United States v. Mann

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 18, 2015

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff – Appellee,
v. No. 13-2214

CLAY O’BRIEN MANN,

Defendant – Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:11-CR-01528-JAP-1)

Brian A. Pori, Office of the Federal Public Defender, Albuquerque, New Mexico, for
Defendant – Appellant.

David N. Williams, Assistant United States Attorney (Damon P. Martinez, United States
Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff – Appellee.

Before KELLY, BACHARACH, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

A New Mexico grand jury charged Clay O’Brien Mann with eight counts, including

three 18 U.S.C. § 924(c) violations, arising from his shooting three people on an Indian
reservation. He appeals his sole § 924(c) conviction, which arose from his assault and

shooting of Paula Nez. As with the other two § 924(c) counts, the government charged

that Mann had knowingly discharged a firearm in relation to his assaulting Paula Nez.

Under Supreme Court precedent, the discharge need not be done either “knowingly” or

“in relation to” the underlying crime of violence. Mann did not object to the district

court’s instructions ignoring these unnecessarily charged conditions. For the first time on

appeal, Mann argues that the district court constructively amended his indictment by not

instructing the jury that, to convict, it needed to find these conditions met. This, he says,

was plain error and violated his Fifth and Sixth Amendment rights. We see no

constructive amendment and thus no error. The charged but uninstructed language was

mere surplusage to the true elements of the crime. Accordingly, we affirm the district

court’s conviction and sentence.

BACKGROUND

A. Trial Testimony

On July 23, 2010, late in the evening, Glenn and Paula Nez invited friends to join

them at their undeveloped property to socialize as part of monthly fundraising for an

upcoming Yeibichei (healing) ceremony. Glenn was scheduled to participate in the

ceremony. About midnight, Glenn Nez called or texted Ames Jim to invite his wife and

him to come participate. Ames and Cindy Jim were then visiting friends, Mark and Tina

Bolding. Ames Jim was skilled at automobile-mechanic work, and was helping Mark

Bolding repair a truck. After the two men finished repairing the truck, the two couples

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drove together to the Nezes’ undeveloped property. Once there, they joined a group of

about 13 or 14 people, all peaceably drinking and visiting around a bonfire.

Earlier in the evening, at about 8:00 p.m., Mann had driven to his common-law wife’s

property adjoining the Nezes’ land to feed his dogs.1 At about 10:30 p.m., he returned to

Farmington, New Mexico and bought alcohol. Mann was constructing a home on the

property, but in the meantime he and his wife lived elsewhere.2 He estimated that he

returned to the property by the Nezes’ at about 12:30 a.m. Alone at the property, he drank

most of the alcohol and set off some fireworks. Consistent with this account, Paula Nez

testified that about midnight she saw the neighbor (Mann) arrive at his adjoining

property. Soon afterward, she saw a firework go off from near his house. She did not

know Mann. Nor did Mann know the Nezes, but he took offense to their occasional

gatherings.

Sometime about 2:30 a.m., as the Nezes and their friends continued visiting around

the bonfire, Mann made his way to the fence-line separating the two properties and threw

a lit artillery-shell firework into or near the bonfire. Mann watched the firework explode

1
Some of this background comes from Mann’s Mirandized statement to FBI agents
two days after the shootings. At trial, the government introduced and played for the jury a
recording of the interview, also supplying a written transcription. R. vol. I at 440.
Although the government included information from this interview in its brief and cited
to the page in the trial transcript where the video was played, the government did not
include the recorded interview or the transcript for our consideration. We ordered them
included as a supplemental record on appeal. Exercising his rights, Mann did not testify
at trial.
2
Although Paula Nez owned the adjoining property for a home site, the Nezes also
were living elsewhere. On the property that evening was a small shack and some
automobiles and bicycles.
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and saw people running and screaming during the ensuing chaos. The firework’s label

warned users of its danger: “Must be used in a launcher tube. Warning: Shoots flaming

balls.” R. vol. I at 428. When properly launched, this powerful firework would rise 200–

300 feet above the ground and explode.

