United States v. Thomas McDill, Jr.
2017 U.S. App. LEXIS 17859
| 8th Cir. | 2017Background
- Thomas McDill, pro se, received two Forest Service citations under 36 C.F.R. § 261.3(c) after confrontations with Forest Service employees (Hudson and Lipp) about permits and forest debris; citations described offenses as "interfering" and "harassment + interference."
- Encounters: McDill sought information at district offices and a safety meeting; employees testified he used an aggressive tone, leaned into personal space, and made statements perceived as threatening or intimidating.
- Forest Service law enforcement (Nelson) issued two citations and told McDill to avoid contact with employees while his FOIA request was processed.
- McDill was tried by bench before a magistrate judge, convicted on both counts, fined, and his appeal to the district court was denied; he then appealed to the Eighth Circuit (counsel later appointed for appeal).
- The government’s trial theory emphasized that McDill intimidated and threatened officers; the citations’ written descriptions emphasized "interference/harassment."
- The Eighth Circuit majority reversed, holding the convictions rested on a theory (intimidation/threat) different from the citations’ offense descriptions (interference/harassment), producing a constructive amendment and plain error; the court also held sufficient evidence supported a conviction based on intimidation and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conviction rested on a constructive amendment of the charged offense | Government argued McDill intimidated/threatened officers; verdict consistent with that theory | McDill relied on citation wording (interference/harassment) in defense and was deprived of notice | Reversed: constructive amendment occurred; verdict rested on intimidation/threat theory not specified in citation, plain error requiring reversal |
| Standard of review for unraised challenge (plain error) | N/A (government) | McDill forfeited issue by not raising it earlier | Court applied plain-error review and found all prongs satisfied |
| Whether evidence was sufficient under the theory actually relied on (intimidation) | Government: testimony showed objective intimidation; sufficient for conviction | McDill: lacked intent to intimidate; conduct not objectively threatening | Court: sufficient evidence supported conviction on intimidation theory, so retrial permitted; reversal does not bar retrial |
| Whether § 261.3(c) requires mens rea (Elonis issue) | Government: regulation and agency rule do not require specific intent; objective standard suffices | McDill: Elonis requires scienter for threats/intimidation; insufficient proof of intent | Court: acknowledged Elonis issue but found sufficient evidence of intent here; did not resolve necessity of mens rea for the regulation |
Key Cases Cited
- United States v. Novak, 217 F.3d 566 (8th Cir.) (definition and effect of a constructive amendment)
- United States v. Stuckey, 220 F.3d 976 (8th Cir.) (distinguishing constructive amendment from variance)
- United States v. Lara-Ruiz, 681 F.3d 914 (8th Cir.) (plain-error framework applied to unpreserved claims)
- United States v. Olano, 507 U.S. 725 (Sup. Ct.) (elements of plain-error review)
- Griffin v. United States, 502 U.S. 46 (Sup. Ct.) (general verdicts in bench trials must be set aside if they may rest on invalid grounds)
- Elonis v. United States, 575 U.S. 723 (Sup. Ct.) (mens rea principles when statutes are silent on required mental state)
- United States v. Farr, 536 F.3d 1174 (10th Cir.) (consequences of reversing a conviction and retrial permissibility)
- United States v. Yockel, 320 F.3d 818 (8th Cir.) (objective standard for "intimidation")