Conviction Rev'd Because Indictment Constructively Amended

United States v. Farr, ___ F.3d ___, 2008 WL 3843336 (10th Cir. 2008)
The COA finds that during trial the government constructively amended the indictment against Defendant in a employment tax fraud case, charging her in the indictment as an employer/individual, but having the charge amended to a charge against her as an employer/business, when D defended in closing that the case had not been proved against her as an individual. The COA said the amendment resulted in Defendant being tried not just for the crime described in the indictment but also for a separate and additional offense. Under the Fifth Amendment, the government may only proceed on a crime found by a grand jury. In reversing and remanding the case, the COA finds that nevertheless there was sufficient evidence to convict her “and thus no double jeopardy impediment exists to her retrial under a properly framed indictment.”