United States v. Budd

еvidence together strong is corrobo- ban view, could not “instantane- my In one relationship nature with each other. incriminating rating their ously diseern[]” written on Accordingly, agree calculations I that the use mathematical One Maj. Op. at 511. paper. invoices to estab- piece Transportation Cheetah the document need to read would still linkage between Garcia Irwin lish that there were numbers know order to error. was harmless ex- those numbers paper Next the thoughts. mathematical pressed what to think about would need

reader Only might represent.

those numbers conclu- arrive at the reader

then would incrimina- is of an the document

sion that Thus, like the

ting documents nature. letters, the through conveying information America, UNITED STATES convey- nature of documents incriminating Plaintiff-Appellee, through numbers ing information my immediately apparent. opinion, acknowledged fact Officer Fowler BUDD, Defendant- Michael J. is not out- these documents he “examined” Appellant. rather, determinative, expresses but come order to No. 05-4098. anyone would have to do in what of such incriminating nature ascertain Appeals, Court of documents. Sixth Circuit. PART II.B.2.b: HARMLESS- III. 15, 2007. Argued: March ERROR ANALYSIS Aug. Filed: Decided and majority’s Although agree I empha- I analysis, would harmless-error that, been in and Irwin nоt

size had Garcia bust, drug at the together

the Suburban have question would

the harmless-error government call. The much closer

been a Irwin, testimony of Dale

pointed Nombrano, Rickey Nombrano

Oscar that admission of its contention support Transportation invoices

of the Cheetah But these witnesses error. harmless conspiracy drug involved

were all in ex- favorable treatment

and received Ap- cooperation. Joint

change for their Test, (Irwin (“J.A.”) at

pendix at 2377-78 (Oscar Nombrano

14-15); at 1922 J.A.

Test, 151); (Rickey J.A. Test, arguably This Nombrano credibility of these wit-

undermined the jury. The fact minds of the

nesses Subur- and Irwin were

that Garcia McKEAGUE,

Before: COOK and EDGAR, Judges; Circuit Judge.* District McKEAGUE, J., opinion delivered the court, EDGAR, J., in which D. COOK, 533-37), joined. (pp. J. delivered separate dissenting opinion.

OPINION McKEAGUE, Judge. Circuit appeals Michael J. Budd his conviction of one count conspiracy of and three depriving counts of another of constitution- al rights under color of law. For the below, reasons set forth we affirm.

I. BACKGROUND Budd, A grand jury indicted once sec- Mahoning County, ond-in-command of the Department, Ohio Sheriffs on four counts alleged related to his use excessive force against pretrial inmates and detainees in custody. charged his Count 1 conspiracy to commit against offense the United § States in violation of 18 U.S.C. and (1) object listed two depriving offenses: Easterly Tawhon of his constitutional rights under color of law violation of 18 242; (2) § U.S.C. and tampering, witness 1512(b)(2). § violation of 18 U.S.C. 4 respectively Counts and (a Budd with depriving Easterly pretrial (a detainee), Brandon Moore sentenced in- mate), (a Stephen Blazo pretrial de- tainee) of their constitutional under Rucci, Poland, ARGUED: Sebastian law, color of in violation of 18 U.S.C. Ohio, Friel, Appellant. Gregory for B. trial, § 242. In Budd’s first con- Department Justice, United States victed him on Count but deadlocked on D.C., Washington, Appellee. for ON the other counts. The court entered the Rucci, Poland, Ohio, BRIEF: Sebastian conviction on Count declared mis- Friel, for Appellant. Gregory B. United trial on the other Upon counts. retrial of Justice, Department States Washington, 4,1 Counts Budd was convicted on D.C., Appellee. each. appeals. He now * trial, Edgar, The Honorable R. Allan Senior In the second the court redacted the (the conspiracy count Judge former Count 1 for States District for the Eastern District convicted), already which Budd was Tennessee, and re- sitting by designation. numbered the substantive counts as Counts 270, 4 AMENDMENT II. CONSTRUCTIVE (1960)). actual and con Both CHARGE TO MOORE per amendments are considered structive using exces was convicted of prejudicial se and are reversible error. Moore inmate Brandon force sive Prince, 214 F.3d at 757. ar 242. Budd of 18 U.S.C. in violation referred the indictment gues Variances, contrast, that because are not Amendment basis for a Fourteenth prejudicial. Generally speaking, per se force, while to be free from excessive right charging when the a variance “occurs an referred to instructions unchanged, are indictment] terms [of the indict right, for the Amendment basis mate proves but the evidence at trial facts re constructively amended. We ment was alleged rially different from those amend (alteration of whether an question view Id. at 756-57 indictment.” omitted) occurred de novo. (internal or a variance ment quotations original) Prince, 214 F.3d Flowal, United States 163 F.3d (quoting United States Cir.2000) v. Flo (6th Cir.1998)). However, as this (6th Cir.1998)). wal, court observed United States Chilin (6th Cir.2002) girian, sub An be the indictment (vacated by Supreme and remanded the amendment, a construc ject of an actual in light for reconsideration of Book Court amendment, An actual a variance. tive or er), between a variance “the distinction prosecutor occurs when amendment amendment is a constructive actually changes the text of the indictment. sketchy_”2 Kassulke, 970 (citing Id. at 757 Martin (6th Cir.1992)). By con 1542 F.2d by is created complication One trast, law, that, Circuit “[i]f the fact under Sixth results constructivе [a] infringes strongly upon a too variance of an indictment are when the terms right to be defendant’s Sixth of evi- by presentation effect altered and cause of the informed of the nature jury instructions which so dence and accusation, is a the variance considered ” of the offense modify essential elements Prince, 214 amendment.’ ‘constructive a likeli- charged that there is substantial Martin, 970 F.2d at F.3d at may have been hood that the defendant 1542). Thus, in some cases is a variance than the of an offense other convicted a in kind from constructive not different indictment. one if it amendment, merely degree; but Smith, a constructive enough, becomes F.3d 656 serious States v. United Cir.2003) of a con (6th “To obtain reversal amendment.3 (citing Stirone United confusion, Supreme prece application of Court parties’ fines the and 3. To avoid situations; and, though our particular dent in counts as in the briefs number the substantive easy is, may precedent area not be 4—and in this as Counts first trial—-that follow, obliged are to do so. we nevertheless will the same. we do 206(c). 6th Cir. R. See majority's de- complains The dissent logically disparages this fact as 3. Thе dissent this court’s "inscrutable” cision to follow flawed, part of misapprehension on the and a regarding between a precedent the distinction language "resulting] majority from loose amendment. variance and constructive However, However, at 536. suggestion, past cases.” contrary to the dissent's Infra rule, legal appealing as a not it is Supreme whether or precedent not contradict does clearly held published cases have subject, only de- this court’s but Court case law on of a variance viction because between the whether” the offense by [i]s described produced indictment and the evidence at by indictment and the one described trial, satisfy two-prong a defendant must jury instructions are “two alternative (1) test: the variance must be demonstrat- merely crimes or two alternative methods (2) ed the variance must affect some by which the one crime ... could have (cit- right substantial defendant.” Id. Prince, been committed.” F.3d Maliszewski, ing 161 F.3d Martin, (quoting 970 F.2d at The (6th Cir.1998)); see also United explained Sixth Circuit first this distinc (6th Hynes, States v. 467 F.3d Kassulke, tion in Martin v. 970 F.2d Suarez, Cir.2006); States v. United (6th Cir.1992), in which the defen (6th Cir.2001); Prince, 214 dant was first-degree rape. convicted of 757; Manning, United States v. law, Kentucky Under first-degree rape “ (6th Cir.1998); consists of either ‘sexual intercourse with ” Ford, States v. person by another forcible compulsion,’ “ Cir.1989). ‘sexual per intercourse with another son who is incapable of consent because he In Hynes, this court offered one manner physically helpless; [i]s or [i]s less distinguishing between constructive years than twelve old.’” Id. at 1541-42 amendment and a variance that be- 510.040). (quoting Ky.Rev.Stat. § in come a by constructive amendment reason dictment stated that the defendant rights: its effect on substantial “com “defen- mitted the by dants can offense of RAPE IN THE referring establish variance exclusively FIRST DEGREE presented knowingly the evidence and un trial, lawfully engaging but cannot demonstrate a construc- sexual intercourse tive per prejudi- [the amendment —which is se forcible compulsion victim] proof cial—without that and further important causing the said [victim] serious physical injury.” functions of an jury indictment were under- ‍‌‌​​‌‌​​‌‌​​​​‌​​‌‌‌​‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌​​‌​‌​‍Id. at 1542. The by mined both the was instructed presented evidence to find the defendant guilty “if, if, jury only you instructions.” 467 F.3d at 962. believe from the evi “[ojnce beyond This reflects the rule that dence the in- reasonable doubt” that the presents engaged dictment a factual defendant basis for an sexual intercourse crime, element prosecution may of a the victim and he did so “[t]hat forcible proof compulsion, rest its of that element of [t]hat OR [the victim] incapable crime at trial was on other facts.” of consent because she was Caldwell, 898, physically helpless.” States v. 176 F.3d 902 Cir.1999). The Martin court first noted that there

