U.S. v. Dentler

• Decision Date: 03 July 2007
• Docket Number: No. 06-50272.,06-50272.
• Citation: 492 F.3d 306
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hugh Douglas DENTLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.3d 306

UNITED STATES of America, Plaintiff-Appellee, v. Hugh Douglas DENTLER, Defendant-Appellant.

No. 06-50272.

United States Court of Appeals, Fifth Circuit.

July 3, 2007.

Joseph H. Gay, Jr., Asst. U.S. Atty., Diane D. Kirstein (argued), San Antonio, TX, for U.S.

M. Carolyn Fuentes, Lucien B. Campbell, Fed. Pub. Def., Philip J. Lynch (argued), San Antonio, TX, for Dentler.

Appeal from the United States District Court for the Western District of Texas.

Before DAVIS, DENNIS and PRADO, Circuit Judges.

DENNIS, Circuit Judge:

Defendant Hugh Douglas Dentler was indicted for and convicted of federal bank robbery in violation of 18 U.S.C. § 2113(a). The district court sentenced him to 240 months of imprisonment. Dentler now appeals both his sentence and his conviction. He argues that the indictment was insufficient, because it failed to state a necessary element of the charged crime, and that the instructions given to the jury worked an impermissible constructive amendment. He also argues that the district court incorrectly held that his crime constituted a crime of violence and therefore improperly increased his sentence range under the Guidelines. For the reasons discussed below, we AFFIRM his conviction, but VACATE his sentence and REMAND the case for resentencing.

I.

Dentler was indicted for federal bank robbery in violation of 18 U.S.C. § 2113(a). That statute imposes a maximum sentence of twenty years on anyone who

. . . by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or

. . . enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny[.]

By contrast, the single count in Dentler's indictment alleged that he

did attempt to enter Texstar Bank and the building used in whole or in part as a bank, with the intent to commit the felony offense of robbery, by taking and attempting to take from the person or presence of another, money belonging to and in the care, custody, control, management, and possession of the Texstar Bank, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. Section 2113(a).

Dentler moved to dismiss the indictment, urging that it failed to state an offense under the statute because it failed to charge either (1) that the attempted taking involved force, violence, or intimidation or (2) that his intended felony affected the bank. At the close of the jury trial, his counsel objected to the jury instructions on the grounds that the indictment confused the two separate crimes defined under section 2113(a), depriving him of notice as to which provision he was expected to defend against. The objection was overruled, and the jury found Dentler guilty.

At sentencing, the district court held that Dentler's conviction constituted a crime of violence and, as a result, labeled Dentler a career offender under U.S.S.G. § 4B1.1. As a result, Dentler's offense level rose from 29 to 32, and his resulting advisory guideline sentence range rose from 140-175 months to 210-262 months. Dentler ultimately received a sentence of 240 months of imprisonment, the statutory maximum for the offense. He timely appeals, challenging both his conviction and his sentence.

II.

Dentler argues that the indictment fails to allege an offense under 18 U.S.C. § 2113(a) because it fails to state a full set of elements for either of the offenses laid out in the statute. He also urges that the jury instructions constructively, and therefore impermissibly, amended his indictment by including an offense element not charged in the original indictment. We address each argument in turn.

A.

A challenge to the sufficiency of the indictment is reviewed de novo. United States v. Partida, 385 F.3d 546, 554 (5th Cir.2004). A grand jury indictment must "set forth each essential element of an offense." United States v. Wilson, 884 F.2d 174, 179 (5th Cir.1989). To be valid, an indictment "must charge positively and not inferentially everything essential." Wilkins v. United States, 376 F.2d 552, 562 (5th Cir.1967). Moreover, a valid indictment must set forth the alleged offense "with sufficient clarity and certainty to apprise the accused of the crime with which he is charged." United States v. Kay, 359 F.3d 738, 742 (5th Cir.2004). In determining whether an indictment is sufficient, we do not ask

whether the indictment could have been better drafted, but whether it conforms to minimal constitutional standards. These minimum constitutional standards are met where the indictment alleges "every element of the crime charged and in such a way `as to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy clause in any subsequent proceeding.'".

