The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0027p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 22-1650
│
v. │
│
DEAUNTA BELCHER, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:16-cr-20143-2—Victoria A. Roberts, District Judge.
Argued: October 25, 2023
Decided and Filed: February 9, 2024
Before: MOORE, GIBBONS, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael R. Dezsi, LAW OFFICE OF MICHAEL R. DEZSI, PLLC, Royal Oak,
Michigan, for Appellant. Jessica Currie, UNITED STATES ATTORNEY’S OFFICE, Detroit,
Michigan, for Appellee. ON BRIEF: Michael R. Dezsi, LAW OFFICE OF MICHAEL R.
DEZSI, PLLC, Royal Oak, Michigan, for Appellant. Jessica Currie, UNITED STATES
ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Deaunta Belcher was convicted, and
sentenced to life in prison, for his participation in a murder-for-hire scheme, hindering the
investigation of a federal offense, and for two other offenses. On direct appeal, Belcher raises
No. 22-1650 United States v. Belcher Page 2
issues with both his murder-for-hire and obstruction convictions. Specifically, Belcher argues
that his murder-for-hire conviction is invalid because the government and the court
constructively amended the indictment such that he was sentenced for a crime with which he was
never charged. Likewise, he claims that his obstruction conviction cannot stand because the
government prejudicially varied from the indictment when it offered additional proof at trial to
support the charge. Belcher also attests that the district court erred when it denied his motion for
judgment of acquittal on the obstruction charge. For the reasons outlined below, we affirm.
I.
The facts of this case are uncontested and mirror those discussed in Belcher’s
co-defendant’s case. See United States v. Watson, 852 F. App’x 164, 166–67 (6th Cir. 2021). In
short, Darnell Bailey, Devin Wallace, and Deaunta Belcher were engaged in a car-fraud scheme,
which was also tangentially related to drug trafficking. At some point, tension between the
schemers started to mount. Among other reasons for the tension, Wallace was indicted on
federal drug charges, and the others thought he started to cooperate with the Drug Enforcement
Administration (DEA) as a result. Belcher’s and Bailey’s frustrations grew, and they began
planning Wallace’s murder. Their plans intensified in August of 2015, when they linked up with
Stephen Brown and Andre Watson, who agreed to kill Wallace in exchange for a house and a
car. Belcher kept in contact with Brown about the plan by phone on several occasions. Then, on
September 11, 2015, Belcher called Brown to let him know that he had located Wallace. Brown
arrived on the scene with Watson and another, Watson walked to Wallace’s vehicle, and Watson
shot Wallace multiple times, resulting in Wallace’s death.
Law enforcement spoke with Belcher several times between Wallace’s death and his
ultimate arrest. The first interaction occurred at the crime scene shortly after Wallace’s murder.
Sergent Todd Eby interviewed Belcher as a potential witness to the crime. Belcher told Eby that
he did not witness the murder, but that he knew of Wallace and thought the murder may have
occurred because Wallace was a DEA informant. A few weeks later, two detectives interviewed
Belcher with questions about his relationship with Brown, to which Belcher responded with lies.
Eventually, Belcher was arrested.
No. 22-1650 United States v. Belcher Page 3
The government originally indicted Belcher on three counts: retaliating against a witness,
victim, or an informant; conspiracy to retaliate against a witness, victim, or informant; and use of
interstate commerce facilities in commission of a murder-for-hire. Each count carried a penalty
of either death or life imprisonment, which Belcher acknowledged in a court filing. Later, the
grand jury returned a superseding indictment, with only one charge remaining consistent.
superseding indictment contained four charges: use of interstate commerce facilities in the
commission of a murder-for-hire, conspiracy with the intent to distribute cocaine and oxycodone,
use of a firearm during and in relation to a drug trafficking crime causing death, and misleading
communication to hinder investigation of a federal offense. Once again, Belcher acknowledged
the charges and the limits of punishment on each count. Belcher proceeded to trial, where the
jury found him guilty on all counts. The district court sentenced Belcher to life imprisonment for
his murder-for-hire charge and ten years, to run concurrently with the life sentence, on each of
the other three counts. This appeal followed.
II
Belcher makes three arguments on appeal. First, he argues that his superseding
indictment was constructively amended when the government sought, and the court enabled,
punishment under the “death results” element of § 1958(a) throughout the trial process. Next,
Belcher asserts that his indictment was materially varied as to his § 1512(b)(3) charge. Finally,
he claims that the district court erred in denying his oral and written motions for acquittal on the
§ 1512(b)(3) charge because the government submitted insufficient proof to convict him.
