U.S. v. Floresca

• Citation: 38 F.3d 706
• Decision Date: 27 October 1994
• Docket Number: No. 92-5447,92-5447
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose P. FLORESCA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 706

38 F.3d 706

UNITED STATES of America, Plaintiff-Appellee, v. Jose P. FLORESCA, Defendant-Appellant.

No. 92-5447.

United States Court of Appeals,

Fourth Circuit.

Argued June 7, 1994.

Decided Oct. 27, 1994.

Donald Russell, Circuit Judge, dissented and filed opinion in which Wilkinson, Wilkins, Niemeyer, and Williams, JJ., joined.

ARGUED: Hunt L. Charach, Fed. Public Defender, Charleston, WV, for appellant. Larry Robert Ellis, Asst. U.S. Atty., Charleston, WV, for appellee. ON BRIEF: Leonard Kaplan, Asst. Fed. Public Defender, Charleston, WV, for appellant. Michael W. Carey, U.S. Atty., Michael L. Keller, Asst. U.S. Atty., Jennifer L. Gerlach, Third-Year Law Student, Lori A. Simpson, Third-Year Law Student, West Virginia Univ. College of Law, Charleston, WV, for appellee.

Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge, ^* sitting en banc.

Reversed and remanded by published opinion. Judge HALL wrote the opinion of the Court, in which Chief Judge ERVIN, and Judges WIDENER, MURNAGHAN, HAMILTON and MICHAEL concurred. Judge WIDENER wrote a separate concurring opinion. Judge RUSSELL wrote a dissenting opinion in which Judges WILKINSON, WILKINS, NIEMEYER and WILLIAMS joined.

OPINION

K.K. HALL, Circuit Judge:

Following a jury trial, Jose Floresca was convicted of several offenses arising from his professional conduct as a physician. Floresca wrote false prescriptions for controlled substances, gave the prescriptions to others to have them filled, and then unlawfully resold them. He was also convicted of witness tampering. Floresca appealed the latter conviction, for which he was sentenced to 45 months in prison. The parties filed briefs and argued before a panel of this court. Prior to the issuance of a decision, however, a majority of the court voted to rehear the case en banc. We now reverse Floresca's conviction for witness tampering and remand for resentencing on the remaining counts.

I.

Floresca, born in the Philippines but now a citizen of the United States, operated a clinic in Beckley, West Virginia. In 1987, he hired his lifelong friend, Romeo Lopez, to perform simple tasks around the office.

In April 1991, Floresca wrote some "straw" prescriptions for Fastin and Tylox, ¹ both Schedule II controlled substances. ² He gave the prescriptions to various persons, including Lopez, along with money to have the prescriptions filled. Lopez and the others obtained the drugs and returned them to Floresca, who then resold them at a profit. Both Floresca and Lopez were indicted as a result of the government's investigation into the scheme, but the indictment against Lopez was dismissed in exchange for his testimony against Floresca.

While the trial was pending, Lopez continued to work at Floresca's clinic. On several occasions, Floresca allegedly tried to dissuade Lopez from testifying. As a result, Floresca was charged in Count Nine of a superseding indictment with witness tampering, in violation of 18 U.S.C. Sec. 1512(b)(1). ³ At trial, in addition to giving evidence against Floresca on the drug charges, Lopez recounted Floresca's attempts to prevent him from cooperating with the government. Lopez's testimony was the sole source of the government's evidence against Floresca regarding Count Nine.

At the close of the evidence, the court read to the jury the applicable language of Section 1512(b) through the end of Paragraph (1)--the paragraph alleged by the indictment to have described the objective of Floresca's tampering. However, instead of instructing the jury on the meaning of the language of the paragraph that it had just read, the district court, at the government's request and without objection, instructed the jury on the essential elements of the subsection's third enumerated paragraph. See note 3, supra. ⁴

The jury convicted Floresca of seven drug-related counts and of Count Nine. Floresca appeals only the latter conviction, arguing that the court committed plain error by instructing the jury that it could convict him of a different crime than the one for which he was indicted, thereby violating his Fifth Amendment right to a grand jury indictment. ⁵

II.

We begin by analyzing what the district court did when it instructed the jury on Paragraph 3 instead of Paragraph 1. The question is whether the district court's action is appropriately classified as a variance, a failure to instruct on an essential element of the charged offense, or a constructive amendment of the indictment.

