U.S. v. Pierson

In prosecution on drug distribution and firearm charges, certain evidence, as well as pattern criminal jury instruction, improperly served to constructively amend defendant’s unlawful possession of firearm indictments, where: (1) govt. introduced evidence of defendant’s possession of gun that was not identified as relevant gun in indictments; and (2) instant jury instruction did not signal that gun identified in indictment was only firearm at issue.  However, defendant did not object to introduction of evidence of his possession of different gun or use of instant jury instruction, and defendant otherwise had failed to establish that any error was “plain” or prejudicial, where: (1) govt. on six occasions during closing argument and rebuttal referred to defendant’s possession of correct gun; (2) case law did not provide clear rule regarding evidence of defendant’s possession of gun not identified in indictment, where, as here, jury was informed to consider only crime charged in indictment and received copy of indictment; and (3) evidence of defendant’s possession of gun identified in indictment was strong.