Whether a constructive amendment occurred when the jury instructions and government's closing argument allowed conviction for armed bank robbery without proof of a firearm as alleged in the indictment

QUESTIONS PRESENTED The Government charged Mr. Benitez with one count of armed bank robbery and alleged that he “put in jeopardy the life of another person by the use of a dangerous weapon, that is a firearm.” The Government also charged him with possession of a firearm during that crime of violence. Mr. Benitez did not dispute that he robbed the bank, and he attempted to plead guilty to the armed bank robbery count. But he claimed he did not use a firearm, so he sought to proceed to trial on the firearm count. The Government objected. It argued that the use of a firearm in the bank robbery count was an “element” of the crime. According to the Government, entering a guilty plea to the bank robbery count without an admission that Mr. Benitez carried a firearm would constructively amend the indictment. The Government also announced that at trial it “would not suggest to the jury that” Mr. Benitez used “anything other than a firearm.” Having heard these assurances, Mr. Benitez went to trial on both counts. His only defense was that he used a replica gun during the bank robbery, and not a firearm. During the charge conference, the Government reversed its prior position, argued that the firearm language in the robbery count was surplusage, and requested a jury instruction that would not require it to prove that Mr. Benitez used a firearm to commit the robbery. The district court acquiesced and instructed the jury, over objection, that he could be found guilty of armed bank robbery regardless of whether the object used could put someone’s life in jeopardy. The Government argued during closing statements that Mr. Benitez could be found guilty of that count even if he used a toy gun. The jury apparently credited Mr. Benitez’s defense and found him not guilty of the firearm count. However, it found him guilty of the armed bank robbery count. Mr. Benitez argued in the Eleventh Circuit that the indictment was constructively amended. In the alternative, he argued that the removal of the firearm language from the indictment constituted a material, prejudicial variance. The Eleventh Circuit affirmed his conviction. The questions presented are: 1. Does a constructive amendment occur where the jury instructions relieve the Government of proving, as alleged in the indictment, that a defendant committed a crime by using a “firearm,” and where the Government argues that the defendant could be found guilty of that crime even if he used a toy gun? 2. Does a material variance arise where a court declines to instruct the jury that the Government has to prove, as alleged in the indictment, that a defendant committed a crime by using a “firearm,” where the Government argued prior to trial that the use of a firearm was an element of the offense and stated that it would not argue that the object used was anything other than a firearm, and where the defendant’s sole theory of defense depended on disproving that he used a firearm?