Tenth Deems Extra Language in Indictment to be "Mere Surplusage," and Court's Failure to Instruct on it was not Error

U.S. v. Mann, 2015 WL 2342861 (5/18/15)(Published) - The Tenth rejects the argument that the district court committed plain error by constructively amending the indictment on an 18 USC § 924(c) count. The government agreed there was plain error but contested the third (substantial prejudice) and fourth prongs (seriously affected the fairness, integrity or reputation of judicial proceedings) of the plain error standard. The Tenth finds there was no constructive amendment and, therefore, no error at all. The indictment charged Mr. Mann "did knowingly discharge and carry a firearm . . . during and in relation to" a specified assault resulting in serious bodily injury. The jury was instructed that Mr. Mann was guilty if he "used or carried a firearm during and in relation to" the assault, omitting the element of "discharge." At trial, Mr. Mann did not contest the fact that he had discharged the weapon. He did argue, however that he did so mistakenly. In light of evidence that Mr. Mann mistakenly shot the assault victim, the jury found him not guilty on the charge of assault with intent to do bodily injury with respect to the victim. The defense argued on appeal that the district court constructively amended the indictment by failing to instruct the jury that it needed to find Mr. Mann "knowingly" discharged his firearm "in relation to" the charged assault. The Tenth concludes there was no error because the indictment would have been adequate under Alleyne, which requires the jury to find "discharge" of the weapon, if it had omitted the "knowingly" and "during and in relation to" language, stating: "[T]he charged but uninstructed language was mere surplusage to the true elements of the crime."