because we conclude that the government presented insufficient evidence for a reasonable jury to have convicted Syme on count 25 based on the “medical necessity” theory in the first trial, we must address the question whether to allow the government to retry that theory on remand, or to limit the remand exclusively to the “treatment” theory (which Syme does not challenge). Syme argues that
Burks
instructs this court not to allow the government to retry a theory on which the government presented insufficient evidence the first time around. In
Burks,
the Supreme Court considered whether the Double Jeopardy Clause of the U.S. Constitution bars an appellate court that reverses a conviction for insufficiency of the evidence presented at trial from remanding the count of conviction for a new trial. The court of appeals in
Burks
(1) found that at trial the “Government had failed to come forward with sufficient proof of petitioner’s capacity to be responsible for criminal acts,” (2) held that the district court should have entered a judgment of acquittal in the first instance, and (3) remanded the case for a new trial.
The Court found that it is not proper, holding that the “Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.”
Id.
at 11,
IV. Upward Adjustment for “Sophisticated Means” under the Sentencing Guidelines
Syme argues that the District Court violated the Ex Post Facto Clause by applying a two-level sentence enhancement for the commission of fraud by “sophisticated means” pursuant to § 2Fl.l(b)(5)(c) (1998) of the United States Sentencing Guidelines. Because Syme raises this objection for the first time on appeal, we review the claim under the plain error standard. See Fed. R.Crim.P. 52(b); see also supra note 4.
The “sophisticated means” enhancement did not become effective until November 1, 1998, more than a year after the last conduct charged in the indictment. We have held that “[a]s a general rule, sentencing courts must apply the guidelines in effect at the time of sentencing, not at the time of the crime,” but that where, as here, “such retroactivity results in harsher penalties, Ex Post Facto Clause problems arise, and courts must apply the earlier version.”
United States v. Kopp,
The government concedes that the first two prongs of plain error review are met, i.e., that the District Court erred by applying the “sophisticated means” enhancement, and that this error was clear. The government challenges the third prong of the plain error standard, however, contending that Syme’s substantial rights were not prejudiced by the error because the range of possible sentences under the correct sentencing level (level 19, which calls for a sentence of 30-37 months) overlaps with the range of sentences under the erroneous sentencing level (level 21, which yields a sentence of 37-46 months). However, in
United States v. Knight,
V. Did the Restitution Order Violate Apprendi?
The District Court ordered Syme to pay $100,000 in restitution to the HCFA (a $300,000 restitution order less a $200,000 credit) pursuant to the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663. Syme contends that the restitution order violates
Apprendi v. New Jersey,
The operative rule from
Apprendi
is as follows: “Other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Section 3663(a)(1)(A) of the VWPA pro-, vides: “The court,
when sentencing a defendant convicted of an offense under this title, ...
may order, in addition to or, in the case of misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense.... ” 18 U.S.C. § 3663(a)(1)(A) (emphasis added). The highlighted language specifically indicates that restitution orders are penalties that a district court may impose when sentencing a defendant for any offense under title 18. Restitution orders have long been treated as part of the sentence for the offense of conviction, and not, as Syme appears to contend, separate enhancements to the underlying offense.
See, e.g., Sleight,
Therefore, because the language of section 3663 specifically applies that section to all offenses defined in title 18, and because it has been the traditional practice of district courts to include restitution as part of the sentence for the offense of conviction, we think that the appropriate place to look for the statutory maximum as that term applies in the
Apprendi
context, is the restitution statute itself. But section 3663 does not specify a maximum amount of restitution that a court may order. The statute provides guidelines that a sentencing judge may use to determine the amount of restitution, but does not prescribe a maximum amount. The
Apprendi
rule therefore does not apply to restitution orders made pursuant to 18 U.S.C. § 3663, because
Apprendi
applies only to criminal penalties that increase a defendant’s sentence “beyond the prescribed statutory maximum.”
VI. Conclusion
For the reasons stated above, we will vacate Syme’s False Claims Act conviction on count 25 of the superseding indictment and remand that count for a new trial based only on the “treatment” theory of fraud. We will also vacate the sentence imposed by the District Court and remand *160 for resentencing with instructions not to apply the “sophisticated means” enhancement of § 2Fl.l(b)(5)(c) (1998) of the Sentencing Guidelines. In all other respects, we will affirm the judgment of the District Court.
