U.S. v. McCulligan

• Decision Date: 06 July 2001
• Docket Number: No. 00-2562,00-2562
• Citation: 256 F.3d 97
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA, v. ROBERT MCCULLIGAN APPELLANT
• Court: U.S. Court of Appeals — Third Circuit

Page 97

256 F.3d 97 (3rd Cir. 2001)

UNITED STATES OF AMERICA, v. ROBERT MCCULLIGAN APPELLANT

No. 00-2562

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued April 24, 2001

Filed July 6, 2001

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Crim. No. 99-CR-00410 District Judge: The Honorable Edmund V. Ludwig

Stephen P. Patrizio, Esquire Christopher D. Warren, Esq. (Argued) Dranoff & Patrizio, Philadelphia, Pennsylvania, Attorney for Appellant

Craig D. Margolis, Esquire (Argued) Office of the United States Attorney, Philadelphia, Pennsylvania, Attorney for Appellee

Before: Barry, Ambro, Aldiser T, Circuit Judges

OPINION OF THE COURT

Barry, Circuit Judge

Appellant contends that he was convicted of one crime but sentenced for another. We agree, and will remand for resentencing.

I.

Several Deputy U.S. Marshals arrived at an apartment complex in West Norriton, Pennsylvania on June 17, 1999 to arrest Robert McCulligan, who was wanted for a violation of supervised release. As McCulligan attempted to drive his vehicle out of an entrance to the complex, Deputies O'Donnell and Kurtz blocked his path with their vehicle and ordered him to stop. McCulligan responded by driving rapidly in reverse. The deputies pursued, and the two vehicles collided when McCulligan apparently attempted to turn around. McCulligan later claimed that the deputies rammed his vehicle; the deputies contended McCulligan rammed theirs. Either way, the force of the impact locked the vehicles' front bumpers together at a roughly perpendicular angle, preventing McCulligan from proceeding. As the deputies exited their vehicle and Deputy O'Donnell moved toward the driver's side door of McCulligan's vehicle, however, McCulligan again put his vehicle in reverse. Unable to break free, McCulligan's vehicle began to fish-tail dangerously as its wheels spun; fortunately, it did not strike either deputy. Deputy Kurtz approached McCulligan's vehicle, punched out the driver's-side window with his hand and gun, and ordered McCulligan to stop. McCulligan surrendered.

McCulligan was charged with assault on Deputies O'Donnell and Kurtz under 18 U.S.C. S 111(a), two counts of assault on a federal officer with a deadly or dangerous weapon under 18 U.S.C. S 111(b), and destruction of government property under 18 U.S.C. S 1361. At trial, the government argued that McCulligan purposefully collided with the deputies' vehicle and would have seriously injured Deputy O'Donnell had his vehicle broken free while fish-tailing. The jury, however, found McCulligan guilty only of the S 111(a) assault on Deputy O'Donnell and destruction of government property, a result which, as the District Court remarked, indicated that the jury was "unpersuaded by the government's version of the collision." United States v. McCulligan, No. 99-410-01, slip op. at 4, 2000 WL 1660033 (E.D. Pa. Nov. 3, 2000).

At sentencing, McCulligan argued that his actions amounted to nothing more than "simple assault" under S 111(a), which carries a maximum prison term of one year. Section 111(a) also provides for three years' imprisonment in "all other cases" of assault (hereinafter "non-simple assault").¹ The District Court found that "the fish-tailing movements of defendant's car when O'Donnell was standing close by are enough to support an aggravated assault, albeit not necessarily with a deadly or dangerous weapon." McCulligan, Slip Op. at 13. The District Court then used the three-year maximum term from the "all other cases" provision in determining McCulligan's sentencing range under the Sentencing Guidelines.

McCulligan now appeals the District Court's judgment. We have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a). We exercise plenary r review over questions of law as well as the District Court's application of the Sentencing Guidelines. United States v. Williams, 235 F.3d 858, 861 (3d Cir. 2000).

II.

The United States Criminal Code describes the two crimes at issue -- simple assault and "all other cases" of assault -- in a single statutory subsection, 18 U.S.C. S 111(a). Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), the fact that various offenses are grouped together or share a particular label is irrelevant. Instead, the Apprendi Court held, except for the fact of a prior conviction, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362-63. The relevant inquiry is whether "the required finding expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict." Id. at 2365. Because non-simple assault carries a greater statutory maximum than simple assault, each element of non-simple assault must be charged in the indictment and proven to a jury beyond a reasonable doubt.

