U.S. v. Pazsint

• Decision Date: 23 June 1983
• Docket Number: No. 82-1492,82-1492
• Citation: 703 F.2d 420
• Parties: 12 Fed. R. Evid. Serv. 1576 UNITED STATES of America, Plaintiff/Appellee, v. James J. PAZSINT, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 420

703 F.2d 420

12 Fed. R. Evid. Serv. 1576

UNITED STATES of America, Plaintiff/Appellee, v. James J. PAZSINT, Defendant/Appellant.

No. 82-1492.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1983.

Decided April 8, 1983.

As Modified June 23, 1983.

Donald W. MacPherson, MacPherson, & McCarville, Phoenix, Ariz., for defendant/appellant.

James L. Swartz, Asst. U.S. Atty., Anchorage, Alaska, for plaintiff/appellee.

Appeal from the United States District Court for the District of Alaska.

Before GOODWIN, ALARCON and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

James Pazsint was convicted of forcibly assaulting a federal officer with the use of a deadly or dangerous weapon in violation of 18 U.S.C. Sec. 111. He appeals, contending, inter alia, that he was convicted of an offense not charged in the indictment and

that there was error in the jury instructions and in the admission of certain evidence. Finding merit in these contentions, we reverse.

FACTS

On the morning of February 9, 1982, in Anchorage, Alaska, Joseph A. Skeete, an Internal Revenue Service agent assigned to call on delinquent taxpayers, went to the home of James and Holly Pazsint to make inquiry regarding the Pazsints' tax returns. Mrs. Pazsint, who was over eight months pregnant, opened the door and spoke with Skeete while he remained outside. Skeete identified himself and showed his credentials, stating that he had come to discuss income tax matters. Mrs. Pazsint replied that her husband took care of such matters and that Skeete would have to talk with him. The agent attempted to question Mrs. Pazsint about her own income in the years 1979 and 1980, but she refused to reply and again referred him to her husband. Skeete gave her his business card and asked her to have Mr. Pazsint call him the next day. He then returned to his car, which was parked at the curb in front of the Pazsints' home, and remained there while he wrote out a report of the contact.

According to her testimony, Mrs. Pazsint had been frightened by Skeete because he was black, rather casually dressed, in an unmarked car, and she had not been able to see his credentials when he held them up. When, a short time later, she noticed that Skeete was still sitting in front of her house, she called her husband, who managed a gas station nearby, and asked him to come to her aid. She described Skeete and his car to her husband, explaining that he had said he was an IRS agent, had questioned her, and that he would not leave.

Before Pazsint arrived, Skeete had left the house and pulled out onto the highway, driving slowly because the streets were slick with ice. Pazsint, driving a pickup truck, chased Skeete and forced him off the highway. Carrying a .44 caliber handgun, Pazsint jumped from his truck and forced Skeete to the rear of his car. He ordered Skeete to take a spread-eagle position across the trunk while he frisked him. Pazsint, who was extremely excited, used obscenities and repeatedly asked what Skeete meant in coming to his home and threatening his wife. He refused to let Skeete identify himself.

Residents in the apartment house overlooking the scene telephoned the police to report the incident. Their calls were tape-recorded at the station. Pazsint flagged down a motorist and asked him to call the police, saying he had made a citizen's arrest. Until the police arrived Pazsint continued to display the gun and made Skeete remain spread-eagled on the trunk of his car. On their arrival, the police took both the .44 caliber revolver and a smaller pistol from Pazsint, and all parties went to the police station.

Pazsint was charged on a one-count grand jury indictment of impeding, intimidating, and interfering with an officer of the Internal Revenue Service by use of a deadly or dangerous weapon in violation of 18 U.S.C. Sec. 111, a felony. He was, however, tried before a jury which was instructed only in the crime of forcible assault, and was found guilty of forcibly assaulting a federal officer with the use of a deadly or dangerous weapon. He was sentenced to three years' incarceration.

