IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-11010
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UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
PORFIRIO ARMANDO NUÑEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
July 1, 1999
Before SMITH, DeMOSS, and STEWART, A.
Circuit Judges. On January 30, 1998, border patrol
agents raided a construction site in a housing
JERRY E. SMITH, Circuit Judge: subdivision. Seven of the ten workers fled the
site, and the agents quickly apprehended six of
Porfirio Nuñez appeals his conviction them. The seventh was seen fleeing to the
of, and sentence for, resisting arrest by a north.
federal officer in violation of 18 U.S.C. § 111.
He attacks (1) the admission of character
evidence in favor of the arresting officer;
(2) the inclusion of an alternative ground for
conviction in his jury charge; (3) the
application of a thirty-month sentence to his
conviction; and (4) the enhancement of his
sentence. Concluding that the district court
erred in allowing the jury to convict Nuñez of
a crime for which he had not been indicted,
thereby violating his Fifth Amendment grand
jury rights, we reverse conviction and
sentence.
I.
Agent Stephen Thorne gave chase, and feet from the area where Thorne says the
a few minutes later the other agents heard struggle occurred. Therefore, Nuñez disputes
shots fired. They found Nuñez lying face Thorne’s claim that the gun was fired during
down, bleeding, at the bottom of a hill, and the struggle and argues that the evidence
Thorne sitting next to him. indicates that Thorne shot Nuñez in the back
of his leg as he was running away.
Thorne testified that he began
searching the area to the north of the site and Nuñez also points out that there was
found a man, later identified as Nuñez, hiding no trace of gunshot residue on his hands and
in a thick brushy area. In Spanish, he told the pants. According to Nuñez’s expert witness,
man to stop running and to stop moving. this indicates that the weapon was more than
Nuñez resisted being handcuffed by flailing his twelve inches away when fired. This evidence
arms in a violent motion. After hitting Nuñez further disputes Thorne’s claim that the gun
with his fist and throwing him to the ground, was fired during the struggle. The
Thorne ordered him not to move and called for government’s expert witness disagreed,
help. however, testifying that the gunshot residue
could have been masked by Nuñez’s blood and
Nuñez then lunged at Thorne and tried that the absence of residue is not conclusive on
to grab his semi-automatic pistol. After a brief the question of the distance between Nuñez
struggle, Nuñez managed to pull the weapon and the gun at the time of the discharge.
from Thorne’s holster with his left arm and
struck him on the left side of the face. Thorne Finally, Nuñez contests Thorne’s claim
then bit Nuñez’s upper left bicep and grabbed that Nuñez struck Thorne. At his first
his left arm to try to get the weapon away examination, Thorne told his treating physician
from him. Thorne turned the weapon toward that his injuries had been caused by “rolling in
Nunez and discharged three rounds. Thorne the vines.” It was only during the second
felt his life was in danger and believed Nuñez examination that he told the doctor that he had
was going to shoot him. been hit in the face. Similarly, Nuñez points
out that in his first day of testimony, Thorne
Thorne called again for backup while did not mention being hit by Nuñez. On the
pointing the gun toward Nuñez. By this point, second day, Thorne testified that Nuñez had
Nunez had moved away from Thorne and had hit him and explained that he had simply
fallen down a nearby embankment, leaving a forgotten about this fact on the first day.
trail of blood. David Johnson, the agent in
charge, was one of the first to arrive at the
scene and testified that Thorne told him that
Nuñez “just came at me” and “tried to take my
gun away.” Thorne suffered lacerations on the
left side of his face and his hands and legs,
caused by falling into some vines, and a bruise
on his left cheek caused by a blow from
Nuñez.
Nuñez offered uncontested evidence
that he was shot from behind. The surgeon
who operated on him testified that the entry
wound was on the back of his upper right
thigh, and the bullet passed through a major
vein and femoral artery of Nuñez's thigh and
caused severe bleeding.