The District Court instructed the jurors that they were to find McCulligan guilty upon proof of three elements: (1) that he forcibly assaulted the person named in the indictment, (2) that the victim was a federal officer, and (3) that McCulligan did the acts charged voluntarily and intentionally. App. at 768, 771-772. The Court further instructed the jury that "forcible assault" means "any deliberate and intentional attempt or threat to inflict physical injury on another person with force or strength, when the attempt or threat is coupled with an apparent present ability to do so . . . A forcible assault may be committed by a defendant without actually touching, striking or doing bodily harm to the other person . . . ." Id. at 768. The government concedes that whatever fact separates "all other cases" of assault from mere "simple assault," the jury was not asked to find it. Appellee's Br. at 41-42. Any sentence greater than one year on the S 111 count thus represents error under Apprendi.

Preliminarily, we must respond to the government's contention that because McCulligan failed to object to any Apprendi error either at trial or during sentencing, we review only for plain error. We surely would not have expected McCulligan to object to the "simple assault" jury charge at issue in this case; he had no responsibility and certainly no incentive to point out that the government could have attempted to win a conviction on some greater offense. United States v. Candelario, 240 F.3d 1300, 1305 (11th Cir. 2001). No error occurred from McCulligan's perspective until the sentencing stage, when, although not explicitly invoking Apprendi, he in fact objected to the Court's determination that his offense of conviction was something greater than simple assault.²

To preserve the right to appeal a district court ruling, "it is sufficient that a party, at the time the ruling. . . is made or sought, makes known to the court the action which that party desires the court to take . . . and the grounds therefor." Fed. R. Crim. P. 51. McCulligan did not mention Apprendi, but, rather, argued that the facts and the jury's findings fit the definition of one crime and not another, and that he should be sentenced under the correct statutory maximum. When one contends that he or she is about to be sentenced for a crime of which he or she was not convicted -- an error by any standard -- intonation of the word "Apprendi" is unnecessary to present the issue squarely to the court. In any event, as our analysis below will indicate, McCulligan's sentence would not survive either harmless error or plain error review.

The government argues that the District Court's error in making a determination that should have gone to the jury is not reversible for two reasons. First, the government contends that McCulligan's offense of conviction actually was non-simple assault despite the jury charge and that the failure to properly instruct the jury was harmless error under the Supreme Court's decisions in Johnson v. United States, 520 U.S. 461 (1997) and Neder v. United States, 527 U.S. 1 (1999). Second, the government argues that even if McCulligan was convicted of the lesser assault crime, the District Court's contrary findings of fact at sentencing did not implicate Apprendi. Although the Court's finding of "aggravated assault" raised McCulligan's sentencing range beyond the one-year maximum for his simple assault count, the argument goes, his actual sentence did not fall outside the ten-year maximum he faced on the destruction of government property count. We address each argument in turn.

III.

In Neder, the Supreme Court examined whether overwhelming evidence of a particular element of an offense can compensate for a court's failure to submit that element to the jury. The trial court in Neder neglected to instruct the jury in a tax fraud prosecution that conviction required a finding of material falsehood. The defendant was found guilty on the incomplete instructions and appealed. Answering a question it left open in Johnson, the Supreme Court held that non-structural constitutional errors, including the failure to submit an element of a crime to the jury, are subject to harmless error review. Neder, 527 U.S. at 8-15.

By invoking Neder, the government necessarily contends that McCulligan was, in fact, "convicted" of non-simple assault despite jury instructions that charged simple assault. See Neder, 527 U.S. at 15 (framing the question as whether a defendant's conviction could "stand" because the error was harmless). Confusion over the actual offense of conviction seems inevitable where a defendant is charged and a jury instructed according to a general statute such as S 111(a) that Apprendi since has shown to encompass the equivalent of multiple crimes rather than a single crime with various sentencing factors. We note that this Court has not yet considered whether Neder applies to a situation where, unlike in Neder itself, the jury instructions properly set out the elements of what is essentially a lesser...