IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50523
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANTHONY GEDMAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-97-CR-195-1-JN
--------------------
January 18, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Michael A. Gedman appeals from a judgment entered after a
jury convicted him of conspiracy to distribute marijuana,
possession with intent to distribute, assault of a federal
officer, and two counts of attempting to escape from custody.
Having reviewed the record, we will affirm.
Gedman argues that the district court erred in denying a
motion to suppress evidence seized pursuant to a search warrant.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-50523
-2-
According to Gedman, an officer’s affidavit in support of the
warrant (i) did not establish probable cause for the search and
(ii) omitted the significant fact that a confidential informant
had been unable to make a controlled drug purchase from him
within the past few days. Only the first of these two arguments
was made to the district court.
When reviewing the denial of a motion to suppress, we look
first to whether the good-faith exception to the exclusionary
rule applies and, if not, whether probable cause existed for a
search warrant. United States v. McCarty, 36 F.3d 1349, 1356
(5th Cir. 1994). The officer’s affidavit in this case satisfies
the good-faith exception. It indicated that the confidential
informant, who had provided credible and reliable information in
the past leading to the seizure of controlled substances, had
informed a named state police officer that he had purchased
marijuana from Gedman at Gedman’s apartment. The informant
identified a picture of Gedman and stated that he had been
dealing with Gedman for four months and had purchased marijuana
from Gedman within the past two weeks. The informant indicated
that he had seen 40-50 pounds of marijuana, in five-pound
bundles, in Gedman’s apartment. In addition, the affidavit
stated that a surveillance agent had seen a large, heavy duffle
bag carried toward the Gedman residence on the day of the search.
The affidavit also noted that on that same day, Gedman had fled
when he was stopped for a traffic violation. We hold that given
these statements, and others in the affidavit, the affidavit was
not so devoid of evidence of probable cause “‘as to render
No. 99-50523
-3-
official belief in its existence entirely unreasonable.’” Id.
(citations omitted).
Gedman’s argument regarding material omission also fails.
Because Gedman did not raise this argument in the district court,
we review for plain error. See, e.g., United States v. Fields,
72 F.3d 1200, 1212 (5th Cir. 1996). Gedman concedes that a
negligent omission in an affidavit is insufficient to invalidate
a warrant. He argues, instead, that the withheld information was
so “clearly critical” to a finding of probable cause that its
omission is proof that the affidavit was prepared with reckless
disregard for the truth. Although it is true that “the requisite
intent may be inferred from an affidavit omitting facts that are
‘clearly critical’ to a finding of probable cause,” this is not
such a situation. United States v. Cronan, 937 F.2d 163, 165
(5th Cir. 1991). Our review of the affidavit convinces us that
even if it had specifically noted that the informant had been
unable to effect a controlled purchase from Gedman, probable
cause would have existed. The affidavit indicated that the
informant had been able to purchase marijuana within the latest
two weeks, and there was information in the affidavit suggesting
that unusual activity was currently afoot. Accordingly, the
district court committed no error, plain or otherwise, in denying
Gedman’s motion to suppress.
Gedman argues that the Government constructively amended his
indictment. A superseding indictment alleged that Gedman had
assaulted an “officer of the United States, to wit a prison
guard” in violation of 18 U.S.C. § 111. Gedman argues that a
No. 99-50523
-4-
constructive amendment occurred because the proof at trial showed
that he had assaulted a prison guard employed by the Bastrop
County Sheriff’s Department.
A defendant has a Fifth Amendment right to be tried solely
on allegations contained in the indictment. Stirone v. United
States, 361 U.S. 212, 215-18 (1960). If the evidence presented
at trial constructively amends the indictment on which a
conviction was based, a reversal is required. United States v.
Munoz, 150 F.3d 401, 417 (5th Cir. 1998), cert. denied, 119
S. Ct. 887 (1999). “[N]o constructive amendment arises where the
evidence proves facts different from those alleged in the
indictment, but does not modify an essential element of the
charged offense.” Id. (internal quotation and citation omitted).
If there is a mere variance in the facts alleged and those
actually proved, a reversal is necessary only when the indictment
did not notify “the defendant adequately to permit him to prepare
his defense and has . . . left him vulnerable to later
prosecution because of a failure to define the offense with
particularity.” Id.
