U.S. v. Dixon, 00-10739

• Decision Date: 15 November 2001
• Docket Number: No. 00-10739,00-10739
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee v. JIMMY LEE DIXON, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 636

273 F.3d 636 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JIMMY LEE DIXON, Defendant-Appellant

No. 00-10739

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

November 15, 2001

Appeal from the United States District Court for the Northern District of Texas

Before BARKSDALE and STEWART, Circuit Judges, and DUPLANTIER,^* District Judge.

DUPLANTIER, District Judge:

Jimmy Lee Dixon challenges his convictions and sentences on four counts: kidnapping, robbery, attempted robbery, and using a short-barreled shotgun during and in relation to a crime of violence. Additionally, he challenges his sentence on a fifth count, assault with a dangerous weapon. For the following reasons, we AFFIRM IN PART, VACATE IN PART, AND REMAND FOR RESENTENCING.

BACKGROUND

A grand jury indicted Dixon on five counts: (1) robbing Janet Shahan by force, violence, and intimidation (18 U.S.C. §§ 7(3) and 2111); (2) attempting to rob David Dyer by force, violence, and intimidation (18 U.S.C. §§7(3) and 2111); (3) assaulting Dyer with a short-barreled shotgun (18 U.S.C. §§ 7(3) and 113(a)); (4) using and carrying a gun in relation to a kidnapping (18 U.S.C. §§ 7(3) and 924(c)(1)); and (5) kidnapping Shahan for the purpose of committing aggravated sexual abuse (18 U.S.C. §1201(2)). All of the criminal acts alleged in the indictment occurred at a Veterans Affairs Medical Center, a facility within the territorial jurisdiction of the United States (18 U.S.C. §7(3)). After his first trial, a jury convicted defendant on all counts; the judge sentenced defendant to concurrent terms of 262 months imprisonment on Counts 1, 2, 3, and 5 and to a 120 month term of imprisonment on Count 4, the gun count, to run consecutive to the other sentences. The judge also imposed a five-year term of supervised release on the gun count and a three-year term of supervised release on the other counts.

Dixon appealed his convictions and sentences. Concluding that the district judge erred in refusing to instruct the jury on the defense of insanity, this court reversed Dixon's convictions and remanded for a new trial. United States v. Dixon, 185 F.3d 393 (5th Cir. 1999).

Following the second trial, a jury again convicted Dixon on all counts. The district judge imposed the same sentences.

The facts are reported in considerable detail in our previous panel opinion. See United States v. Dixon, 185 F.3d at 395-97. Although that statement of the facts is based on the evidence introduced at defendant's first trial, the evidence presented at the second trial did not materially differ from that introduced at the first trial.

CONSTRUCTIVE AMENDMENT OF THE INDICTMENT

Defendant contends that his conviction for kidnapping (18 U.S.C. §1201(a)(2)) must be reversed because in instructing the jury the district judge constructively amended the indictment by tracking the broad, general language of the kidnapping statute rather than the specific language of the indictment. Title 18 U.S.C. §1201(a)(2) makes it a crime for anyone to unlawfully seize, kidnap, abduct, or carry away and "hold[] for ransom or reward or otherwise any person, . . . when any such act against the person is done within the special maritime and territorial jurisdiction of the United States." The phrase "or otherwise" has been interpreted "to encompass any benefit a captor might attempt to receive." United States v. Webster, 162 F.3d 308, 328 (5th Cir. 1998) (citing United States v. Gooch, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed.2d 522 (1936)). The indictment charged Dixon as follows:

On or about February 9, 1997, . . . JIMMY LEE DIXON, defendant, at a place within the special maritime and territorial jurisdiction of the United States, namely the Veterans Affairs Medical Center, 4500 S. Lancaster Road, Dallas, Texas, on land acquired for the use of the United States and under its concurrent jurisdiction, for the purpose of committing the offense of aggravated sexual abuse, to wit: by placing Janet Lynn Shahan in fear of death and serious bodily injury and thereby forcing her to engage in a sexual act, did willfully, knowingly, and unlawfully seize, kidnap, abduct, carry away, and hold Janet Lynn Shahan. (emphasis added).