However, a different op distinction awas variance jury between the instruc- erates cases in which the indictment, difference tions and the jury as “[t]he between indictment and instructions instruction ... possibility mentions the offense, is not the facts of the but the that incapable [the victim] was of consent legal theory. “‘key question’ in de because of physical helplessness, a possi- termining whether case bility [such a] involve[s] that had not been mentioned a variance or a constructive amendment rejected indictment.” Id. The court 468, (6th Cir.2001); Prince,

that a variance can become a constructive F.3d 478 214 757; amendment reason of its Manning, seriousness. F.3d at United States v. 142 951, Hynes, (6th Cir.1998); United States v. 962 339 United States v. (6th Cir.2006); Suarez, Ford, (6th Cir.1989). United States v. correspond ty Aсt should be understood to pro- that “the due argument defendant’s crime”); “generic definition [the] of criminal to clear notice right cess States, 575, 595, Taylor v. United U.S. fourteenth by the charges guaranteed (1990) (in L.Ed.2d 110 S.Ct. the exact includes notice of Act, made no at- “Congress the Travel were the criminal actions by which method statutory tempt to define the term ‘brib- committed,” and held to have been alleged ery,’ accepted contempo- but relied on the rary meaning”) (quoting Perrin v. United ... Kentucky rape provides statute States, rape with two differ- only one offense (1979)); Moore v. United [The methods of commission.... ent all kinds drafted to define statute] (1895) (supplying common-law L.Ed. 422 by whatever mode or rape, of forcible larceny definitions of embezzlement and no differ- actually “It makes method. which the terms for a federal statute used law, victim, the' nor even ence to the them). but did not define act, defendant, how he committed pro- that is defined and is the violation recognized The Suarez court hibited.” appears “defendant to have demonstrated of a variance. The indict- the existence (citation omitted) Id. at 1545-46 deceрtion much of Suarez’s ment makes State, 278 Ark. (quoting Clayborn conversion, constituting ... the act of (1983) (Hickman, J, 647 S.W.2d nothing make while the instructions court therefore dissenting)). The Martin Thus, the indictment it.” 263 F.3d grant court’s of a writ the district reversed obtained the indicated that the defendant corpus. Id. at 1547. of habeas trick; larceny by property through Suarez, in This court followed Martin instructions conversion “describ[ed] defendant, offi police a former which the thereby “may opened have generally,” cer, converting “victim was convicted for jury’s mind that up possibility money his own benefit” restitution accomplished by some- the conversion was 666(a)(1). of 18 U.S.C. violation It to embezzlement. thing more akin provides at 471-72. That statute they did find this was arguable even being agent an of an that “[w]hoever did, acquitted of since he was what Suarez or [including government a organization However, laundering.” Id. at 479. money steals, embezzles, ... government agency] held, statute, embez- the court “under fraud, without au or otherwise obtains to the a crime alternative zlement is not property ... thority knowingly converts a num- simply another of charged, one but care, under the by, ... is owned or is knowing conversion.” types ber of of organization, control of such custody, or defense held that “Suarez’s The court fined or agency” or shall be government, law, not, case have been under our would or both. 18 U.S.C. imprisoned, variance,” affirmed by the and prejudiced 666(a)(1). does not define § The statute the conviction. Id. embezzlement, theft, fraud; or the defini cases, court must In other Sixth Circuit offenses therefore tions of these in the that the offense described state or fed has held from another source of come that described indictment and v. Duenas-Alva eral law. See Gonzales — offenses, not 815, 818, 822, are two different rez, U.S. -, instructions offense, (2007) committing one that “theft two methods (holding amend- that a constructive and therefore Immigration in and Nationali- offense” loss, ing ment occurred. Budd cites United States the victims with economic while (6th Combs, Cir.2004), additionally the evidence showed extortion violence; through physical in was indicted for threats of which the defendant conjunc- firearms in district court instructed possession unlawful drug trafficking tion with a offense. The could return a conviction based on either drawn, theory. in somewhat Id. at instructions were 719. This court fashion, disorganized from both the defini- stated that “when one means of extortion charged, a “possession” tions of and “use” of a conviction must rest on that another, charge at 935. Both firearm. 369 F.3d offenses and even if it is as- statute, prohibited by are the same which sumed that under an indictment in drawn provides punishment “any person general for terms a conviction might rest who, any during upon showing and relation to crime of of either form of extor- Thus, ... drug trafficking violence or crime tion.” Id. at 719. the court held person may prosecuted which the be in a that the introduction of evidence that the States, court of the uses or defendant through United carries committed extortion firearm, who, physical together furtherance of violence with the district crime, such possesses firearm.” 18 court’s instruction that the defendant 924(c)(1)(A) added). (emphasis theory U.S.C. could be convicted on that consti- tuted a constructive amendment. Id. at possession court held that Combs 718-19. use, though defined the same sub- paragraph, were different case, two offenses. It In this the indictment reads in (1) based this decision on the fact that the part, relevant separates statute the offenses with an [Defendant herein and others known “or”; (2) legislative the fact that the histo- and unknown to Jury, the Grand while ry indicated that the “in furtherance of’ acting under color of the laws of the language applied possession offense Ohio, State of aiding and while and abet- (3) offense; but not the use the fact other, ting each did use and cause to be that use involves different conduct than Moore, used excessive force on Brandon possession. 369 F.3d at 932-33. The judi- detainee the Courthouse of a impermissi- therefore held that “an proceeding, cial resulting bodily inju- ble amendment of the indictment oc- ry, thereby willfully depriving him of curred.” Id. at 936. privileges pro- secured and tected the Constitution and the laws