At least three people ran toward the vicinity where Mann had thrown the firework on

the other side of the property-line fence. Unknown to them, Mann stood near the fence

with a rifle and loaded magazines of ammunition. Mann claimed in his interview that he

first fired a warning shot in the direction of a man charging toward him, Ames Jim. He

admitted centering the gun, firing again from his hip and striking Ames Jim. He heard

Ames Jim wheezing from the gunshot, and shot him again. He claimed that when Ames

Jim fell, he saw “a girl” fall behind him, Paula Nez. He expressed surprise that he had

shot a third person, Mark Bolding. All told, Mann fired nine shots, two striking Mr. Jim

in the cheek and chest (killing him), one striking Paula Nez in the neck, and one striking

Mark Bolding in the face. Mann said that after this shooting spree, he walked the short

distance back to his house, locked it, and slowly drove away in his car.

When Paula Nez first laid eyes on Mann by the fence, she thought she had heard

fireworks, not gunshots. She verbally confronted Mann, saying words to this effect:

“What are you doing? You shouldn’t be around us. We don’t know you. Get the hell out

of here. You always been doing that, driving around us. You shouldn’t be doing that.” R.

vol. I at 333. She testified that Mann turned around, pointed his rifle at her, and fired. As

she lay on the ground shot, she saw Mann get in his car and drive away.

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 Tina Bolding and Cindy Jim took cover but watched the events unfold. Tina Bolding

testified that she saw Paula Nez and her husband, Mark Bolding, fall after Mann shot

them. She then poked her head out and watched Mann holding a rifle as he “patrolled”

the fence line angrily shouting profanities. R. vol. I at 380. Cindy Jim testified that after

they saw Mark Bolding and Paula Nez on the ground, they saw Mann shooting and

yelling words to this effect: “[I’m] going to come back and shoot all of you, too[.]” R.

vol. I at 269. Soon after that, Cindy Jim saw Mann drive away in his car.

At 6:28 a.m., about four hours after the shootings, law enforcement officers

apprehended Mann after finding him asleep in his car. In the back lay a rifle and in

Mann’s jacket were four loaded magazines. A deputy sheriff testified that Mann was

angry, yelling obscenities, and intoxicated in the patrol car. After seizing Mann’s

semiautomatic .22 caliber rifle and testing it against the shell casings found at the

shooting, the FBI determined that Mann’s rifle had fired the shots that killed Ames Jim

and grievously wounded Mark Bolding and Paula Nez. Mann admitted as much in his

FBI interview. Supp. R. at 15–16, 19, 26, 28.

B. Procedural History

In June 2011, a federal grand jury indicted Mann on eight counts arising from these

shootings. This appeal focuses on counts 4 and 5 of the indictment. Count 4 charged

Mann with assaulting Paula Nez, “such assault resulting in serious bodily injury.” R. vol.

I at 43–44. Count 5 charged a firearms offense arising from this assault:

On or about July 24, 2010, in San Juan County, in the District
of New Mexico, the defendant, Clay O’Brien Mann . . . did
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 knowingly discharge and carry a firearm . . . during and in
relation to a crime of violence, for which Clay O’Brien
Mann . . . may be prosecuted in a court of the United States,
namely, assault resulting in serious bodily injury as charged
in Count 4 herein.

In violation of 18 U.S.C. § 924(c)(1)(A)(iii).

R. vol. I at 44 (emphasis added). Mann’s appeal concerns this emphasized language.

Although the district court did not instruct on “discharge,”3 Mann’s counsel told the

district court that he had “no objections to the instructions as proffered by the court.” R.

vol. I at 592. Because Instruction 3 quoted the charging language for each of the

indictment’s eight charges, the jury had before it the full charge stated above. The jury

convicted Mann on count 1, involuntary manslaughter of Ames Jim; count 2, a § 924(c)

count incorporating count 1;4 count 4, assault resulting in serious bodily injury to Paula

Nez; count 5, a § 924(c) count incorporating count 4; and count 7, assault resulting in

serious bodily injury to Mark Bolding. R. vol. I at 189–90.

Two weeks after the jury’s verdict, Mann filed a “motion to arrest judgment.” He

argued that the district court must vacate his conviction under count 5 because a recently

decided case, Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), required that the

jury find “discharge” of a firearm. Because Mann had not objected to the court’s jury

instructions, the district court reviewed for plain error. To establish plain error, Mann
3
Unlike “use,” “carry,” or “brandish”—legal terms needing defined in instructions to
guide the jury—“discharge” needs no legal clarification. A firearm either discharges or
not. The real problem in not “instructing on discharge” was that the district court failed to
tell the jury that it must unanimously find discharge beyond a reasonable doubt.
4
The district court later vacated Mann’s conviction on count 2 after concluding that
involuntary manslaughter is not a crime of violence as defined by § 924(c)(3).

