United States v. McDill, 15-2503.

• Decision Date: 15 September 2017
• Docket Number: No. 15-2503.,15-2503.
• Citation: 871 F.3d 628
• Parties: UNITED STATES of America Plaintiff–Appellee v. Thomas P. MCDILL, Jr. Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

871 F.3d 628

UNITED STATES of America Plaintiff–Appellee

v.Thomas P. MCDILL, Jr. Defendant–Appellant

No. 15-2503.

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2017

Filed: September 15, 2017

Kevin Koliner, Assistant U.S. Attorney Direct, U.S. Attorney's Office, District of South Dakota, Sioux Falls, SD, Gregg Peterman, Megan Poppen, U.S. Attorney's Office, Rapid City, SD, for Plaintiff–Appellee.

Thomas McDill, Pro se, Austin, TX, James Arthur Eirinberg, Sioux Falls, SD, for Defendant–Appellant.

Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Following a bench trial before a magistrate judge, Thomas McDill, who represented himself, was convicted of two violations of 36 C.F.R. § 261.3(c), which prohibits "[t]hreatening, intimidating, or intentionally interfering with any Forest officer ... while engaged in, or on account of, the performance of duties for the protection, improvement, or administration of the National Forest System or other duties assigned by the Forest Service." He appeals those convictions. We reverse.

I. Background

Thomas McDill owned property abutting Black Hills National Forest near Custer, South Dakota. On May 20, 2013, McDill visited the office of the United States Forest Service's Hell Canyon Ranger District, which manages part of the Black Hills National Forest. He spoke with Todd Gohl, a support services specialist for the district, about slash piles (piles of debris from trimming bushes and trees) on forest land. Gohl testified at trial that he was unable to answer all of McDill's questions and suggested McDill file a Freedom of Information Act (FOIA) request. Gohl then referred McDill to timber staff officer Patricia Hudson because Gohl thought she might be able to answer more of McDill's questions. Hudson testified that she and McDill spoke for about forty-five minutes. According to Gohl, McDill later returned to the office with a FOIA request. Gohl testified that although this was not the proper way to file a FOIA request, the Forest Service initiated action on the request.

On the morning of June 11, 2013, McDill visited the office of the Black Hills National Forest Supervisor and spoke with Gregory McGranahan, a timber sale contracting officer. McGranahan testified at trial that McDill asked him about removing some beetle-infested trees on forest land near his property. McGranahan explained that McDill would need to obtain a permit from the district office, and arranged for McDill to meet a Forest Service employee at that office at 1:30 p.m. At around 11:30 a.m., McDill arrived at the district office. When he arrived, Gohl was at the office. Gohl testified that McDill asked him for a letter permitting his friend to remove the beetle-infested trees. Gohl told McDill that no one with the authority to provide such a letter was available, because the other Forest Service employees were at an internal district safety meeting. Gohl informed McDill that someone would be available to speak with him around 1:00 p.m., after the meeting had concluded. McDill asked where the meeting was, and Gohl told him it was at the local high school.

McDill proceeded to the high school, where the safety meeting was coming to a close. Hudson had attended the meeting, and McDill approached her as she was leaving. Hudson testified that she recognized McDill from their prior interaction, and that she was startled to see him at the high school because the safety meeting was not public. Hudson told him she was going to lunch, and would meet with him between 1:30 and 2:00 p.m. that day. McDill told her that he did not want to wait. Hudson asked him what she could help him with, and McDill asked her about cutting down beetle-infested trees near his land. Hudson said it was too late in the season, and the Forest Service would not issue a permit. McDill asked what would happen if he cut them anyway, and Hudson said he would be issued a fine. At this point, Hudson testified, McDill was moving into her space and speaking in an aggressive tone, and she felt uncomfortable and intimidated. She eventually told McDill that she would not discuss the matter any further, and McDill left. Another employee, Kelly Honors, testified that she heard Hudson use an uncharacteristically loud voice to respond to McDill, and that Hudson remained "very shaken" after McDill left.

Hudson contacted Forest Service law enforcement officer Eric Nelson, and explained what happened. She told him that she thought McDill would come to her office and that she did not want to meet with him. Nelson testified that he encountered McDill in the district office parking lot around 1:30 p.m. that day. McDill explained to Nelson that he wanted a permit to cut down the beetle-infested trees. He also told Nelson that he wanted to start a business to remove slash piles from forest land. Nelson issued a citation to McDill for "intentionally interfering w USFS employee in process of her duties" in violation of 36 C.F.R. § 261.3(c) for his conduct toward Hudson after the safety meeting. Nelson also gave McDill a letter acknowledging receipt of the FOIA request McDill had given Gohl. Nelson told McDill that they would be willing to work with McDill after his FOIA request was fully processed and returned, but that in the meantime, McDill was to have no contact with other Forest Service employees.

