United States v. Hartz ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30134
Plaintiff-Appellee, D.C. No.
v.  CR-02-00157-001-
TOMMY OWEN HARTZ, TSZ
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted March 9, 2006*
Seattle, Washington
Filed August 17, 2006
Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
9759
9762 UNITED STATES v. HARTZ
COUNSEL
David B. Zuckerman, Seattle, Washington, for the defendant-
appellant.
UNITED STATES v. HARTZ 9763
Susan M. Roe, Assistant U.S. Attorney, Seattle, Washington,
for plaintiff-appellee United States of America.
OPINION
GOULD, Circuit Judge:
After a jury trial, Tommy Hartz was convicted of conspir-
acy, interference with commerce by robbery, use of a firearm
during and in relation to a crime of violence, and being a
felon in possession of a firearm. Hartz appeals his conviction,
arguing: (1) that the district court admitted evidence obtained
during an unlawful police search in violation of the Fourth
Amendment; (2) that the jury instructions constructively
amended the indictment in violation of the Fifth Amendment;
and (3) that the evidence offered at trial was insufficient to
warrant the jury’s verdict. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
I
On the morning of July 21, 2000, two men robbed Gem
Design, a jewelry store in Bellevue, Washington. There were
then no customers in the store and only one employee, Rich-
ard Marciel. Before the robbery, Marciel had been in the back
of the store1 doing appraisal work. Hearing someone enter the
store, Marciel walked towards the front of the store. As Mar-
ciel reached the showroom, he saw a man pointing a gun at
him, about ten feet to his left. Another man, who appeared to
be unarmed, was standing near the front of the store. Both
1
The store was divided into two parts: a showroom in the front, where
the store displayed its merchandise, and a backroom, comprised of storage
and workspace, where the store’s employees repaired and cleaned jewelry.
The two parts of the store were separated by a wall. A door led from the
backroom to the showroom, and windows allowed a person in the back-
room to see into the showroom.
9764 UNITED STATES v. HARTZ
men were wearing hats and tee shirts. The hats were pulled
down to the robbers’ eyebrows. The tee shirts were pulled up
to cover their mouths. Marciel would later testify that the rob-
bers’ clothing was “bulky,” and that the robbers wore “layers
of clothing,” which Marciel considered odd because the rob-
bery occurred on a mid-summer day. Marciel noticed that the
gun pointed at him was silver and had a longer barrel than the
.38-caliber gun he owned. The gunman told Marciel to lay
face down in the doorway if he valued his life, demanded to
know where the store kept its gold and diamonds, and, at
some point, called to the front of the store, “Joe, how are you
doing?” When the robbers had most of the store’s jewelry and
cash, the gunman told Marciel to stand up and walk to the
back of the store. As the gunman looked around for some-
thing to which he could handcuff Marciel, Marciel saw the
side of the gunman’s face, and noted its texture and tone. The
gunman handcuffed Marciel to a piece of jewelry-cleaning
equipment, told him to stay still for five minutes, and then left
the store. The robbers stole most of the store’s inventory of
gold and precious stones, worth more than $200,000.
The day after the robbery, the police arrested Kevin Anders
on charges unrelated to the Gem Design robbery. Anders told
the police that Tammy Trump and Larry Jordan had informa-
tion about the robbery. The police then got and executed a
search warrant for the home where Trump and Jordan lived.
There, the police found a diamond and a gold chain that had
been stolen from Gem Design. Trump told the police that
Tommy Hartz and a friend had robbed a jewelry store in
Bellevue. Trump claimed that on the morning of the robbery,
Hartz and his accomplice had each carried a gun and that they
had prepared for the robbery in her home, donning fake mus-
taches and wigs to disguise their appearances, and discussing
their plan to handcuff anyone they found in the store. She
claimed that Hartz and his accomplice returned to her home
later that day, carrying bags filled with jewelry and bragging
about the heist. Trump told the police that she had driven
Hartz to a travel trailer where he was staying, but beforehand,
UNITED STATES v. HARTZ 9765
without Hartz’s knowledge, she had taken a few pieces of
stolen jewelry to keep for herself and her son. Trump then led
the police to the travel trailer. Based on Trump’s information,
which Jordan corroborated, the police applied for and exe-
cuted a search warrant for the travel trailer.
There, the police recovered twenty necklaces and other
valuables stolen from Gem Design, a .357-caliber Smith &
Wesson revolver, and a Chinese 9mm semiautomatic pistol.
The police also found materials that could be used to create
disguises, including fake mustaches, wigs, hair dye, false
teeth, and a home-made foam vest that would increase the
wearer’s perceived bulk. Further, the police found items con-
firming that Hartz lived in the trailer, including a medical
bracelet with Hartz’s name on it, a Polaroid picture of Hartz,
and a receipt that recorded the sale of a .38-caliber revolver
to “Terry Hartz.” With the items found in the trailer and the
information from Trump and Jordan, the police obtained a
warrant to arrest Tommy Hartz.