A. Constructive Amendment.
Typically, this court assesses claims of a constructive amendment or variance to an
indictment de novo. United States v. Mize, 814 F.3d 401, 408 (6th Cir. 2016); United States
v. Budd, 496 F.3d 517, 521 (6th Cir. 2007). However, when a defendant fails to object and
preserve an indictment modification issue, the court reviews only for plain error. United States
v. Kuehne, 547 F.3d 667, 682 (6th Cir. 2008). To establish plain error, “there must be (1) ‘error,’
(2) that is ‘plain,’ (3) that ‘affect[s] substantial rights.’” Johnson v. United States, 520 U.S. 461,
467 (1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). “If all three conditions
No. 22-1650 United States v. Belcher Page 4
are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 467 (internal quotation marks omitted).
This court has acknowledged that an indictment can be modified in one of three ways:
amendment, variance, and constructive amendment. Budd, 496 F.3d at 521. An indictment is
actually amended when a prosecutor or court changes the text of the document. Id; see also
United States v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989). As for a variance or constructive
amendment, however, the language of the indictment remains the same while the basis for its
charges is altered throughout the trial process. See Mize, 814 F.3d at 409. For example, a
variance occurs when “the evidence at trial proves facts materially different from those alleged”
explicitly in the indictment. United States v. Prince, 214 F.3d 740, 756–57 (6th Cir. 2000)
(quoting United States v. Flowal, 163 F.3d 956, 962 (6th Cir. 1998)). An indictment is
constructively amended, on the other hand, when its terms are “altered by the presentation of
evidence and jury instructions which so modify essential elements of the offense charged that
there is a substantial likelihood that the defendant may have been convicted of an offense other
than the one charged in the indictment.” United States v. Martinez, 430 F.3d 317, 338 (6th Cir.
2005) (quoting United States v. Smith, 320 F.3d 647, 656 (6th Cir. 2003)).
Although “the distinction between a variance and a constructive amendment is sketchy,
the consequences of each are significantly different.” United States v. Chilingirian, 280 F.3d
704, 712 (6th Cir. 2002). A constructive amendment is “per se prejudicial,” because it violates a
person’s Fifth Amendment grand jury protections and principles of notice and fairness, while a
variance warrants reversal only if it “affect[s] a substantial right of the defendant.” Kuehne, 547
F.3d at 683 (internal quotation marks omitted).
Belcher claims the government constructively amended count one of the superseding
indictment related to his charge under 18 U.S.C. § 1958(a). Belcher points out that the
superseding indictment omits the “death results” statutory alternative element, but that the
element was included in the jury instructions and on the verdict form, and that the government
argued that Belcher’s involvement in the murder-for-hire scheme caused Wallace’s death. Given
these events, and because the “death results” clause is a necessary element of his convicted
No. 22-1650 United States v. Belcher Page 5
offense, see Mathis v. United States, 579 U.S. 500, 518 (2016), Belcher contends that plain error
review requires reversal of his conviction, and that the conviction violated his Fifth and Sixth
Amendment rights.
In response, the government argues both that it did not constructively amend Belcher’s
superseding indictment and that Belcher’s claims cannot survive plain error review. Speaking to
the former, the government claims that Belcher’s indictment contains an Apprendi error that did
not amount to a constructive amendment. As to the latter, it contends that Belcher’s claims fail
to satisfy both the third and fourth elements of the onerous standard. The government is only
partially correct, but enough so for us to affirm Belcher’s conviction.
The government constructively amended Belcher’s superseding indictment as to his
charge under 18 U.S.C. § 1958(a). Section 1958(a) is the federal murder-for-hire statute. The
statute criminalizes both interstate travel and the use of a facility of interstate commerce with the
intent to commit murder. 18 U.S.C. § 1958(a). In order for the government to convict a person
under the statute’s use of a facility of interstate commerce component, it must prove that a
person (1) used or “caused a person to use any facility of interstate commerce, (2) with the intent
that a murder be committed, in violation of the laws of [a state], and (3) that the murder was to
be committed as consideration for the promise or agreement to pay anything of pecuniary value.”
United States. v. Acierno, 579 F.3d 694, 699 (6th Cir. 2009). A person convicted under this
base-line variation of the statute faces a maximum sentence of ten years imprisonment. 18
U.S.C. § 1958(a).