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needed to demonstrate: “(1) an error; (2) that is plain; (3) that affects substantial rights;

and (4) that seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Brown, 400 F.3d 1242, 1253 (10th Cir. 2005).

Applying this analysis, the district court concluded that it had erred by “[f]ailing to

instruct the jury on the element of discharging a firearm” and that this error was plain.5

R. vol. I at 747–48. Specifically, it recognized that the Supreme Court in Alleyne—

decided less than a month before the trial—had compelled that juries find § 924(c)

sentencing enhancements beyond a reasonable doubt, overruling an earlier holding that

permitted district judges to do so by a preponderance of the evidence. See Alleyne, 133 S.

Ct. at 2155 (overruling Harris v. United States, 536 U.S. 545 (2002)). But addressing the

third prong of plain-error analysis, the district court concluded that the error had not

prejudiced Mann. In particular, the district court found it “highly unlikely that the jury

verdict would have differed had the jury been properly instructed that discharging was an

element of 18 U.S.C. § 924, because Defendant never contested that he fired shots.” R.

vol. I at 749.

The district court sentenced Mann to three concurrent terms of 51 months—the low

end of the advisory-guidelines range—on his involuntary-manslaughter and two assault

convictions. In addition, the court sentenced Mann to a consecutive term of 120 months

5
The government argued that the district court had not erred, relying on the jury
verdict form, which for count 5 read: “We, the jury, find the defendant, Clay O’Brien
Mann . . . _______________ of discharging a firearm in furtherance of an act of violence,
as charged in Count 5 of the Indictment.” R. vol. I at 189.
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for his § 924(c) conviction incorporating his assault of Paula Nez.6 Mann timely

appealed.

DISCUSSION

A. Plain Error Review

Because Mann failed to raise the constructive-amendment argument in the district

court, we review this claim for plain error. United States v. Cavely, 318 F.3d 987, 999

(10th Cir. 2003). To show plain error, Mann must demonstrate that there is “(1) an error;

(2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Brown, 400 F.3d at 1253.

If Mann satisfies all four prongs, we “may then exercise [our] discretion to notice [the]

forfeited error.” United States v. Gonzalez Edeza, 359 F.3d 1246, 1250 (10th Cir. 2004)

(quoting United States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003)). “Meeting all four

prongs is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009)

(citation and internal quotation marks omitted). We will find plain error only when an

error is “particularly egregious,” and the failure to remand for correction would produce a

“miscarriage of justice.” United States v. Frost, 684 F.3d 963, 972 (10th Cir. 2012).

6
But for a careless error by the government, Mann might well have had another
consecutive 25-year term added to his sentence. See 18 U.S.C. § 924(c)(1)(C)(i). During
its deliberations, the jury noticed something the government had not—count 8 premised
its § 924(c) charge on an “assault resulting in serious bodily injury [to Mark Bolding] as
charged in Count 6 herein,” but the referenced assault was really charged not in count 6
but in count 7. After realizing the government’s mistake, the district court dismissed
without prejudice count 8, the § 924(c) charge based on Mann’s assault on Mark Bolding
resulting in serious bodily injury. R. vol. I at 186, 570–71.

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 B. Mann’s Theory on Appeal

Mann argues that the district court constructively amended count 5 of his indictment

by not instructing the jury that, to convict, it needed to find beyond a reasonable doubt

that he knowingly discharged his firearm in relation to his assault of Paula Nez. To show

the first two prongs of plain error (error that was plain), he relies on the district court’s

admitted Alleyne error and on Supreme Court cases prohibiting constructive amendments

to indictments. To show substantial prejudice under plain-error’s third prong, he argues

that the jury may not have convicted him if instructed on count 5 as it was charged

because the government failed to present overwhelming evidence in support. He

maintains that his mistakenly shooting Paula Nez (as he claimed in his FBI interview) is

inconsistent with “knowingly” discharging his rifle “in relation to” assaulting her. He

argues that the jury may have believed his mistaken-shooting account because it acquitted

him of assaulting her with intent to cause bodily injury.7 To meet plain-error’s fourth

prong, Mann argues that “permitting the jury to convict Mr. Mann of a broader offense

than the one charged in the indictment must be said to have seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” Appellant’s Br. at 22.