Budd also cites United States v. Cusma right to wit: the no, Cir.1981), Due Process of law under the Constitu- which the defendant was indicted for a tion, which includes right to be free violation of the Hobbs Act. One element of from excessive force amounting pun- that offense is extortion. Id. at 719. Ex by ishment acting one under color of by tortion threat be of economic loss law. by physical or threat of harm. Id. at 715. specified indictment the defen All in violation of Title

dant by Code, had committed extortion threaten- States Sections 242 and 2. law, victim, holding clearly 4. This is in tension with the no difference to the the nor even holding defendant, in Martin. 970 F.2d at act, 1545-46 the how he committed the it is Cf. ("[T]he Kentucky rape provides ... statute prohibit- violation that is defined and only rape one offense of with two different ") (citations omitted). ed.' actually methods of commission.... 'It makes jury and the instructions jury The indictment The relevant instruc at 7. Indictment actions, they specify describe the same gov “The first element provides, tion statute, an offense the same conduct of is that the prove must ernment prohibits person § which act- U.S.C. ... Brandon deprived defendant] [the “subject[ing] law” from ing “under color of by rights ... or secured right of a Moore any person deprivation ... of the United or laws of the Constitution or immunities secured or rights, privileges, ... those Among [is] States.... or protected by the Constitution laws of free from right Amendment to be Eighth However, by their United States.” Tran punishment.” and unusual cruel of respective citation Fourteenth Amend- The instructions also script at 969-70. Eighth ment and Amendment restrictions Amendment Eighth explained “[t]he force, they refer tо of the use of excessive inmates like Brandon provides [that] different standards under which a violation Moore, for a who have been sentenced Therefore, § 242 of “ can be evaluated. crime, subject possess right not to be ... ‘key question’ whether the [is] infliction of unnecessary and wanton and evidence introduced anoth- instruction 972; Whitley Transcript at see also pain.” by or an ‘alternative method [] er crime Albers, v. crime ... could have been which the one (1986) (holding that “an L.Ed.2d 251 ” (sec- Suarez, F.3d at 478 committed.’ allege Amendment claimant Eighth [must] Prince, in original) (quoting ond alteration unnecessary and wanton infliction of “ applied ‘force was pain,” allege or case, although ques- a close In this maliciously sadistically ... for the cases, tion, it seems prior based on our ”) causing (quoting harm’ very purpose reasonable to conclude that Four- most (2d Glick, Johnson Amend- teenth Amendment Cir.1973)). force standards describe ment excessive prison was a convicted Brandon Moore by methods which one two alternative the mistreatment er at the time of committed, than two crime could be rather Thus, as the which Budd was convicted. the indict- crimes. The variance between correctly explained, his jury instructions here is instructions ment and from excessive force de right to be free Suarez, analogous to that which most Eighth Amendment. rives from the conviction, conversion the offense Cir. Phelps Coy, receiving federal organization funds of an 2002) Connor, (quoting Graham of 18 U.S.C. in violation benefits 395 n. 666(a)(1), incorporated as an element (1989)). The standard namely, state content of other laws— violating, Budd of “the funds, indictment accuses against conversion federal laws ..., right to Due Process of law which variety legal In Sua- under a theories. free from excessive right rez, includes the to be that the indictment indicated the fact punishment,” is the amounting force had been effected that the conversion detainee, trick, to a instruc- applicable pretrial larceny by standard while the (“[T]he if conversion permitted Moore not. conviction which tions embezzlement, ‘Due Process accomplished had been Fourteenth so al- only from a variance. This is pretrial detainee entailed protects Clause different the two theories involved though force that amounts to the use of excessive formed ”) Graham, defendant had times at which the (quoting 490 U.S. punishment.’ the funds to his to convert the intention n. at 395 S.Ct. use,5 simply part because these were two meth- on the fact that the two offenses were statute, explicitly sepa- set forth in the and committing ods of the one crime of conver- rated the word “or.” 369 F.3d at 931. Likewise, case, sion of in funds. this Combs, In both Cusmano and this court indictment and the instructions ad- focused on the fact that proof at trial violating of in dress methods the statute showed different offense conduct than that question that legal rest different rules: in alleged the indictment. 369 F.3d at See case, in rights, this different constitutional case, 659 F.2d at 719. In this Suarez, in different common-law con- government present did not evidence of version offenses. alleged different offense conduct than that distinguishable The situation here is also Though proceed- the indictment. cites,6 from that cases ings grand jury part before the are not of which this court held there existed two the record on appeal, petit jury, before the offenses, rather than different two differ- government testimony offered the ent methods. Neither Cusmаno nor Deputies Brandon Moore and of Sam Oli- Combs addressed a situation wherein the Jeffrey Tinkey prove ver and charge definition a statutory depen- offense is of use of excessive force Moore. fact, dent on the content of other In law. 66-75, 100-09, Transcript See 115-24. Combs, the court based its testimony decision This simply consisted of a de- "Larceny 924(c) 5. trick” is committed a § when "There can be no doubt that acquires possession 924(o) by telling thief of an charge § item different offenses. Each rightful its owner that "he intended to use it requires proof statute levels different as to purpose for one when in he fact intended” to And, notably, conduct and mens rea. most keep keep it proceeds.” or "to sell it and statutory provisions signifi- these two call for States, 356, 359, Bell v. United 462 U.S. cantly statutory penalties, different which un- (1983). By 76 L.Ed.2d 638 con [v. der Jones United trast, embezzlement occurs when the thief (1999),] ‍‌‌​​‌‌​​‌‌​​​​‌​​‌‌‌​‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌​​‌​‌​‍makes possession property first comes into them different offenses.” 279 F.3d at 409. In legitimately, and "the fraudulent intent oc case, question there is no of different curs later and the defendant [then] converts statutory penalties for excessive forсe under Oklahoma, property.” Skinner v. Amendment and the Fourteenth 86 L.Ed. 1655 Amendment. (1942). particular a larceny "Whether act is (6th Jago, In Watson v. 558 F.2d 330 Cir. by [trick] or embezzlement thus turns ... on 1977), the indictment the defendant when the felonious intent arose....” Id. first-degree premedita with murder under a theory. tion Id. at 331. The instructions 6. finding Other Sixth Circuit cases a con- indictment, charge mirrored the but the structive amendment based on the existence prosecution offered at trial evidence of first- of two distinguishable. offenses are also degree felony theory. murder under a murder Stubbs, United States v. 279 F.3d 402 Though types Id. at Cir.2002), the two of first- pled guilty the defendant ato viola- degree prohibited by murder were 924(o), the same § tion of prohibits 18 U.S.C. which statute, Ohio case law conspiracy held that the two were possess a firearm in connection different drug trafficking offenses. Id. at 334-35 Ohio offense or a crime of However, Ferguson, sentencing, violence. 175 Ohio St. 195 N.E.2d district (1964)). Therefore, appropriate selected an the Watson court held sentence based constructively on the that the indictment conclusion that the had been defendant had ac- However, 924(c). case, tually § violаted amended. Id. at That in that subsection possession criminalizes the the court did not make a firearm in determination that conjunction premeditated felony with a crime of violence or a murder and murder were crime, rather, drug trafficking offenses; provides two different simply fol sentence, minimum rather ruling than maximum. lowed a state court to that effect. The 924(c)(1)(A). held, holding The Stubbs court helpful therefore is not here.

