U.S. v. Murphy

• Decision Date: 04 May 2005
• Docket Number: No. 04-2293.,No. 04-2032.,No. 04-2309.,04-2032.,04-2293.,04-2309.
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Darron J. MURPHY, Sr., Defendant-Appellant, Cross-Appellee, and Jennifer Baker, Defendant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 857

406 F.3d 857

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Darron J. MURPHY, Sr., Defendant-Appellant, Cross-Appellee, and Jennifer Baker, Defendant, Cross-Appellee.

No. 04-2032.

No. 04-2293.

No. 04-2309.

United States Court of Appeals, Seventh Circuit.

Argued January 13, 2005.

Decided May 4, 2005.

Ralph M. Friederich, Office of the United States, Attorney Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee, Cross-Appellant.

James J. Gomric, Paul M. Storment, III, Belleville, IL, for Defendant-Appellant, Cross-Appellee.

Before ROVNER, EVANS, and SYKES, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

A jury found Darron Murphy, Sr. guilty on an indictment charging five counts: tampering with a witness who was going to testify against his son (Darron Murphy, Jr.); using a firearm while doing the tampering; being a felon in possession of a firearm; and two counts involving crack cocaine. The same jury also found Jennifer Baker, young Murphy's girlfriend, guilty of aiding and abetting Murphy, Sr. on the two counts related to witness tampering and one of the drug charges. After the jury spoke, the trial judge, G. Patrick Murphy (there may be too many Murphys in this case), granted Baker's motion for a judgment of acquittal on the two counts relating to tampering. Murphy, Sr.'s motions for judgments of acquittal were denied and he now appeals, arguing that his conviction on the jury tampering charge was tainted by a faulty jury instruction. If successful on the challenge, the related tampering charge involving the use of a firearm must also be set aside. The government appeals Judge Murphy's decision to grant post-verdict relief to Baker.

We begin with the facts. Pamela Hayden agreed to become an informant for local law enforcement after being arrested on drug charges. In December of 2002, she made two controlled purchases of crack cocaine from Darron Murphy, Jr., which led to his arrest.

On the evening of May 29, 2003, Hayden was smoking crack with three other folks at a trailer park home on Chain of Rocks Road in Granite City, Illinois, Murphy, Sr., who had sold drugs to Hayden several years earlier, showed up later that night. He was friendly at first, but he soon called Hayden a "snitch bitch hoe"¹ and hit her in the head with the back of his hand. He said he saw her name in discovery materials from his son's criminal case and that she was responsible for putting him in jail. He put a gun—a small chrome-plated one—to her head and said he was going to kill her for putting his son in jail. He said this would be her last night and her body would be found in a ditch. Murphy then placed several calls, telling Hayden he was calling his people to get someone to dispose of her car.

Baker, who dealt drugs for Murphy, eventually arrived. Murphy asked Hayden for her keys before eventually ordering her outside to retrieve them from her car. Once out of the trailer, Hayden tried to run away, but she was thwarted by Baker, who grabbed her right arm. Murphy again told Hayden to get her keys. When Hayden stalled, an impatient Murphy hit her with the butt of his gun, splitting open the top of her head. After struggling for a few more minutes, Hayden managed to get in her car and drive away. A sheriff's deputy discovered her at 4 a.m. She had a bleeding gash on her head and bruises on her arm.

Police later arrested Murphy outside his home and discovered that he was carrying crack cocaine. They also arrested Baker inside Murphy's home. A search of the home revealed more crack, a syringe, baking soda, a digital scale used for weighing narcotics, and firearms, including the small chrome-plated one identified by Ms. Hayden.

In August of 2003, a federal grand jury returned a superseding indictment charging Murphy with five offenses: knowingly using physical force against another person with the intent to influence and prevent testimony in a formal proceeding, 18 U.S.C. § 1512(a)(2)(A); knowingly using and carrying a firearm during a crime of violence, id. § 924(c); being a felon in possession of a firearm, id. §§ 922(g) and 924(a)(2); possession with intent to distribute at least 5 grams of crack cocaine, 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii); and conspiring to distribute and possessing with the intent to distribute at least 5 grams of cocaine base, id. and § 846. Baker was charged with aiding and abetting Murphy on the first two counts and with the count 5 conspiracy offense.