We have “take[n] an expansive view of what a federal agent
is for purposes” of § 111. United States v. Hooker, 997 F.2d 67,
74 (5th Cir. 1993). In Hooker, we held that a state narcotics
officer was a federal agent when he was assaulted during the
course of a federal investigation. Id. Although we have not
addressed in a published opinion whether a local jailer may be a
federal agent for purposes of § 111, we agree with the Fourth
Circuit that a local jailer charged with guarding federal
No. 99-50523
-5-
prisoners comes within § 111's ambit. See United States v.
Murphy, 35 F.3d 143, 147 (4th Cir. 1994).
Gedman argues that even if the prison guard was a federal
agent, his indictment did not charge the offense so broadly. We
conclude, however, that--at most--there was a variance between
the indictment and the facts proved at trial. This variance, if
any, was not fatal: There is no chance that the indictment left
Gedman unable to “adequately . . . prepare his defense” or left
him “vulnerable to later prosecution because of a failure to
define the offense with particularity,” and we do not understand
him to be arguing otherwise. Munoz, 150 F.3d at 417. Gedman was
tried on the same charges that were contained in the indictment.
Accordingly, the district court did not err in denying Gedman’s
motion for judgment of acquittal.
Gedman argues that there was insufficient evidence to
support the jury’s conclusion that he used a “dangerous”1 weapon,
one of the elements of § 111(b), during his assault on the prison
guard. The evidence showed that Gedman repeatedly sprayed a fire
extinguisher at the guard; he argues that it would be
“counterintuitive” to conclude that the spray was dangerous.
We review the sufficiency of the evidence to determine
whether any reasonable trier of fact could have found that the
evidence established an element beyond a reasonable doubt.
United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992).
1
In his brief, Gedman repeatedly states that he was charged
with using a “deadly” weapon. The indictment and the relevant
jury instruction used the word “dangerous.” Section 111(b)
criminalizes use of either a “deadly or dangerous weapon.”
No. 99-50523
-6-
In making this determination, we view the evidence in the light
most favorable to the Government. United States v. Shabazz, 993
F.2d 431, 441 (5th Cir. 1993). All reasonable inferences from
the evidence are construed in accordance with the jury’s verdict.
Martinez, 975 F.2d at 161.
Whether an object constitutes a dangerous weapon is a
question of fact for the jury. United States v. Estrada-
Fernandez, 150 F.3d 491, 497 (5th Cir. 1998). To qualify, an
object must be “capable of doing serious damage to the victim of
the assault.” Id. (citation omitted). We conclude that a
reasonable jury could find that Gedman’s use of the fire
extinguisher constituted use of a dangerous weapon. As the guard
testified, both her breathing and her vision were endangered by
Gedman’s actions. A reasonable jury could find that the spray
and fumes from the extinguisher were capable of “doing serious
damage” to the guard. Id. The district court did not err in
denying Gedman’s motion for judgment of acquittal on this basis.
Gedman argues that the district court erred when sentencing
him by imposing a four-level increase pursuant to U.S.S.G.
§ 2A2.2(b)(2)(B) for use of a dangerous weapon. We review the
sentencing court’s findings of fact for clear error. United
States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir. 1993). Under the
guidelines, a dangerous weapon is “an instrument capable of
inflicting death or serious bodily injury.” § 1B1.1, comment.
(n.1(d)). For the reasons just given, we perceive no error in
the district court’s determination that the fire extinguisher
constituted a dangerous weapon.
No. 99-50523
-7-
Gedman cites a line of Second Circuit cases, which hold that
it may be “double counting” for a sentencing court to impose an
enhancement under § 2A2.2(b) for use of a nondangerous object
during an assault. According to those cases, when the object is
not inherently dangerous, the court must hear proof that the
object was used in some dangerous manner before utilizing the
enhancement. See United States v. Hudson, 972 F.2d 504, 507 (2d
Cir. 1992). In United States v. Morris, 131 F.3d 1136, 1139 n.3
(5th Cir. 1997), cert denied, 118 S. Ct. 1546 (1998), we held
that it was unnecessary to pass on the Second Circuit’s analysis
when the defendant had used an ordinary object in a dangerous
manner. Morris controls here; as Gedman used the fire
extinguisher in a dangerous manner, it became a dangerous weapon
for purposes of the sentencing guidelines. No forbidden double
counting occurs merely because the sentencing court applies
§ 2A2.2. Id. at 1139-40.
AFFIRMED.