U.S. v. Gavin

• Decision Date: 05 October 2009
• Docket Number: No. 08-3342.,08-3342.
• Parties: UNITED STATES of America, Appellee, v. Michael GAVIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

583 F.3d 542

UNITED STATES of America, Appellee, v. Michael GAVIN, Appellant.

No. 08-3342.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2009.

Filed: October 5, 2009.

Joseph Blake Hendrix, argued, Little Rock, AR, for appellant.

Edward O. Walker, AUSA, argued, Little Rock, AR, for appellee.

Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and ROSENBAUM,¹ District Judge.

ROSENBAUM, District Judge.

On February 1, 2008, a jury convicted Michael Gavin of witness tampering, in violation of 18 U.S.C. § 1512(a)(2)(A). The district court sentenced him to 24 months imprisonment. Gavin appeals his conviction. We affirm.

I. Background

On April 4, 2007, a grand jury indicted appellant, Michael Gavin, on charges of kidnaping, in violation of 18 U.S.C. § 1201(a)(1) and (2). On the eve of trial, the parties agreed to dismiss the indictment due to a technical defect — but not before Gavin saw the name of Douglas Hoskinson, his former cellmate, on the government's witness list.

After seeing this, Gavin allegedly told Felix Green, a fellow inmate, Hoskinson was an informer, and yelled out Hoskinson's name at the county jail. He also wrote a letter to fellow inmates Keith and Byrd. The letter said:

Hey, Keith, Byrd,

What's up? They f—ed me off. My whole family was here. I was in trial clothes, and they wanted me to sign a new indictment. I refused. They dismissed the charges and are re-indicting me. Anyway, the informant in the dorm is Doug Hoskinson and one more. I was put in the hole the night before because Doug is on the prosecutor witness list against me. I saw it with my own eyes, and Doug Hoskinson's name came out of Edward Walker's mouth. I am not f____ing joking or being paranoid. I heard and saw his f—ing name against me for prosecution. Let everyone know I have never said anything in that dorm except I am innocent. I am sick of this s—t, and it's over with. I am working on getting your change to you. There is two in the dorm, Doug Hoskinson and another one. Mike, I am in the dungeon, T-312.

On December 5, 2007, after this letter came into possession of federal authorities, the grand jury re-indicted Gavin for kidnaping. The new indictment added a count of witness tampering, and stated Gavin, "aided and abetted by another person known to the Grand Jury, did knowingly use intimidation against another known to the Grand Jury, with the intent to influence, delay, and withhold the testimony of that person. ..." Specifically, the indictment charged that Gavin relayed information to Hoskinson indicating he should "watch his back" if he testified against Gavin.

The indictment charged witness tampering, under 18 U.S.C. § 1512(a)(2)(A). This was the wrong statute. Section 1512(a)(2)(A) prohibits the use of "physical force or the threat of physical force" against a witness. This "threat of physical force" contrasts with 18 U.S.C § 1512(b)(1), which prohibits the known use of intimidation or threats to influence testimony. It appears the prosecutor either attributed 18 U.S.C. § 1512(b)(1)'s language to 18 U.S.C. § 1512(a)(2)(A), or simply misnumbered the statute. The error was not found prior to trial.

At trial, the government introduced Gavin's letter, as well as the testimony of inmates Felix Green, Daryl Keith Foster, and Douglas Hoskinson. Green, Gavin's former cellmate, swore Gavin told him in November, 2007, that Hoskinson was the informant. Gavin asked Green to tell other inmates about Hoskinson, and Green testified the informer "got the message." (Tr. 254:15.) Green also stated Gavin yelled Hoskinson's name throughout the Pulaski County Jail. (Tr. 254:3-5.) In response to Gavin's outburst, deputies transferred him to another unit. Green told the jury "it's not a good thing" to be known as an informer, because "you will probably get beat up, you know." (Tr. 255:19-25.)

Daryl Keith Foster, the "Keith" in Gavin's letter, testified he passed the letter on to fellow inmate Byrd. After doing so, Foster stated he saw Byrd grab Hoskinson on the prison's basketball court. Although Foster said he did not hear their conversation, he saw Byrd shaking a finger in Hoskinson's face. Like Green, Foster testified prison "snitches" are subject to physical harm. (Tr. 300:19-25.)

Despite any efforts at intimidation, Hoskinson testified at Gavin's trial. He told the jury Gavin confessed to rape and kidnaping. Hoskinson also reported seeing Gavin's letter and fearing "something" would happen to him. (Tr. 267:16-268:4.)

