                                                                         RECOMMENDED FOR FULL-TEXT PUBLICATION
12   United States v. Hood                       No. 99-3932                  Pursuant to Sixth Circuit Rule 206
                                                                      ELECTRONIC CITATION: 2000 FED App. 0149P (6th Cir.)
                                                                                  File Name: 00a0149p.06
ambiguity and, indeed, may support the theory that Hood
acted with intent to frighten. The fact that Bolz and Swinson
did not request assistance immediately after the encounter, for
example, might suggest that the inspectors themselves did not     UNITED STATES COURT OF APPEALS
perceive Hood as a serious threat to their physical safety.                     FOR THE SIXTH CIRCUIT
Similarly, Hood’s attempt to register a complaint against the                     _________________
inspectors seems inconsistent with an intent to harm them.
Taken as a whole, the record before this court does not
                                                                                                    ;
contain evidence sufficient to support the conclusion that
                                                                                                     
Hood acted with intent to injure the inspectors. I therefore       UNITED STATES OF AMERICA,
                                                                                                     
agree with the majority that the case should be remanded for                 Plaintiff-Appellee,
                                                                                                     
resentencing pursuant to the minor assault characteristic,
                                                                                                     
U.S.S.G. § 2A2.3.                                                                                       No. 99-3932
                                                                              v.
                                                                                                     
                                                                                                      >
                                                                   JANNIE L. SHUMPERT HOOD,          
                                                                           Defendant-Appellant. 
                                                                                                   1
                                                                        Appeal from the United States District Court
                                                                         for the Northern District of Ohio at Akron.
                                                                       No. 99-00025—James S. Gwin, District Judge.
                                                                                Argued: December 6, 1999
                                                                             Decided and Filed: April 27, 2000
                                                                   Before: JONES, BATCHELDER, and MOORE, Circuit
                                                                                      Judges.
                                                                                    _________________
                                                                                         COUNSEL
                                                                  ARGUED:       John F. McCaffrey, McLAUGHLIN &
                                                                  McCAFFREY, Cleveland, Ohio, for Appellant. Steven L.
                                                                  Jackson, ASSISTANT UNITED STATES ATTORNEY,
                                                                  Cleveland, Ohio, for Appellee. ON BRIEF: John F.
                                                                  McCaffrey, McLAUGHLIN & McCAFFREY, Cleveland,
                                                                  Ohio, for Appellant. Steven L. Jackson, ASSISTANT


                                                                                              1
2     United States v. Hood                        No. 99-3932      No. 99-3932                        United States v. Hood     11

