U.S. v. Beasley

• Decision Date: 08 October 2009
• Docket Number: No. 08-5164.,08-5164.
• Citation: 583 F.3d 384
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leadrick BEASLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

583 F.3d 384

UNITED STATES of America, Plaintiff-Appellee, v. Leadrick BEASLEY, Defendant-Appellant.

No. 08-5164.

United States Court of Appeals, Sixth Circuit.

Argued: August 5, 2009.

Decided and Filed: October 8, 2009.

ARGUED: Needum L. Germany, III, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. E. Greg Gilluly, Jr., Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: Needum L. Germany, III, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. E. Greg Gilluly, Jr., Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: SILER, MOORE, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Leadrick Beasley appeals his conviction of one count of felon in possession of ammunition in violation of 18 U.S.C. § 922(g). He argues that his conviction should be vacated on the ground that the district court constructively amended his indictment by instructing the jury that it could convict him if it found that he possessed any caliber of ammunition when the indictment charged him with possessing .25 caliber ammunition but the evidence at trial showed that he actually possessed .22 caliber ammunition. Beasley also contends that the district court abused its discretion by denying his request for a mistrial after the prosecutor asked Beasley on cross-examination whether he told Wilma Mack (Beasley's girlfriend) to "go see my lawyer he'll tell you what to say." We disagree and affirm.

I.

On April 24, 2007, a grand jury returned a one-count indictment charging Beasley, a convicted felon, with possessing ammunition, specifically, "three (3) spent .25 caliber shell casings with the head-stamp marking of `C,' in violation of Title 18, United States Code, Section 922(g)." During jury selection, the government filed a motion to strike the caliber of ammunition alleged in the indictment as "surplusage." Beasley objected to the motion, and the court denied it.

At trial, Major Currie, Beasley's landlord, testified that on the morning of January 19, 2007, he and Beasley were involved in an argument outside the boarding house where Beasley lived. Although the confrontation ended, Beasley returned later that evening to the boarding house with his live-in girlfriend, Wilma Mack. Both men allegedly exchanged "words." According to Currie, Beasley then aimed a pistol at him and fired approximately three shots before driving off. Currie, who was not harmed, called 911. Thereafter, officers arrived at the scene and collected three shell casings close to where Beasley allegedly fired the shots.

Officer Daniel Washington of the Memphis Police Department responded to Currie's 911 call. When Washington arrived, Currie appeared to be "rattled," "very, very unorganized," and was "pacing." Mack, who was also upset, told Washington that Beasley fired three shots, apprised him of the location of the spent shell casings, and gave him a shell casing that she found between the sidewalk and the front yard. Washington and his partner recovered the other two shell casings from the scene.

Memphis Police Officer Michael Warren also responded to Currie's 911 call. Mack told Warren that Beasley had driven to the Bristol Apartments. Warren and his partner, Detective Rodney Alexander, intercepted Beasley in the parking lot of the apartments. When they identified themselves as police officers, Beasley attempted to escape. A foot chase ensued, and the officers caught and arrested Beasley. After they informed him of his Miranda rights, Beasley allegedly confessed in a sworn statement that he had been armed with a firearm he purchased three weeks ago, and he conceded that no one else had been armed. Although he denied aiming the gun at Currie, Beasley admitted that he "shot it in the air" and then "tossed" the gun. He explained that he fired the gun because Currie was making "disrespectful" remarks about him to his girlfriend.

Special Agent Joseph Bradley of the Bureau of Alcohol, Tobacco, and Firearms testified as an expert in firearms and ammunition identification and origin of manufacturer. He stated that the three shell casings recovered were .22 caliber and were manufactured outside the state of Tennessee and therefore had the means to travel in interstate commerce.¹

Beasley called EJ Simmons, a resident of the boarding house, as a defense witness. Simmons testified that he was at home when the alleged crime occurred and that he did not hear any gunshots. He also stated that on New Year's Eve and the Fourth of July, "[e]verybody in the neighborhood" fires weapons into the air.