The letter Nelson gave McDill indicated that a Forest Service employee named Matt Spring would contact McDill to provide him with information regarding the slash piles. McDill discovered that Spring worked at the Forest Service's fire management office in Custer and decided to visit the office to speak to Spring. When he arrived, Gwen Lipp, the district fire management officer, was leaving the building. She testified at trial that she was surprised to see McDill because she was not expecting any visitors to the office. Lipp informed McDill that Spring was not at work that day, and offered to assist him instead. Lipp testified that McDill seemed angry and frustrated. They went inside the building and sat in her office. Because she felt nervous about being alone with McDill, she asked another fire management employee to remain in the office next to hers. She testified that she and McDill spoke for about forty minutes, and that he had a "roller-coaster" demeanor and would not stay calm. According to Lipp, McDill told her that he was upset because he had been arrested for harassing a Forest Service employee, when he had simply been trying to obtain information. Eventually, Lipp and McDill agreed on a plan for Lipp to help him find the information he sought. After McDill left, Lipp contacted Forest Service law enforcement and explained what happened. Nelson then issued a second citation to McDill for "harassment + interference w/ USFS employee in process of her duties" in violation of 36 C.F.R. § 261.3(c) for his conduct toward Lipp.

At the close of trial, the magistrate judge orally convicted McDill of both counts, and imposed fines and processing fees totaling $650. McDill appealed pro se to the district court, and the district court denied the appeal. McDill appealed pro se to the Eighth Circuit, and we appointed an attorney, who filed a supplemental brief.

II. Discussion

36 C.F.R. § 261.3(c) prohibits "[t]hreatening, intimidating, or intentionally interfering with any Forest officer, volunteer, or human resource program enrollee while engaged in, or on account of, the performance of duties for the protection, improvement, or administration of the National Forest System or other duties assigned by the Forest Service." The two citations McDill received from Nelson listed his offenses as "intentionally interfering w USFS employee in process of her duties" and "harassment + interference w/ USFS employee in process of her duties," respectively.

"It is axiomatic that a defendant may not be tried on charges that were not made in the indictment." United States v. Novak, 217 F.3d 566, 574 (8th Cir. 2000). A constructive amendment arises when the "essential elements of the offense" described in the charging instrument "are altered, either actually or in effect, by the prosecutor or the court" so that a "substantial likelihood" exists that the defendant was convicted of an uncharged offense.¹ Id. at 574, 575 (internal alterations omitted) (quoting United States v. Emery, 186 F.3d 921, 927 (8th Cir. 1999) ). A constructive amendment implicates a defendant's Fifth Amendment right to indictment by a grand jury and Sixth Amendment right to notice of the charges against him. United States v. Stuckey, 220 F.3d 976, 981 & n.5 (8th Cir. 2000). Whether or not a constructive amendment that violates a defendant's right to indictment by a grand jury would be reversible error per se, compare id. at 981, with United States v. Gill, 513 F.3d 836, 849–50 (8th Cir. 2008), we have suggested that when the right to a grand jury is not at issue, "[a] prejudice analysis would have to be performed to determine whether a defendant's ... due process or notice rights were materially affected." Id. at 981 n.5 ; see Lucas v. O'Dea, 179 F.3d 412, 417–18 (6th Cir. 1999). Here, McDill had no right to a grand jury because he was charged with only petty offenses. See Fed. R. Crim. P. 7(a).

Because McDill did not raise the issue, we apply plain error review to the question of whether he was subjected to a constructive amendment that prejudiced his Sixth Amendment notice rights. See United States v. Granados, 168 F.3d 343, 346 (8th Cir. 1999) (explaining that we have the authority to raise sua sponte and review for plain error critical issues affecting a criminal defendant's substantial rights). "Under plain error review, we have discretion to reverse if (1) there is an ‘error’; (2) the error is ‘plain’; (3) the error affects the defendant's ‘substantial rights'; and (4) the error seriously affects the ‘fairness, integrity or public reputation of judicial proceedings.’ " United...