7
The district court instructed on assault as follows: “‘Assault’ means any intentional
attempt, not because of accident or mistake, to inflict injury upon someone else, when
coupled with an apparent present ability to do so, and includes any intentional display of
force that would give a reasonable person cause to expect immediate bodily harm,
whether or not the threat or attempt is actually carried out or the victim is injured.” R. vol.
I at 160.

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 C. Elements of § 924(c) Violations

The district court properly instructed the jury on the base elements of a § 924(c)

violation.8 By finding Mann guilty of that count, the jury necessarily found that Mann

had knowingly carried a firearm during and in relation to a crime of violence

prosecutable in a court of the United States. This alone required a five-year mandatory-

minimum sentence.9 See 18 U.S.C. § 924(c)(1)(A)(i). To trigger the mandatory-minimum

ten-year sentence under § 924(c)(1)(A)(iii), the district court needed either (1) the jury’s

finding beyond a reasonable doubt that Mann had discharged a firearm during his assault

8
For the three § 924(c) counts, the district court instructed that Mann had “used or
carried” a firearm. R. vol. I at 162. The indictment did not charge that Mann had “used”
the firearm. R. vol. I at 44. The district court got little help from the parties—Mann’s
proposed instructions recited “used” and ignored “carried,” and the government’s
proposed instructions recited “used or carried.” R. vol. I at 79, 116. This is not an issue
on appeal, but we note for future cases that the government’s failure to cross-reference its
indictment and its jury instructions can cause unnecessary problems. The government’s
inattention also affected the jury verdict form, where the jury was asked if Mann had
discharged his firearm “in furtherance” of an “act of violence” as charged in count five.
Because Mann was not charged under the “possession in furtherance” prong of § 924(c),
this language too was mistaken.
9
In his briefing, Mann suggests that he could not be convicted of a § 924(c) offense if
the jury found the base § 924(c) offense (knowingly carrying a firearm during and in
relation to the crime of violence) but did not find “discharge” as charged in the
indictment. If that is his position, we disagree with it. We acknowledge that Alleyne calls
“brandishing” an “element” (Supreme Court’s quotation marks) that must be submitted to
the jury and describes as a “new, aggravated crime” the core crime plus the “fact
triggering the mandatory minimum sentence.” 133 S. Ct. at 2155, 2161. But we believe
this simply means that without a jury’s finding the aggravating fact beyond a reasonable
doubt—except as Recuenco allows—the non-aggravated penalty applies. See Alleyne,
133 S. Ct. at 2164 (vacating sentence because jury had not found “brandishing” despite
having a space to do so on the verdict form, and remanding for “resentencing consistent
with the jury’s verdict,” meaning the base “use or carry” conviction under § 924(c) still
stood despite the jury’s rejecting the sentencing-enhancer for “brandishing”). See also
United States v. Alleyne, No. 3:10-CR-00134-REP-1, Doc. No. 67 (Sept. 7, 2010) (verdict
form).
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of Paula Nez, see Alleyne, 133 S. Ct. at 2155, or (2) the district judge’s own supportable

finding that the jury would have done so based on overwhelming evidence, see

Washington v. Recuenco, 548 U.S. 212, 220–21 (2006). See also Neder v. United States,

527 U.S. 1, 8–13 (1999) (concluding that harmless-error analysis applied to district

court’s failure to instruct on materiality, an element of the charged fraud offenses). As

mentioned, the district court used the second option after failing the first. Mann does not

address Recuenco or challenge that it permitted this. Instead, on appeal, he extends his

argument past the district court’s failure to instruct on mere discharge and argues that—

once charged—the district court needed to instruct the jury that, to convict, it must find

beyond a reasonable doubt that Mann “knowingly discharged” a firearm “in relation to”

his assault on Paula Nez.

In Dean v. United States, 556 U.S. 568, 570 (2009), a bank robber accidentally

discharged his firearm while reaching over a teller to collect money from her drawer.

Because a firearm was discharged during the robbery, the district court imposed a ten-

year mandatory minimum sentence as § 924(c)(1)(A)(iii) required. Id. at 571. On appeal,

Dean argued that the sentencing enhancement “requires proof that the defendant intended

to discharge the firearm.” Id. Examining the statute’s text, the Court disagreed, noting

that “[i]t does not require that the discharge be done knowingly or intentionally, or

otherwise contain words of limitation.” Id. at 572. Mann acknowledges that Dean

interprets § 924(c) to cover accidental discharges, but he asserts that the discharge must

be “in relation to” the crime of violence. Dean itself forecloses this position, noting that

“in relation to” modifies “only the nearby verbs ‘uses’ and ‘carries.’” Id. at 573.

