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Case Law - save on Lexis / WestLaw. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ No. 98-11010 _______________ UNITED STATES OF AMERICA Plaintiff-Appellee, VERSUS PORFIRIO ARMANDO NUŅEZ, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Northern District of Texas _________________________ July 1, 1999 Before SMITH, DeMOSS, and STEWART, A. Circuit Judges. On January 30, 1998, border patrol agents raided a construction site in a housing JERRY E. SMITH, Circuit Judge: subdivision. Seven of the ten workers fled the site, and the agents quickly apprehended six of Porfirio Nuņez appeals his conviction them. The seventh was seen fleeing to the of, and sentence for, resisting arrest by a north. federal officer in violation of 18 U.S.C. § 111. He attacks (1) the admission of character evidence in favor of the arresting officer; (2) the inclusion of an alternative ground for conviction in his jury charge; (3) the application of a thirty-month sentence to his conviction; and (4) the enhancement of his sentence. Concluding that the district court erred in allowing the jury to convict Nuņez of a crime for which he had not been indicted, thereby violating his Fifth Amendment grand jury rights, we reverse conviction and sentence. I. Agent Stephen Thorne gave chase, and feet from the area where Thorne says the a few minutes later the other agents heard struggle occurred. Therefore, Nuņez disputes shots fired. They found Nuņez lying face Thorne's claim that the gun was fired during down, bleeding, at the bottom of a hill, and the struggle and argues that the evidence Thorne sitting next to him. indicates that Thorne shot Nuņez in the back of his leg as he was running away. Thorne testified that he began searching the area to the north of the site and Nuņez also points out that there was found a man, later identified as Nuņez, hiding no trace of gunshot residue on his hands and in a thick brushy area. In Spanish, he told the pants. According to Nuņez's expert witness, man to stop running and to stop moving. this indicates that the weapon was more than Nuņez resisted being handcuffed by flailing his twelve inches away when fired. This evidence arms in a violent motion. After hitting Nuņez further disputes Thorne's claim that the gun with his fist and throwing him to the ground, was fired during the struggle. The Thorne ordered him not to move and called for government's expert witness disagreed, help. however, testifying that the gunshot residue could have been masked by Nuņez's blood and Nuņez then lunged at Thorne and tried that the absence of residue is not conclusive on to grab his semi-automatic pistol. After a brief the question of the distance between Nuņez struggle, Nuņez managed to pull the weapon and the gun at the time of the discharge. from Thorne's holster with his left arm and struck him on the left side of the face. Thorne Finally, Nuņez contests Thorne's claim then bit Nuņez's upper left bicep and grabbed that Nuņez struck Thorne. At his first his left arm to try to get the weapon away examination, Thorne told his treating physician from him. Thorne turned the weapon toward that his injuries had been caused by "rolling in Nunez and discharged three rounds. Thorne the vines." It was only during the second felt his life was in danger and believed Nuņez examination that he told the doctor that he had was going to shoot him. been hit in the face. Similarly, Nuņez points out that in his first day of testimony, Thorne Thorne called again for backup while did not mention being hit by Nuņez. On the pointing the gun toward Nuņez. By this point, second day, Thorne testified that Nuņez had Nunez had moved away from Thorne and had hit him and explained that he had simply fallen down a nearby embankment, leaving a forgotten about this fact on the first day. trail of blood. David Johnson, the agent in charge, was one of the first to arrive at the scene and testified that Thorne told him that Nuņez "just came at me" and "tried to take my gun away." Thorne suffered lacerations on the left side of his face and his hands and legs, caused by falling into some vines, and a bruise on his left cheek caused by a blow from Nuņez. Nuņez offered uncontested evidence that he was shot from behind. The surgeon who operated on him testified that the entry wound was on the back of his upper right thigh, and the bullet passed through a major vein and femoral artery of Nuņez's thigh and caused severe bleeding. The trail of blood began some twelve 2 Nuņez therefore offers this alternate set .40 caliber Beretta semi-automatic," assaulting of facts: After he had problems handcuffing a federal officer, the trial jury was instructed it Nuņez, Thorne became angry and hit Nuņez in also could convict Nuņez of forcibly assaulting the face with the handcuffs. Defending a federal officer without the use of a himself, Nuņez ran off, and Thorne shot Nuņez dangerous weapon. Because the jury from behind. Thorne then chased Nuņez but