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In the Supreme Court of the United States No. 19-1362 In the Supreme Court of the United States JASON LAUT, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION JEFFREY B. WALL Acting Solicitor General Counsel of Record BRIAN C. RABBITT Acting Assistant Attorney General SONJA M. RALSTON Attorney Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTION PRESENTED Whether petitioner was entitled to relief on his claim, raised for the first time on appeal, that the govern- ment’s closing argument constructively amended the in- dictment in his case. (I) TABLE OF CONTENTS Page Opinion below ................................................................................ 1 Jurisdiction .................................................................................... 1 Statement ...................................................................................... 1 Argument ....................................................................................... 6 Conclusion ................................................................................... 18 TABLE OF AUTHORITIES Cases: Almendarez-Torres v. United States, 523 U.S. 224 (1998) ...................................................................................... 7 Bonilla v. United States, 534 U.S. 1135 (2002) ................... 15 CSX Transp., Inc. v. Hensley, 556 U.S. 838 (2009) .............. 8 Chapman v. California, 386 U.S. 18 (1967) ........................ 11 Crawford v. Washington, 541 U.S. 36 (2004) ...................... 10 Granfinanciera, S. A. v. Nordberg, 492 U.S. 33 (1989) ...................................................................................... 9 Henderson v. United States, 568 U.S. 266 (2013) .......... 9, 10 Johnson v. United States, 520 U.S. 461 (1997) ............................................................... 9, 11, 12, 17, 18 Neder v. United States, 527 U.S. 1 (1999) ........................... 11 Newman v. United States, 541 U.S. 988 (2004) .................. 15 Phillips v. United States, 552 U.S. 820 (2007) .................... 15 Pryor v. United States, 552 U.S. 828 (2007) ....................... 15 Scott v. United States, 523 U.S. 1024 (1998) ....................... 15 Spero v. United States, 540 U.S. 819 (2003) ........................ 15 Stirone v. United States, 361 U.S. 212 (1960) ........... 7, 10, 11 United States v. Brandao, 539 F.3d 44 (1st Cir. 2008) .......................................................... 11, 12, 13 United States v. Camara, 908 F.3d 41 (4th Cir. 2018) ...................................................................... 15 (III) IV Cases—Continued: Page United States v. Cotton, 535 U.S. 625 (2002) ...................... 17 United States v. Floresca, 38 F.3d 706 (4th Cir. 1994) .......................................................... 14, 15, 17 United States v. Gavin, 583 F.3d 542 (8th Cir. 2009) ...................................................................... 13 United States v. Greenspan, 923 F.3d 138 (3d Cir. 2019) ....................................................................... 14 United States v. Lawton, 995 F.2d 290 (D.C. Cir. 1993) ....................................................... 12, 15, 17 United States v. Madden, 733 F.3d 1314 (11th Cir. 2013), cert. denied, 136 S. Ct. 1314 (2013), appeal after remand, 624 Fed. Appx. 706 (11th Cir. 2015), cert. denied, 136 S. Ct. 1532 (2016) ........................ 12 United States v. Marcus, 560 U.S. 258 (2010) .............. 11, 18 United States v. Miller, 891 F.3d 1220 (10th Cir. 2018), cert. denied, 139 S. Ct. 1219 (2019) .............................................................................. 12, 16 United States v. Nersesian, 824 F.2d 1294 (2d Cir. 1987), cert. denied, 484 U.S. 958 (1987) ................ 8 United States v. Olano, 507 U.S. 725 (1993) ....... 9, 10, 14, 15 United States v. Pierson, 925 F.3d 913 (7th Cir. 2019), cert. granted, judgment vacated, 140 S. Ct. 1291 (2020) ......................................................... 14 United States v. Reyes, 102 F.3d 1361 (5th Cir. 1996) ...................................................................... 12 United States v. Springer, 165 Fed. Appx. 709 (11th Cir. 2006) .................................................................... 10 United States v. Syme, 276 F.3d 131 (3d Cir. 2002) ........... 13 United States v. Thomas, 274 F.3d 655 (2d Cir. 2001) ....................................................................... 14 Weed v. United States, 138 S. Ct. 2011 (2018) .................... 15 V Constitution, statutes, and rule: Page U.S. Const.: Amend. V (Grand Jury Clause) ....................................... 