The trail of blood began some twelve
2
Nuñez therefore offers this alternate set .40 caliber Beretta semi-automatic,” assaulting
of facts: After he had problems handcuffing a federal officer, the trial jury was instructed it
Nuñez, Thorne became angry and hit Nuñez in also could convict Nuñez of forcibly assaulting
the face with the handcuffs. Defending a federal officer without the use of a
himself, Nuñez ran off, and Thorne shot Nuñez dangerous weapon. Because the jury
from behind. Thorne then chased Nuñez but acquitted Nuñez of the “resisting arrest by
fell down the hill and rolled into the vines, means and use of a dangerous weapon”
losing his gun and magazines. chargeSSthe only charge specifically alleged in
his indictmentSSNuñez now claims that his
B. remaining conviction should be vacated
A grand jury indicted Nuñez on a because the court impermissibly broadened the
single count, charging that, in violation of theory of the indictment in violation of his
18 U.S.C. § 111, he “knowingly and by means Fifth Amendment right to a grand jury
and use of a dangerous weapon, that is, a fully indictment.1 We agree.2
loaded .40 caliber Beretta semi-automatic
pistol, did forcibly resist, oppose, impede, A.
intimidate, and interfere with” a border patrol “Ever since Ex Parte Bain was decided
Agent, engaged in his official duties. At trial, in 1887, it has been the rule that after an
however, the jury received two instructions. indictment has been returned its charges may
The first told the jury that it could convict if it not be broadened through amendment except
found Nuñez guilty of resisting arrest by by the grand jury itself.” United States v.
means and use of a dangerous weapon, as Stirone, 361 U.S. 212, 215-16 (1960) (internal
alleged in the indictment. The second citation omitted). Therefore, “a court cannot
instructed the jury that it could also convict if permit a defendant to be tried on charges that
it found that Nuñez was guilty of “forcibly are not made in the indictment against him.”
assaulting, resisting, opposing, impeding, Id. We have consistently followed Stirone and
intimidating, or interfering with a federal have reversed convictions where “the jury
officer,” and made no mention of the use of a might have convicted [a] defendant” on new
dangerous weapon. elements to the offense not charged by the
grand jury. See United States v. Bizzard,
The jury acquitted Nuñez in regard to 615 F.2d 1080, 1082 (5th Cir. 1980).
the first instruction, finding that he did not,
beyond a reasonable doubt, resist arrest by This court has further held that “a
means of a dangerous weapon. But the jury constructive amendment of the indictment is a
did convict Nuñez on the basis of the second reversible error per se if there has been a
instruction, apparently finding that he did modification at trial of the elements of the
forcibly resist in some way, though not by crime charged.” See United States v. Salinas,
means of a dangerous weapon. 601 F.2d 1279, 1290 (5th Cir. 1979). We
also, however, have “distinguish[ed] between
Nuñez had objected to the inclusion of an expansive reading of the indictment that
the second instruction, and after the verdict, he requires reversal and a variance that is a
moved for a judgment of acquittal, claiming
that the jury should not have been permitted to
convict him under a theory not charged in the
1
indictment. He also moved for a new trial “No person shall be held to answer for a
based on errors in the admission of Thorne’s capital, or otherwise infamous crime, unless on a
testimony. The court overruled both motions. presentment or indictment of a Grand Jury. . . .” U.S.
CONST. amend. V.
II. 2
Because we vacate Nuñez’s conviction on
Though the grand jury indicted Nuñez Fifth Amendment grounds, we do not reach his
for “knowingly and by means and use of a challenge to the admissibility of Thorne’s character
dangerous weapon, that is, a fully loaded evidence or to the length of his sentence.
3
harmless error.” See United States v. Ylda, The Court reversed and held that the
653 F.2d 912, 913 (5th Cir. Unit A Aug. variation between the jury instruction and the
1981).3 “The misconstruction of an indictment indictment “destroyed the defendant’s
is reversible error if it is possible that the substantial right to be tried only on charges
defendant was tried for a crime other than that presented in an indictment returned by the
alleged in the indictment.” Id. at 914. “If, on grand jury.” Stirone, 361 U.S. at 217.
the other hand, it is clear that this could not Moreover, even though the statute permitted
have been the case, the trial court’s refusal to a conviction on a general indictment that did
restrict the jury charge to the words of the not specify the type of burden on interstate
indictment is merely another of the flaws in the commerce, the Court held that the conviction
trial that mar its perfection but do not must rest on the charge specified in the
prejudice the defendant.” Id. indictment. Id. Following Stirone, Nuñez
argues that the grand jury limited the
Therefore, while we remain obedient to government to proving that he resisted “by
Stirone’s commands to scrutinize any means of” Thorne’s firearm, despite the fact
difference between an indictment and a jury that a broader indictment would have been
instruction, we will reverse only if that permissible under the statute.
difference allows the defendant to be convicted
of a separate crime from the one for which he
was indicted. Otherwise, he will have to show
how the variance in the language between the
jury charge and the indictment so severely
prejudiced his defense that it requires reversal
under harmless error review.4
B.