At the conclusion of trial, the judge instructed the jury the defendant was charged with witness tampering. The jury was further instructed that conviction required proof "the defendant knowingly used intimidation or threats against Douglas Hoskinson," and "did so with the intent to influence or prevent the testimony of Douglas Hoskinson in this proceeding." (Tr. 695:17-22.) The judge read 18 U.S.C. § 1512(a)(2)(A) for the jury, noting:

[The] charge is based upon a statute which is federal law and provides as follows. And I'm quoting from that statute: [w]hoever uses physical force or the threat of physical force against any person or attempts to do so with intent to (A) influence, delay, or prevent the testimony of any person in an official proceeding, such as a trial, shall be guilty of an offense against the United States. (Tr. 695:9-16.)

The parties did not object to the jury instructions.

Gavin appeals, arguing violation of his Fifth and Sixth Amendment rights, because the indictment used § 1521(b)(1)'s language, while referencing § 1512(a)(2)(A). He claims the jury instructions, as well as the submitted evidence, amounted to a constructive amendment of the indictment. Finally, he argues the evidence was insufficient to sustain a conviction under either § 1512(b)(1) or § 1512(a)(2)(A). At oral argument, the government maintained it properly charged defendant pursuant to § 1512(a)(2)(A), and the jury reasonably convicted, finding Gavin used "physical force or the threat of physical force" to intimidate Hoskinson.

II. Discussion

A. Constructive Amendment

Gavin's trial counsel did not object to the jury instructions at trial. Under Rule 30 of the Federal Rules of Criminal Procedure ("Fed. R.Crim.P."), a party's failure to object precludes appellate review, except where plain error affects substantial rights.² See also Fed.R.Crim.P. 52(b); Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Cross v. Cleaver, 142 F.3d 1059, 1068 (8th Cir.1998) (a party must object precisely, or issue is reviewed solely for plain error). "Plain error review permits reversal only if the error was so prejudicial as to have affected substantial rights resulting in a miscarriage of justice." United States v. Weaver, 554 F.3d 718, 722 (8th Cir.2009) (quotations omitted).

Here the jury instructions asked if "the defendant knowingly used intimidation or threats against Douglas Hoskinson," when § 1512(a)(2)(A) governs the use or threat of physical force. As a result, Gavin argues the instructions constructively amended the indictment. The government replies, saying the material elements in the proof and the jury instructions matched those in the indictment, thus precluding amendment. Alternatively, the government claims that, even if the instructions constituted a constructive amendment, Gavin cannot demonstrate plain error.

Constructive amendment occurs when "the essential elements of the offense set forth in the indictment are altered, either actually or in effect, by the prosecutor or the court after the grand jury has passed upon them." United States v. Begnaud, 783 F.2d 144, 147 n. 4 (8th Cir.1986). In United States v. Murphy, the Seventh Circuit found constructive amendment in a similar case. 406 F.3d 857, 860 (7th Cir. 2005). There, jury instructions asked whether defendant "knowingly intimidated or used physical force" against a potential witness. The indictment, however, only accused defendant of using physical force — it did not mention intimidation. Id. at 860. The Seventh Circuit concluded that, where the instructions added the element of intimidation, the trial court had constructively amended the indictment.

Here, we similarly conclude the instructions altered the offense's essential elements. The indictment charged defendant with violating 18 U.S.C. § 1512(a)(2)(A), which bars the use or threat of physical force to influence a witness. The jury instructions, however, asked whether defendant "knowingly used intimidation or threats against Douglas Hoskinson ... with the intent to influence or prevent" his testimony. When it added the element of intimidation, and failed to reference the use of physical force, the court constructively amended the indictment.

In the absence of objection at trial, we need not precisely decide whether constructive amendment compels reversal in all cases. Cf. United States v. Gill, 513 F.3d 836, 850 (8th Cir.2008) (declining to decide whether constructive amendment constitutes reversible error per se where jury instructions did not constructively amend indictment). The Supreme Court may require automatic reversal of constructive amendments when a claim is preserved and reviewed for harmless error. See, e.g., Stirone v. United States, 361 U.S 212, 214, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). But the Supreme Court has set forth the method for evaluating errors that were "not brought to the attention of the court." United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citing Fed.R.Crim.P. 52(b)). In the absence of any trial objection, we review for plain error.

We find this amendment does not rise to the level of plain error. There is simply no showing that the error "affected [Gavin's] substantial rights" or "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." United States v. Aleman, 548 F.3d 1158, 1164 (8th Cir.2008). Section 1512(a)(2)(A) of Title 18 was read...