U.S. v. Fletcher

• Decision Date: 29 January 1996
• Docket Number: No. 94-5767,94-5767
• Citation: 74 F.3d 49
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur FLETCHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 49

74 F.3d 49

UNITED STATES of America, Plaintiff-Appellee, v. Arthur FLETCHER, Defendant-Appellant.

No. 94-5767.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 3, 1995.

Decided Jan. 29, 1996.

ARGUED: Martin Patrick Sheehan, Sheehan & Nugent, Wheeling, West Virginia, for Appellant. Paul Thomas Camilletti, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. ON BRIEF: William D. Wilmoth, United States Attorney, Wheeling, West Virginia, for Appellee.

Before MURNAGHAN, NIEMEYER, and HAMILTON, Circuit Judges.

Affirmed and sentence vacated and remanded for resentencing by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge NIEMEYER and Judge HAMILTON joined.

MURNAGHAN, Circuit Judge:

Appellant Arthur E. Fletcher was convicted of cultivating marijuana in West Virginia in violation of 21 U.S.C. Sec. 841(a)(1), then sentenced to 97 months in prison. On appeal, he brings challenges to both his conviction and his sentence. Finding no reversible error in the conduct of the trial, we affirm Fletcher's conviction. However, in light of recent amendments to the United States Sentencing Guidelines, we remand for resentencing.

I.

Fletcher's conviction resulted from a state and federal investigation launched after a turkey hunter reported marijuana growing near Stonewall Jackson Lake in Lewis County, West Virginia. Following the tip, investigators discovered four marijuana fields on a single mountaintop during the summer of 1993. With the aid of video surveillance and undercover agents, authorities arrested Fletcher and charged him with cultivating marijuana in violation of federal law. ¹

A federal jury in Clarksburg, West Virginia, heard Fletcher's case and returned a conviction on June 13, 1994. At the subsequent sentencing hearing, the district judge determined that Fletcher was not entitled to a sentence reduction for acceptance of responsibility because he had committed perjury at trial by claiming to be in the hunting area near the marijuana fields on the day he was arrested only to look for his dogs. The court found that the Government had proved Fletcher responsible for cultivation in two of the four fields, and therefore that Fletcher's offense involved 722 marijuana plants. Using the drug quantity table in U.S.S.G. Sec. 2D1.1, the judge treated each plant as the equivalent of one kilogram of marijuana and calculated a base offense level of 30. She sentenced Fletcher at the lowest end of the Guideline range to 97 months in prison followed by five years on supervised release, and ordered him to pay a $50 mandatory special assessment. Fletcher filed a timely appeal on October 6, 1994, challenging both his conviction and his sentence.

II.

A.

During pretrial discovery, the magistrate judge ordered the Government to file a bill of particulars in response to Fletcher's inquiry about the number of fields or plants with which he was charged. The Government did so, answering that Fletcher was accused of involvement in "several fields." At trial, the Government offered direct evidence linking Fletcher to field one and circumstantial proof tying him to fields two, three and four. Fletcher moved for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, claiming that the Government had failed to carry its burden of proof by connecting him only to one field. The district court denied the motion, finding "that there was sufficient evidence to link the testimony concerning the four fields" to Fletcher. Fletcher argues that the court erred by allowing the case to go to the jury on proof less than that required by the bill of particulars and that his conviction thus amounts to an unconstitutional amendment of the indictment and bill of particulars, or a fatal variance between the charge and the proof at trial.

