U.S. v. Budd

• Decision Date: 13 August 2007
• Docket Number: No. 05-4098.,05-4098.
• Citation: 496 F.3d 517
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BUDD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

496 F.3d 517

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. BUDD, Defendant-Appellant.

No. 05-4098.

United States Court of Appeals, Sixth Circuit.

Argued: March 15, 2007.

Decided and Filed: August 13, 2007.

ARGUED:

Sebastian Rucci, Poland, Ohio, for Appellant. Gregory B. Friel, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

Sebastian Rucci, Poland, Ohio, for Appellant. Gregory B. Friel, United States Department of Justice, Washington, D.C., for Appellee.

Before: COOK and McKEAGUE, Circuit Judges; EDGAR, District Judge.^*

McKEAGUE, J., delivered the opinion of the court, in which EDGAR, D. J., joined. COOK, J. (pp. 533-37), delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge.

Michael J. Budd appeals his conviction of one count of conspiracy and three counts of depriving another of constitutional rights under color of law. For the reasons set forth below, we affirm.

I. BACKGROUND

A grand jury indicted Budd, once second-in-command of the Mahoning County, Ohio Sherriff's Department, on four counts related to his alleged use of excessive force against inmates and pretrial detainees in his custody. Count 1 charged conspiracy to commit any offense against the United States in violation of 18 U.S.C. § 371, and listed two object offenses: (1) depriving Tawhon Easterly of his constitutional rights under color of law in violation of 18 U.S.C. § 242; and (2) witness tampering, in violation of 18 U.S.C. § 1512(b)(2). Counts 2, 3, and 4 respectively charged Budd with depriving Easterly (a pretrial detainee), Brandon Moore (a sentenced inmate), and Stephen Blazo (a pretrial detainee) of their constitutional rights under color of law, in violation of 18 U.S.C. § 242. In Budd's first trial, the jury convicted him on Count 1 but deadlocked on the other counts. The court entered the conviction on Count 1 and declared a mistrial on the other counts. Upon retrial of Counts 2, 3, and 4,¹ Budd was convicted on each. He now appeals.

II. CONSTRUCTIVE AMENDMENT TO MOORE CHARGE

Budd was convicted of using excessive force against inmate Brandon Moore in violation of 18 U.S.C. § 242. Budd argues that because the indictment referred to a Fourteenth Amendment basis for the right to be free from excessive force, while the jury instructions referred to an Eighth Amendment basis for the right, the indictment was constructively amended. We review the question of whether an amendment or a variance occurred de novo. United States v. Prince, 214 F.3d 740, 756 (6th Cir.2000) (citing United States v. Flowal, 163 F.3d 956, 962 (6th Cir.1998)).

An indictment may be the subject of an actual amendment, a constructive amendment, or a variance. An actual amendment occurs when the prosecutor actually changes the text of the indictment. Id. at 757 (citing Martin v. Kassulke, 970 F.2d 1539, 1542 (6th Cir.1992)). By contrast,

[a] constructive amendment results when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than the one charged in the indictment.

United States v. Smith, 320 F.3d 647, 656 (6th Cir.2003) (citing Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)). Both actual and constructive amendments are considered per se prejudicial and are reversible error. Prince, 214 F.3d at 757.

Variances, by contrast, are not per se prejudicial. Id. Generally speaking, a variance "occurs when the charging terms [of the indictment] are unchanged, but the evidence at trial proves facts materially different from those alleged in the indictment." Id. at 756-57 (alteration in original) (internal quotations omitted) (quoting United States v. Flowal, 163 F.3d 956, 962 (6th Cir.1998)). However, as this court observed in United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir.2002) (vacated and remanded by the Supreme Court for reconsideration in light of Booker), "the distinction between a variance and a constructive amendment is sketchy. . . ."²

One complication is created by the fact that, under Sixth Circuit law, "[i]f a variance infringes too strongly upon the defendant's Sixth Amendment right to be informed of the nature and cause of the accusation, the variance is considered a `constructive amendment.'" Prince, 214 F.3d at 757 (citing Martin, 970 F.2d at 1542). Thus, a variance in some cases is not different in kind from a constructive amendment, but merely in degree; if it is serious enough, it becomes a constructive amendment.³ "To obtain reversal of a conviction because of a variance between the indictment and the evidence produced at trial, a defendant must satisfy a two-prong test: (1) the variance must be demonstrated and (2) the variance must affect some substantial right of the defendant." Id. (citing United States v. Maliszewski, 161 F.3d 992, 1014 (6th Cir.1998)); see also United States v. Hynes, 467 F.3d 951, 962 (6th Cir.2006); United States v. Suarez, 263 F.3d 468, 478 (6th Cir.2001); Prince, 214 F.3d at 757; United States v. Manning, 142 F.3d 336, 339 (6th Cir.1998); United States v. Ford, 872 F.2d 1231, 1235 (6th Cir.1989).