The judge instructed the jury, in pertinent part, that it must find "[t]hat the Defendant held [Janet Shahan] for some benefit that the Defendant intended to derive from the kidnapping; . . .." The judge further instructed the jury that:

The term "some benefit" includes motives of personal monetary gain as well as motives which do not involve financial gain, since a benefit is any legal or illegal object of the kidnapping which a perpetrator might consider of sufficient motive to induce him to undertake it. The term "some benefit" can include sexual gratification.

"The Fifth Amendment guarantees that a criminal defendant will be tried only on charges alleged in a grand jury indictment." United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991). Thus, "only the grand jury may amend an indictment once it has been issued." United States v. Daniels, 252 F.3d 411, 413 (5th Cir. 2001). A jury instruction constructively amends an indictment "if it permits the jury 'to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.'" Id. at 413-14 (quoting United States v. Chandler, 858 F.2d 254, 257 (5th Cir. 1988)). An indictment is constructively amended in violation of the Fifth Amendment if the jury is permitted to convict the defendant on "an alternative basis permitted by the statute but not charged in the indictment." United States v. Robles-Vertiz, 155 F.3d 725, 728 (5th Cir. 1988) (internal citation and quotation omitted).

Standard of Review

Defendant does not contend that he objected to the challenged instruction at the second trial. Rather, he relies upon the fact that during the first trial defense counsel objected to the kidnapping instruction proposed by the judge and that prior to the second trial defendant's counsel filed an "Adoption of Previously Filed Trial Requests," " including, by [sic] not limited to: . . . Defendant's Requested Jury Instructions." The "Adoption of Previously Filed Trial Requests" cannot be construed as an objection to the challenged jury instruction. In connection with his first trial, defendant did not submit a requested jury instruction for the kidnapping count. Nor did the "Adoption of Previously Filed Trial Requests" filed prior to the second trial encompass the objections made by defendant's counsel during the first trial. Moreover, even if we construed the "Adoption of Previously Filed Trial Requests" to include counsel's objection during the first trial to the kidnapping jury instruction, we note that at the second trial the judge never granted counsel's motion to adopt all of the "previously filed trial requests." Because defendant did not object during his second trial to the kidnapping instruction, we review that instruction only for plain error.¹

Plain Error Analysis

In United States v. Olano, 507 U.S. 725, 731-34, 113 S.Ct. 1770, 1776-78, 123 L.Ed.2d 508 (1993), the Supreme Court held that where a party has forfeited an objection, by failing to urge it at trial, a court of appeals has discretion to correct the error, but only where the trial court's error is plain, i.e., clear or obvious, and affects the party's substantial rights. "The Court of Appeals should correct a plain forfeited error affecting substantial rights if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. at 736, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).

Assuming without deciding that the first two prerequisites for granting relief for plain error are satisfied, it is clear that the third is not: the jury instruction did not affect any substantial rights of the defendant. There is overwhelming evidence that the "benefit" defendant derived from the kidnapping was aggravated sexual abuse, as specifically charged in the indictment. Janet Shahan testified that the defendant raped her twice and that she was in fear of serious bodily injury or death if she failed to comply with his demand. Additionally, Dr. Robert Coleman testified that vaginal swabs obtained from Ms. Shahan during a pelvic examination conducted within a few hours of her release by defendant revealed the presence of live, motile sperm, indicating sexual activity within four to six hours prior to the examination. Considering the totality of the evidence there can be no doubt that the jury concluded that the defendant placed his victim "in fear of death and serious bodily injury," thereby forcing her to engage in "a sexual act," as charged in the indictment. Thus, the general "some benefit" charge could not have affected defendant's substantial right to a fair trial.

JURY INSTRUCTION ON 18 U.S.C. §924(c)(1)

Defendant urges that under the statute applicable at the time he committed the offense, the government was required to prove that he knew that the weapon he used during the kidnapping was a short-barreled shotgun and that the jury should have been so instructed. Defendant relies upon United States v. Castillo, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), holding that under 18 U.S.C. §924(c)(1)(1988 ed.) the type of weapon is an element of the offense, not a sentencing factor² and United States v. Wilson. 884 F.2d 174, 179 (5th Cir. 1989) (requisite mental state for a violation of 18 U.S.C. §924(c) is knowledge of the facts constituting the offense).

Where, as here, defendant failed to object to the jury instruction, we review only for plain error as defined above. United States v. Daniels, 252 F.3d at 414. Assuming without deciding that Castillo makes the defendant's knowledge of the short-barreled characteristic of the shotgun an element of the offense under §924(c)(1), we hold that the judge...