U.S. v. Carr

• Decision Date: 11 September 2002
• Docket Number: No. 01-4820.,01-4820.
• Citation: 303 F.3d 539
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adam Nicklous CARR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 539

303 F.3d 539

UNITED STATES of America, Plaintiff-Appellee, v. Adam Nicklous CARR, Defendant-Appellant.

No. 01-4820.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 2002.

Decided September 11, 2002.

ARGUED: Eric David Placke, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Douglas Cannon, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Robert A.J. Lang, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Before MICHAEL and GREGORY, Circuit Judges, and BEEZER, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge GREGORY and Senior Judge BEEZER joined.

OPINION

MICHAEL, Circuit Judge.

Adam Nicklous Carr was convicted under 18 U.S.C. § 844(i) for intentionally setting fire to an apartment building and causing the death of an occupant. He was sentenced to life in prison. Carr appeals, arguing that his conviction must be reversed because his indictment failed to allege an essential element of the offense, namely, that the building was damaged or destroyed "by means of fire or an explosive." Using the analysis for forfeited error, we affirm Carr's conviction because the indictment defect did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Carr also appeals his sentence, arguing that the district court erroneously equated his reckless state of mind with knowledge when it denied his request for a downward departure. See U.S. Sentencing Guidelines Manual § 2A1.1, cmt. n. 1 (2001). We remand for resentencing because we are not sure that the district court properly distinguished between recklessness and knowledge when it refused to depart downward.

I.

In the early morning hours of February 1, 2001, someone set fire to a four-unit brick apartment building at 730 South Beaumont Avenue in Burlington, North Carolina. The fire was set in Apartment 2, a first-floor apartment that was vacant at the time. Firefighters and an arson expert said that the nature and severity of the damage indicated that a flammable liquid had been used to start the fire. The building's three tenants were asleep in their respective apartments when the fire was started. Two of the tenants made it out of the building. The third, Ernest Smithey, Jr., did not. Firefighters discovered Smithey's body on the floor of his second-level apartment. The cause of death was carbon monoxide poisoning from the fire.

About two weeks later, Torrie Rudd, an acquaintance of defendant Carr, came to the police after learning that the Burlington Crimestoppers were offering a reward for information about the identity of the arsonist. Rudd told police that on the day of the fire she talked with Carr at his brother's house. She asked Carr whether he had set the fire and whether he knew that people were inside the apartment building at the time. Carr replied that he "didn't think it would burn like that and he didn't know if anybody was in the [building]." Rudd later wore a wire and recorded conversations with Carr in which Carr made self-incriminating statements, including a boast that his girlfriend would provide a false alibi. When the police interviewed Carr on March 5, 2001, he made oral and written statements, essentially claiming that if he was the cause of the fire, it was an accident. Specifically, Carr claimed that he had gone into an empty apartment and a fire erupted when he tried to light the gas heater. Carr said he beat the fire out with his shirt, urinated on the heater, and left the building. These statements were completely contradicted by the government's evidence, including the evidence about the nature of the fire.

Carr was indicted by a federal grand jury for a violation of 18 U.S.C. § 844(i), which provides:

Whoever maliciously damages or destroys... by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years ... and if death results to any person ... as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.

The indictment alleged that Carr "did maliciously damage and destroy and attempt to damage and destroy an apartment building ... used in interstate commerce... which resulted in the death of Ernest Stanton Smith[e]y, Jr., in violation of Title 18, United States Code, Section 844(i)." The indictment failed to allege that Carr had damaged or destroyed the building "by means of fire or an explosive." Carr did not object to the defect in the indictment either before or during trial.

Carr was convicted by a jury. At sentencing he moved for a downward departure under the applicable guideline, U.S.S.G. § 2A1.1, First Degree Murder, application note 1, on the ground that he did not knowingly or intentionally cause the death of the tenant. The district court found that Carr had acted with reckless indifference to the possibility of causing death, which the court equated with knowledge. The court therefore held that Carr was ineligible for a downward departure. Carr was sentenced to life imprisonment plus five years of supervised release. He appeals his conviction, arguing that the indictment's failure to allege an essential element of the offense — "by means of fire or an explosive" — constitutes plain error that we should notice and correct, even though he did not bring this defect to the attention of the district court. Carr also appeals his sentence, arguing that the district court committed legal error by equating reckless indifference with knowledge and that this error led the court to refuse to consider a downward departure under the applicable guideline, U.S.S.G. § 2A1.1, cmt. n. 1.

II.

We first consider whether the indictment's failure to allege an essential element of the offense is an error requiring reversal of Carr's conviction despite his failure to make a timely objection. All agree that the omitted phrase, "by means of fire or an explosive," is an essential element of a § 844(i) offense. See United States v. Gullett, 75 F.3d 941, 947 (4th Cir.1996). Indeed, the omission of the "fire or ... explosive" language means that the indictment did not charge a federal crime at all.

In his initial brief on appeal, Carr contended that the omission from his indictment of an essential element of the crime was an error that deprived the district court of jurisdiction to hear his case. Accordingly, he argued that his conviction had to be vacated notwithstanding his failure to object. This position had some support in the case law. See, e.g., Ex parte Bain, 121 U.S. 1, 13, 7 S.Ct. 781, 30 L.Ed. 849 (1887) (a flawed amendment to the indictment means that "the jurisdiction of the offence [sic] is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment."); United States v. Hooker, 841 F.2d 1225, 1232 (4th Cir.1988) (en banc) ("Because the missing element in the present case was essential, its complete absence from Count III [of the indictment] is a fatal defect.... The court thus had no jurisdiction to try [the defendant] under that count ... and its judgment must be vacated."). A few days before Carr's appeal was argued, however, the Supreme Court issued its decision in United States v. Cotton, ___ U.S. ___, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). In Cotton the Court discussed whether an indictment defect, particularly the failure to charge a federal crime, deprives a district court of jurisdiction. The Court said:

Post-[Ex parte]Bain cases confirm that defects in an indictment do not deprive a court of its power to adjudicate a case. In Lamar v. United States, 240 U.S. 60, 36 S.Ct. 255, 60 L.Ed. 526 (1916), the Court rejected the claim that "the court had no jurisdiction because the indictment does not charge a crime against the United States." Id., at 64, 36 S.Ct. 255. Justice Holmes explained that a district court "has jurisdiction of all crimes cognizable under the authority of the United States ... [and] [t]he objection that the indictment does not charge a crime against the United States goes only to the merits of the case." Id., at 65, 36 S.Ct. 255. Similarly United States v. Williams, 341 U.S. 58, 66, 71 S.Ct. 595, 95 L.Ed. 747 (1951), held that a ruling "that the indictment is defective does not affect the jurisdiction of the trial court to determine the case presented by the indictment."

Thus, this Court some time ago departed from Bain's view that indictment defects are "jurisdictional." ... Insofar as it held that a defective indictment deprives a court of jurisdiction, Bain is overruled.

Cotton, ___ U.S. at ___, 122 S.Ct. at 1785 (parallel citations omitted; second alteration in original). This language from Cotton prompted Carr's lawyer to concede at oral argument that the defect in the indictment did not deprive the district court of jurisdiction to adjudicate Carr's case.

Because Cotton has taken the jurisdictional issue away from us, we will review Carr's forfeited claim about the indictment defect under the plain error test of Federal Rule of Criminal Procedure 52(b). See Cotton, ___ U.S. at ___, 122 S.Ct. at 1785. Under that test, which was spelled out in United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), an appellate court may correct an error not brought to the attention of the trial court if (1) there is an error (2) that is plain and (3) that affects substantial rights. "If...