In Hynes, this court offered one manner of distinguishing between a constructive amendment and a variance that may become a constructive amendment by reason of its effect on substantial rights: "defendants can establish a variance by referring exclusively to the evidence presented at trial, but cannot demonstrate a constructive amendment — which is per se prejudicial — without proof that the important functions of an indictment were undermined by both the evidence presented and the jury instructions." 467 F.3d at 962. This reflects the rule that "[o]nce the indictment presents a factual basis for an element of a crime, the prosecution may not rest its proof of that element of the crime at trial on other facts." United States v. Caldwell, 176 F.3d 898, 902 (6th Cir.1999).

However, a different distinction operates in cases in which the difference between indictment and jury instructions is not the facts of the offense, but the legal theory. The "`key question' in determining whether [such a] case involve[s] a variance or a constructive amendment [i]s whether" the offense described by the indictment and the one described by the jury instructions are "two alternative crimes or merely two alternative methods by which the one crime . . . could have been committed." Prince, 214 F.3d at 758 (quoting Martin, 970 F.2d at 1543). The Sixth Circuit first explained this distinction in Martin v. Kassulke, 970 F.2d 1539, 1540 (6th Cir.1992), in which the defendant was convicted of first-degree rape. Under Kentucky law, first-degree rape consists of either "`sexual intercourse with another person by forcible compulsion,'" or "`sexual intercourse with another person who is incapable of consent because he . . . [i]s physically helpless; or [i]s less than twelve years old.'" Id. at 1541-42 (quoting Ky.Rev.Stat. § 510.040). The indictment stated that the defendant "committed the offense of RAPE IN THE FIRST DEGREE by knowingly and unlawfully engaging in sexual intercourse with [the victim] by forcible compulsion and further causing said [victim] serious physical injury." Id. at 1542. The jury was instructed to find the defendant guilty "if, and only if, you believe from the evidence beyond a reasonable doubt" that the defendant engaged in sexual intercourse with the victim and "[t]hat he did so by forcible compulsion, OR [t]hat [the victim] was incapable of consent because she was physically helpless." Id.

The Martin court first noted that there was a variance between the jury instructions and the indictment, as "[t]he jury instruction . . . mentions the possibility that [the victim] was incapable of consent because of physical helplessness, a possibility that had not been mentioned in the indictment." Id. The court rejected the defendant's argument that "the due process right to clear notice of criminal charges guaranteed by the fourteenth amendment includes notice of the exact method by which the criminal actions were alleged to have been committed," and held that

the Kentucky rape statute . . . provides only one offense of rape with two different methods of commission. . . . [The statute] was drafted to define all kinds of forcible rape, by whatever mode or method. "It actually makes no difference to the law, the victim, nor even the defendant, how he committed the act, it is the violation that is defined and prohibited."

Id. at 1543, 1545-46 (citation omitted) (quoting Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433, 436 (1983) (Hickman, J., dissenting)). The Martin court therefore reversed the district court's grant of a writ of habeas corpus. Id. at 1547.

This court followed Martin in Suarez, in which the defendant, a former police officer, was convicted for converting "victim restitution money to his own benefit" in violation of 18 U.S.C. § 666(a)(1). 263 F.3d at 471-72. That statute provides that "[w]hoever . . . being an agent of an organization [including a government or government agency] . . . embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts . . . property that . . . is owned by, or is under the care, custody, or control of such organization, government, or agency" shall be fined or imprisoned, or both. 18 U.S.C. § 666(a)(1). The statute does not define embezzlement, theft, or fraud; the definitions of these offenses therefore must come from another source of state or federal law. See Gonzales v. Duenas-Alvarez, ___ U.S. ___, 127 S.Ct. 815, 818, 822, 166 L.Ed.2d 683 (2007) (holding that "theft offense" in the Immigration and Nationality Act should be understood to correspond to the "generic definition of [the] crime"); Taylor v. United States, 495 U.S. 575, 595, 110 S.Ct. 2143,...