Nuñez claims that the difference
between his indictment and jury instructions is
so significant that it allowed the jury to convict
him of a crime for which he was not indicted
and does not constitute a mere variance
subject to harmless error review. Instead, he
argues that his case deserves the same strict
scrutiny applied in Stirone. There, a defendant
was indicted for obstructing the interstate
movement of sand in violation of the Hobbs
Act, 18 U.S.C. § 1951. The district court
allowed a conviction based on a factual finding
that the defendant had obstructed a shipment
of steel in interstate commerce.
3
See, e.g., United States v. Trice, 823 F.2d
80, 91 (5th Cir. 1987) (holding that reversal is not
required if there is no possibility instruction allowed
jury to convict for offense different from that charged
in indictment).
4
See 24 JAMES W. MOORE ET AL., MOORE'S
FEDERAL PRACTICE § 607.06[1], at 607-41 n.15 (3d
ed. 1997) stating that a variance is reviewed under
harmless error standard and is not fatal unless it
infringes substantial rights).
4
The government distinguishes Stirone In the Salinas indictment, the
by reminding us that a constructive defendant was charged with aiding and
amendment does not occur in all variances abetting a bank officer in misappropriating
between an indictment and jury instruction, but bank funds. During the trial, the bank officer
only “when the conviction rested upon a set of was cleared of any connection to the defendant
facts distinctly different from that set forth in or to the misappropriation. But the court
the indictment.” United States v. Young, 730 instructed the jury that it could convict for
F.2d 221, 223 (5th Cir. 1984). In Stirone, the aiding and abetting any bank officer. We
defendant was convicted of one act reversed. See Salinas, 654 F.2d at 324.
(obstructing steel shipments) completely
different from the other act alleged in his Nuñez, like the Salinas defendant, was
indictment (obstructing sand shipments). But indicted on very specific charge (assaulting an
in Young, we affirmed a conviction even officer by means of a firearm) and then
though the indictment charged the defendant convicted under a less specific offense
with receiving a weapon in interstate (assaulting an officer) that arose out of the
commerce. The jury actually convicted him of same factual incident. The jury then acquitted
receiving a weapon in foreign commerce. him of the specific crime for which he had
Therefore, the government concludes that been indicted. Just as the Salinas district court
because the “factual basis for the indictment is gave the jury instructions that allowed them to
identical to that for a conviction . . . . it is not convict for any type of fraud, the instructions
possible that the defendant has been convicted in this case allowed the jury to convict Nuñez
for an offense not charged in the indictment.” for almost any kind of assault. This is a
See Young, 730 F.2d at 224. different and separate offense that was not
charged in the indictment.
Thus, we must decide whether the
difference between resisting by means of a Thus, though the conviction arose from
firearm and resisting without using a firearm is the same factual incident, the difference
“factually distinct,” as Stirone, or constitutes between the specific details of the indictment
a single “factual basis,” as in Young. There is and the general jury instruction is too great to
a substantial factual difference between survive the requirements of the Fifth
resisting arrest using a firearm and doing so Amendment.5 Nuñez was convicted for a
without using a firearm. While both charges crime, resisting arrest by any means, for which
stem from the same incident, the difference he was not indicted.6
between using and not using a firearm is great
enough that it allowed Nuñez to be convicted The government further contends that
of a crime for which he had not been indicted. resisting arrest by any means is a lesser-
included offense within the meaning of United
Simply because the facts leading to the
conviction arose out of the same incident does 5
not mean that the defendant was not Accord United States v. Doucet, 994 F.2d
impermissibly convicted of a separate crime. 169, 172-73 (5th Cir. 1993) (holding that constructive
amendment of indictment occurred when defendant
In United States v. Salinas, 654 F.2d 319, 324 was indicted for possession of unregistered assembled
(5th Cir. Unit A Aug. 1981), we reversed a machine guns, but prosecutor defined machine gun at
conviction even though the defendant had trial and in jury instruction to include possession of
been convicted for the same act for which he unassembled machine gun parts).
had been indicted. Still, because the jury 6
charge allowed a conviction for committing The government cites United States v.
that act in a manner different from that alleged Robles-Vertiz, 155 F.3d 725 (5th Cir. 1998), but the
variance in that case is far less significant than the one
in the indictment, we found a constructive involved here. Robles-Vertiz involved a drafting error
amendment. in which the government used the wrong name to
indict the defendant.
