Judge Gould rejects a constructive amendment challenge in a Section 924(c) case – when the jury couldn’t agree on the gun used! United States v. Tommy Hartz, __ F.3d. __, 06 Cal. Daily Op. Serv. 9759, (9th Cir. Aug. 17, 2006), decision available here. A troubling variance/amendment decision that should be carefully limited to its “plain error” context.
Players: Opinion by Judge Gould.
Facts: An indictment charged Hartz with a § 924(c) offense, “use and carry,” and “aid and abet the use and carry of” a .357 and a 9 mm. 06 Cal. Daily Op. Serv. at 9767. The gun(s) were allegedly used during a robbery of a jewelry store. Id. at 9763. The jury was unanimous that Hartz had used a firearm, but said “no” to special verdicts that asked if he had used either the .357 or the 9mm. Id. at 9768. He was convicted and got 22 years. Id. at 9769.
Issue(s): [The defense argues] “that the jury instructions given by the district court constructively amended counts three and four of the indictment, allowing the jury to convict him of crimes that the grand jury did not charge.” Id. at 9773. (Specifically, the instructions allowed the jury to simply convict based on “firearm,” while the indictment alleged specific guns - the .357 and the 9mm).
Held: “[W]e hold that the language in the indictment describing the .357 and the 9mm was surplusage, rather than an essential element of the crimes for which Hartz was charged, and that the difference between the indictment and the jury instructions was a variance that did not alter the behavior for which Hartz could be convicted.” Id. at 9777.
Of Note: “Amendment” versus “variance” is an interesting, and often inconsistent, backwater of criminal defense law. For Judge Gould, this is just one in another chain of cases that tolerate the government switching up its theories and proof between the grand and petit juries. Id. at 9777-78. This decision is troubling, however. The Ninth reassures that the jury was simply not unanimous on whether Hartz used the 9mm or the .357. Id. at 9778 & n.9. How the panel divines that fact is not clear. An equally fair reading is that Hartz is now serving 22 years, when a jury couldn’t unanimously agree that he used a particular gun in the crime, and just settled on “firearm” as a compromise verdict. Particularly with a sentence that long, that type of uncertainty doesn’t inspire much confidence in the system.
How to Use: There was no objection at trial, so this is a plain error case – a fact reiterated throughout the opinion. See e.g., id. at 9778-79, 9780. As the decision concludes, “We therefore reject Hartz’s assertion that the variance between the indictment and the jury instructions prejudiced his substantial rights [a plain error test], and hold that the variance here was not a plain error warranting relief.” Id. at 9780 (emphasis added). Don’t let a court or AUSA characterize Hartz as controlling in a Rule 29 motion alleging constructive amendment: the panel itself pretty clearly limits the decision to a plain error case (a much more difficult standard for the defense).
For Further Reading: Judge Gould in not a great draw for a gun case. In United States v. Young, 420 F.3d 915 (9th Cir. 2005), he read constructive possession pretty broadly to uphold a gun possession. And of course, here in Hartz he upheld a § 924(c) – despite a lack of jury unanimity of the gun involved. Interestingly, however, he and Judge Reinhardt have tangled over the interpretation of the Second Amendment, and the “individual rights” versus “collective rights” models. See blog here.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org