However, the statute also contains alternative, enhanced punishments when the murder-
for-hire scheme results in either physical injury, requiring a statutory maximum of twenty years,
or death, mandating a sentence of death or life imprisonment. Id. And because these statutory
alternatives carry different punishments, they are essential elements of their respective offenses 1
that must be charged in an indictment, submitted to the jury, and proved beyond a reasonable
1Because the statutory punishments “require[] proof of an additional fact that the other[s] do[] not,” each
alternative is its own offense. U.S. v. Combs, 369 F.3d 925, 932 (6th Cir. 2004) (citing U.S. v. Davis, 306 F.3d 398,
415–16 (6th Cir. 2002)).
No. 22-1650 United States v. Belcher Page 6
doubt. See Mathis, 579 U.S. at 517–18; see also Apprendi v. New Jersey, 530 U.S. 466, 490
(2000).
The government skipped the first step here. Although it clearly charged Belcher under
§ 1958(a), neither the superseding indictment nor the original mentions death resulting from his
involvement in a murder-for-hire scheme. Based on these documents alone, Belcher could
anticipate serving only up to ten years imprisonment for the charge if convicted. Despite the
contents of the superseding indictment, the government’s proposed jury instructions included the
death results element. Additionally, the government argued at trial that Belcher’s involvement in
the scheme caused Wallace’s death. At the end of the trial, the court instructed the jury on the
§ 1958(a) charge and included the death results element, of which the jury later convicted
Belcher. Because the jury instructions and the government’s presentation modified and altered
the essential elements of the § 1958(a) charge in his superseding indictment, creating, in effect, a
new charge, Belcher’s indictment was constructively amended.
The existence of a constructive amendment, however, is not the end of this inquiry.
Belcher failed to raise the issue throughout the trial process, so we review the matter for plain
error. The government concedes that Belcher met the first two prongs of plain error review, but
argues that Belcher cannot satisfy the third and fourth prongs of the test. We address its
argument as to each prong in order.
As to the third prong, the government claims that Belcher’s constructive amendment
argument essentially raises an Apprendi error, and that said “errors are not structural” and are
subject to harmless error analysis. The government relies on Washington v. Recuenco, 548 U.S.
212 (2006)—where the Supreme Court held that “[f]ailure to submit a sentencing factor to the
jury,” and instead having an element of a charge found by a judge, “is not structural error”—to
further support its claim.2 Id. at 222.
Although some constructive amendments include an Apprendi error, the nature,
circumstances, and impact of the respective defects are distinct. An Apprendi error and the error
2The Court found that this error is functionally the same as the error in Neder v. United States, 527 U.S. 1
(1999), which addressed the failure to submit an element to the jury, as opposed to a sentencing factor, through
harmless error analysis. Washington v. Recuenco, 548 U.S. 212, 219–222 (2006).
No. 22-1650 United States v. Belcher Page 7
addressed in Neder and Recuenco impact a defendant’s rights at a discrete moment during the
trial process. Apprendi errors, for example, stem only from judicial overreach post-verdict, or
guilt admission, whereas the type of error discussed in Neder and Recuenco occurs only on
judicial usurpation of the jury’s responsibility as a factfinder. Constructive amendments,
however, infect the entirety of a criminal case. Not only does the amendment obliterate a
defendant’s grand jury rights, but, in moving the goalposts, it also raises notice and due process
concerns while limiting a defendant’s ability to prepare for trial. Every step in the life cycle of a
criminal case—from the grand jury’s finding of probable cause to the issuing of an indictment, a
defendant’s trial preparation and execution, the reading of jury instructions, and sentencing—is
impacted by a constructive amendment. And because the entirety of the process is disrupted, this
court has found constructive amendments to be per se prejudicial. Kuehne, 547 F.3d at 683. As
a result, Belcher has satisfied the third prong of the plain error standard. See United States
v. Barnett, 398 F.3d 516, 526 (6th Cir. 2005).
We agree with the government, however, that Belcher does not meet the fourth prong
and, therefore, is not entitled to relief. Despite the fact that the superseding indictment was
constructively amended, there is no question, looking at the record, that Belcher was aware that
the government intended on charging him under the “death results” statutory enhancement of
§ 1958. For example, Belcher signed an acknowledgement form related to both his original and
superseding indictments that explained that he would be sentenced only to death or life
imprisonment if convicted on the § 1958(a) charge, a penalty authorized only by the “death
results” enhancement.3 See 18 U.S.C. § 1958(a). In addition to Belcher’s own
acknowledgements, the government made clear in its filings, outside of the indictments, that it
intended to pursue the enhanced punishment under the “death results” element, and the court, on
two occasions and with Belcher present, vocalized that Belcher faced life imprisonment on his
§ 1958(a) charge.