527 III. AMENDMENT words and CONSTRUCTIVE Budd’s and Moore’s scription of incident; prosecutor TO EASTERLY CHARGE during the actions from the witnesses carefully prevented Liability Conspirator A. Instruction or intent. to Budd’s motives as speculating trial, charged Count 1 the first (“No, not what his at 117 Transcript See in a to participation conspiracy Budd with your about observa- were. What reasons Easterly’s rights, constitutional violate ”). how the to see .... It is difficult tions charged 2 Budd with the substan Count regarding evidence government’s Easterly’s violating consti tive' offense way different from what was in charge rights. jury The convicted on the tutional Moore been have been had it would but deadlocked on conspiracy, Count protection entitled to the pretrial detainee (as well as on the substantive Count Amendment. of the Fourteenth 3 and At retrial on offenses Counts lan- Thus, Amendment the Fourteenth offenses, the court in the substantive indictment and the in the guage liability co-conspirator structed instruc- language States, v. under Pinkerton United methods of two different tions describe 90 L.Ed. 1489 66 S.Ct. crime, the differ- the same committing (1946), that a which holds defendant merely a variance. Budd does ence is they if co-conspirator’s for a crimes liable his variance affected argue that the even foreseeably committed furtherance are right other than the rights,” “substantial conspiracy. argues that this only of an offense which be convicted amounted to a constructive instruction aby grand considered previously had been amendment, theory by in on the by a implicated is not jury, right which theory structing conspiracy on a Rather, a vari- in the case of variance. Pinkerton, district liability under ance, rights occurs prejudice to substantial constructively amended the violation present if the defendant is not “enabled charge (dupli- to a of constitutional by surprise taken and not be his defense cative) charge. As noted conspiracy trial,” оr is not offered at by the evidence above, question we review de novo prosecution another “protected amendment oc a constructive whether Berger v. United the same offense.” curred. Martin, majority of have held (1935); circuits see also L.Ed. 1314 Ford, a Pinkerton 1546-47; give courts F.2d at 1235. that district F.2d at liability for a co-conspirator instruction Budd was convicted The actions for which theories, and, charge, even for a defendant substantive the same under both were conspiracy. above, has not been prosecution presented who discussed Lopez, presented have for a United States proof it would not no (3d Cir.2001); United States violation. Budd’s Fourteenth Amendment Cir.1993) (“We Macey, thus could not ability present a defense is not essen long recognized ‘[i]t have reasonably been undermined have separate tial that the indictment contain that he change; suggestion and there is no to take charging conspiracy order jeopardy. count subjected be to double could to con advantage peculiar of the doctrines Therefore, prej- cause the variance did not ”) v. Wil United States spiracy.’ (quoting and did rights, substantial udice to Budd’s (7th Cir.1974)); son, to the level of a constructive not rise Jackson, severity. by reason of its 528 (D.C.Cir.1980) charges viction on the substantive based (“Experienced

1216-17 id. and counsel that non-existent See prosecutors conspiracy. alert court a Pinkerton theory] they relying case, however, are on [a there was are only substantive crimes cases where conspiracy evidence that a exist- sufficient they pro are charged by announcing ed; fact, conspir- convicted of Budd was Davis theory.”); ceeding conspiracy on a acy in trial. It not the first the ab- v. United conspiracy charge sence of a led this Cir.1926) (“Although conspiracy be not in Henning; court to reverse it was the charged, if it be shown the evidence to a conspiracy. absence of exist, act of one or more defendants in law plan furtherance of the common B. Substitution of “or” for “and” all.”). notes, the act of As Budd the Ninth charged Budd with con Count is, recently “It opposite: held the Circuit spiracy under 18 U.S.C. 371 as follows: to use a Pinkerton in a error instruction al case which the indictment does not ... knowingly Michael J. Budd did con v. Nаk United States conspiracy.” lege a) ... spire deprive to: Tawhon Easter ai, (9th Cir.2005). 413 F.3d ly of rights privileges and secured and yet The Sixth Circuit has not addressed by the ... protected Constitution vio this issue. See United States v. Min Nan Code, lation of Title United States (6th Cir.2000) Wang, b) corruptly persuade Section (“We thorny ques need not resolve these person another with intent to hinder tions.”). majority We find rule of the investigation], federal criminal in vio [a persuasive, of circuits more and hold that a Code, lation of Title United States may properly provide district court 1512(b)(3). Section Pinkerton instruction regarding a substan again complains Indictment 3-4. Budd offense, tive even the defendant is when Although constructive amendment. conspiracy. not with the offense of reviews de novo generally this court Thus, the district court’s instructions were legal issue of whether there was a con- proper regard to the substantive amendment, if structive the defendant fails offense, § 242 and the indictment was object at trial an instruction claimed constructively amended. on appeal represent a constructive United States Budd also insists that amendment, only this court reviews (6th Cir.2002), Henning, re- See, e.g., plain error. case, quires reversal. In that trial Brown, (6th Cir.2003) a Pinkerton instruction, gave court Cotton, the defendant was convicted of both con- error, cannot Budd show let spiracy and several substantive counts. error, plain reject alone we this chal- Id. at 918-19. The defendant moved for lenge. granted and was a post-verdict judgment argues object that because the acquittal conspiracy on the count based “and,” separated by offenses are the word on insufficient evidence. Id. at 919. This impermissibly the trial court broadened plain later found error in the district possible bases for conviction—and court’s failure to reconsider the substan- because the Pinker- well, constructively charges thereby tive amended the indict ton instruction produced have con- ment 7—when it instructed the to con Miller, United States v. conscience” from its Fourteenth Amend- it found either that Budd 1 if vict on Count instructions, Easterly’s very constitu but at a late violate ment conspired to to conspired that Budd rights stage proceedings counsel told tional challenge This court, a witness. tamper with I see the Fourteenth Amend- “[A]s Hathaway, States v. 798 fail. United getting must I’m more com- ment [instruction] Cir.1986) (6th (finding no 902, it, F.2d 913 fortable with but the Amend- the indict amendment where constructive subjective ment one I believe has this stuff known to charged receipt of checks ment at 764. Al- missing....” Transcript that’s converted, fraud,” “stolen, by and taken be at the close of trial defense counsel though jury to convict instructed the but the court summarily prior objections, rested his to be if it found the cheeks were known he did not contradict his earlier statement “stolen, converted, fraud”); or taken that he was “comfortable” with the Four- Barrios-Perez, v. also United States see teenth Amendment instructions. Budd Cir.2003) (find (8th 777, 779-80 317 complain the court’s ex- cannot now about where the ing no constructive the Fourteenth Amendment planation of phrased drug-conspiracy indictment standard. the court instructed conjunctive, but However, pre even if Budd had disjunctive).8 jury in the objection, it lacks merit. This served preserved properly court ob “review[s]