8 Amend. VI (Confrontation Clause) ............................... 10 18 U.S.C. 1001 .......................................................................... 2 18 U.S.C. 1028A(a) ................................................................... 2 18 U.S.C. 1343 .......................................................................... 2 18 U.S.C. 1365(a) ..................................................................... 5 18 U.S.C. 1365(a)(4) ................................................................. 2 Fed. R. Crim. P. 52(b) ............................................................. 9 Miscellaneous: 4 Wayne R. LaFave et al., Criminal Procedure (2d ed. 1999) ....................................................................... 7, 8 In the Supreme Court of the United States No. 19-1362 JASON LAUT, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The order of the court of appeals (Pet. App. 1-9) is not published in the Federal Reporter but is reprinted at 790 Fed. Appx. 45. JURISDICTION The judgment of the court of appeals was entered on December 6, 2019. A petition for rehearing was denied on January 9, 2020 (Pet. App. 10). On March 16, 2020, Justice Kavanaugh extended the time within which to file a petition for a writ of certiorari to and including May 8, 2020, and the petition was filed on June 8, 2020. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the Southern District of Illinois, petitioner was convicted on six counts of wire fraud, in violation of (1) 2 18 U.S.C. 1343; 29 counts of making false statements, in violation of 18 U.S.C. 1001; two counts of aggravated identity theft, in violation of 18 U.S.C. 1028A(a); and one count of tampering with a consumer product, in viola- tion of 18 U.S.C. 1365(a)(4). Pet. App. 11-14. He was sentenced to 111 months of imprisonment, to be fol- lowed by three years of supervised release. Id. at 14- 15. The court of appeals affirmed. Id. at 1-9. 1. Between 2013 and 2015, petitioner was a para- medic supervisor for MedStar ambulances in south- western Illinois. Pet. App. 2. Memorial Hospital pro- vided MedStar with narcotics boxes, filled with a stand- ardized inventory, for each ambulance. Ibid. When a predetermined proportion of the drugs in a box were consumed, the paramedic would exchange the used box for a full one at the hospital. Ibid. A narcotics log cat- aloging the drugs used or wasted accompanied each box. Ibid. MedStar also maintained patient records cataloging each time a drug was administered to a pa- tient in an ambulance. Trial Tr. (Tr.) 364-366. As a su- pervisor, petitioner was one of a limited number of peo- ple who could alter those records after the fact. Tr. 892. MedStar’s computer program automatically tracked such changes. Ibid. The standard inventory of the narcotics boxes in- cluded the painkillers fentanyl and morphine. Pet. App. 2; Tr. 96. During the relevant period, petitioner, who had developed a painkiller addiction after a 2013 sur- gery, routinely stole fentanyl and morphine from the narcotics boxes. Pet. App. 2-5. Petitioner employed two strategies for concealing his theft. In some instances, he replaced the stolen drugs with water or saline through “pinholes” in the vials’ tops and then placed the vials back in the boxes, where they appeared unused. 3 Ibid. In other instances, he falsified MedStar’s narcot- ics logs and patient records to reflect (inaccurately) that fentanyl and morphine had been administered to pa- tients. Ibid. Around September 2014, a Memorial Hospital phar- macist discovered tampered fentanyl vials when re- stocking a narcotics box. Pet. App. 2. The hospital re- sponded by recalling all the fentanyl from the narcotics boxes. Id. at 2-3. The hospital’s recall investigation identified 57 tampered vials, 54 of which came from MedStar ambulances. Ibid. In January 2015, the hospital began restocking the narcotics boxes with fentanyl. Pet. App. 3. In May 2015, petitioner asked the on-duty pharmacist to check the vials in a narcotics box because “he had heard” that tampering was occurring again and he wanted to ensure he received genuine drugs in his box. Ibid. The phar- macist discovered that the vials had indeed been altered and replaced them with new ones before issuing peti- tioner the box. Ibid. A second recall followed in which 28 tampered vials of fentanyl were discovered, 26 of which came from MedStar ambulances. Ibid. This time, Memorial Hospital undertook a more ex- tensive investigation. It required MedStar to drug-test its employees, and only petitioner tested
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