UNITED STATES ATTORNEY, Cleveland, Ohio, for                        LeRoy, but he did not arrive before the inspectors had
Appellee.                                                           retreated to their van and driven away. Hood testified that she
                                                                    never stepped out onto the porch, and that she did not threaten
   JONES, J., delivered the opinion of the court, in which          the inspectors with the knife.
MOORE, J., joined. BATCHELDER, J. (pp. 9-12), delivered
a separate concurring opinion.                                        By all accounts, Swinson and Bolz did not radio for backup
                                                                    or request assistance from the police. Hood, by contrast,
                    _________________                               called the post office to office to register a complaint against
                                                                    the person who had called the postal inspectors on her. Hood
                        OPINION                                     indicated that “They were coming to murder me.” Later that
                    _________________                               afternoon, Hood went to the post office to complain in person.
                                                                    The following day, January 13, 1999, Hood was arrested.
  NATHANIEL R. JONES, Circuit Judge. Defendant-
Appellant Jannie Shumpert Hood appeals her conviction and             Hood was charged with two counts of forcibly assaulting,
sentence for assault of a federal postal officer in violation of    resisting, opposing, impeding, intimidating, or interfering
18 U.S.C. §§ 111(a)(1) & (b). Hood contends that the district       with a federal official engaged in the performance of his
court erred by not specifically instructing the jury on Sixth       duties, in violation of 18 U.S.C. § 111. A jury acquitted
Amendment unanimity, and by sentencing her under U.S.S.G.           Hood of the count with respect to letter carrier Wacker, thus
§ 2A2.2 for “aggravated assault.” We disagree with her first        indicating that they had at least a reasonable doubt about
contention, but agree that the district court erred in sentencing   Wacker’s version of the event. The jury convicted Hood of
her under § 2A2.2. Accordingly, we AFFIRM in part,                  the count with respect to Bolz and Swinson, indicating that
VACATE in part, and REMAND for re-sentencing.                       they credited the inspectors’ testimony over that of Hood.
                               I.                                                                 II
  The question of determining the appropriate classification           Hood was properly sentenced pursuant to the aggravated
of assault in this case is particularly fact-driven, as will be     assault offense characteristic, U.S.S.G. § 2A2.2, only if she
evident from the following recital of events. On January 12,        acted “with intent to do bodily harm (i.e. not merely to
1999, Mrs. Hood, a 47 year-old African-American, was at her         frighten).” U.S. Sentencing Guidelines Manual § 2A2.2
home in Cleveland’s Collinwood section. Sometime that               comment. app. n.1. I cannot agree with the majority that there
morning, Jim Wacker, a nineteen year old recent high school         is an “absolute paucity” of evidence that Hood acted in such
graduate, came by to deliver the mail. Appellant Hood met           a fashion. The credited testimony in this case is that Hood
Wacker as he arrived to deliver the mail. Wacker testified          barreled through her front door and held a knife
that he “backed up” when he saw the appellant open the door,        approximately one foot away from inspector Swinson’s face.
as it made him “nervous” that a black woman he did not know         This is a non-trivial piece of evidence.
was coming outside. J.A. at 104-05. Appellant, upset that her
mail was not being delivered as she desired, snatched the mail        Viewed in isolation, however, this evidence is equivocal.
out of Wacker’s hands. After an angry exchange of words,            Hood may have rushed through the door with a knife in her
Wacker promptly reported the incident to his supervisor,            outstretched hand intending to injure the inspectors, or she
whereupon the supervisor dispatched Inspectors Steven Bolz          may have wanted merely to frighten them off her porch. The
and J.C. Swinson to probe the incident.                             remaining evidence of record does little to clarify the
10       United States v. Hood                            No. 99-3932        No. 99-3932                       United States v. Hood      3