acquitted Nuņez of the "resisting arrest by fell down the hill and rolled into the vines, means and use of a dangerous weapon" losing his gun and magazines. chargeSSthe only charge specifically alleged in his indictmentSSNuņez now claims that his B. remaining conviction should be vacated A grand jury indicted Nuņez on a because the court impermissibly broadened the single count, charging that, in violation of theory of the indictment in violation of his 18 U.S.C. § 111, he "knowingly and by means Fifth Amendment right to a grand jury and use of a dangerous weapon, that is, a fully indictment.1 We agree.2 loaded .40 caliber Beretta semi-automatic pistol, did forcibly resist, oppose, impede, A. intimidate, and interfere with" a border patrol "Ever since Ex Parte Bain was decided Agent, engaged in his official duties. At trial, in 1887, it has been the rule that after an however, the jury received two instructions. indictment has been returned its charges may The first told the jury that it could convict if it not be broadened through amendment except found Nuņez guilty of resisting arrest by by the grand jury itself." United States v. means and use of a dangerous weapon, as Stirone, 361 U.S. 212, 215-16 (1960) (internal alleged in the indictment. The second citation omitted). Therefore, "a court cannot instructed the jury that it could also convict if permit a defendant to be tried on charges that it found that Nuņez was guilty of "forcibly are not made in the indictment against him." assaulting, resisting, opposing, impeding, Id. We have consistently followed Stirone and intimidating, or interfering with a federal have reversed convictions where "the jury officer," and made no mention of the use of a might have convicted [a] defendant" on new dangerous weapon. elements to the offense not charged by the grand jury. See United States v. Bizzard, The jury acquitted Nuņez in regard to 615 F.2d 1080, 1082 (5th Cir. 1980). the first instruction, finding that he did not, beyond a reasonable doubt, resist arrest by This court has further held that "a means of a dangerous weapon. But the jury constructive amendment of the indictment is a did convict Nuņez on the basis of the second reversible error per se if there has been a instruction, apparently finding that he did modification at trial of the elements of the forcibly resist in some way, though not by crime charged." See United States v. Salinas, means of a dangerous weapon. 601 F.2d 1279, 1290 (5th Cir. 1979). We also, however, have "distinguish[ed] between Nuņez had objected to the inclusion of an expansive reading of the indictment that the second instruction, and after the verdict, he requires reversal and a variance that is a moved for a judgment of acquittal, claiming that the jury should not have been permitted to convict him under a theory not charged in the indictment. He also moved for a new trial 1 "No person shall be held to answer for a based on errors in the admission of Thorne's capital, or otherwise infamous crime, unless on a testimony. The court overruled both motions. presentment or indictment of a Grand Jury. . . ." U.S. CONST. amend. V. II. 2 Because we vacate Nuņez's conviction on Though the grand jury indicted Nuņez Fifth Amendment grounds, we do not reach his for "knowingly and by means and use of a challenge to the admissibility of Thorne's character dangerous weapon, that is, a fully loaded evidence or to the length of his sentence. 3 harmless error." See United States v. Ylda, The Court reversed and held that the 653 F.2d 912, 913 (5th Cir. Unit A Aug. variation between the jury instruction and the 1981).3 "The misconstruction of an indictment indictment "destroyed the defendant's is reversible error if it is possible that the substantial right to be tried only on charges defendant was tried for a crime other than that presented in an indictment returned by the alleged in the indictment." Id. at 914. "If, on grand jury." Stirone, 361 U.S. at 217. the other hand, it is clear that this could not Moreover, even though the statute permitted have been the case, the trial court's refusal to a conviction on a general indictment that did restrict the jury charge to the words of the not specify the type of burden on interstate indictment is merely another of the flaws in the commerce, the Court held that the conviction trial that mar its perfection but do not must rest on the charge specified in the prejudice the defendant." Id. indictment. Id. Following Stirone, Nuņez argues that the grand jury limited the Therefore, while we remain obedient to government to proving that he resisted "by Stirone's commands to scrutinize any means of" Thorne's firearm, despite the fact difference between an indictment and a jury that a broader indictment would have been instruction, we will reverse only if that permissible under the statute. difference allows the defendant to be convicted of a separate crime from the one for which he was indicted. Otherwise, he will have to show how the variance in