IY. JURY INSTRUCTIONS by determin jection to a instruction 2 and 4 Budd with Counts whole, as a ing charge, ‘whether the taken Ta- violating the constitutional fairly adequately submits the issues Blazo, respec Easterly whon and Steven ” jury.’ applicable law tо the United § of 18 U.S.C. tively, violation (6th Blood, 612, 623 States de Easterly pretrial and Blazo were Both Cir.2006) (quoting Pensyl, States v. United tainees, inquiry is whether so the relevant (6th Cir.2004)). 456, This force violated their Budd’s use of excessive court based “may court reverse the trial , process due Fourteenth Amendment instructions, if the faulty charge ‘only on a 520, Wolfish, 441 U.S. rights. See Bell whole, confusing, mis were viewed as 16, 1861, n. 99 S.Ct. 60 L.Ed.2d 535 & ” Pen prejudicial.’ (quoting Id. leading, or (1979). complains Budd district syl, 387 F.3d in by failing to court misstated law jury that his conduct would need struct the component of Four- The substantive “shock the conscience” to violate protects due process teenth Amendment Fourteenth Amendment. conduct law enforce- against citizens the conscience.” ment officers that “shocks objection. Budd waived the

We believe Lewis, 523 U.S. County Sacramento v. initially objected to the Defense counsel 118 S.Ct. of the words “shocks the court’s omission Stirone, (1985) conspiracy means of violat- one with different proposition Reply ing Appellant’s for the construc- Brief at 1. the same.” §371, statute, result when the trial tive amendment conspiracy U.S.C. possible bases for con- "broaden[s] persons more makes it a crime for two or appeared that which in the in- viction from against agree commit offense “to dictment”). States”; therefore, "any offense a “different ‍‌‌​​‌‌​​‌‌​​​​‌​​‌‌‌​‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌​​‌​‌​‍the United States” is disputes government’s 8. Budd's brief also violating 18 U.S.C. means” position the indictment in- that Count 1 of only conspiracies, "not two distinct but volves ” (1998). there, arguing (quoting that the doubt.’ stops “shocks the Humphrey, failure to mention the words Cir. 2002)); renders the instruction defi- conscience” Virginia, see also Jackson v. acquittal.9 him to But cient and entitles L.Ed.2d (1979). concept of what “shocks the con- 560 See, e.g., science” varies with context. id. progeny govern Bell v. and its Wolfish such 118 S.Ct. 1708. Cases represented whether Budd’s behavior “ex- Graham, 490 U.S. at 395 n. cessive force amounting punishment.” precursor, Wolfish, and its Wolfish, Under in the absence of “an ex- 16, 1861, specifically at & n. 99 535 S.Ct. pressed punish,” question intent to process due address substantive challenged practice whether the or behav- pretrial context of detention. This circuit reasonably legitimate ior “is related to a has relied on for the proposition Graham 538, government objective.” 441 U.S. protects that the Due Process Clause a 539, 1861; 99 Thompson see also v. pretrial detainee from “excessive force Medina, (6th 238, County 29 242 of See, that punishment.” e.g., amounts to Cir.1994). If “arbitrary the action is or Phelps, By adhering 286 F.3d at 300. to purposeless[,] a court permissibly may in- in cases such as Graham and its Wolfish purpose fer that the of the governmental instructions, fairly the district court and punishment action is not consti- adequately pertinent stated the law pre- to tutionally be upon qua inflicted detainees substantive-due-process trial detainees’ Wolfish, 539, detainees.” U.S. Blood, rights. See 435 F.3d at 623. Athough S.Ct. 1861. retribution and de- terrence are not legitimate nonpunitive V. MOTION FOR JUDGMENT 20, purposes, id. at n. 99 S.Ct. ACQUITTAL OF AS TO security the maintenance of and order at BLAZO CHARGE is, 540, 546-47, detention facilities id. at Budd argues the district S.Ct. 1861. “Prison administrators in denying erred his motion for ac should be accorded wide-ranging deference quittal on Count which him with adoption and policies execution of violating the Fourteenth Amendment practices judgment and that in their are rights pretrial of detainee Steven Blazo preserve needed internal order and dis- using amounting excessive force to punish cipline and to maintain institutional securi- ment violation оf 18 U.S.C. This cases). ty.” Id. at S.Ct. 1861 court reviews de novo the denial of a mo tion for judgment acquittal. legitimate Budd’s brief identifies no non- Meyer, punitive actions; rather, States purposes for his “ Cir.2004). ‘whether, The issue is argues, correctly, after he inju- de minimis reviewing light the evidence in the support most ries do not a constitutional viola- tion, prosecution, any favorable to the rational if intentionally even inflicted. A- trier of fact though could have found the essential a pretrial injuries detainee’s must elements beyond of the crime a reasonable than support be more de minimis to Birchwell, Claybrook applies only 9. With his emergency-type citation to situations (6th Cir.2000), prison high-speed police also such as a riot or a Lewis, implicitly objects to the court’s failure to in chase. only struct to convict if he acted 118 S.Ct. 1708. None of the incidents at "maliciously sadistically very pur issue under 2 and 4 Counts occurred under harm,” pose causing but this formulation such conditions. Hudson, violation, Supreme Court clarified they need not be constitutional applicable prisoners’ Hudson to convicted “significant,” or the law “serious” cf. 1, 8-10, 112 McMillian, U.S. claims. The held excessive-force Court (1992) (convicted prison that when corrections officials use force Walsh, 194 er); States v. see also United order, alleged and this force is keep Cir.1999) (2d de (pretrial 47-48 violate the tainee), degree there is some long as judicial inquiry “the core is that prisoners, Walsh, 194 F.3d at 50. injury, actual Albers, Whitley [v. set out (1986)]: 89 L.Ed.2d case, prosecution introduced In this good-faith applied whether force was Budd rammed Blazo’s head testimony that maintain discipline, effort to or restore doors, slammed into at least two different maliciously sadistically to cause table, repeatedly his head into harm.” 503 U.S. at S.Ct. 995. Although him into wall. shoved medical evi- introduced no prosecution recently, Supreme has More Court injuries, extent of Blazo’s dence of the “ Whitley to hold that the ‘unnec invoked requested that he medical Blazo testified essary pain and wanton infliction of attention, unsuccessfully, and that albeit punishment constitutes cruel and unusual bruising and on bumps he had on his head ” Eighth forbidden Amendment.’ McMillian, body. In Hudson v. his Pelzer, 730, 737, 122 S.Ct. Hope v. U.S. prisoner’s Supreme held that Court (2002). Hope went face, swelling “minor and of his bruises “[a]mong ‘unnecessаry on to reaffirm teeth, mouth, and a lip,” and loosened pain inflictions of are those and wanton’ “not de minimis plate cracked dental were justifi ‘totally penological that are without Id. at Eighth purposes.” Amendment ” Chapman, Rhodes v. (quoting cation.’ Id. 4, 10., light in the 995 Viewed 337, 346, 101 S.Ct. the evi- prosecution, most favorable (1981)). Controlling an emer injuries here indicates that Blazo’s dence maintaining and order are gency situation prisoner to those of the comparable are see, penological justifications, legitimate Hudson. Bell, 540, 546-47, 99 S.Ct. 441 U.S. at abat safety concerns have but when MOTION FOR JUDGMENT VI. emergency dispelled, has been ed or an ACQUITTAL AS TO OF Hope, justification may disappear. See CHARGE MOORE that the trial court argues Budd case, Moore several officials this took denying acquittal his motion for erred in a witness to wait and his codefendants vio which Budd with on Count sentencing. Moore’s following room their of inmate lating the constitutional shackled, his and hands and feet were de This court reviews Brandon Moore. bellychain. to a Moore hands were cuffed novo, any rational trier and asks whether “making fun of the whole situation” began beyond found а reason of fact could have years he many how “bragging about Eighth that Budd violated the able doubt doing received,” “physically but was not Moore, a rights of Brandon any deputies.” to anything threaten Meyer, inmate. convicted and sentenced Moore Budd told Transcript at 80-81. Budd cannot meet this F.3d at 826. * * down,” and up f* and sit to “shut the standard, reject challenge. and we into a chair.10 “being then forced Moore for Budd’s actions and that obnox- the two codefendants Budd then ordered ious” is not a reason to use force on a Budd, removed, Deputy Tinkey, leaving prisoner. Id. at disputed 95. Budd Oliver, Deputy and Moore witness this characterization. He testified that minutes,” room. After “a few short window, when he slammed Moore into the grabbed compliant the seated and Moore trying he “was to restore order to a vola- by the “slammed” him into the collar and situation,” tile and when stepped he window, leaving “a steel frame of crease back, “attempting] Moore’s he was forehead.” Id. at 69-70. [Moore’s] protect injury.” himself from Transcript Tinkey Budd then ordered to hold Moore at 45. attempted the window. Budd A rational factfinder could have conclud- Moore, pull up sagging pants, Moore’s ed that penological Budd acted without shackled, though by “jump- still reacted justification and therefore unnecessarily ing” at Budd. It is unclear whether this wantonly pain inflicted on Moore Budd, attempt reaction was an to harm violation of the Amendment. See actions, mere at Budd’s surprise re- Hope, 536 S.Ct. 2508. response actually flexive what an testimony, Given the other officers’ event, attack Budd on Moore.11 In jury reasonably could have seen Budd’s Tinkey immediately took Moore to the supposed justifications as incredible. That ground him. Tinkey to secure then told is, Tinkey testified that when Budd ground Moore to remain on the and took a window, slammed Moore into the a few steps few back. passed minutes had since Moore had ground, Once on Moore did not off, event, mouthed and that in any “being around, try get move did not to up, back obnoxious” does not justify the use of verbally physically and did not or threaten Moreover, restrained, force. Moore was anyone Tinkey testified that Moore — compliant, and alone the room with going anywhere” “wasn’t and “wasn’t a three jury rationаlly officers. The could Budd, anyone.” threat to agi- 73. have disbelieved this was a “volatile Moore, cursing stepped tated and Similarly, situation.” could have Moore’s back with both feet.12 Moore tes- supposed disbelieved Budd’s concern for up tified that his face was scratched safety his stepped when he on Moore’s numb”; “starting his back was to feel he feet, back with both given Tinkey’s later testi- unsuccessfully requested medical at- mony that the prone, tention. Id. at restrained 108. Officer Oliver testi- inmate going anywhere” fied that he saw no “wasn’t law-enforcement rea- and “wasn’t a actions; Tinkey anyone.” here, son for Budd’s threat to injuries Officer Moore’s “any testified that he did not see need” which included dented forehead and 10.Deputy Tinkey testified that Deputy Tinkey Budd forced 11. testified that he didn't know merely Moore whether Moore was into the chair because he did startled or wheth- not com- * * attempting er he Deputy to attack Budd. ply up with the order to "shut the P actually "jam- Oliver testified that Budd had Oliver, however, Deputy sit down." did not pants] up med [Moore's into his crotch ... supposed noncompliance mention this and in pretty up” by hаrd” and "kind of lifted him fact testified chatting that when Moore was pants. his codefendants, "attempt his did he physically anything to do that was inconsis- Deputy actually Oliver testified that Budd do, tent with" what he was told to nor did he stepped on Moore's back twice—once before "disobey Transcript orders." at 119. pants-hiking incident and once after. back, years, my I offer for consideration under- a bullet which to his numbness standing of the doctrine. permanently become previously had those of comparable to were also lodged, Defendants invoke one of three the Hudson, not de and thus inmate in complain of inconsistencies be ories Therefore, chal- reject this we minimis. tween the indictment and either the lenge. (1) instructions, trial, or both: proof (2) amendment, amend actual constructive the trial argues also (3) ment, variance. judg- his motion for granted have should Hathaway, States 3 because acquittal on Count ment of Cir.1986) (identifying these three distinct person as the identified Budd Moore never theories). theory, The first actual amend totally him. This claim who assaulted Bain, ment, parte to Ex U.S. traces direct Tinkey, on both Deputy meritlеss. (1887), L.Ed. 849 overruled cross-examination, Budd as identified grounds by on other United States Cot Deputy Moore. the one who assaulted ton, The fact that Moore did the same. Oliver (2002). grand jury The irrelevant.13 identify Budd is did not also officials for indicted Bain and other bank making statements “with intent false VII. CONCLUSION comptroller currency of the deceive the reasons, AFFIRM the we For these to examine the agent appointed and the the district court. judgment of affairs.” Id. [bank’s] later, prosecution Thirteen months COOK, Judge, dissenting. Circuit words moved the trial court to strike the majori- II in all but Part I concur currency and” from comptroller “the I conclude I dissent because ty’s opinion, The the indictment. Id. at S.Ct. 781. was a constructive there the motion and struck granted trial court a mere variance.1 3—not Count language, and Bain was convicted. Bain’s habeas Supreme granted Court distinguish a con- deciding how to that this re concluding corpus petition, a mere vari- amendment from structive ran afoul of the writing of the indictment ance, this court’s in- majority the favors that “[n]o Amendment’s command commands Fifth doctrine2 over clearer scrutable capi held to answer for Having person chosen shall be Supreme from the Court. crime, issue, tal, unless on or otherwise infamous the the ma- a framework to decide grand of a or indictment presentment it its terms. Be- jority misapplies own 6, 13-14, Specif- 7 S.Ct. 781. jury.” court for topic has troubled this cause this Part VI of the Cory, the issues discussed in Thigpen v. 804 reach 13. Budd’s citation to said, 893, (6th Cir.1986), inapt. agree majority’s opinion. 896-897 is That I F.2d case, eyewit- concluded that an analysis. that this court majority's the substance line-up was unreliable ness's identification Biggers, test of Neil v. under the five-factor 704, Chilingirian, F.3d 280 2. United States 375, 401 34 L.Ed.2d 93 Cir.2002) ("[T]he (6th between distinction 712 (1972). nothing to do with Budd's This has and a constructive amendment a variance government Moore's claim that the needed Hathaway, sketchy.”); eye- ‍‌‌​​‌‌​​‌‌​​​​‌​​‌‌‌​‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌​​‌​‌​‍eyewitness testimony in addition to the Cir.1986) ("[T]he (6th distinc- testimony of two officers. witness and a constructive between a variance tion ’ ”). ‘shadowy.... amendment is at best reverse based on con- 1. Because I would 3, I would not to Count structive ically, scription the conviction could not stand be- of the crime that ultimately jury conviction, cause had never grand considered the formed basis for a circum- theory new that Bain government’s stance that contravenes the Fifth Amend- intending had made false statements Thus, ment.3 developed legal courts comptroller. agent, deceive the but fiction of a “constructive amendment” to (“[Ajfter See id. at 7 S.Ct. 781 prevent this mischief. In Stirone Unit- changed longer indictment was it was no ed

