United States v. Crocker

Opinion OF THE COURT GIBBONS, Circuit Judge. This is an appeal from a judgment of sentence following a conviction on one count of a two-count indictment for knowingly making false declarations before a grand jury in violation of 18 U.S.C. § 1623. Appellant Frankie Crocker asserts several grounds for reversing the lower court's judgment. First, he contends that the indictment must be dismissed because the prosecutor failed to warn him that he was a target of the grand jury investigation, because his allegedly perjurious answers were not material as a matter of law, or because the indictment did not sufficiently allege the materiality of the untruthful answers. Second, the appellant contends that he is entitled to a new trial because the admission of evidence of other crimes amounted to a constructive amendment of the indictment. Third, he argues that his sixth amendment right of confrontation was violated by the district court's order precluding the use of a tape recorded interview of one of the government's witnesses. Finally, he contends that the evidence was insufficient to support the conviction. Although we reject appellant's other contentions, we agree that the district court's admission of evidence of other crimes amounted to a constructive amendment of the indictment. Consequently, we hold that there must be a new trial.