the language between the jury charge and the indictment so severely prejudiced his defense that it requires reversal under harmless error review.4 B. Nuņez claims that the difference between his indictment and jury instructions is so significant that it allowed the jury to convict him of a crime for which he was not indicted and does not constitute a mere variance subject to harmless error review. Instead, he argues that his case deserves the same strict scrutiny applied in Stirone. There, a defendant was indicted for obstructing the interstate movement of sand in violation of the Hobbs Act, 18 U.S.C. § 1951. The district court allowed a conviction based on a factual finding that the defendant had obstructed a shipment of steel in interstate commerce. 3 See, e.g., United States v. Trice, 823 F.2d 80, 91 (5th Cir. 1987) (holding that reversal is not required if there is no possibility instruction allowed jury to convict for offense different from that charged in indictment). 4 See 24 JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 607.06[1], at 607-41 n.15 (3d ed. 1997) stating that a variance is reviewed under harmless error standard and is not fatal unless it infringes substantial rights). 4 The government distinguishes Stirone In the Salinas indictment, the by reminding us that a constructive defendant was charged with aiding and amendment does not occur in all variances abetting a bank officer in misappropriating between an indictment and jury instruction, but bank funds. During the trial, the bank officer only "when the conviction rested upon a set of was cleared of any connection to the defendant facts distinctly different from that set forth in or to the misappropriation. But the court the indictment." United States v. Young, 730 instructed the jury that it could convict for F.2d 221, 223 (5th Cir. 1984). In Stirone, the aiding and abetting any bank officer. We defendant was convicted of one act reversed. See Salinas, 654 F.2d at 324. (obstructing steel shipments) completely different from the other act alleged in his Nuņez, like the Salinas defendant, was indictment (obstructing sand shipments). But indicted on very specific charge (assaulting an in Young, we affirmed a conviction even officer by means of a firearm) and then though the indictment charged the defendant convicted under a less specific offense with receiving a weapon in interstate (assaulting an officer) that arose out of the commerce. The jury actually convicted him of same factual incident. The jury then acquitted receiving a weapon in foreign commerce. him of the specific crime for which he had Therefore, the government concludes that been indicted. Just as the Salinas district court because the "factual basis for the indictment is gave the jury instructions that allowed them to identical to that for a conviction . . . . it is not convict for any type of fraud, the instructions possible that the defendant has been convicted in this case allowed the jury to convict Nuņez for an offense not charged in the indictment." for almost any kind of assault. This is a See Young, 730 F.2d at 224. different and separate offense that was not charged in the indictment. Thus, we must decide whether the difference between resisting by means of a Thus, though the conviction arose from firearm and resisting without using a firearm is the same factual incident, the difference "factually distinct," as Stirone, or constitutes between the specific details of the indictment a single "factual basis," as in Young. There is and the general jury instruction is too great to a substantial factual difference between survive the requirements of the Fifth resisting arrest using a firearm and doing so Amendment.5 Nuņez was convicted for a without using a firearm. While both charges crime, resisting arrest by any means, for which stem from the same incident, the difference he was not indicted.6 between using and not using a firearm is great enough that it allowed Nuņez to be convicted The government further contends that of a crime for which he had not been indicted. resisting arrest by any means is a lesser- included offense within the meaning of United Simply because the facts leading to the conviction arose out of the same incident does not mean that the defendant was not 5 Accord United States v. Doucet, 994 F.2d impermissibly convicted of a separate crime. 169, 172-73 (5th Cir. 1993) (holding that constructive In United States v. Salinas, 654 F.2d 319, 324 amendment of indictment occurred when defendant was indicted for possession of unregistered assembled (5th Cir. Unit A Aug. 1981), we reversed a machine guns, but prosecutor defined machine gun at conviction even though the defendant had trial and in jury instruction to include possession of been convicted for the same act for which he unassembled machine gun parts). had been indicted. Still, because the jury charge allowed a conviction for committing 6 The government cites United States v. that act in a manner different from that alleged Robles-Vertiz, 155 F.3d 725 (5th Cir. 1998), but the in the indictment, we found a constructive variance in that case is far less significant than the one involved here. Robles-Vertiz involved a drafting error amendment. in which the government used the wrong name to indict the defendant. 