United States v. Gonzales, 436 F.3d 560, 569 (5th Cir.2006) (internal citations omitted); see also United States v. Threadgill, 172 F.3d 357, 366 (5th Cir.1999) (quoting United States v. Lavergne, 805 F.2d 517, 521 (5th Cir.1986)).

We have, therefore, held that so long as an indictment as a whole "fairly imports" an element, "an exact recitation of [that] element . . . is not required." United States v. Harms, 442 F.3d 367, 372 (5th Cir.2006). "We generally . . . will not reverse for `minor deficiencies that cause no prejudice.'" United States v. Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir.2000) (quoting United States v. Gaytan, 74 F.3d 545, 551 (5th Cir.1996)). Thus, even where an objection has been raised at trial, we have upheld the validity of an indictment despite the fact that particular language was not used to identify a key element, so long as "the language of the indictment demonstrates adequately" that the element is required. See, e.g., Haas, 583 F.2d at 218 ("[T]he indictment . . . need not contain technical terms of knowledge and intent if it recites facts and uses language which, taken as a whole, indicate knowledge and intent and that the indictment contains sufficient factual data to withstand a motion to dismiss.").

The statute at issue in this case, 18 U.S.C. § 2113(a), describes two separate offenses. United States v. McGhee, 488 F.2d 781, 784 (5th Cir.1974). The first paragraph criminalizes bank robbery (or an attempt) that uses force, violence, or intimidation. United States v. Bellew, 369 F.3d 450, 454 (5th Cir.2004). That crime requires that the government prove the following elements:

(1) an individual or individuals (2) used force and violence or intimidation (3) to take or attempt to take (4) from the person or presence of another (5) money, property, or anything of value (6) belonging to or in the care, custody, control, management, or possession (7) of a bank, credit union, or savings and loan association.

Id.

The second paragraph, by contrast, allows for a conviction where "if at the time [a] person attempts to enter a bank he intends to commit any felony affecting the bank." United States v. Jones, 993 F.2d 58, 60 (5th Cir.1993). To convict under that paragraph, the government must prove the following elements: (1) an entry or an attempt to enter (2) any bank, credit union, or any savings and loan association (or building used in whole or part as such), (3) with the intent to commit there (4) any felony (5) affecting such bank, credit union, or savings and loan association. 18 U.S.C. § 2113(a).

Dentler's indictment, by comparison, asserts the following:

[1] Dentler attempted to enter

[2] TexStar Bank

[3] intending to commit

[4] the felony offense of robbery

[5] by taking and attempting to take

[6] from the person or presence of another

[7] money

[8] belonging to and in the care, custody, control, management, and possession of TexStar Bank.

As such, his indictment fails to assert, on its face, a full set of elements for either crime: it is missing either the allegation that Dentler intended a taking "by force and violence or intimidation" (under the first paragraph of section 2113(a)) or that the felony he intended to commit at the time he entered the bank affected the bank (under the second paragraph of section 2113(a)).

Dentler argues that the indictment was in error; the government counters that in charging Mr. Dentler with attempting to enter a bank while intending to rob someone of the bank's money, the indictment is sufficient in indicating that Dentler's crime affected the bank. We need not address this question, because even assuming, arguendo, that the indictment was in error, any such error is harmless. See United States v. Robinson, 367 F.3d 278, 286-87 (5th Cir.2004) (failure to include an offense element in an indictment is reviewed for harmless error where, as here, it was properly raised at trial) (citing Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)); see also United States v. Baptiste, 309 F.3d 274, 277 (5th Cir.2002) (per curiam) (on petition for rehearing); United States v. Matthews, 312 F.3d 652, 665 (5th Cir. 2002). Under the harmless error standard, the "question is whether the error affects substantial rights." Robinson, 367 F.3d at 286-87 (citing Fed.R.Crim.P. 52(a)).

An indictment serves two major functions:

it (1) provides notice of the crime for which the defendant has been charged, allowing him the...