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.
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 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. 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. 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 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.
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 ...