U.S. v. McGee

• Decision Date: 01 April 1999
• Docket Number: No. 97-6349,97-6349
• Citation: 173 F.3d 952
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hoyt Lee McGEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 952

173 F.3d 952

UNITED STATES of America, Plaintiff-Appellee, v. Hoyt Lee McGEE, Defendant-Appellant.

No. 97-6349.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 3, 1999.

Decided April 1, 1999.

Stephen B. Shankman (argued and briefed), Regina C. Stephenson (briefed), Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Defendant-Appellant. Lisa J. Stark (argued and briefed), U.S. Department of Justice, Civil Rights Division, Washington, D.C., for Plaintiff-Appellee.

Before: SILER, BATCHELDER and COLE, Circuit Judges.

OPINION

COLE, Circuit Judge.

Defendant-Appellant Hoyt Lee McGee challenges his jury conviction for interference with the federally protected rights of Calvin Davis, in violation of 18 U.S.C. § 245. Specifically, McGee argues that the district court erred by: (1) failing to dismiss the indictment because the certification necessary for prosecution was signed by an acting Associate Attorney General; (2) denying his motion for judgment of acquittal based on the sufficiency of the evidence; (3) failing to instruct the jury as to his theory of the case; and (4) allowing a constructive amendment of the indictment. For the reasons that follow, we AFFIRM McGee's conviction.

I.

On January 31, 1992, at approximately 11:30 p.m., Bulis Smith (a white man) and Calvin Davis (a black man) went to the State Line Club, a "honky-tonk" bar located in Counce, Tennessee, close to the Mississippi border. The bar is owned by Defendant McGee. Smith and Davis had been drinking beer, wine and moonshine for several hours and, according to Smith, by the time that they arrived at the State Line Club they were "buzzing pretty good but not that drunk." The men had really intended to go to the bar located next door to the State Line Club, the Cruise Inn, but ended up at the State Line Club instead.

As Smith and Davis attempted to enter the club, they were stopped by the bouncer, James Mobley. According to Smith and several witnesses, Mobley was attempting to forcibly push Smith and Davis out the door, at which time McGee--who had been sitting nearby--approached. McGee shouted at Davis something to the effect of "Get your black ass out of here, you stupid nigger." Some pushing and shoving took place and then Smith, Davis, McGee, Mobley and several other individuals ended up outside, fighting. At some point during the melee, Smith retrieved a heavy object from his truck and threw it through the plate glass window of the club. Smith then drove off in his truck.

Upon the breaking of the window, McGee retrieved his gun from behind the bar, returned outside, and hit Davis in the head with the gun. The force of the blow ejected the clip from the gun, and Davis ran off with it. McGee told a friend that he let Davis leave with the clip because he "didn't feel like it was worth the trouble going after it and trying to retrieve it."

The following day, McGee told a friend that "[w]e had to whoop the hell out of a nigger." McGee also admitted hitting Davis in the head with the gun. The next day, Davis was found dead in the woods, beaten and stabbed, approximately eleven miles from the State Line Club. ¹

On January 28, 1997, a federal grand jury charged McGee and Mobley with interference with federally protected rights, in violation of 18 U.S.C. § 245. The indictment alleged that McGee and Mobley forcibly interfered with Davis in order to intimidate him on account of race from enjoying the privileges of the State Line Club, resulting in bodily injury, in violation of 18 U.S.C. §§ 245(b)(4)(A) and 2. ²

Prior to trial, McGee filed a motion to dismiss the indictment. McGee argued that the government failed to provide the proper certification for the prosecution as required by 18 U.S.C. § 245(a)(1), because the certification was signed by the acting Associate Attorney General, rather than the Associate Attorney General. The district court denied the motion, finding that an acting Associate Attorney General is in fact the Associate Attorney General for purposes of § 245.

On July 29, 1997, a jury trial commenced. The government presented the testimony of Smith and other club patrons regarding the events that took place. In addition, the government presented testimony indicating that black patrons were not welcome in the club. McGee objected to any testimony regarding aspects of the altercation that occurred after Davis and Smith were denied entrance to the bar arguing that it was irrelevant because the alleged offense--the denial of entrance into the club--had already been completed at that point. The district court disagreed and allowed the testimony, finding that such testimony was relevant to the issue of whether the defendants denied services to Davis and Smith.