3In his reply brief, and at oral argument, Belcher points to the audio recording of his second arraignment to
note that the matter was “de-certified for death,” and that he did not expect an enhanced punishment. But that
argument misses the mark. Because Belcher signed an acknowledgment form indicating that the possible
punishments for being found guilty under § 1958(a) was either life imprisonment or a death sentence, and the
government did not pursue the death penalty, life imprisonment was the only foreseeable punishment.
No. 22-1650 United States v. Belcher Page 8
The breadth of information in the record highlighting Belcher’s possible punishment, and
his knowledge of that punishment, alleviates the notice and due process concerns created by the
constructive amendment. Of course, the instances highlighted in the record do not remedy the
constructive amendment’s violation of Belcher’s grand jury protections, but a violation of
that right alone does not satisfy the plain error standard, especially after a jury conviction.
See United States v. Cotton, 535 U.S. 625, 634 (2002).
Ultimately, although Belcher’s superseding indictment was constructively amended
through the trial process and jury instructions, because he had notice that the government was
pursuing an enhanced penalty on his § 1958(a) charge from the outset, the error did not
“seriously affect[] the fairness, integrity, or public reputation of judicial proceedings.” Johnson,
520 U.S. at 467 (internal quotations omitted). As a result, we uphold Belcher’s conviction under
the § 1958(a) charge.
B. Indictment Variance.
Next, Belcher argues that the government impermissibly varied his indictment as to count
four, related to his charge under 18 U.S.C. § 1512(b)(3). Specifically, he says that the
government responded to his oral and written acquittal motions “based on statements by
Defendant other than those charged in the indictment as a basis to sustain Defendant’s
conviction.” CA6 R. 18, Appellant Br., at 20. Belcher states that the government’s behavior
constituted a prejudicial variance because it violated the longstanding principle that, “[o]nce the
indictment presents a factual basis for an element of a crime, the prosecution may not rest its
proof of that element of the crime at trial on other facts.” United States v. Caldwell, 176 F.3d
898, 902 (6th Cir. 1999).
In its response, the government argues that no variance occurred because the statements
listed in the indictment established the factual basis for a different element of the § 1512(b)(3)
charge than the one contested in Belcher’s acquittal motions. We agree.
To convict a defendant under 18 U.S.C. § 1512(b)(3), “the government must prove that
the defendant (1) knowingly and willfully engaged in misleading conduct toward another person,
(2) with the intent to hinder, delay, or prevent the communication of information to a federal
No. 22-1650 United States v. Belcher Page 9
official, (3) about the commission or the possible commission of a federal crime.” United States
v. Carson, 560 F.3d 566, 580 (6th Cir. 2009). Supplying a factual basis for one of these elements
in an indictment does not, of course, preclude the government from offering additional evidence
at trial to prove the remaining ones.
Here, Belcher’s superseding indictment alleged that, “[o]n or about September 24, 2015,”
he “knowingly engage[d] in misleading conduct toward another person, Detroit Police Detectives
Kelly Lucy and John Mitchell, by” making three specific statements. DE 141, Sup. Indictment,
PageID 616. The superseding indictment continued by asserting that Belcher made those three
statements “with the intent to hinder, delay, or prevent the communication to a law enforcement
officer of the United States of information relating to” the murder-for-hire offense. In both his
oral and written motions for acquittal, Belcher disputes only the second element of § 1512(b)(3)
related to the federal nexus. The government then argued that a federal nexus existed because
Belcher, on September 11, 2015, told Detroit detectives that Wallace was murdered because he
was a DEA informant.
Contrary to Belcher’s belief, the government did not “pivot its factual theory of the
[§ 1512(b)(3)] charge” or vary the superseding indictment by referencing trial testimony to meet
the federal nexus element. The statements included in Belcher’s superseding indictment form
the factual basis for only the first element of the offense. And because it need not list every
possible factual basis for an element of a crime in an indictment, the government did not
impermissibly vary Belcher’s superseding indictment with reference to evidence uncovered at
trial in response to his motions for acquittal. See Kuehne, 547 F.3d at 696.
C. Sufficiency of the Evidence.
Finally, Belcher asserts that the district court erred in denying his motions for acquittal
because the government failed to offer sufficient evidence to convict him on the § 1512(b)(3)
charge. In particular, he contends that the government failed to prove two necessary elements of
the underlying offense because “there is nothing about Defendant’s misleading statements to
local Detectives Lucy or Mitchell that implicate an intent to hinder a federal official or a possible
No. 22-1650 United States v. Belcher Page 10
federal investigation.” CA6 R. 18, Appellant’s Br., at 20. Considering the trial record, however,
we disagree.