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Consistently, the Court concluded that “[t]here is no basis for reading ‘in relation to’ to

extend all the way down to modify ‘is discharged.’” Id. Accordingly, the Supreme Court

has expressly rejected as an element of § 924(c)(1)(A)(iii) a “knowing” discharge of a

firearm “in relation to” the underlying crime of violence.

Undoubtedly, the government’s charging language was far from ideal. The question

Mann now raises is whether the government is stuck with its charged language (and the

need to prove it) even though it exceeds the statutory elements.

D. Plain-Error Analysis

We begin our plain-error analysis of Mann’s constructive-amendment argument by

asking whether Mann can even show error. We note that he claims error based on

“Alleyne and [United States v.] Stirone, [361 U.S. 212 (1960)], and this Court’s decisions

on constructive amendment of indictments. . . .” Appellant’s Br. at 21. Accordingly, we

evaluate each of these two distinct bases in determining whether the district court

constructively amended his indictment contrary to law.

First, we observe that we have already concluded that the Alleyne error here—failure

to instruct the jury that it must find discharge beyond a reasonable doubt—does not

qualify Mann to any relief in view of the overwhelming evidence that he did discharge a

firearm during the assaults. In fact, in his recorded FBI interview—played for the jury—

Mann admitted several times that he had discharged his firearm. On appeal, Mann

concedes that “the jury would have found the mere fact of discharge of a firearm on

Count 5.” Appellant’s Rep. Br. at 3.

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 Thus, despite the district court’s failure to instruct the jury that it must find that Mann

had discharged a firearm, the error was harmless beyond a reasonable doubt because

overwhelming evidence established the “discharge.” See Recuenco, 548 U.S. at 214–15

(affirming enhanced sentence for second-degree assault with a firearm despite the jury’s

not being presented the question whether the assault was with a “firearm” instead of a

generic “deadly weapon,” because the government had introduced overwhelming

evidence that defendant had in fact used a firearm during the assault); United States v.

Pizarro, 772 F.3d 284, 287 (1st Cir. 2014) (affirming enhanced drug sentence despite

error in not instructing the jury on individualized drug quantity for aggravated conspiracy

count and aggravated possession count after concluding “beyond a reasonable doubt that

the omitted element[s] [were] uncontested and supported by overwhelming evidence,

such that the jury verdict would have been the same absent the error[s]”); United States v.

King, 751 F.3d 1268 (11th Cir. 2014) (affirming enhanced § 924(c) sentence for

brandishing a firearm despite Alleyne error because video surveillance and victim

testimony made it “clear beyond a reasonable doubt that a rational jury would have found

King guilty of brandishing a firearm absent the Alleyne error.”); United States v. Cureton,

739 F.3d 1032, 1046 (7th Cir. 2014) (affirming on same basis because it was highly

unlikely that a jury would not have found brandishing based on the victim’s testimony

that defendant had held a gun to her head); United States v. Mack, 729 F.3d 594, 606–09

(6th Cir. 2013) (affirming on same basis because “the jury would have found beyond a

reasonable doubt . . . that the defendant brandished a firearm during the robberies. . . .”).

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 Having lost on Alleyne, and having conceded that issue rather than appeal it, Mann

cannot uproot the first two prongs of plain error from the district court’s Alleyne analysis

and replant them in his constructive amendment analysis. The two claims of error are

distinct. Even so, the government endorses Mann’s shortcut, conceding that Mann can

satisfy the first two prongs of plain error for his constructive-amendment argument by

transplanting the conceded Alleyne error. This concession is mistaken. Even if Mann

were allowed to use an error under one theory to establish error under a different theory,

he would still fail. Alleyne does not require a district court to instruct that a jury must find

that a defendant “knowingly discharged” a firearm “in relation to” an underlying crime of

violence. The error he claims under Alleyne is not the error needed to show a constructive

amendment.