the indictment of the grand pre- who (1960), the seminal Supreme it.”). sented The Court reasoned that the amendments, Court case on constructive grand-jury component of the Fifth Amend- grand jury indicted the defendant un- prosecution ment checks overzealous der the Hobbs Act4 for interfering with exposed ensures that a citizen is not sand, interstate commerce but the trial expense risks and of a trial a grand unless permitted government argue jury composed peers of his determines the defendant interfered with inter- that he should. id. at See S.Ct. 781 steel, too, state commerce in and the de- Robbins, (8 (citing Gray) Jones v. 74 Mass. fendant was convicted. Id. at (1857)); see also United States v. Beel- Supreme S.Ct. 270. The Court reversed er, (6th Cir.1978) (noting conviction, noting defendant’s important the most reason for the “[ajlthough the trial court permit did not barring rule actual and constructive indictment, formal amendment of the amendments is “the assurance that a effect of what did was the same.” Id. at group independent of citizens of prosecu- 217, 80 S.Ct. 270. Stirone reveals two dis- tors or law enforcement officials have re- tinguishing features of a constructive allegations viewed the and determined that First, amendment. a constructive amend- worthy being case is presented to a just ment involves not a “variation be- jury for a determination of the defendant’s id., pleading proof,” tween but also an innocence”); guilt or United States v. irregularity instructions, see id. Moore, Cir.1997) (“[Wje 80 S.Ct. 270 cannot know Beeler, 587 F.2d at grand jury whether the would have includ- theory, The second constructive amend- ed in its indictment a charge that com- ment, is a legal developed fiction after merce in steel from a nonexistent steel prosecutor Bain —a longer physi- could no mill had been interfered with. Yet be- indictment, cally rewrite the but he could cause of the court’s admission of evidence effectively still rewrite the indictment and under its charge might have been leaving language untouched, its but pro- upon the basis which the trial convict- posing jury added)). embody instructions that a petitioner.” (emphasis ed Sec- new theory ond, or crime. presents This the a constructive amendment is not ame- same evil as an actual amendment: no nable to analysis. harmless-error Id. grand jury passed 217, on the essential de- (“Deprivation S.Ct. 270 a such course, 3. Of correction a provided scrivener’s any error That statute that in "[w]hoever 4. presents problem. e.g., no obstructs, Russell v. way degree or delays, or affects States, 369 U.S. 82 S.Ct. commerce or the movement of article or 1038, (1962) ("[A]n indictment commerce, commodity by robbery in or extor- except by not be amended resubmission imprisoned, tion” shall be fined or or both. grand jury, change merely unless the is 1951(a). § 18U.S.C. Bain, a matter form." 849) added)). (emphasis 30 L.Ed. the indictment —as was true Budd’s treated ror to be is far too serious right basic properly and then claim is a variance case—the defendant’s more than nothing as error.”). harmless under “constructive categorized dismissed - Budd’s in- Although amendment” rubric.5 Stirone, theory, alluded to third The violating him with dictment makes clear Stirone is the variance. inmate by depriving § 242 Moore U.S.C. is a “varia- when there a variance results rights, the of his Fourteеnth Amendment id., proof,” see pleading between tion if it jury to convict court instructed properly mirror instructions but violated found that Budd 18 U.S.C. indictment, see id. of the language Eighth Moore of his Amend- 217-18, depriving Ber- (explaining 80 S.Ct. words, 55 S.Ct. In other after the rights. ment v. United ger (1935)). Berger, prem- L.Ed. 1814 secured an indictment government in- prosecution came when the irregularity depriva- ised on a Fourteenth Amendment conspiracy in of a second proof troduced tion, it theories and tried the switched charged. 295 U.S. to the one addition all—based on jury instructions and case— 79-81, questioned The 629. Court deprivation. Fol- an the sub- “affect[ed] the variance whether that a constructive lowing this circuit’s rule defendant, id. at rights” stantial see, per prejudicial, se amendment is not, it did concluded that 55 S.Ct. Prince, confirms Berger id. at 55 S.Ct. Cir.2000) cases), I (collecting would nothing to do with the that a variance has conviction on this count reverse Budd’s grand jury Fifth Amendment defendant’s resentencing. and remand for the con- never mentioned right: the Court majority Supreme avoids the three Instead, turns on a variance issue cept. and instead cases I describe above (1) Court has sufficient defendant whether the prece- from this court’s attempts to draw to mount de- allegations notice of the (2) that “a variance some fense, principle dent a protected be will in kind from a con- Id. at cases is not different jeopardy. double amendment, require merely reversal in de- lesser concerns but These structive to a prejudice if defendant shows only enough, if it serious becomes gree; right. substantial at 521. Ante constructive amendment.”6 First, reasons, I agree. cannot For two demonstrate that dis- These three cases and “construc- concepts of “variance” tinguishing constructive kind, not de- tive amendment” differ requires review of the from a variance jury instructions mirror gree: either the jury instructions When the instructions. indictment, they princi- do not. The the indictment and the defendant mirror majority likely results identified ple proof diverged at trial only claims cases; is, language past from loose indictment, complain only he can from the actually just prejudicial labeling what is prejudice. show a variance and must If amendment.” a “constructive do not mir- variance instructions But when a constructive to the level” of invariably variance "rose proof will differ too—after 5. The all, See, prove prosecution Hynes, to its new theo- the has United States v. amendment. proof aspect Cir.2006); is not the crucial ry-but 951, (6th this United 467 F.3d distinction. 482, (6th Barrow, F.3d Cir. v. States 1997). majority principle traces this 6. I assume the framing question whether a the to cases only irregular- based and evidence introduced crime or the court reverses another proof, by ities of it is because variance an ‘alternative method which one [ ] ” prejudiced defendant’s substantial crime ... could have committed.’ been Suarez, Prince, it a constructive rights, not because (quoting 263 F.3d at 478 Second, practical impli- amendment. variance, It a finds mere cations of a framework where variance concluding violating that Moore’s Four- can “rise to the level” of constructive rights merely teenth Amendment an Presumably, amendment reveal its flaw. by “alternative method” which Budd could framework, the de- majority’s under the § have violated 18 U.S.C. 242. I cannot supposed fendant must show that a vari- agree. Moore was a convicted inmate ance “rose to the level” of a constructive rights against whose exсessive force sound by showing that he was actual- Amendment,7 exclusively in the Eighth so ly If the must show prejudiced. defendant only by “method” which Budd could treatment, prejudice get per actual se § have violated 18 U.S.C. would have this eliminate the need for even the would by depriving Moore Eighth been of his concept every prejudice per case se — rights against Amendment un- cruel and would turn on whether the defendant had punishment. Depriving usual Moore of “enough” prejudice. shown actual rights Fourteenth Amendment ex- turns to Mar- majority ultimately cessive amounting punishment— force tin, Prince, that, and Suarez to decide whether status, based on his inmate irregularities represented dogs this case Moore not even simply is not a have — amendment, variance or constructive “method” which Budd could have violat- jury inquiring “whether instruction ed 18 242.8 U.S.C. Madden, offense, e.g., Gravely 7. legal v. 142 F.3d theory,” facts of the but the (6th Cir.1998) (noting Whitley 348-49 that v. Again, respectfully ante at disagree. I Albers, 106 S.Ct. Hynes posits that a constructive amendment " (1986), "made it clear results 'when an indictment's terms are ef legal status of the victim of the excessive force fectively presentation altered of evi Fourth, Eighth, determines whether the jury modify dence and instructions that so governs the Fourteenth Amendment his exces essential elements of the offense Chambers, claims”); Pelfrey sive force there is a substantial likelihood the defendant Cir.1995) (6th (noting 1036-37 convicted of an [was] offense other than that ” Connor, that after Graham v. charged in the indictment.' 467 F.3d at 961— (1989), con Combs, (quoting States prisoners may victed raise excessive-force (6th Cir.2004)). clearly This seems Amendment); only Eighth claims under the inconsistency cover situations where the Dahlberg, Cornwell facts, only legal lies not but also in the 1992) ("Since prisoner] Cir. Corn- [convicted theory. applying And this formulation to only well’s excessive ... can force claim be Budd’s case also dictates the conclusion that properly Eighth considered under the Amend there was a constructive amendment to his ], ment Graham v. [after Connor we hold that inconsistency indictment. The between the submitting the district court erred in instructions' lan claim of excessive force to the under the ("malicious guage and sadistic” or "unneces Amendment.”). Fourth wanton”) sary and and the indictment's Four ("excessive language teenth Amendment force Hynes, this court оffered another formu- punishment”) plainly that amounts to modi distinguishing lation for a variance from a fied the mens rea element: it is more majority difficult constructive amendment. The men- Hynes, to establish that a quickly tions ante at corrections officer acted but brushes aside, "maliciously apparently reasoning Hynes sadistically” ap- toward an in plies only constitutionally may pun in cases where "the difference be- mate —who be tween indictment and prove instructions is not ished—than to that the officer's con- II, merely grand jury, change Part unless the is paragraphs few of