Beasley also testified in his own defense. On the day of the alleged crime, Beasley maintained that he performed landscape work for a friend and then attended a "get-together" at the Bristol Apartments. Thereafter, he took Mack to the store. When Beasley and Mack returned to the boarding house, Currie arrived at the same time, exited his vehicle screaming and yelling, and Currie and Beasley began arguing. According to Beasley, he neither possessed a gun nor fired one. Instead, he returned to his friend's apartment. When Detective Warren telephoned Beasley and told him to return to the boarding house to explain what had happened, Beasley insisted that Warren interview him at his friend's apartment. Beasley asserted that when Warren did not arrive, he attempted voluntarily to return home, but "a big SUV with tinted windows pulled up and two guys jumped out with guns" and apprehended him. After police allegedly handcuffed him to a chair for hours and warned him that they would charge him with murder, Beasley confessed to the crime because he was "scared," "hungover," and "tired."

On cross-examination, Beasley admitted that he discussed his case with Mack while he was incarcerated. He agreed that he told Mack "I've got a lot to tell you but I can't do it over the phone because it's recorded" and that "I got to get with you. I got to get with you. You're my way. I can beat this case."

The prosecutor then asked Beasley whether he told Mack to "go see my lawyer he'll tell you what to say[.]" Beasley denied making the statement and demanded proof. Thereafter, defense counsel moved for a mistrial, arguing that the question was improper because it implicated Beasley and himself in a conspiracy to incite Mack to commit perjury. The tape recorded jailhouse conversation confirmed that Beasley actually told Mack: "You can see my lawyer, he'll tell you what you need to do." The district court denied the motion for a mistrial.

The jury found Beasley guilty. He was sentenced to seventy-seven months of imprisonment.

Beasley timely appeals.

II.

Beasley requests that we vacate his conviction on the ground that the district court constructively amended his indictment by instructing the jury that it could convict him if it found that he possessed any caliber of ammunition, even though the indictment charged him with possessing .25 caliber ammunition and the evidence at trial showed that he actually possessed .22 caliber ammunition.

Whether there has been an amendment or variance to an indictment is a legal question that we typically review de novo. United States v. Nance, 481 F.3d 882, 886 (6th Cir.2007). However, a thorough review of the record and the parties' appellate briefs reveals that Beasley failed to raise the issue before the district court. Accordingly, we review the issue for plain error. See FED.R.CIV.P. 52(b); United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (reviewing a constructive amendment to an indictment which increased the maximum statutory sentence for plain error because defendant made no objection); United States v. Hunter, 558 F.3d 495, 501 (6th Cir.2009); United States v. Kuehne, 547 F.3d 667, 682 (6th Cir.2008).

We have recognized two categories of indictment modification:

An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of an indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.

Nance, 481 F.3d at 886 (citations and internal quotation marks omitted). While an amendment violates the Fifth Amendment's grand jury guarantee, a variance infringes upon the Sixth Amendment's "apprisal function." United States v. Ford, 872 F.2d 1231, 1235 (6th Cir.1989) (citing 1 C. Wright, FEDERAL PRACTICE AND PROCEDURE § 127 (1982)).

Because they implicate different constitutional concerns, we scrutinize amendments and variances differently. "An amendment is per se prejudicial, as it directly infringes the defendant's right to know of the charges against him by effectively allowing the jury to convict the defendant of a different crime than that for which he was charged." Martin v. Kassulke, 970 F.2d 1539, 1542 (6th Cir.1992). "A variance is not reversible error unless the defendant demonstrates prejudice." Nance, 481 F.3d at 886. However, the line separating an amendment from a variance is blurry: "If a variance infringes too greatly upon the defendant's Sixth Amendment right to be informed of the nature and cause of the accusation against him, then it is considered a constructive amendment and is accorded the per se prejudicial treatment of an amendment." Id. (citation and internal quotation marks omitted). A variance becomes a constructive amendment "only when the variance creates a substantial likelihood that a defendant may have been convicted of an offense other than that charged by the grand jury." Id. (citations and internal quotation marks omitted). This may occur when "the presentation of evidence and jury instructions . . . modify essential elements of the offense charged[,]" United States v. Robison, 904 F.2d 365, 369 (6th Cir.1990) (citations and internal quotation...