Second, we reject Mann’s argument that under Supreme Court cases the district court

impermissibly constructively amended the indictment. In making his constructive-

amendment argument, Mann first and primarily relies on Ex parte Bain, 121 U.S. 1

(1887). He analogizes his case to Bain, focusing on Bain’s reversing a district court for

striking extraneous language from an indictment. Specifically, as here, the government in

Bain charged conduct unneeded to sustain its statutory burden. There, the government

charged that the defendants had made a “false statement and report in manner and form

. . . with intent to deceive the comptroller of the currency and the agent appointed to

examine the affairs of said association. . . .” Id. at 4 (emphasis in original). The district

court struck the italicized language from the indictment because nothing in the criminal

statute required intent to deceive the comptroller of currency. Id.

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 On appeal to the Supreme Court, the defendant argued that the district court had

constructively amended the indictment. The government opposed this by contending that

the stricken language was “surplusage” and that “the grand jury would have found the

indictment without this language.” Id. at 9. The Supreme Court rejected the government’s

approach, concluding that it was not for the Supreme Court to “say whether [the grand

jury] would or not [have indicted]” and that “[t]he party can only be tried upon the

indictment as found by such grand jury, and especially upon all its language found in the

charging part of that instrument.” Id. at 9–10.

If Bain were still good law on this point, Mann might well prevail. But it is not.

Although Mann acknowledges United States v. Miller, 471 U.S. 130 (1985), in his brief,

he fails to give the case its full import. In Miller, a unanimous Court addressed Bain

head-on, restating Bain’s second proposition10 before rejecting it: Bain can support the

proposition that the striking out of parts of an indictment invalidates the whole of the

indictment, for a court cannot speculate as to whether the grand jury had meant for any

remaining offense to stand independently, even if that remaining offense clearly was

included in the original text. Id. at 142.

Reviewing its post-Bain cases, the Court noted that “when defendants have sought to

rely on Bain for this point, this Court has limited or distinguished the case, sustaining

convictions where courts had withdrawn or ignored independent and unnecessary

10
Bain’s first proposition against broadening an indictment still holds. That
proposition relates not to a district court’s striking surplusage from an indictment but to a
conviction’s being “based on an offense that is different from that alleged in the grand
jury’s indictment.” Miller, 471 U.S. at 142.
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allegations in the indictments.” Id. at 144 (citing Ford v. United States, 273 U.S. 593, 602

(1927), and Salinger v. United States, 272 U.S. 542, 549 (1926)). In “explicitly rejecting”

Bain’s second proposition, the Miller Court noted that the case “has simply not survived”

and rejected any notion that it is “an unconstitutional amendment to drop from an

indictment those allegations that are unnecessary to an offense that is clearly contained

within it. . . .” Id. at 144.

Faced with Miller’s plain holding, Mann refers us to Stirone, 361 U.S. at 218–19,

which preceded Miller by 25 years. Nothing in that case supports Mann’s constructive-

amendment argument. Stirone addressed Bain’s first proposition, which Miller left intact.

Specifically, Stirone disallowed the government from broadening its indicted Hobbs Act

count at trial. Id. at 219. Although the government charged that the defendant had

impeded commerce by delaying shipments of ready-mix concrete across state lines for

use in erecting a steel plant, the government sought to convict on an uncharged theory—

that he had impeded interstate commerce by interfering with steel shipments between

states. Id. at 213. See also United States v. Farr, 536 F.3d 1174, 1180 (10th Cir. 2008)

(reversing district court for allowing government to broaden charges from willfully

evading quarterly employment tax to failure to pay trust-fund recovery penalty). Mann

does not argue that the district court erred in this fashion. Instead, he argues a

broadening-by-subtraction position that Miller expressly rejected.

Nor has our court been slow to recognize the difference between cases involving

Bain’s first and second propositions. Consistently with Miller, we have rejected Bain-

arguments similar to the one Mann makes here. See, e.g., United States v. Smith, 838 F.2d

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436, 439–40 (10th Cir. 1989) (limiting necessary proof to the elements of the offense and

not finding a constructive amendment by not requiring the government to prove

surplusage from the indictment—that invoices were for amounts “intended for

[defendants’] personal use unrelated to said project”) (emphasis original).

We conclude that Mann fails even to show error, the first of the four needed showings

to establish plain error. Thus, we have no need to address the third or fourth prongs of

plain-error analysis. See United States v. Pablo, 696 F.3d 1280, 1301 (declining to

address other prongs of plain-error review because defendant failed on the third prong).

CONCLUSION

We therefore hold that Mann’s conviction on count 5 and its resulting sentence are

lawful, and we AFFIRM the judgment of the district court.

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