At about 1:00 A.M. on the morning of July 25, 2000, two
Pierce County Sherriff’s deputies, William Pebley and Daniel
Wulick, received a radio message that an orange, 1977 Chev-
rolet pickup truck had been carjacked in Tacoma, Washing-
ton. The message reported that one carjacker was a man, that
the other suspect was a woman, and that the stolen truck’s
license plate number was 03181L.2
Three hours later, around 4:00 A.M., Pebley and Wulick
saw a 1977 Chevrolet pickup truck that seemed to match the
description of the truck stolen in Tacoma. Following it, the
deputies noticed that the truck’s license plate was new, unlike
the truck, which was old and in poor condition. They also
2
At a Washington state court suppression hearing, Pebley testified that
he remembered the report describing the carjacking suspects as an
African-American man and a white woman. Wulick testified that the
report said that one suspect was a man and the other a woman.
9766 UNITED STATES v. HARTZ
noticed that the license plate was attached to the truck with
“zip ties,” and that the license plate number was A04386I,
which did not match the stolen truck’s license plate number.
License plate number A04386I belonged to a red, 1977 Chev-
rolet pickup truck, rather than an orange one. The deputies
saw two persons in the pickup. The passenger was white, had
long hair, and appeared to be a woman. The officers stopped
the truck.
As Wulick approached the driver’s side of the truck, he saw
both bullets and a knife on the dashboard. He then asked the
driver, Reese Hinkle, to step out of the truck, told Pebley that
there were bullets on the dashboard, and instructed Pebley to
remove the passenger from the truck. Hartz was the passen-
ger, and as he stepped out of the truck, Wulick saw a gun sit-
ting on the seat. After frisking Hinkle for weapons, Wulick
decided to frisk Hartz as well. At a suppression hearing in
Washington state court, Wulick testified that he frisked Hartz
because the gun inside the truck suggested that Hartz might
be armed. While frisking Hartz, Wulick found, in a front
pocket of Hartz’s pants, an Altoids container and a golf-ball-
sized bundle of cellophane wrapped with duct tape. Wulick
testified in state court that when he felt the Altoids container
and the wad of duct-tape wrapped cellophane together, he
thought they were a weapon or that they might contain a
weapon. Inside the Altoids tin, Wulick found a bundle of
pills, but no information identifying them. In Hartz’s other
pocket, Wulick felt a narrow object, about four inches long,
that Wulick thought was a knife. Removing this object from
Hartz’s pocket, Wulick saw that it was a marijuana pipe,
made of a brass pipe fitting and tubing. Wulick then arrested
Hartz for “drug paraphernalia.” After arresting Hartz, the dep-
uties conducted a full search of his pockets, and discovered a
piece of paper listing items of jewelry and their values.
Before the search, Pebley had asked Hartz for his name and
Hartz had identified himself as “Terry Hartz.” After his arrest,
however, the deputies found Hartz’s identification, as Tommy
UNITED STATES v. HARTZ 9767
Hartz, inside the truck. The deputies had previously checked
to see whether there was a warrant to arrest Terry Hartz and
learned that there was not. They checked again after discover-
ing Tommy Hartz’s identity and learned that he was wanted
for his role in the Gem Design robbery.3
In a superceding indictment presented on March 13, 2003,
a federal grand jury charged Hartz with four crimes: conspir-
acy to commit interference with commerce by robbery, in vio-
lation of 18 U.S.C. § 1951 (count 1); interference with
commerce by robbery, in violation of 18 U.S.C. § 1951 (count
2); use of a firearm during and in relation to a crime of vio-
lence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count 3);
and unlawful possession of a firearm having been convicted
of a felony, in violation of 18 U.S.C. § 922(g)(1) (count 4).4
In part, count three alleged that Hartz “did use and carry, and
did aid and abet in the use and carrying of, firearms, to wit,
a Smith & Wesson .357 caliber, Model 65-5 revolver; and a
Chinese 9mm Model 2139X1 semiautomatic pistol.” Simi-
larly, count four alleged in part that Hartz “did knowingly and
unlawfully possess . . . the following firearms, which had
been shipped and transported in interstate and foreign com-
merce: a Smith & Wesson .357 caliber, Model 65-5 revolver;
and a Chinese 9mm Model 2139X1 semiautomatic pistol.”
Before trial, Hartz filed a motion to suppress the jewelry
list found in his pocket and his statement to the police identi-
fying himself as “Terry” rather than Tommy Hartz. The dis-
trict court denied the motion, without holding an evidentiary
hearing, concluding that the deputies had probable cause to
stop Hinkle’s truck, that the deputies lawfully frisked Hartz
given their reasonable suspicion that he might be armed, and
that there was probable cause to arrest Hartz because Wulick
3
The deputies arrested Hinkle, the driver of the pickup truck, under war-
rants for “physical control” and “possession of drug paraphernalia.”
4
The district court severed count four from the first three counts of the
indictment.
9768 UNITED STATES v. HARTZ
had found a marijuana pipe and “prescription pills without a
prescription” in Hartz’s pocket.