Mobley testified on his own behalf. According to Mobley, Davis and Smith were intoxicated when they arrived and said that they wanted to play pool. Mobley told them that the pool tables were shut down for the night and that "you all have had a little too much to drink." Mobley testified that he told the men to "[p]lease come back later," but they would not leave and a fight broke out.

McGee presented the testimony of one witness, David Jerrolds, chairman of the Hardin County Beer Board. Jerrolds testified that a bar owner has a responsibility to deny entrance to an intoxicated person. McGee then renewed his motion for judgment of acquittal, arguing that based on the testimony of Jerrolds, a bar owner has the right to refuse entry to an intoxicated person. McGee thus contended that he had a legitimate legal reason to deny entrance to Davis. The district court denied the motion, stating that the issue was a factual dispute that McGee could argue to the jury.

McGee then asked the district court for a jury instruction regarding Davis's alleged intoxication and a bar owner's right to refuse admittance to an intoxicated person. After discussing the proposed instruction with the parties, the district court gave such an instruction, but modified it by stating that the jury should return a verdict of not guilty if it finds that Davis's intoxication was the sole reason he was denied admittance to the bar.

The jury convicted McGee, but acquitted Mobley. The district court sentenced McGee to fifty-two months' imprisonment, to be followed by two years' supervised release. McGee filed a timely notice of appeal.

II.

A. Certification Pursuant to 18 U.S.C. § 245(a)(1)

Title 18 U.S.C. § 245 makes it unlawful to forcibly interfere with an individual's federally protected rights on account of race. Section 245(a)(1) requires certification for a prosecution under this statute and provides in part:

No prosecution of any offense described in this section shall be undertaken by the United States except upon the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that in his judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice, which function of certification may not be delegated.

At the time of the indictment in this case, the acting Associate Attorney General was John C. Dwyer. Dwyer had been appointed in an order by Attorney General Janet Reno, effective January 21, 1997, as follows:

By virtue of the authority vested in the Attorney General by law, including 28 U.S.C. §§ 509, 510, 5 U.S.C. § 301, and 28 C.F.R. § 0.132(c), I hereby designate John C. Dwyer to perform the functions and duties of and to act as Associate Attorney General.

On January 24, 1997, Dwyer signed a certification for the prosecution in this case that read as follows:

I, John C. Dwyer, hereby certify that in my judgment a prosecution by the United States of Hoyt Lee McGee for violating Title 18, United States Code, Section 245, is in the public interest and necessary to secure substantial justice. This certification is made pursuant to Title 18, United States Code, Section 245(a)(1).

McGee argues that Dwyer's certification was invalid because § 245(a)(1) does not designate an individual who is an acting Associate Attorney General with certification power; moreover, the statute expressly states that certification power cannot be delegated. The district court disagreed, however, stating that the issue was not really whether there was an impermissible delegation of power, but whether an acting Associate Attorney General possesses the powers of the Associate Attorney General within the meaning of § 245.

McGee continues to argue that the certification was invalid, relying on United States v. Bronk, 604 F.Supp. 743 (W.D.Wis.1985). In Bronk, a Wisconsin district court held that an acting Deputy Attorney General lacked authority to certify a prosecution pursuant to § 245(a)(1). See 604 F.Supp. at 751-52. In so finding, the Bronk court pointed to the specific language of § 245(a)(1), which did not designate an acting Deputy Attorney General with certification power. In fact, at the time of the Bronk decision, § 245(a)(1) only permitted certification for prosecution by "the Attorney General or the Deputy Attorney General." ³ The Bronk court emphasized that the statute specifically stated that certification was non-delegable; thus, to allow an acting Deputy Attorney General to certify a prosecution would be to allow an impermissible delegation of certification power.

Like the district court, we are not persuaded by Bronk. As the district court noted, there was no such "delegation" of power in this case. An acting official possesses all the powers that the official would normally possess. See, e.g., 28 U.S.C. § 510; 28 C.F.R. § 0.132(c) ("In the event of a vacancy in the office of Associate Attorney General, the Attorney General may designate another official of the Department to perform the functions and duties of and act as Associate Attorney General."); ...