United States District Court, N.D. California
TRIAL ORDER NO. 2 RE: DEFENDANT'S MOTION IN
LIMINE NO. 2 AND SUPPLEMENTAL BRIEFING RE: DKT. NO. 358, 408,
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.
Motion in Limine No. 2 seeks to exclude evidence
relating to Matrix's internal employee policies and codes
of conduct on the basis that those policies and codes are
irrelevant to the issue of whether defendant engaged in the
conduct alleged in the indictment. (Dkt. No. 358.) During the
pretrial conference on August 16, 2019, defendant raised, for
the first time, the argument that the government's intent
to introduce this evidence, as well as the government's
proposed jury instructions and its statements to the Court
indicate that the government's case-in-chief at trial may
result in a constitutionally prohibited constructive
amendment of the indictment in violation of the Fifth
Amendment. The motion is Denied without
Fifth Amendment to the Constitution provides that “[n]o
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury.” U.S. Const. amend. V. Thus, under the
Fifth Amendment, it is a constitutional error to allow a
federal criminal defendant to be convicted of a felony based
on facts and theories not alleged in the indictment.
Stirone v. United States, 361 U.S. 212, 217-18
(1960) (“Ever since Ex Parte Bain, 121 U.S. 1,
7 . . . was decided in 1887, it has been the rule that after
an indictment has been returned its charged may not be
broadened through amendment except by the grand jury
itself.”); see also United States v.
Garcia-Paz, 282 F.3d 1212, 1215 (9th Cir. 2002). A
constructive amendment of the indictment occurs when the
Court alters the charging terms of the indictment after the
grand jury has made its charges. United States v.
Adamson, 291 F.3d 606, 614 (9th Cir. 2002). A variance
occurs when the evidence offered at trial proves facts
different from those alleged in the indictment. Id.
Although a constructive amendment is always fatal, a variance
is fatal only if it prejudices the defendant's
substantive rights. Id.
the indictment alleges a conspiracy count under 18 U.S.C.
§ 1349 and five mail fraud counts under 18 U.S.C.
§1341, which allege that defendant conspired with others
to defraud and did defraud Matrix “by submitting false
and fraudulent invoices for materials used and work performed
by the businesses knowing that the materials had not been
used and the work had not been performed[, ]”
(See Dkt. No. 408 (“Defendant's
Suppl.”) at 3.) Defendant argues that the jury
instructions proposed by and the evidence relating to
Matrix's internal policies and code of conduct proffered
by the government “show that the government intends . .
. to argue to the jury that [defendant] either 1) conspired
to defraud Matrix of its right to the honest services of its
employees by failing to disclose a conflict of interest, or
2) devised a scheme to defraud Matrix of money or property by
failing to disclose the conflict of interest of the project
managers.” (Id. at 4-5.) Defendant asserts
that both of these arguments fall outside of the offenses
charged in the indictment and therefore constitute a
constructive amendment of the indictment. (Id. at
argument is premature. Defendant fails to identify any
authority for determining whether constructive amendment of
the indictment has occurred before the presentation of
evidence. See United States v. Ward, 747 F.2d 1184,
1191 (9th Cir. 2014) (finding that “the determination
of whether a constructive amendment has been effected
requires sensitivity to both the jury instructions as a
reflection of the indictment and to the nature of the proof
offered at trial”). Accordingly, the Court
Denies this portion of defendant's
motion without prejudice to bringing the motion again at the
completion of evidence.This Order terminates Docket Number 358.
Is So Ordered.
 As a preliminary matter, this argument
fails. Evidence of and testimony related to Matrix's
internal policies, including the code of conduct, are
relevant to the materiality to alleged victim Matrix of
defendant's alleged conduct. See Ninth Circuit
Model Crim. Jury Instr. 8.121 (stating that the elements of
mail fraud include that the “statements made or facts
omitted as part of the scheme were material; that is, they
have a natural tendency to influence, or were capable of
influencing, a person top art with money or property”).
Moreover, defendant's supplemental briefing on Motion
in Limine No. 2 does not address this issue.
Accordingly, the Court Denies this portion
of defendant's motion.
 The Court has received and reviewed
parties' supplemental briefing on this issue. (Dkt. Nos.
Accordingly, the Court finds
defendant's motion to disclosure grand jury transcripts
similarly premature and DENIES the motion without prejudice
to bringing the ...