During the trial Pazsint directed both the court's and the prosecution's attention to the fact that he had not been charged with assault, but rather with forcibly impeding, intimidating, and interfering with an officer. He raised this issue: (1) when objecting to the admission of certain evidence, (2) while making his motion for acquittal at the close of the prosecution's case-in-chief, (3) when objecting to certain jury instructions, and (4) when objecting to the entry of the verdict. The court overruled these objections and denied the motion for acquittal.

ANALYSIS

I. Conviction of an Offense Not Charged in the Indictment was Improper.

The indictment returned by the grand jury in this case bore the caption "Assault on a Federal Officer, Violation of 18 U.S.C. Sec. 111." However, the body of the indictment did not mention the offense of assault; rather it read:

On or about February 9, 1982, in Anchorage, Alaska, in the District of Alaska, JAMES J. PAZSINT did unlawfully and wilfully, by use of a deadly or dangerous weapon, forcibly impede, intimidate and interfere with an officer of the Internal Revenue Service as designated in Title 18, United States Code, Section 1114, while said officer was engaged in or on account of the performance of his official duties, the aforesaid being done by JAMES J. PAZSINT in violation of Title 18, United States Code, Section 111.

After jury trial, supposedly on the charge in this indictment, the defendant was found guilty of a different crime--that of forcibly assaulting a federal officer with the use of a deadly or dangerous weapon.

Except for the well-understood rules covering lesser included offenses, "In federal court a defendant may not be convicted of an offense different from that specifically charged by the grand jury." United States v. Stewart Clinical Laboratory, Inc., 652 F.2d 804, 807 (9th Cir.1981). After an indictment has been returned, its charges may not be broadened through amendment--whether it be by physical alteration, jury instruction, or bill of particulars--except by the grand jury. Russell v. United States, 369 U.S. 749, 769-71, 82 S.Ct. 1038, 1050-1051, 8 L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 272-273, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 10-13, 7 S.Ct. 781, 786-787, 30 L.Ed. 849 (1887). Simply correcting an obvious clerical error or eliminating surplusage from the text of the indictment may be harmless error, but amending the indictment to charge a new crime through the jury instructions constitutes per se reversible error. United States v. Stewart Clinical Laboratory, Inc., 652 F.2d at 807, citing Stirone v. United States, 361 U.S. at 219, 80 S.Ct. at 274. See also United States v. Dawson, 516 F.2d 796, 800-04 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975); Edgerton v. United States, 143 F.2d 697 (9th Cir.1944).

Here, Pazsint was convicted of assault, a crime that was not charged in the indictment. Although 18 U.S.C. Sec. 111 states that "whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes" with certain federal officers or employees shall be guilty of a felony, the grand jury, in returning the indictment, chose to omit the words "assaults," "resists," and "opposes," charging Pazsint only with impeding, intimidating, and interfering. Although the caption of the indictment mentions "assault," it is well established that the caption is completely surplusage and does not control the body of the indictment. United States v. Dawson, 516 F.2d at 804. Nor does the fact that it is stated in the indictment that Pazsint violated 18 U.S.C. Sec. 111 imply that he is charged with all the unlawful acts listed in that statute, as the statutory citation is not regarded as part of the indictment. United States v. Clark, 416 F.2d 63, 64 (9th Cir.1969).

In Stirone v. United States, 361 U.S. at 218-19, 80 S.Ct. at 274, the Supreme Court stated:

The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment ... [W]e cannot know whether the grand jury would have included in its indictment [an additional charge].... Yet because of the court's admission of evidence and under its charge this might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This was fatal error.

Here there is not even a question, as there was in Stirone, of whether or not Pazsint was convicted on the charge returned by the grand jury; the instructions and possible verdict forms dealt only with the uncharged crime and, therefore, the jury could not have found the defendant guilty of any other offense, including those mentioned in the indictment. Pazsint was clearly convicted of an...