5
States v. Miller, 471 U.S. 130 (1985), in allowing conviction for “resisting arrest” is far
which the Court upheld a conviction based on more general and broad.
a theory that was more narrow than the one
set forth in the indictment. “As long as the It is this very type of “broadening” that
crime and the elements of the offense that the Miller court refused to endorse. In
sustain the conviction are fully and clearly set contrasting its holding to that in Stirone, the
out in the indictment, the right to a grand jury Miller court emphasized that in Stirone, the
is not normally violated by the fact that the “trial evidence had ‘amended’ the indictment
indictment alleges more crimes or other means by broadening the possible bases for
of committing the same crime.” Miller, conviction from that which appeared in the
471 U.S. at 136. indictment.” 471 U.S. at 138.
But Nuñez persuasively responds that Finally, the government suggests that
Miller endorses only variances that narrow the § 111(b), the provision allowing extra
indictment. In Miller, the defendant was punishment for resisting with a firearm, is
indicted for insurance fraud for (1) consenting merely a penalty provision. Therefore, it
to a burglary and (2) lying to an insurer about asserts that the dangerous weapon allegation is
the value of his loss. At trial, however, the not an essential element of the indictment and
proof showed only that Miller had lied to the does not restrict the government’s theory of
insurer and did not support his involvement in conviction. Nuñez is correct, however, in
the burglary. The court instructed the jury it stating that Jones v. United States, 119 S. Ct.
could convict on the basis of the lying alone. 1215 (1999), forecloses this reading of federal
criminal statutes except where statutory
The Court found no constructive sections specifically increase punishments for
amendment, however, because the indictment prior crimes. See id. at 1226. Jones teaches
plainly set out the offense (lying to the insurer) us to avoid encroaching on a defendant’s Fifth
for which the defendant eventually was Amendment rights by construing statutes
convicted. The fact that the indictment alleged setting out separate punishments as creating
other offenses “independent of and separate, independent criminal offenses rather
unnecessary to the offense on which a than a single criminal offense with different
conviction ultimately rests” is not fatal to the punishments. See id.
government and may be “treated as
surplusage.” Miller, 471 U.S. at 137. In Jones, the Court interpreted
Therefore, the Court refused to give Miller 18 U.S.C. § 2119, which imposed different
relief: “His complaint is not that the indictment punishments depending on the severity of the
failed to charge the offense for which he was injuries suffered by victims of a car-jacking, as
convicted, but that the indictment charged creating three separate offenses rather than a
more than necessary.” Id. at 140. single offense with three punishments.7
Likewise, we read 18 U.S.C. § 111 as creating
Nuñez rightly argues that the three separate offenses, to-wit, resistance by
indictment failed to charge the offense for means of (1) simple assault; (2) more serious
which he was convicted. The jury instruction, assaults but not involving a dangerous
without specific reference to how he resisted weapon; and (3) assault with a dangerous
arrest, impermissibly broadens the indictment
to include all sorts of resistance. Unlike the
Miller indictment, Nuñez’s indictment did not 7
Title 18 U.S.C. § 2119 provides that when
allege two different offenses, one of which was a person takes a motor vehicle by force and while
rejected by the trial jury. Rather, Nuñez’s possessing a firearm, the punishments shall be (1) not
single-count indictment alleged a single more than 15 years if the victim suffered no serious
bodily injury; (2) not more than 25 years if the victim
offense: “resisting arrest by means of a suffers serious bodily injury; and (3) not more than life
firearm.” This is a specific and narrow imprisonment if the victim dies as a result of the car-
accusation, and the later jury instruction jacking.
6
weapon. The government chose to indict
Nuñez for resistance by means of assault with
a dangerous weapon, and it is not permitted to
shift its theory of the case to a separate,
independent criminal offense without obtaining
a separate indictment. Jones confirms our
view that allowing the jury to convict Nuñez
of forcibly resisting without the use of a
dangerous weapon is a conviction “of an
offense not charged in the indictment.”
Stirone, 361 U.S. at 213.
The conviction and sentence are
REVERSED.
7