Instructing the jury on Paragraph 3 did not create a variance. A variance occurs when the facts proven at trial support a finding that the defendant committed the indicted crime, but the circumstances alleged in the indictment to have formed the context of the defendant's actions differ in some way nonessential to the conclusion that the crime must have been committed. ⁶ Once a reviewing court determines that the facts incorrectly noted in the indictment do not concern an issue that is essential or material to a finding of guilt, the focus is properly upon whether the indictment provided the defendant with adequate notice to defend the charges against him. ⁷ No variance occurred in Floresca's case because Lopez's testimony adhered to the facts alleged in Paragraphs E--H of the indictment. See note 3, supra. ⁸

Likewise, though the district court plainly failed to instruct the jury on Paragraph 1, its action cannot be classified as a "mere" failure to instruct. The charge to Floresca's jury on the essential elements of Count Nine was flawed, not only by the absence of the proper instruction, but also by the presence of a misinstruction--and no ordinary misinstruction at that. The court's instruction on Paragraph 3 was more than just a misstatement of the law applicable to the indicted offense; it stated a distinct, unindicted offense. ⁹ It was by no means only a "slight defect in the charge [that] could be cured by other circumstances." United States v. Polowichak, 783 F.2d 410, 416 (4th Cir.1986).

We conclude that the district court's misinstruction resulted in an amendment to the indictment. A constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury. ¹⁰

Whether particular conduct constitutes constructive amendment has elicited a fair amount of comment, in this circuit as well as in others. See, e.g., United States v. Bledsoe, 898 F.2d 430 (4th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 521, 112 L.Ed.2d 532 (1990); Moore v. United States, 512 F.2d 1255 (4th Cir.1975). While the dissent relies in significant part on Moore and Bledsoe to determine that there was no constructive amendment in this case, we decline to do so, for the following reasons.

In Moore, the defendant was convicted of possessing a prohibited firearm in violation of 26 U.S.C. Sec. 5861. The indictment charged that Moore possessed a sawed-off 12-gauge shotgun, as prohibited by 26 U.S.C. Sec. 5845(d), but the evidence proved instead that he possessed a flare gun that was modified to fire 12-gauge shells, a weapon prohibited under 26 U.S.C. Sec. 5845(e). The jury was charged under Sec. 5845(e). The panel held that the misdescription in the indictment was surplusage and affirmed the conviction. But Moore is indistinguishable from this case: Floresca was indicted under section 1512(b)(1) but the jury was charged under and he was convicted under section 1512(b)(3). Because both of these departures from the offense as indicted constitute clear examples of constructive amendment, we reject the rule of Moore and overrule that case. The dissent's reliance on Moore is thus misplaced.

The Bledsoe case, although related, is distinguishable on its facts. In that case, the defendant was indicted for selling cocaine within 1000 feet of a "public school," in the words of the statute, which made criminal the selling of such a drug within 1000 feet of either a "public or private" school. Upon being advised that the government could not prove that Bledsoe sold cocaine within 1000 feet of a public school because he had in fact sold the drug within 1000 feet of a private parochial school, the district court simply struck the word "public" from the indictment. The panel affirmed this conduct of the district court, finding that the word "public" was surplusage because all schools are either public or private and thus within the statute.

Because Bledsoe is on different facts than the instant case, we are of opinion that it would be inappropriate to overrule it as circuit precedent. We do, however, limit the Bledsoe case to its facts, see Rutkin v. United States, 343 U.S. 130, 138, 72 S.Ct. 571, 576, 96 L.Ed. 833 (1952) (declining to overrule a distinguishable precedent, but limiting that precedent to its facts). Not only do we limit Bledsoe to its facts as precedent, to the extent that Bledsoe is inconsistent with our holding today, it is no longer authority in this circuit. See United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982) (finding that prior cases were inconsistent with the Court's holding, but overruling them only to the extent necessary to reconcile them). Thus, Bledsoe does not control our holding in this case.

In short, we hold that what transpired at Floresca's trial amounted to nothing less than a constructive amendment of the indictment. The jury was allowed to return a guilty verdict upon finding that Floresca approached Lopez with the intent to affect either his cooperation in the investigation or his testimony at trial. This resulted in a broadening of the bases for Floresca's conviction. We stress that it is the broadening itself that is...