A bill of particulars identifies for the defendant the area within which the government's chief evidence will fall. As we have noted, its purpose "is to fairly apprise the defendant of the charges against him so that he may adequately prepare a defense and avoid surprise at trial ... not ... to provide detailed disclosure of the government's evidence in advance of trial." United States v. Automated Medical Labs., Inc., 770 F.2d 399, 405 (4th Cir.1985) (citation omitted); see also United States v. Schembari, 484 F.2d 931, 934-35 (4th Cir.1973). A bill of particulars is not part of the indictment, nor does it constitute a change or an amendment of the charges as set forth in the indictment or information. United States v. Francisco, 575 F.2d 815, 819 (10th Cir.1978); Pipkin v. United States, 243 F.2d 491, 494 (5th Cir.1957). It merely amplifies the indictment by providing missing or additional information so that the defendant can effectively prepare for trial. United States v. Howard, 590 F.2d 564, 567 (4th Cir.), cert. denied, 440 U.S. 976, 99 S.Ct. 1547, 59 L.Ed.2d 795 (1979); United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 1214, 59 L.Ed.2d 454 (1979). Furthermore, the quantity of drugs involved in an offense does not become a substantive element of the crime to be proved at trial simply because an amount is indicated in the indictment or information. United States v. Kimberlin, 18 F.3d 1156, 1159 (4th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 131, 130 L.Ed.2d 74 (1994). In order to sustain a conviction under 21 U.S.C. Sec. 841, the government does not have to prove that any specific quantity of drugs was involved because quantity is not a substantive element of the crime. United States v. Uwaeme, 975 F.2d 1016, 1018 & n. 6 (4th Cir.1992). The weight or quantity of drugs is, however, appropriately used as a factor in calculating the sentence. Id. at 1018; see also United States v. Heater, 63 F.3d 311, 322 (4th Cir.1995) (the quantity of plants is a statutory sentencing factor rather than a substantive element of the offense), cert. denied, --- U.S. ----, 116 S.Ct. 796, --- L.Ed.2d ---- (1996). Thus, the Government's response of "several fields" did not establish the quantity of drugs as an element of the offense nor bind the Government to proving that Fletcher cultivated marijuana in each of the four fields. It merely amplified the charge as set forth in the indictment.

Moreover, any discrepancy that may have existed between the Government's bill and its proof at trial is harmless. When a defendant is convicted of charges not included in the indictment, an amendment has occurred which is per se reversible error. United States v. Keller, 916 F.2d 628, 633 (11th Cir.1990), cert. denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991). When the evidence at trial differs from what is alleged in the indictment, then a variance has occurred. Such a variance violates a defendant's rights and requires reversal only if it prejudices him, id., either by surprising him at trial and hindering the preparation of his defense, Howard, 590 F.2d at 567; United States v. Horton, 526 F.2d 884, 887 (5th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976), or by exposing him to the danger of a second prosecution for the same offense, Francisco, 575 F.2d at 819. As long as the proof at trial does not add anything new or constitute a broadening of the charges, then minor discrepancies between the Government's charges and the facts proved at trial generally are permissible. See United States v. Miller, 471 U.S. 130, 145, 105 S.Ct. 1811, 1819, 85 L.Ed.2d 99 (1985) (finding no violation of the defendant's Fifth Amendment right to indictment by a grand jury by a conviction obtained upon proof more narrow than what the indictment charged); Land v. United States, 177 F.2d 346, 348 (4th Cir.1949) (finding no error in a conviction where the government proved illegal activity on dates set forth in the bill of particulars and dates which varied slightly from those contained in the bill of particulars).

Here, there was no unconstitutional amendment. The district court did not permit Fletcher to be convicted of an offense omitted from the indictment. Nor did the judge allow proof outside that suggested by the bill of particulars. Fletcher provides no evidence that he was prevented from bringing a full defense or that he encountered unfair surprise at trial. The Government's response "several fields" provided him with clear notice about the nature of the prosecution's allegations and sufficient information to prepare an adequate defense to evidence relating to all four fields known to be involved in the case. Neither the indictment nor the bill of particulars indicated that the Government planned to prove that Fletcher cultivated marijuana in all four fields, only that the Government could present evidence linking him to more than one field. The fact that Fletcher's attorney based his trial strategy on a mistaken interpretation of the Government's answer in its bill does not amount to prejudice on the Government's part. We therefore fail to find a fatal variance and conclude that "the indictment as amplified by the bill of particulars afforded [Fletcher] an opportunity fairly and adequately to prepare his defense." Howard, 590 F.2d at 567.

B.

Fletcher claims he was ordered to exchange witness lists with the prosecution in violation of his Fifth Amendment rights. The day before trial, the district court overruled Fletcher's objections to the exchange and ordered him to produce the list or forego calling witnesses at trial. We previously have interpreted Rule 16 of the Federal Rules of Criminal Procedure governing discovery and inspection as placing the decision regarding pre-trial disclosure of witness lists within the sound discretion of the trial court. United States v. Anderson, 481 F.2d 685, 693 (4th Cir.1973); United States v. Jordan, 466 F.2d 99, 101 (4th Cir.1972), cert. denied, 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973). Therefore, we review the district court's order for an...