United States v. NunezUnited States v. Nunez
JERRY E. SMITH, Circuit Judge:
Porfirio Nuñez appeals his conviction of, and sentence for, resisting arrest by a federal officer in violation of
I.
A.
On January 30, 1998, border patrol agents raided a construction site in a housing subdivision. Seven of the ten workers fled the site, and the agents quickly apprehended six of them. The seventh was seen fleeing to the north. Agent Stephen Thorne gave chase, and a few minutes later the other agents heard shots fired. They found Nuñez lying face down, bleeding, at the bottom of a hill, and Thorne sitting next to him.
Thorne testified that he began searching the arеa to the north of the site and found a man, later identified as Nuñez, hiding in a thick brushy area. In Spanish, he told the man to stop running and to stop moving. Nuñez resisted being handcuffed by flailing his arms in a violent motion. After hitting Nuñez with his fist and throwing him to the ground, Thorne ordered him not to move and called for help.
Nuñez then lunged at Thorne and tried to grab his semi-automatic pistol. After a brief struggle, Nuñez managed to pull the weapon from Thorne‘s holster with his left arm and struck him on the left side of the face. Thorne then bit Nuñez‘s upper left bicep and grabbed his left arm to try to get the weapon away from him. Thorne turned the weapon toward Nuñez and discharged three rounds. Thorne felt his life was in danger and believed Nuñez was going to shoot him.
Thorne called again for backup while pointing the gun toward Nuñez. By this point, Nuñez had moved away from Thorne and had fallen down a nearby embankment, leaving a 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 cheek 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 feet from the area where Thorne says the struggle occurred. Therefore, Nuñez disputes Thorne‘s claim that the gun was fired during the struggle and argues that the evidence indicates that Thorne shot Nuñez in the back of his leg as hе was running away.
Nuñez also points out that there was no trace of gunshot residue on his hands and pants. According to Nuñez‘s expert witness, this indicates that the weapon was more than twelve inches away when fired. This evidence further disputes Thorne‘s claim that the gun was fired during the struggle. The government‘s expert witness disagreed, however, testifying that the gunshot rеsidue could have been masked by Nuñez‘s blood and that the absence of residue is not conclusive on the question of the distance between Nuñez and the gun at the time of the discharge.
Finally, Nuñez contests Thorne‘s claim that Nuñez struck Thorne. At his first examination, Thorne told his treating physician that his injuries had been caused by “rolling in the vines.” It was only during the seсond examination that he told the doctor that he had been hit in the face. Similarly, Nuñez points out that in his first day of testimony, Thorne did not mention being hit by Nuñez. On the second day, Thorne testified that Nuñez had hit him and explained that he had simply forgotten about this fact on the first day.
Nuñez therefore offers this alternate set of facts: After he had problems handсuffing Nuñez, Thorne became angry and hit
B.
A grand jury indicted Nuñez on a single count, charging that, in violation of
The jury acquitted Nuñez in regard to the first instruction, finding that he did not, beyond a reasonable doubt, resist arrest by means of a dangerous weapon. But the jury did convict Nuñez on the basis of the second instruction, apparently finding that he did forcibly resist in some way, though not by means of a dangerous weapon.
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 undеr 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.
II.
Though the grand jury indicted Nuñez for “knowingly and by means and use of a dangerous weapon, that is, a fully loaded .40 caliber Beretta semi-automatic,” assaulting a federal officer, the trial jury was instructed it also could convict Nuñez of forcibly assaulting a federal officer without the use of a dangerous weapon. Because the jury acquitted Nuñez of the “resisting arrest by means and use of a dangerous weapon” charge--the only charge specifically alleged in his indictment--Nuñez now claims that his remaining conviction should be vаcated because the court impermissibly broadened the theory of the indictment in violation of his Fifth Amendment right to a grand jury indictment.1 We agree.2
A.
“Ever since Ex Parte Bain was decided in 1887, it has been the rule that after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” United States v. Stirone, 361 U.S. 212, 215-16 (1960) (internal citation omitted). Therefore, “a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” Id. We have consistently followed Stirone and have reversed convictions where “the jury might have convicted [a] defendant” on new elements to the offense not charged by the grand jury. See United States v. Bizzard, 615 F.2d 1080, 1082 (5th Cir. 1980).