Before jury deliberations, the district court gave the jury a
standard verdict form and a special verdict form pertaining to
count three. The special verdict form asked the jury to answer
“yes” or “no” to three questions: (1) whether the jury found
unanimously that Hartz brandished a firearm during and in
relation to the crime of violence; (2) whether the jury found
unanimously that Hartz used or aided and abetted the use of
the Smith & Wesson .357 revolver during and in relation to
the crime of violence; and (3) whether the jury found unani-
mously that Hartz used or aided and abetted the use of the
Chinese 9mm during and in relation to the crime of violence.
During its deliberations, the jury sent the district judge a ques-
tion about the special verdict form, asking whether its answer
to question one could be the “opposite” of its answers to ques-
tions two and three. The district court reiterated its instruction
that the jury should not fill out the special verdict form unless
it found Hartz guilty on count three, but that if it did find
Hartz guilty on count three that it “answer all the questions on
the special verdict form as well as the verdict form itself.”
The jury then resumed its deliberations.
The jury found Hartz guilty on the first three counts of the
indictment. On the special verdict form, the jury answered
“yes” to question one, finding unanimously that Hartz bran-
dished a firearm during and in relation to a crime of violence.
The jury answered “no” to questions two and three, however,
indicating respectively that they were not unanimous that
Hartz had used or aided and abetted the use of the .357
revolver, and that they were not unanimous that Hartz had
used or aided and abetted the use of the Chinese 9mm.
The district court then instructed the jury to consider
whether Hartz was guilty of count four, being a felon in pos-
session. For purposes of the allegations in count four, the par-
ties had stipulated that before July 21, 2000, Hartz had been
UNITED STATES v. HARTZ 9769
convicted of a crime punishable by more than one year of
imprisonment. The parties had also stipulated that the fire-
arms admitted into evidence as exhibit 18 — the Smith &
Wesson .357-caliber revolver, and the Chinese 9mm pistol —
had been shipped in interstate commerce. Thus, under the dis-
trict court’s instructions, the question presented for the jury as
to count four was whether Hartz had possessed one of the
identified guns between the dates specified in the indictment.
The jury found Hartz guilty on count four. The district court
sentenced Hartz to a twenty-two year term of imprisonment
and a five-year term of supervised release.
II
A
We first address Hartz’s claim that the district court should
have suppressed the list of stolen jewelry found in Hartz’s
pocket, and Hartz’s statement misidentifying himself as
“Terry” rather than Tommy Hartz.5 Hartz argues that the traf-
fic stop, the resulting search for weapons, and his arrest for
possession of narcotics paraphernalia were unreasonable
under the Fourth Amendment, which guarantees that: “The
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and sei-
zures, shall not be violated . . . .” U.S. CONST. amend. IV.
When the police stop a vehicle, they seize its occupants for
purposes of the Fourth Amendment, so the decision to stop
Hinkle’s truck must have been reasonable to comply with the
Fourth Amendment. See United States v. Garcia, 205 F.3d
1182, 1186 (9th Cir. 2000) (citing Delaware v. Prouse, 440
U.S. 648, 653 (1979)).
5
We review a district court’s denial of a motion to suppress de novo and
the factual findings underlying its ruling for clear error. See United States
v. Ruiz, 428 F.3d 877, 880 (9th Cir. 2005). We may affirm the district
court’s suppression ruling on any basis fairly supported by the record. See
id.
9770 UNITED STATES v. HARTZ
[1] A police-initiated traffic stop is reasonable under the
Fourth Amendment if the police stop the vehicle because of
a “reasonable suspicion” that the vehicle’s occupants have
broken a law. United States v. Lopez-Soto, 205 F.3d 1101,
1104-05 (9th Cir. 2000) (“We . . . reaffirm that the Fourth
Amendment requires only reasonable suspicion in the context
of investigative traffic stops.”). Reasonable suspicion exists if
“specific, articulable facts . . . together with objective and rea-
sonable inferences” suggest that the persons detained by the
police are engaged in criminal activity. Id. at 1105 (internal
quotation marks and citations omitted). Here, the facts and
reasonable inferences warranted the deputies’ reasonable sus-
picion that the occupants of the truck they were following had
stolen it at gun point, a felony under Washington law. See
WASH. REV. CODE ANN. §§ 9A.56.070 (taking motor vehicle
without permission in the first degree); 9A.56.200 (robbery in
the first degree) (West 2000). In the course of their duties,
deputies Pebley and Wulick saw a 1977 Chevrolet pickup
truck that matched the description of a truck recently stolen
in Tacoma. The license plate corresponded to a red pickup
truck, and both Pebley and Wulick testified that they thought
the truck they stopped was orange. The license plate appeared
to be new, and it was attached to the truck with “zip ties,”
suggesting that the license plate had recently been attached to
the truck. Under these circumstance, the deputies’ continuing
suspicions were reasonable, even though the license plate
number did not match the number of the stolen truck. As Wul-
ick and Pebley each testified, the carjackers might have
switched license plates with a similar-looking truck to
increase their chance of avoiding capture.6 As we have said:
6
At a suppression hearing in Washington state court, Deputy Pebley tes-
tified that: “It is common . . . when somebody steals a car or carjacks a
car to switch the license with a different vehicle. That way when the police
run that license, it won’t come back as the vehicle that was stolen.” Dep-
uty Wulick testified similarly: “It’s very common when people, when sus-
pects steal vehicles, they change the plates immediately and a lot of times
they will change it with a similar vehicle. So if the police run it, they are
kind of thrown off.”