5 States v. Miller, 471 U.S. 130 (1985), in allowing conviction for "resisting arrest" is far which the Court upheld a conviction based on more general and broad. a theory that was more narrow than the one set forth in the indictment. "As long as the It is this very type of "broadening" that crime and the elements of the offense that the Miller court refused to endorse. In sustain the conviction are fully and clearly set contrasting its holding to that in Stirone, the out in the indictment, the right to a grand jury Miller court emphasized that in Stirone, the is not normally violated by the fact that the "trial evidence had `amended' the indictment indictment alleges more crimes or other means by broadening the possible bases for of committing the same crime." Miller, conviction from that which appeared in the 471 U.S. at 136. indictment." 471 U.S. at 138. But Nuņez persuasively responds that Finally, the government suggests that Miller endorses only variances that narrow the § 111(b), the provision allowing extra indictment. In Miller, the defendant was punishment for resisting with a firearm, is indicted for insurance fraud for (1) consenting merely a penalty provision. Therefore, it to a burglary and (2) lying to an insurer about asserts that the dangerous weapon allegation is the value of his loss. At trial, however, the not an essential element of the indictment and proof showed only that Miller had lied to the does not restrict the government's theory of insurer and did not support his involvement in conviction. Nuņez is correct, however, in the burglary. The court instructed the jury it stating that Jones v. United States, 119 S. Ct. could convict on the basis of the lying alone. 1215 (1999), forecloses this reading of federal criminal statutes except where statutory The Court found no constructive sections specifically increase punishments for amendment, however, because the indictment prior crimes. See id. at 1226. Jones teaches plainly set out the offense (lying to the insurer) us to avoid encroaching on a defendant's Fifth for which the defendant eventually was Amendment rights by construing statutes convicted. The fact that the indictment alleged setting out separate punishments as creating other offenses "independent of and separate, independent criminal offenses rather unnecessary to the offense on which a than a single criminal offense with different conviction ultimately rests" is not fatal to the punishments. See id. government and may be "treated as surplusage." Miller, 471 U.S. at 137. In Jones, the Court interpreted Therefore, the Court refused to give Miller 18 U.S.C. § 2119, which imposed different relief: "His complaint is not that the indictment punishments depending on the severity of the failed to charge the offense for which he was injuries suffered by victims of a car-jacking, as convicted, but that the indictment charged creating three separate offenses rather than a more than necessary." Id. at 140. single offense with three punishments.7 Likewise, we read 18 U.S.C. § 111 as creating Nuņez rightly argues that the three separate offenses, to-wit, resistance by indictment failed to charge the offense for means of (1) simple assault; (2) more serious which he was convicted. The jury instruction, assaults but not involving a dangerous without specific reference to how he resisted weapon; and (3) assault with a dangerous arrest, impermissibly broadens the indictment to include all sorts of resistance. Unlike the Miller indictment, Nuņez's indictment did not 7 Title 18 U.S.C. § 2119 provides that when allege two different offenses, one of which was a person takes a motor vehicle by force and while rejected by the trial jury. Rather, Nuņez's possessing a firearm, the punishments shall be (1) not single-count indictment alleged a single more than 15 years if the victim suffered no serious offense: "resisting arrest by means of a bodily injury; (2) not more than 25 years if the victim suffers serious bodily injury; and (3) not more than life firearm." This is a specific and narrow imprisonment if the victim dies as a result of the car- accusation, and the later jury instruction jacking. 6 weapon. The government chose to indict Nuņez for resistance by means of assault with a dangerous weapon, and it is not permitted to shift its theory of the case to a separate, independent criminal offense without obtaining a separate indictment. Jones confirms our view that allowing the jury to convict Nuņez of forcibly resisting without the use of a dangerous weapon is a conviction "of an offense not charged in the indictment." Stirone, 361 U.S. at 213. The conviction and sentence are REVERSED. 7 |
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