After the close of evidence during their joint trial, Judge Murphy instructed the jury that to sustain a charge of witness tampering the government had to prove that Murphy knowingly intimidated or used physical force against a witness. This instruction strayed from the language of the indictment, which charged Murphy only with using physical force. The indictment contained no mention of intimidation. But Murphy voiced no objection to the instruction. In granting Baker's request for a judgment of acquittal as to the tampering counts, Judge Murphy concluded that there was no evidence that Baker knew Hayden's identity as a witness when the assault occurred.

Baker was sentenced to a term of 78 months on the drug conspiracy count. Murphy was sentenced to 151 months on the drug counts, 120 months on the witness tampering and felon-in-possession counts. These sentences were ordered to run concurrent. The kicker for Murphy was a mandatory consecutive 84-month sentence (for a total of 235 months) on the charge of using a firearm while committing the violent crime of witness tampering.

Murphy claims that the jury instruction he now challenges constructively amended the indictment in violation of his Fifth Amendment rights. Put another way, he argues that the jury found him guilty of conduct for which he was never charged. Because Murphy agreed to the suspect instruction, he waived the issue, which ordinarily precludes appellate review. E.g., United States v. Murry, 395 F.3d 712, 717 (7th Cir.2005); United States v. Cooper, 243 F.3d 411, 415 (7th Cir.2001). We say "ordinarily" because the government has "waived waiver" by asserting that we can review Murphy's grievance under the plain error standard. See United States v. Morgan, 384 F.3d 439, 443 (7th Cir.2004). To establish plain error, Murphy must show (1) error, (2) that is plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings, i.e., affected its outcome. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir.2004); United States v. Trennell, 290 F.3d 881, 886 (7th Cir.2002).

Murphy has demonstrated the first three prongs. "An indictment that is constructively amended at trial violates the Constitution because the Fifth Amendment requires an indictment of a grand jury to guarantee that the allegations in the indictment and the proof at trial match in order to insure that the defendant is not subject to a second prosecution, and to give the defendant reasonable notice so that he may prepare a defense." Trennell, 290 F.3d at 888 (internal quotation and citations omitted). Here, the judge constructively amended the indictment by instructing the jury that Murphy could be found guilty of witness tampering if he knowingly intimidated or used physical force against Hayden. The judge apparently based his instruction on the old version of the witness tampering statute which prohibited both intimidation and the use of physical force under the same subparagraph. See 18 U.S.C. § 1512(b)(1) (1996). Murphy, however, was charged with violating § 1512(a)(2)(A), which criminalizes "physical force or the threat of physical force," with no mention of intimidation. That conduct is criminalized in a separate offense, § 1512(b)(1).

The government says there was no error because the "intimidation" provision is a lesser included offense of the "physical force" provision. Not true. Under Federal Rule of Criminal Procedure 31(c), a jury may find a defendant guilty of "an offense necessarily included in the offense charged." United States v. McCullough, 348 F.3d 620, 624 (7th Cir.2003). A lesser offense is necessarily included in the charged offense if its elements are a subset of the elements of the charged offense. Id. (citing Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)). An offense cannot be "lesser included" if it contains an element not required by the greater one. Id. That is what we have here— § 1512(b)(1) criminalizes "intimidation," which covers behavior unrelated to physical force, while § 1512(a)(2)(A) does not. The two subparagraphs are separate offenses.

As is often the case in plain error review, however, Murphy cannot prevail under the fourth prong, as he cannot show that he probably would have been acquitted but for the overbroad instruction. See Trennell, 290 F.3d at 887. Had the jury instruction been limited to physical force, the jury would have obviously reached the same result because there was strong evidence of physical force and injury. To argue, as Murphy does now, that "[i]t is entirely possible that the jury may not have believed Ms. Hayden's testimony that Mr. Murphy hit her, but did believe that Mr. Murphy intimidated her," is mere conjecture of the...