UNITED STATES v. HARTZ 9771
“[A] mere mistake of fact will not render a stop illegal, if the
objective facts known to the officer gave rise to a reasonable
suspicion that criminal activity was afoot.” United States v.
Mariscal, 285 F.3d 1127, 1131 (9th Cir. 2002); see also
United States v. Dorais, 241 F.3d 1124, 1130-31 (9th Cir.
2001) (affirming district court’s denial of a motion to sup-
press where a rental car agency told the police that a rental car
was “overdue,” because the report warranted a reasonable
suspicion that the rental car had been stolen, even though the
car was not in fact “overdue” (internal quotation marks omit-
ted)). We conclude that the traffic stop was reasonable under
the circumstances and that it did not violate the Fourth Amend-
ment.7
[2] Under Terry v. Ohio, 392 U.S. 1 (1968), a police officer
who reasonably believes that a suspect could be “armed and
presently dangerous” may frisk the suspect “to determine
whether the person is . . . carrying a weapon.” Id. at 24. Such
a search, however, “must be strictly ‘limited to that which is
necessary for the discovery of weapons which might be used
to harm the officer or others nearby.’ ” Minnesota v. Dicker-
son, 508 U.S. 366, 373 (1993) (quoting Terry, 392 U.S. at
26). Here, Wulick had good reason to suspect that Hartz could
be armed and dangerous. Wulick suspected that Hartz might
have been involved in a carjacking, and had already observed
a knife, a gun, and ammunition in the truck in which Hartz
was a passenger. The decision to frisk Hartz was reasonable.
As Wulick conducted the patdown search, he felt three items:
an Altoids tin, containing prescription pills without a prescrip-
tion; a marijuana pipe, made of a brass pipe fitting and plastic
tubing; and golf-ball-sized celophane bundle wrapped in duct
7
Nor did the deputies violate the Fourth Amendment by ordering Hartz
to exit the truck. As we have said, “it is well established that an officer
effecting a lawful traffic stop may order the driver and the passengers out
of a vehicle.” United States v. Williams, 419 F.3d 1029, 1030 (9th Cir.
2005); see also Maryland v. Wilson, 519 U.S. 408, 415 (1997) (“We there-
fore hold that an officer making a traffic stop may order passengers to get
out of the car pending completion of the stop.”).
9772 UNITED STATES v. HARTZ
tape. Wulick testified that he thought each of these items
could be, or could conceal, a weapon.
Relying on our decision in United States v. Miles, 247 F.3d
1009 (9th Cir. 2001), Hartz urges that Wulick exceed the
scope of a permissible patdown search under Terry. But Miles
is inapposite here. In Miles, we suppressed evidence discov-
ered during a patdown search, noting that: “The government
suggests that the officer might legitimately have been looking
for a tiny pen knife, needle, or other slender weapon. But the
officer did not testify to such a motivation.” Id. at 1015. Here,
however, Officer Wulick did testify that he thought the items
in Hartz’s pockets might be weapons. Consequently, we con-
clude that Wulick conducted a valid patdown search under
Terry.
[3] A police officer has probable cause to arrest a suspect
without a warrant if the available facts suggest a “fair proba-
bility” that the suspect has committed a crime. United States
v. Valencia-Amezcua, 278 F.3d 901, 906 (9th Cir. 2002). The
presence of a marijuana pipe in Hartz’s pocket, together with
undocumented prescription pills, created a “fair probability”
that Hartz had committed a crime, namely use of drug para-
phernalia. Under Washington law, it is illegal for any person
“to use drug paraphernalia to . . . ingest, inhale, or otherwise
introduce into the human body a controlled substance.” WASH.
REV. CODE ANN. § 69.50.412(1) (West 2005). A marijuana
pipe is drug paraphernalia. See WASH. REV. CODE ANN.
§ 69.50.102(a)(12) (defining “drug paraphernalia,” including:
“Objects used, intended for use, or designed for use in ingest-
ing, inhaling, or otherwise introducing marihuana . . . into the
human body . . . .”) (West 1997). We hold that deputy Wulick
had probable cause to arrest Hartz. Cf. State v. Neeley, 52
P.3d 539, 543 (Wash. Ct. App. 2002) (affirming denial of a
motion to suppress where the defendant “possessed the drug
paraphernalia in circumstances giving rise to probable cause
that she was using the paraphernalia to ingest a controlled
substance”).