We review a challenge to the sufficiency of the evidence supporting a conviction de
novo. United States v. Pritchett, 749 F.3d 417, 430 (6th Cir. 2014). In reviewing such a
challenge, we ask “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Further, “[w]e
draw all available inferences and resolve all issues of credibility in favor of the jury’s verdict,
and it is not necessary for us to exclude every reasonable hypothesis but guilt.” United States
v. Avery, 128 F.3d 966, 971 (6th Cir. 1997). With that said, a defendant challenging the
sufficiency of the evidence “bears a very heavy burden.” United States v. Davis, 397 F.3d 340,
344 (6th Cir. 2005) (quoting United States v. Spearman, 186 F.3d 734, 746 (6th Cir. 1999)).
As discussed above, the government must prove three elements to convict a person under
§ 1512(b)(3). Belcher concedes that the government presented evidence that he made misleading
statements to local law enforcement officers, but claims that the government did not show that he
intended to “hinder, delay, or prevent communication or information ‘to a federal official’” or
that said communication related to the possible communication of a federal offense. CA6 R. 18,
Appellant’s Br. at 18. To support this point, Belcher gestures to our decision in United States
v. Carson, 560 F.3d 566 (6th Cir. 2009), which addresses these matters.
Like Belcher, Carson challenged the sufficiency of the government’s evidence as to the
“federal nexus” element. Id. at 580. Carson alleged that his misleading conduct could not have
been intended to hinder communication to federal law enforcement because his conduct occurred
months before a federal investigation began. Id. This court, however, held that the
government’s showing that the involved law enforcement officers received training about the
consequences of using excessive force, and the possibility of federal investigations stemming
from allegations of the same, was sufficient evidence to create a federal nexus. Id. at 581. We
reasoned, relying on Eleventh Circuit precedent, that the federal nexus element is satisfied “if the
misleading information is likely to be transferred to a federal agent.” Id. at 580 (quoting United
States v. Ronda, 455 F.3d 1273, 1285 (11th Cir. 2006)). The basis for this broad reasoning
No. 22-1650 United States v. Belcher Page 11
comes from the purpose of § 1512(b)(3), which is “the federal interest of protecting the integrity
of potential federal investigations by ensuring that transfers of information to federal law
enforcement officers and judges relating to the possible commission of federal offenses be
truthful and unimpeded.” Id. at 581 (quoting Ronda, 455 F.3d at 1286–87). As it stands, the
federal nexus requirement deals in the hypothetical and does not require the government to prove
that the information actually made its way to federal agents.
Given the broad interpretation of § 1512(b)(3)’s federal nexus element, the record
supports a finding that the government offered sufficient evidence at trial to convict Belcher of
the offense. The government noted that Belcher met with local law enforcement three times after
the murder and before his arrest. On the first interaction, and at the scene of the crime, Belcher
told Sergeant Todd Eby three things: that he was not a witness to the crime, that he was familiar
with Wallace, and that Wallace may have been killed because he cooperated with the DEA.
Seemingly unbeknownst to Belcher, Sergeant Eby “reached out to Drug Enforcement” after this
interaction and “a DEA agent responded to the scene.”4 About a week after the crime, Belcher
then met with Detective Williams to record a written statement. Finally, about a week after that,
Detectives Lucy and Mitchell met with Belcher for several hours. The detectives sought to ask
Belcher about his connection with various suspects. In that interview, Belcher commented that
Wallace “had dealings with the Mexicans, and [that his murder] was over narcotics.”
The evidence at trial shows that Belcher tried to deceive law enforcement from the outset.
One of the ways that he chose to deceive law enforcement was to suggest that the shooter killed
Wallace because he was an informant for the DEA. A person’s reference to a federal agency
does not make it “likely” that that information will be transferred to federal law enforcement.
Viewing the evidence in the light most favorable to the prosecution, however, when, as here, a
person repeatedly peddles a narrative that a deadly event took place because of the victim’s
involvement with federal law enforcement, a juror could find the federal nexus element satisfied.
This is true even when the alleged misleading statements are not about the killer’s motives, but
about the speaker’s attempt to avoid detection. Because Belcher’s statements to local law
4The government also submitted evidence that other investigators working on Wallace’s murder met with
federal agents from the DEA and the Bureau of Alcohol, Tobacco, Firearms and Explosive (ATF).
No. 22-1650 United States v. Belcher Page 12
enforcement made it likely that federal law enforcement would associate with this case, and
because Belcher made misleading statements to distract law enforcement officers from his
involvement in the murder, there is sufficient evidence in the record for a juror to find that
Belcher committed the offense charged under § 1512(b)(3).
III.
For the foregoing reasons, we affirm.