*1 Before SMITH, DeMOSS, and STEWART, A.
Circuit Judges. On January 30, 1998, border patrol
аgents 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 Nuñez 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 Nuñez of a crime for which he had not been indicted,
thereby violating his Fifth Amendment grand
jury rights, we reverse conviction and
sentence.
I. *2 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, Nuñez disputes shots fired. They found Nuñez lying face Thorne’s сlaim 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 Nuñez 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 Nuñez also points out that there was found a man, later identified as Nuñez, hiding no trace of gunshot residue on his hands and in a thick brushy area. In Spanish, he told the pants. According to Nuñez’s expert witness, man to stop running and to stop moving. this indicates that the weapon was more than Nuñez resisted being handcuffed by flailing his twelve inches away when fired. This evidence arms in a violent motion. After hitting Nuñez 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 Nuñez’s blood and Nuñez 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 Nuñez struggle, Nuñez 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, Nuñez contests Thorne’s claim then bit Nuñez’s upper left bicep and grabbed that Nuñez 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 оnly during the second felt his life was in danger and believed Nuñez examination that he told the doctor that he had was going to shoot him. been hit in the face. Similarly, Nuñez points
out that in his first day of testimony, Thorne Thorne called again for backup while did not mention being hit by Nuñez. On the pointing the gun toward Nuñez. By this point, second day, Thоrne testified that Nuñez 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
Nuñez “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 сheek caused by a blow from Nuñez.
Nuñez 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 Nuñez's thigh and
caused severe bleeding.
The trail of blood began some twelve
Nuñez therefore offers this alternаte set .40 caliber Beretta semi-automatic,” assaulting of facts: After he had problems handcuffing a federal officer, the trial jury was instructed it Nuñez, Thorne became angry and hit Nuñez in also could convict Nuñez of forcibly assaulting the face with the handcuffs. Defending a federal officer without the use of а himself, Nuñez ran off, and Thorne shot Nuñez dangerous weapon. Because the jury from behind. Thorne then chased Nuñez but acquitted Nuñez of the “resisting arrest by fell down the hill and rolled into the vines, means and use of a dangerous weapon” charge SS the only charge specifically alleged in his indictment SS Nuñez now claims that his losing his gun and magazines. B. remaining conviction should be vacated A grand jury indicted Nuñez 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. 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 аmendment except
found Nuñez guilty of resisting arrest by
by the grand jury itself.”
United States v.
means and use of a dangerous weapon, as
,
grand jury.
See United States v. Bizzard
,
The jury acquitted Nuñez in regard to
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 Nuñez 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 an expansive reading of the indictment that requires reversal and a variance that is a Nuñez had objected to the inclusion of
the second instruction, and after the verdict, he 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 based on errors in the admission of Thorne’s testimony. The court overruled both motions.
*4 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). “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 , Nuñez
argues that the grand jury limited the Therefore, while we remain obedient tо government to proving that he resisted “by ’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. Nuñez 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 . 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.
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 , the
aiding and abetting
any
bank officer. We
defendant was convicted of one act
reversed.
See Salinas
,
different from the other act alleged in his
Nuñez, 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 indictmеnt 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 Nuñez
for an offense not charged in the indictment.”
for almost any kind of assault. This is a
See Young
,
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 , 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] Nuñez 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. between using and not using a firearm is great
enough that it allowed Nuñez 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
United States v. Salinas
conviction arose out of the same incident does
not mean that the defendant was not
impermissibly convicted of a separate crime.
In ,
169, 172-73 (5th Cir. 1993) (holding that constructive
amendment of indictment occurred when defendant
was indicted for possession of unregistered
assembled
machine guns, but prosecutor defined machine gun at
trial and in jury instruction to include possession of
unassembled
machine gun parts).
The government cites
United States v.
Robles-Vertiz
,
indict the defendant. *6 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 , 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
But Nuñez 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. Nuñez 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, indeрendent 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 dеpending 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 Id. more than necessary.” at 140. [7] single offense with three punishments.
Likewise, we read 18 U.S.C. § 111 as creating three separate offenses, to-wit , resistance by means of (1) simple assault; (2) more serious assaults but not involving a dangerous weapon; and (3) assault with a dangerous Nuñez rightly argues that the
indictment failed to charge the offense for which he was convicted. The jury instruction, without specific reference to how he resisted arrest, impermissibly broadens the indictment to include all sorts of resistance. Unlike the Miller indictment, Nuñez’s indictment did not allege two different offenses, one of which was rejected by the trial jury. Rather, Nuñez’s single-count indictment alleged a single
*7 weapon. The government chose to indict
Nuñez 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 Nuñez
of forcibly resisting without the use of a
dangerous weapon is a conviction “of an
offense not charged in the indictment.”
,
The conviction and sentence are REVERSED.
Notes
[1] “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . . .” U.S. C ONST . amend. V. II.
[2] Because we vacate Nuñez’s conviction on Though the grand jury indicted Nuñez 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 lеngth of his sentence.
[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 J AMES W. M OORE ET AL ., M OORE ' S F EDERAL P RACTICE § 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).
[7] Title 18 U.S.C. § 2119 provides that when a person takes a motоr vehicle by force and while possessing a firearm, the punishments shall be (1) not more than 15 years if the victim suffered no serious bodily injury; (2) not more than 25 years if the victim suffers serious bodily injury; and (3) not more than life offense: “resisting arrest by means of a 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.