UNITED STATES v. HARTZ 9773
[4] Because Wulick had probable cause to arrest Hartz,
searching inside the truck was a constitutionally permissible
search incident to arrest, as was a full search of Hartz’s per-
son. See United States v. Robinson, 414 U.S. 218, 226 (1973);
United States v. Fixen, 780 F.2d 1434, 1438 (9th Cir. 1986)
(“[W]hen a policeman has made a lawful custodial arrest of
the occupant of an automobile, he may, as a contemporaneous
incident of that arrest, search the passenger compartment of
that automobile.” (quoting New York v. Belton, 453 U.S. 454,
460 (1981) (internal quotation marks omitted))). While
searching Hartz, the deputies lawfully discovered a list of
jewelry stolen from Gem Design. While searching Hinkle’s
truck, they discovered Hartz’s identification, which revealed
his previous misidentifying statement. The district court cor-
rectly denied Hartz’s motion to suppress evidence.
B
We turn to Hartz’s argument 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. Counts three and
four each mentioned two firearms specifically, a Smith &
Wesson .357 revolver, and a Chinese 9mm semiautomatic pis-
tol. The district court’s instructions regarding counts three and
four, however, referred to “a firearm.” Hartz contends: (1)
that because the indictment described two specific guns, the
government had to prove that Hartz used the weapons men-
tioned in the indictment to commit the crimes alleged in
counts three and four; (2) that the special verdict form
returned by the jury indicates that it convicted him based on
a weapon other than the two guns described in the indictment;
and (3) that a verdict based on a gun other than the two
described in the indictment is a constructive amendment,
requiring us to overturn his conviction.
Where a defendant raises a constructive amendment claim
before the district court, we review the claim de novo. United
9774 UNITED STATES v. HARTZ
States v. Adamson, 291 F.3d 606, 612 (9th Cir. 2002).
Because Hartz did not object to the district court’s jury
instructions, however, we review his constructive-amendment
claim for plain error. United States v. Arreola, 446 F.3d 926,
934 & n.2 (9th Cir. 2006); United States v. Hugs, 384 F.3d
762, 766 (9th Cir. 2004). Under Federal Rule of Criminal Pro-
cedure 52(b), we may not reverse Hartz’s conviction unless
the district court committed a plain error that affected Hartz’s
substantial rights. See Hugs, 384 F.3d at 767. If there was
such an error, however, we may correct it at our discretion “if
the error seriously affect[ed] the fairness, integrity or public
reputation of the judicial proceedings.” United States v.
Olano, 507 U.S. 725, 736 (1993).
[5] The Fifth Amendment guarantees that: “No person shall
be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury . . . .”
U.S. CONST. amend. V. In Stirone v. United States, 361 U.S.
212, 215-16 (1960), the United States Supreme Court
declared that: “[A]fter an indictment has been returned its
charges may not be broadened through amendment except by
the grand jury itself.” The Supreme Court recognized, how-
ever, that minor differences between an indictment and the
proof offered at trial could be dismissed as “nothing more
than a variance.” Id. at 217. In United States v. Von Stoll, 726
F.2d 584, 586 (9th Cir. 1984), we explained the difference
between a variance and a constructive amendment. We said
that “[a]n amendment . . . occurs when the charging terms of
the indictment are altered, either literally or in effect, by the
prosecutor or a court after the grand jury has last passed upon
them.” Id. A variance, on the other hand, “occurs when the
charging terms of the indictment are left unaltered, but the
evidence offered at trial proves facts materially different from
those alleged in the indictment.” Id. Although “[t]he line
between a constructive amendment and a variance is at times
difficult to draw,” the difference is quite significant because
a constructive amendment requires reversal, while a variance
UNITED STATES v. HARTZ 9775
does not, unless it prejudices the defendant’s substantial
rights. Adamson, 291 F.3d at 615.
Relying on our decision in Howard v. Dagget, 526 F.2d
1388 (9th Cir. 1975) (per curiam), and the decision of the
United States Court of Appeals for the Seventh Circuit in
United States v. Leichtnam, 948 F.2d 370 (7th Cir. 1991),
Hartz argues that the jury instructions at issue here construc-
tively amended the indictment. In Howard, we reversed a
conviction under 18 U.S.C. § 1952 for interstate travel in aid
of prostitution. 526 F.2d at 1388. The indictment alleged that
Howard traveled in interstate commerce “for the purpose of
promoting an unlawful activity, to-wit: prostitution, in that
[Howard] did induce Lucretia Yvonne South and Dolores
Nelson to engage in prostitution.” Id. at 1389. At trial, how-
ever, the government introduced evidence of Howard’s rela-
tionships with several women who were not named in the
indictment, as well as the two women who were. Id. at 1390.
During deliberations, the jury sent a note to the district court,
indicating that it was confused whether to follow the indict-
ment’s language, which named two specific women, or the
court’s instructions, which did not. Id. at 1389-90. The district
court issued a supplemental instruction that any language in
the indictment that did not appear in the jury instructions was
“surplusage” and could be disregarded. Id. at 1390. Observing
that the district court’s decision to admit evidence regarding
women who were not named in the indictment “allow[ed] the
jury to convict of a charge not brought by the grand jury,” we
held that the supplemental instruction was a constructive
amendment under Stirone. Id.
