United States v. Mann, 786 F.3d 1244

Background

Late-night on July 23–24, 2010, Clay O’Brien Mann threw a large firework onto neighbors’ bonfire, then fired a rifle across the fence, wounding Paula Nez and others and killing Ames Jim. Mann admitted in an FBI interview that he fired nine shots.
A federal grand jury indicted Mann on eight counts, including assault resulting in serious bodily injury (Count 4) and a § 924(c)(1)(A)(iii) firearm count alleging he “knowingly discharge[d]” a firearm “during and in relation to” that assault (Count 5).
At trial the district court convicted Mann on Count 4 and Count 5; Mann did not object to the jury instructions that omitted any requirement that the jury find a “knowing” or “in relation to” discharge beyond a reasonable doubt.
After verdict the district court granted plain-error review on a post-trial Alleyne claim (jury not asked to find “discharge” beyond a reasonable doubt), found the Alleyne error plain but harmless due to overwhelming evidence of discharge, and sentenced Mann to a consecutive 120-month term under § 924(c)(1)(A)(iii).
On appeal Mann argued for the first time that by not instructing the jury on the charged language the court constructively amended the indictment (violating Fifth and Sixth Amendment principles), requiring reversal; the Tenth Circuit rejected that claim.

Issues

Issue	Plaintiff's Argument (Mann)	Defendant's Argument (Government)	Held
Whether the district court constructively amended the indictment by failing to instruct the jury that it must find Mann “knowingly discharged” the firearm “in relation to” the assault	The omission converted the indictment into a broader offense than the jury was asked to decide; that was plain error requiring reversal	The charged language was surplusage beyond the statutory elements; omission did not broaden the offense or prejudice Mann	Court held no constructive amendment; charged-but-omitted language was surplusage and not error requiring reversal
Whether Alleyne required the jury to find “discharge” beyond a reasonable doubt and whether failure to so instruct was reversible error	Alleyne requires jury finding of facts that increase mandatory minimums, so omission was error	Alleyne error occurred but was harmless because overwhelming evidence established discharge	Court affirmed district court: Alleyne error deemed harmless beyond a reasonable doubt
Whether Dean and other Supreme Court precedent make “knowing” or “in relation to” elements of § 924(c)(1)(A)(iii)	Mann argued jury should have been instructed that discharge be both knowing and in relation to the crime	Government and precedent (Dean) show statute does not require discharge to be knowing or for “in relation to” to modify discharge	Court held Dean forecloses treating “knowingly” or “in relation to” as elements of the discharge enhancement
Whether Ex parte Bain and Stirone bar treating surplus indictment language as harmless when omitted at trial	Mann relied on Bain/Stirone to say surplus language cannot be ignored and that striking it is a constructive amendment	Government relied on later Supreme Court decisions (Miller) limiting Bain and permitting courts to ignore surplusage	Court held Miller and later precedents limit Bain; ignoring surplus, unnecessary allegations does not constitute constructive amendment

Key Cases Cited

Alleyne v. United States, 133 S. Ct. 2151 (Sup. Ct. 2013) (facts that increase mandatory minimums must be found by a jury beyond a reasonable doubt)
Dean v. United States, 556 U.S. 568 (Sup. Ct. 2009) (§ 924(c)(1)(A)(iii) does not require the discharge be intentional or that ‘in relation to’ modify discharge)
United States v. Miller, 471 U.S. 130 (Sup. Ct. 1985) (limits Ex parte Bain; courts may ignore surplusage in indictments without invalidating remaining charge)
Stirone v. United States, 361 U.S. 212 (Sup. Ct. 1960) (government cannot broaden the substantive offense at trial beyond the indictment)
Ex parte Bain, 121 U.S. 1 (1887) (historical rule against striking unnecessary language from indictments; later limited by Miller)
Washington v. Recuenco, 548 U.S. 212 (Sup. Ct. 2006) (harmless-error review applies to a judge’s failure to submit an element to the jury)