Background
A jury convicted Tavaryyuan Johnson of participating in a Columbus drug-trafficking conspiracy and possessing drugs with intent to distribute. The government’s evidence included heroin and cocaine recovered from Johnson’s car, drugs and other contraband found at his residence, and drugs, guns, cash, and Johnson’s personal documents found in a safe at his grandmother’s home.
Count Two originally alleged that Johnson possessed at least 100 grams of heroin and at least 280 grams of cocaine base found in his car. At trial, testing showed that all but 0.5 grams of the cocaine substance was powder cocaine. Over Johnson’s opposition, the district court formally amended Count Two to substitute cocaine for cocaine base. The jury convicted Johnson on four counts, and the district court imposed concurrent 200-month prison terms.
The Court’s Holding
The Sixth Circuit vacated the Count Two conviction. A panel majority held that Johnson preserved his objection by opposing the amendment and invoking Federal Rule of Criminal Procedure 7. Reviewing de novo, the majority concluded that formally changing the indictment’s text constituted an actual amendment, not merely a variance. Because the substituted cocaine allegation had not been presented to the grand jury, the amendment violated the Fifth Amendment’s Presentment Clause and required reversal without a separate showing of prejudice.
The court rejected the government’s argument that the change was merely one of form, as well as its contention that the jury’s independent finding concerning the heroin cured the violation. The government could have sought to strike unnecessary language, but it instead obtained a formal alteration adding a charge not approved by the grand jury. The court affirmed the remainder of the judgment, including the denial of Johnson’s suppression motions, the admission of his grandmother’s statement, and the conspiracy conviction, and remanded for further proceedings.
Key Takeaways
- A prosecutor may not formally change the substantive charging language of a federal indictment without returning to the grand jury, unless the change is merely clerical or typographical.
- An actual textual amendment is per se prejudicial in the Sixth Circuit, even when the amended language benefits the defendant or another allegation independently supports guilt.
- The searches of Johnson’s car and the two residences did not warrant suppression: the car search complied with inventory-search requirements, officers relied in good faith on the warrant for Johnson’s home, and probable cause supported the warrant for his grandmother’s home.
Why It Matters
The decision reinforces a bright-line distinction between an actual amendment, which changes an indictment’s text and requires reversal, and a variance, which concerns a difference between the indictment and the trial proof. The government cannot avoid the grand-jury requirement by characterizing a formally substituted drug allegation as ancillary or favorable to the accused.
The opinion also illustrates a safer procedural option when trial evidence fails to support part of a charge: unnecessary allegations may sometimes be stricken as surplusage, but prosecutors and courts may not replace them with new charging language that the grand jury never approved.