In Leichtnam, the Seventh Circuit reversed a conviction
under 18 U.S.C. § 924(c) where the indictment charged the
defendant with using and carrying a firearm, “to wit: a Moss-
berg rifle, Model 250CA with no serial number, during and in
relation to . . . drug trafficking.” 948 F.2d at 374 (internal
quotation marks omitted). The evidence at trial included not
just the Mossberg, but two additional guns. Id. at 379. Even
9776 UNITED STATES v. HARTZ
though the indictment described only one gun — the Moss-
berg — the district court instructed the jury that it could con-
vict Leichtnam if it found that he had used any of the guns
introduced into evidence. Id. at 374-75, 379. Viewing the
words “a Mossberg” as an essential part of the charge, the
Seventh Circuit reversed Leichtnam’s conviction, holding that
the jury instructions, “together with” the district court’s deci-
sion to admit evidence of two firearms that were not described
in the indictment, “impermissibly amended the indictment.”
Id. at 380-81.
[6] We distinguish Howard as inapposite and Leichtnam
similarly does not apply here because neither case addresses
facts similar to those presented in this appeal. As we previ-
ously explained in United States v. Garcia-Paz, 282 F.3d
1212, 1216 (9th Cir. 2002), Howard and Leichtnam belong to
a line of cases in which “the difference between the indict-
ment and the jury instructions allowed the defendant to be
convicted on the basis of different behavior than that alleged
in the original indictment.” Critically, in Howard and Leicht-
nam, the proof offered at trial differed from the allegations set
forth in the indictment, permitting the jury to convict the
defendants based on behavior that was not charged in the
indictment. See Howard, 526 F.2d at 1390 (noting that the
district court admitted evidence of the defendant’s relation-
ships with women who were not named in the indictment);
Leichtnam, 948 F.2d at 379 (noting that the district court
admitted evidence of two guns that were not described in the
indictment).8 Here, however, that was not the case; the proof
offered at trial matched the charges made in the indictment.
8
There is an additional reason why we do not consider Leichtnam to be
persuasive; the Seventh Circuit did not decide Leichtnam under the plain
error standard. United States v. Algee, 309 F.3d 1011, 1016 (7th Cir.
2002). As the Seventh Circuit has said, “had our review [in Leichtnam]
been limited to a search for plain error . . . the conviction would likely
have been upheld as there was enough evidence to support a finding that
the defendant had used and carried the specific firearm identified in the
indictment.” Id. (citing Leichtnam, 948 F.2d at 375).
UNITED STATES v. HARTZ 9777
The testimony and exhibits offered by the government sug-
gested that Hartz had robbed Gem Design using one of the
weapons described in the indictment. Hartz concedes that dur-
ing his trial the government did not suggest that he robbed
Gem Design with a gun other than the .357 revolver or the
9mm semiautomatic.
[7] As was the case in Garcia-Paz, the difference between
the indictment and the jury instructions in this case “more
closely resembles another line of cases which permits convic-
tion despite variance . . . so long as the [variance] does not
alter the behavior for which the defendant can be convicted.”
282 F.3d at 1216. Following this line of authority, we 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 vari-
ance that did not alter the behavior for which Hartz could be
convicted. See id. at 1217 (“[18 U.S.C. § 545] prohibits smug-
gling of ‘merchandise.’ Whether that merchandise is illegal
medicine or marijuana does not matter under the statute.
Thus, the phrase ‘to wit, marijuana’ is surplusage, and does
not render the jury’s conviction of Garcia-Paz . . . a violation
of Garcia-Paz’s Fifth Amendment rights” (internal citation
omitted)); United States v. Munoz, 150 F.3d 401, 417 (5th Cir.
1998) (concluding that there was no constructive amendment
where indictment alleged defendant possessed a 12-gauge
shotgun, while evidence showed the weapon was a 20-gauge
shotgun, because 18 U.S.C. § 922(g) does not “designate the
gauge an essential element of the offense it defines”); United
States v. Redd, 161 F.3d 793, 796 (4th Cir. 1998) (concluding
that there was no constructive amendment where indictment
alleged that defendant used a “black revolver” during a crime
of violence but evidence showed the weapon was silver
because “the description of a ‘black revolver’ was not an
essential element of the crime charged”); United States v.
McIntosh, 23 F.3d 1454, 1457 (8th Cir. 1994) (“Allegations
in the indictment that are not necessary to establish a violation
9778 UNITED STATES v. HARTZ
of a statute are surplusage and may be disregarded if the
remaining allegations are sufficient to charge a crime.”);
United States v. Hamilton, 992 F.2d 1126, 1131 (10th Cir.