Notes
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. Syme contends that the District Court committed plain error by admitting the testimony of two prosecution witnesses. He argues that the District Court should not have admitted the testimony of Joseph Leaser, M.D., a physician who had consulted for Xact and it predecessor company for twenty-four years, and who reviewed the medical records of several patients whom Syme had transported, or *141 Craig Swartz, a Medicare fraud examiner employed by Xact. Syme did not object to Leaser’s or Swartz's testimony in the District Court. Therefore, we review for plain error. See Fed. R. Ev. 103(d); see also infra note 4 (describing the plain error standard of review).
He contends that Leaser’s testimony should not have been admitted as expert testimony under Federal Rule of Evidence 702 because it could not "assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Ev. 702. Leaser reviewed the files of several patients whose ambulance transportation, the government contended, was not medically necessary within the meaning of Xact's reimbursement policy. Syme submits that it was Xact’s policy to leave to the ambulance provider the initial decision on whether ambulance transport was medically necessary. If the decision was Syme's, the argument continues, Leaser’s testimony should not have been admitted as expert testimony under Rule 702 because it could not help the jury to determine whether Syme (who is not a physician) could have in good faith thought that ambulance transportation was medically necessary. As the government correctly points out, however, one of the facts that the prosecutor was required to prove was that "the trips actually were not medically necessary.” We are satisfied that whether an ambulance trip is actually medically necessary is an issue on which the average juror could benefit from a physician's expert testimony.
Syme also argues that Leaser's testimony should not have been admitted as expert testimony even on the issue of actual medical necessity. He contends that Leaser "rejected [Medicare's] standards insofar as they treated a patient's need for restraint as a presumptive justification for use of an ambulance.” If the only relevant issue was whether the ambulance trips in question were actually medically necessary under the standards set forth in the Medicare regulations, Syme argues, Leaser had nothing relevant to say on that question. In his reply brief, Syme extends the argument even further and says that because Leaser rejected the Medicare standards he failed to satisfy the requirement of
Daubert v. Merrell Dow Pharmaceuticals,
Syme does not specifically document his claim that Leaser disagreed with Medicare's treatment guidelines, but he alludes to the following exchange from Leaser's cross-examination:
Q. Do you agree with me that one of the hallmarks of medical necessity is if a person, a patient needs restraint?
A. No, — do you mean medical necessity for ambulance transport?
Q. Yes.
A. No. I don't believe that you need to take a person by ambulance if they require restraint.
Q. We have had documents introduced here which say if there is a presumption of medical necessity and [sic] the patient needs restraint. But you would disagree with that?
A. I would disagree with that, because you could take a patient in a geriatric chair or a person in a wheelchair and restrain them in a posey vest.
This exchange may demonstrate that Leaser questioned the wisdom of one of Medicare's guidelines. However, it does not show, as Syme seems to suggest, that Leaser refused to evaluate the necessity of transporting patients by ambulance under Medicare's standards. The exchange seems especially weak evidence of Leaser's refusal to apply Medicare standards when considered in light of the fact that Leaser had been consulting for Xact or its predecessor company for around twenty-four years at the time he testified. Therefore, we think that the District Court did not violate Rule 702 by allowing Leaser’s testimony.
Syme also argues that Leaser's testimony was unfairly prejudicial when combined with the testimony of Craig Swartz, an Xact Medicare fraud examiner who testified as a prosecution witness. Syme contends that Swartz’s testimony misled the jury into thinking that, if Leaser stated that a particular ambulance trip was not medically necessary, then the reimbursement form that Syme submitted should not have stated otherwise. We conclude that Swartz’s testimony was not unduly confusing or prejudicial and that it was not error for the District Court to admit the testimony.
. In order to establish a violation of the mail or wire fraud statutes, a prosecutor must prove: (1) the existence of a scheme to defraud; (2) the participation by the defendant in the particular scheme with the specific intent to defraud; and (3) the use of the United States mail or of wire communications in furtherance of the fraudulent scheme.
See
18 U.S.C. §§
1341,
1343;
United States v. Hannigan,
. Syme contends that his trial counsel preserved his argument that the Pennsylvania rate theory is invalid as a matter of law, and that therefore we should review this claim under the harmless error standard of review rather than the plain error standard. The government urges us to apply the latter standard. For the reasons that follow, we agree with the government.