In the last of form. a matter any irreg- dismiss majority appears to the the by reasoning case that ularity in this 1038, 8 369 U.S. 82 S.Ct. to the “proof’ presented “evidence” (1962) Bain, the same jury would have been grand Stirone, 7 S.Ct. 30 L.Ed. and charged an the indictment had whether L.Ed.2d depri- Fourteenth Amendment Eighth or jury ever that Budd grand No concluded respectfully I Ante 526-27. vation. trial for more-serious lev- should stand actions by focusing that on Budd’s suggest of force the government el excessive state, majority his mental ignoring prove jury, to the and this petit needed to jury never point. grand misses the the Fifth I re- contravenes Amendment. trial for should stand decided spectfully dissent. or “unneces-

using “malicious sadistic” in- force on

sary and wanton” excessive Bain, 121

mate Moore. See af- (discussing protection although grand jury). And

forded

widespread experience suggests ‍‌‌​​‌‌​​‌‌​​​​‌​​‌‌‌​‌​‌​​‌​​‌​‌‌​‌‌‌​​​​‌​​‌​‌​‍tarry over jury unlikely was

grand subtleties,9 Court Supreme rea mens America, UNITED of STATES forbidden from explicitly speculat- has us Plaintiff-Appellee, subjects grand such ing on as whether an would have indicted Budd for just as deprivation Amendment Christopher PRITCHETT, P. also actually indicted him a Fourteenth Jenkins, as known Wallace deprivation. As the Court Defendant-Appellant. in Russell v. United said No. 06-3359. to make a To allow court [ ] Appeals, of United States Court in the subsequent guess to what was Sixth Circuit. they time grand jury minds of the at the deprive would returned indictment 16, 2007. Argued: March protection defendant of a basic Aug. 2007. Decided Filed: guaranty intervention which the se- grand designed principle .... This is re- underlying cure by the settled rule the federal

flected that an not be

courts indictment except

amended resubmission grand in- Empirically, returns an pretrial "amounted to duct toward detainee majority overwhelming E.g., Coy, Phelps v. dictment punishment.” (6th Cir.2002) ("The Navarro- question United States v. cases. Phelps’s rights & nn. 14-15 supplies Vargas, which amendment banc). academic, Cir.2005) (en grand Colloquially, “a merely for the standards E.g., id. liability vary significantly according jury would indict ham sandwich.” to which applies.”).

Case Details

Case Name: United States v. Budd

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 13, 2007

Citation: 496 F.3d 517

Docket Number: 05-4098

Court Abbreviation: 6th Cir.