1993) (concluding that there was no constructive amendment
where the indictment alleged the defendant used a .38-caliber
revolver, but the evidence showed that the defendant used a
gun of unknown caliber); United States v. Robison, 904 F.2d
365, 369 (6th Cir. 1990) (“We believe that the district court’s
instructions were a variance, not a constructive amendment,
because the specific type of firearm used or possessed by the
conspirator is not an essential element of the crime.”); Soper
v. United States, 220 F.2d 158, 161 (9th Cir. 1955) (holding
that a jury instruction striking the description of a firearm as
an “M-1” rifle did not amend the indictment because the
description was surplusage).
Moreover, we conclude that the variance at issue here did
not prejudice Hartz’s substantial rights. Hartz contends that
the difference between the indictment and the jury instruc-
tions prejudiced his substantial rights because the “special
verdict raises at least a serious concern . . . that the jury con-
victed . . . based on a different gun.”9 Under Olano, however,
9
We do not agree with Hartz’s characterization of the jury’s special ver-
dict form, which he says “proves beyond doubt that the jurors convicted
Hartz on count 3 based on a gun other than the two charged in the indict-
ment.” Although Hartz argues that the answers on the special verdict form
mean that Hartz did not use either the .357 or the 9mm during the Gem
Design robbery, the special verdict form and its answers do not have to
be read this way. In our view, the special verdict form indicates that the
jury agreed Hartz used a firearm during the Gem Design robbery, and
based on the evidence before the jury it is most likely that jurors simply
disagreed whether he used the .357 or the 9mm. See Arreola, 446 F.3d at
935 (noting that we interpret jury verdicts in light of the trial as a whole).
Essentially, the special verdict form posed the wrong question. The perti-
nent question was not whether the jury was unanimous as to which gun
Hartz used, but whether they were unanimous that he used either the .357
revolver or the 9mm semiautomatic pistol. Our interpretation is supported
by the jury’s verdict and by the trial record. In its written verdict, the jury
found Hartz guilty of using a firearm during and in relation to a crime of
UNITED STATES v. HARTZ 9779
Hartz has the burden to prove that the error he asserts preju-
diced his substantial rights. He has not met that burden
because he has made no effort to refute the government’s evi-
dence suggesting that he robbed Gem Design using one of the
weapons described in the indictment.
[8] Further, it is unlikely that Hartz could have shown prej-
udice had he tried. The grand jury clause of the Fifth Amend-
ment is designed to ensure that criminal defendants have fair
notice of the charges that they will face and the theories that
the government will present at trial. See Adamson, 291 F.3d
at 616. A minor difference between the indictment and the
jury instructions that does not affect an essential element of
the offense does not risk blindsiding a defendant with an
unforeseeable basis of liability or prosecution strategy. See
Redd, 161 F.3d at 796. The difference between indictment and
jury instructions here was minor and, as we have said, in the
nature of a variance. Hartz’s theory of the case was that
Tammy Trump and Larry Jordan robbed Gem Design and
then planted the guns and stolen merchandise in Hartz’s
trailer. Thus, Hartz’s defense strategy was not affected by the
variance between the indictment and the jury instructions. See
id. (rejecting defendant’s claim that his defense was impaired
where the indictment described a “black revolver” but evi-
dence showed the gun was silver because “[w]hether the gun
violence “as charged in Count 3,” and on the special verdict, the jury
found unanimously that Hartz brandished a firearm. Also, all of the evi-
dence at trial pertaining to the robbery referred to the guns described in
the indictment. Finally, to the extent that the special verdict form was
ambiguous, especially in light of the evidence presented at trial, Hartz had
an opportunity to resolve the ambiguity while the jury was still empaneled.
See generally United States v. Vasquez-Velasco, 15 F.3d 833, 847 (9th Cir.
1994) (“[A] defendant should not benefit from trial court decisions that
lead to ambiguities that counsel failed to resolve at trial.”); Larson v.
Neimi, 9 F.3d 1397, 1402 (9th Cir. 1993) (“[I]t makes a good deal of sense
to require trial and appellate courts to do all they can to reconcile special
verdict answers when the only alternative is ordering a new trial.”).
9780 UNITED STATES v. HARTZ
was black or silver is irrelevant to the question of whether one
was used during the robbery.”). This is not a case like Adam-
son, where the difference between the indictment and the
proof offered at trial “affirmatively misled the defendant and
obstructed his defense at trial.” See 291 F.3d at 616. As Hartz
concedes in his opening brief: “The prosecutor never sug-
gested to the jury that Hartz might have used [the .38-caliber]
gun in the robbery.” The receipt recording the sale of a .38-
caliber gun to “Terry Hartz” was introduced into evidence to
prove that the trailer from which the police recovered the guns
and the stolen merchandise belonged to Tommy Hartz. We
conclude that the jury would have convicted Hartz even if the
jury instructions had mirrored the indictment’s language per-
fectly. We therefore reject Hartz’s assertion that the variance
between the indictment and the jury instructions prejudiced
his substantial rights, and hold that the variance here was not
a plain error warranting relief.10
C
We finally address Hartz’s claim that the evidence offered
at trial was insufficient to warrant the jury’s verdict on counts
three and four. Because Hartz moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29, we
review his sufficiency claim de novo. See United States v.
