Whether the constructive amendment of an indictment by an erroneous jury instruction, stating that conspiracy counts alleged agreements to violate a different bribery statute from that alleged by the grand jury, is prejudicial per se on plain error review?

QUESTION PRESENTED In Stirone v. United States, 361 U.S. 212 (1960), this Court held that a jury instruction that broadens the charges of an indictment is fatal error. Since Stirone, however, courts have disagreed when reviewing claims of constructive amendment to which no objection was made at trial whether a jury instruction that broadens the charges of an indictment affects the defendant’s substantial rights. In this case, Mr. Warners Indictment was constructively amended by a jury instruction that added a bribery offense different than as charged by the grand jury. Counts One, Five and Seven of his indictment charged Mr. Warner with conspiracy to solicit and receive bribes. The jury instruction erroneously stated, however, that the grand jury only charged conspiracies in which his co-conspirators would offer and pay bribes to Warner in violation of a different statute. The Court of Appeals affirmed Mr. Warner’s convictions on those counts on plain error review concluding that the erroneous instruction “conflating [] payor and payee bribery would not have affected Warner’s substantial rights with regard to his conspiracy convictions.” (App. A, p. 12). The Question Presented is : Whether the constructive amendment of an indictment by an erroneous jury instruction, stating that conspiracy counts alleged agreements to violate a different bribery statute from that alleged by the grand jury, is prejudicial per se on plain error review?