At the close of the government's case, Syme moved generally to dismiss all the counts for failure to state a prima facie case. He later raised a more specific claim in his Motion for Judgment of Acquittal, arguing that Xact's policies could not serve as the basis for a conviction because they did not have the force of law. Syme noted that "[t]he basis of the Government's claim nullifying the use of the Pennsylvania provider number was that the policy definitions offered by Xact, or its predecessor, Blue Shield, represented the de jure law of the land,” and that ”[t]he foundation of the prosecution is that the defendants violated a policy statement of a private or public nongovernmental corporation and not that the defendants violated federal law.” Essentially, Syme argued: (1) that Xact's reimbursement guidelines did not have the force of federal laws or regulations; and (2) that the scheme to defraud that is predicate to a federal mail or wire fraud conviction must itself be a violation of federal law.
The District Court addressed these issues in an opinion accompanying the order denying the defendant’s Motion for Judgment of Acquittal and for New Trial. There, the Court concluded that it did not matter that Xact and Medicare did not have the authority to make policy statements with the force of law because "the 'scheme to defraud' itself need not violate federal law."
United States v. Med. Serv. Corps, Inc.,
Under the plain error standard, a reviewing court may reverse the district court "only if [it] finds that (1) an error was committed; (2) the error was plain, that is, 'clear' and 'obvious;' and (3) the error 'affected [the defendant’s] substantial rights.' "
United States v. Nappi,
. In contrast, the jury in Yates could not have been presumed to have focused on the legal issue of the proper interpretation of the statutory term "to organize.” This legal issue was not presented to the jury, and at all events was ultimately a question for the court instead of the jury. Similarly, a jury cannot be presumed to distinguish a constitutional ground for conviction from an unconstitutional one.
. The superseding indictment defines the abbreviations that the prosecution and the jury used to refer to the different theories of fraud presented. "PA” refers to the scheme whereby Syme "would submit bills ... for transportation services billed at the Pennsylvania rate instead of the Delaware or Maryland rate.” "MN” means a scheme in which the defendants "intentionally falsely representad] that the [ambulance] transportation was medically necessary.” "Dest.” refers to the practice of "intentionally ... sending] false and misleading information concerning the destination” of the ambulance trip. And finally, “Treat.” means "intentionally transmit[ting] false and misleading information concerning the ... reason for the transportation,” i.e., the medical treatment sought.
. The Fourth Circuit, sitting en banc, has held that because a constructive amendment is per se error in the harmless error context, it also per se satisfies the "affects substantial rights” prong of the plain error test.
See United States v. Floresca,
In the Ninth Circuit, "it was established ... [prior to Olano] that a constructive amendment required reversal, even under plain er
*153
ror review.”
United States v. Dipentino,
The Seventh Circuit recently purported to decline to reach the question whether a constructive amendment is per se reversible in the plain error context, but in an earlier case it seems to have reached the question and concluded that a defendant must show prejudice to succeed in a plain error challenge to a constructive amendment.
Compare United States v. Cusimano,
The D.C. Circuit and Second Circuit have both, after
Olano,
acknowledged that constructive amendments are per se reversible under harmless error review, but have nevertheless placed the burden on the defendant to show that the constructive amendment was prejudicial under plain error analysis.
See United States v. Lawton,
. We note that our holding today is narrower than the rule that
Adams
applied because constructive amendments are constitutional errors that are of sufficient magnitude that they cannot be dismissed as harmless when a defendant objects to them in the district court.
See Stirone,
. We recognize that the presumption that we apply, like any exception to the general rule that the burden is on the defendant to demonstrate all of the prongs of the plain error test, may increase the likelihood of defendants “sandbagging,” i.e., failing to object to an error at the trial level in order to keep an issue for appeal as insurance in the event they are convicted. The Fifth Circuit cited its concerns about sandbagging as the reason for its refusal to notice plain error in the constructive amendment context.
See Reyes, 102
F.3d at 1365. There are, however, two reasons why the potential instances of sandbagging arising from the presumption that we apply today will be limited. First, constructive amendments are a narrowly defined category of errors, which arise relatively infrequently. The presumption of prejudice under plain error analysis does not extend to the more frequently encountered category of variances from an indictment, which may be dismissed as harmless even when properly objected to at trial.
See, e.g., Castro,
. Because we hold that constructive amendments are presumptively prejudicial under plain error review, and that the government cannot rebut that presumption in this case, we need not address the question whether constructive amendments are structural errors (in which case we assume they would constitute per se reversible error even under plain error review). We note, however, that it is doubtful that constructive amendments are structural errors as the Supreme Court has defined that category. In its two most recent structural error cases, the Court listed the categories of errors that it has found to be structural.
See Johnson v. United States,