Carranza, 289 F.3d 634, 641 (9th Cir. 2002). The evidence
against Hartz was sufficient if, “viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979).
10
In Algee, a case similar to this one in certain respects, the Seventh Cir-
cuit rejected a constructive amendment claim under plain error review
because the defendant had made no attempt to show prejudice beyond
arguing that “the government ‘cannot prove that the jury did not convict
[him] based upon the evidence introduced regarding the three additional
firearms not specifically listed in the Superseding Indictment.’ ” 309 F.3d
at 1016.
UNITED STATES v. HARTZ 9781
[9] To convict Hartz under 18 U.S.C. § 924(c)(1)(A)(ii),
the government had to prove that during and in relation to a
crime of violence, here interference with interstate commerce
by robbery, Hartz used or carried a firearm, and that Hartz
brandished the firearm. 18 U.S.C. § 924(c)(1)(A)(ii). Hartz
contends that the special verdict form returned by the jury
“precludes any argument that [he] used or possessed the
charged guns during the robbery.” Hartz further argues that
there was insufficient evidence that Hartz used a different gun
to rob Gem Design. For the reasons stated earlier, we reject
the argument that the special verdict form meant that the jury
convicted him based on use of a gun other than the two
charged in the indictment, as contrasted with the jurors split-
ting on which of the two named guns he used. Second, the
special verdict form is of marginal relevance, if not irrelevant,
to our inquiry because we review the evidence admitted at
trial de novo. The sufficiency of evidence question is not, as
Hartz would have it, whether this jury thought he robbed Gem
Design using one of the guns named in the indictment, but
rather whether “any rational trier of fact” could conclude that
Hartz used and brandished a firearm during a crime of vio-
lence. Jackson, 443 U.S. at 319.
[10] The evidence offered at trial clearly and unmistakably
suggested that Hartz had robbed Gem Design at gunpoint.
Marciel identified one of the guns found in the travel trailer
as the gun that had been used in the robbery, and Marciel
identified Hartz as the gunman, in light of Hartz’s voice and
appearance. Trump testified that both Hartz and his accom-
plice carried guns on the day of the robbery. A jury might
have decided to credit Hartz’s theory of the case, that Trump
and Jordan robbed Gem Design and then planted evidence to
frame Hartz, but a jury was not required to do so. United
States v. Toomey, 764 F.2d 678, 681 (9th Cir. 1985) (“It is the
jury’s duty to weigh the evidence and determine what version
of the facts to believe.”). We hold that the evidence was suffi-
cient to warrant a rational jury’s conclusion that Hartz used
9782 UNITED STATES v. HARTZ
and brandished a firearm during and in relation to a crime of
violence.
To convict Hartz under 18 U.S.C. § 922(g)(1), the govern-
ment had to prove: (1) that Hartz had been convicted of a
crime punishable by imprisonment for a term exceeding one
year; (2) that Hartz possessed a firearm; (3) that the firearm
had been shipped or transported in interstate or foreign com-
merce. See 18 U.S.C. § 922(g)(1); see United States v. Beas-
ley, 346 F.3d 930, 933-34 (9th Cir. 2003). Hartz argues that
if the jury convicted him based on the .38-caliber weapon
referred to in the receipt found in the travel trailer, then there
was no evidence that the gun traveled in interstate commerce
and therefore no evidence supported an essential element of
the crime.
[11] Viewing the evidence discussed above in the light
most favorable to the government, however, a rational jury
could have concluded that when Hartz robbed Gem Design,
he possessed either the .357 revolver or the 9mm pistol
described in the indictment, each of which had been stipulated
by the parties to have traveled in interstate commerce.11 The
parties further stipulated that Hartz had been convicted of a
felony. We hold that there was sufficient evidence for a ratio-
nal jury to conclude beyond a reasonable doubt that Hartz had
been convicted of a felony, and that between June 21, 2000
11
The evidence was also sufficient to warrant a rational jury’s conclu-
sion that the travel trailer belonged to Hartz. The police found several
items that belonged to Hartz in the same travel trailer where the police
found the .357 revolver and the 9mm semiautomatic pistol, including a
receipt bearing the name “Terry Hartz.” The police also found some of the
jewelry stolen from Gem Design, fake mustaches, and other items suggest-
ing that the trailer’s occupant had robbed Gem Design. In light of the trial
testimony given by Trump and Marciel suggesting that Hartz robbed Gem
Design at gunpoint, a jury could rationally infer that the trailer where the
police found the jewelry belonged to Hartz. Likewise, because the police
found the .357 revolver and the 9mm semiautomatic pistol in the travel
trailer as well, a rational jury could conclude that both guns belonged to
Hartz.
UNITED STATES v. HARTZ 9783
and June 24, 2000, Hartz had possessed a firearm that had
traveled in interstate or foreign commerce.
AFFIRMED.