This court has further held that “a constructive amendment of the indictment is a reversible error per se if there has been a modification at trial of the
Therefore, while we remain obedient to Stirone‘s commands to scrutinize any difference between an indictment and a jury instruction, we will reverse only if that 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 Stirone. There, a defendant was indiсted for obstructing the interstate movement of sand in violation of the Hobbs Act,
The Court reversed and held that the variation between the jury instruction and the indictment “destroyed the defendant‘s substantial right to be tried only on charges presented in an indictment returned by the grand jury.” Stirone, 361 U.S. at 217. Moreover, even though the statute permitted a conviction on a general indictment that did not specify the type of burden on interstate commerce, the Court held that the conviction must rest on the charge specified in the indictment. Id. Following Stirone, Nuñez argues that the grand jury limited the government to proving that he resisted “by means of” Thorne‘s firearm, despite the fact that a broader indictment would have been permissible under the statute.
The government distinguishes Stirone by reminding us that a constructive amendment does not occur in all variances between an indictment and jury instruction, but only “when the conviction rested upon a set of facts distinctly different from that set forth in the indictment.” United States v. Young, 730 F.2d 221, 223 (5th Cir. 1984). In Stirone, the defendant was convicted of one act (obstructing steel shipments) completely different from the other act alleged in his indictment (obstructing sand shipments). But in Young, we affirmed a conviction even though the indictment charged the defendant with receiving a weapon in interstate commerce. The jury actuаlly convicted him of receiving a weapon in foreign commerce. Therefore, the government concludes that because the “factual basis for the indictment is identical to that for a conviction . . . . it is not possible that the defendant has been convicted for an offense not
Thus, we must decide whether the difference between resisting by means of a firearm and resisting without using a firearm is “factually distinct,” as Stirone, or constitutes a single “factual basis,” as in Young. There is a substantial factual difference between resisting arrest using a firearm and doing so without using a firearm. While both charges stem from the same incident, the difference between using and not using a firearm is great enough that it allowed Nuñez to be convicted of a crime for which he had not been indicted.
Simply because the facts leading to the conviction arose out of the same incident does not mean that the defendant was not impermissibly convicted of a separate crime. In United States v. Salinas, 654 F.2d 319, 324 (5th Cir. Unit A Aug. 1981), we reversed a conviction even though the defendant had been convicted for the same act for which he had been indicted. Still, because the jury charge allowed a conviction for committing that act in a manner different from that alleged in the indictment, we found a constructive amendment.
In the Salinas indictment, the defendant was charged with aiding and abetting a bank officer in misappropriating bank funds. During the trial, the bank officer was cleared of any connection to the defendant or to the misappropriation. But the court instructed the jury that it could convict for aiding and abetting any bank officer. We reversed. See Salinas, 654 F.2d at 324.
Nuñez, like the Salinas defendant, was indicted on very specific charge (assaulting an officer by means of a firearm) and then convicted under a less specific offense (assaulting an officer) that arose out of the same factual incident. The jury then acquitted him of the specific crime for which he had been indicted. Just as the Salinas district court gave the jury instructions that allowed them to convict for any type of fraud, the instructions in this case allowed the jury to convict Nuñez for almost any kind of assault. This is a different and seрarate offense that was not charged in the indictment.
Thus, though the conviction arose from the same factual incident, the difference between the specific details of the indictment and the general jury instruction is too great to survive the requirements of the Fifth Amendment.5 Nuñez was convicted for a crime, resisting arrest by any means, for which he was not indicted.6
The government further contends that resisting arrest by any means is a lesser-included offense within the meaning of United States v. Miller, 471 U.S. 130 (1985), in which the Court upheld a conviction based on a theory that was more narrow than the one set forth in the indictment. “As long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime.” Miller, 471 U.S. at 136.
But Nuñez persuasively responds that Miller endorses only variances that narrow the indictment. In Miller, the defendant was indicted for insurance fraud for (1) consenting to a burglary and (2) lying to an insurer about the value of his loss.
The Court found no constructive amendment, however, because the indictment plainly set out the offense (lying to the insurer) for which the defendant eventually was convicted. The fact that the indictment alleged other offenses “independent of and unnecessary to the offense on which a conviction ultimately rests” is not fatal to the government and may be “treated as surplusage.” Miller, 471 U.S. at 137. Therefore, the Court refused to give Miller relief: “His complaint is not that the indictment failed to charge the offense for which he was convicted, but that the indictment charged more than necessary.” Id. at 140.
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 offense: “resisting arrest by means of a firearm.” This is a specific and narrow accusation, and the later jury instruction allowing conviction for “resisting arrest” is far more general and broad.
It is this very type of “broadening” that the Miller court refused to endorse. In contrasting its holding to that in Stirone, the Miller court emphasized that in Stirone, the “trial evidence had ‘amended’ the indictment by broadening the possible bases for conviction from that which appeared in the indictment.” Miller, 471 U.S. at 138.
Finally, the government suggests that
In Jones, the Court interpreted
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
The conviction and sentence are REVERSED.