  After this incident, Wacker radioed his supervisor and                       Bolz and Swinson arrived at Hood’s home while she was in
reported that he had been assaulted. The Post Office                         the middle of preparing breakfast for her nephew. The record
dispatched two postal inspectors, Stephen Bolz and Jean                      shows that after Bolz and Swinson arrived on the porch and
Swinson, to investigate.                                                     rang the doorbell, Mrs. Hood looked out the window to see
                                                                             who was at the door. Upon observing Bolz and Swinson,
  According to the inspectors, they first found James Wacker                 Mrs. Hood went to the door while still holding the knife she
and obtained his account of his encounter with Hood. They                    used to prepare breakfast. The inspectors testified that when
then went to Hood’s house, where, upon arrival, they knocked                 Mrs. Hood came to the window, they displayed their
on the door and rang the doorbell. After some delay, Hood                    credentials prior to her coming outside onto the porch. The
appeared at a window. The inspectors identified themselves.                  porch was very small, approximately the same width as
After further delay, Hood opened the door, rushed out, and                   Appellant’s storm door. It was supported by a pillar that,
held a steak knife six to twelve inches away from Swinson’s                  given the porch’s small size, prevented the door from fully
face. Hood appeared to be very angry and said, “I didn’t call                opening. Thus, anyone standing to the left side of the porch,
you. Get off my porch.” The inspectors backed off the porch.                 as was Bolz, would be blocked behind the door and pillar.
  Once he was off the porch, Bolz, for the first time in a                      Mrs. Hood testified that she first noticed Swinson’s
thirteen-year career in law enforcement, drew his service                    credentials when she opened the door. While Appellant
revolver. Bolz would later testify that this “was a defensive                stated that she merely opened the doors, Swinson testified that
reaction to what I felt was a dangerous situation.” Hood saw                 Mrs. Hood came “barreling out” of the house. Bolz stated
the weapon and began to yell, “He’s got a gun. He’s going to                 that she came out of the house “very loud and angry.” J.A. at
shoot me.” The inspectors retreated to their vehicle and drove               132-33. In any event, when Bolz noticed that she had a steak
back to the post office.                                                     knife in her hand, he backed off the porch, as did Swinson,
                                                                             and drew his firearm on Appellant. Seeing the weapon, she
   Hood’s account of this episode, once again, differs                       began screaming to her nephew, “Danny, he’s got a gun. He’s
significantly. Hood testified that after the inspectors had rung             going to shoot me.” The inspectors quickly backed away
the doorbell, she went to the window and tapped on it. In                    from the house, and returned in their unmarked van to the
response, Swinson “stuck her head around,” allowing Hood                     Collinwood post office. Mrs. Hood called the station to
to see her. Hood proceeded to the door while still holding a                 register a complaint, and, later in the day, personally went to
knife that she had been using to prepare breakfast. She                      the station to complain about the incident.
opened the door and, for the first time, Swinson displayed her
credentials. The inspectors said nothing, however. Because                     On February 10, 1999, a federal grand jury returned a three
they remained silent, Hood, after several moments, told them                 count indictment against Appellant Hood, alleging three
to get off her porch. The inspectors went down the steps, and                separate individual assaults against Bolz, Swinson, and
Bolz pulled back his coat, revealing his gun. The gun looked1                Wacker in violation of 18 U.S.C. § 111(a) & (b). The Bolz
like it was pointing at Hood. Hood summoned her nephew                       and Swinson counts alleged that Hood committed the assault
                                                                             through the use of a deadly weapon in violation of § 111(b).
                                                                             On March 30, 1999, Appellant moved to compel election
     1
      According to Inspectors Bolz and Swinson, Ms. Hood was yelling         between multiplicitous counts, asserting that the separate Bolz
for someone named “Danny,” and shouting that the inspectors were going       and Swinson charges actually constituted a single act of
to shoot her. Ms. Hood, however, testified that she called for her nephew,   assault. J.A. at 23. The Government did not object to this
“LeRoy,” saying merely, “LeRoy, come here.”
4    United States v. Hood                        No. 99-3932      No. 99-3932                        United States v. Hood      9

motion, and a superseding two count indictment was                                   ____________________
subsequently issued on April 14. Count one of the
superseding indictment collapsed the charges against Bolz                              CONCURRENCE
and Swinson into one collective charge, while count two, the                         ____________________
Wacker charge, remained unchanged from the initial
indictment.                                                          ALICE M. BATCHELDER, Circuit Judge, concurring. I
                                                                   concur in the majority’s disposition of this case. I write
  During the two-day trial, Mrs. Hood requested a specific         separately to highlight some facts material to and necessary
unanimity instruction, requiring the jury to unanimously find      for an understanding of both the charges against the defendant
that she assaulted both Swinson and Bolz to convict. The           and the § 2A2.2 sentencing issue that did not find their way
Court denied this request, and instructed the jury that it could   into the majority opinion.
convict if it found that Mrs. Hood “forcibly assaulted or
resisted or opposed or impeded or intimidated or interfered                                       I
with J.C. Swinson or Steven D. Bolz.” J.A. at 227 (emphasis
added). The jury subsequently convicted Hood of count one,           On January 12, 1999, substitute letter carrier James Wacker
and acquitted her on count two. The probation officer’s pre-       arrived at 888 E. 139th Street, the Collinwood home of Jannie
sentencing report provided that Hood never “lung[ed]               L. Shumpert Hood. Hood is a forty-eight-year-old African-
forward” with the knife, but that she “did advance toward          American woman with a history of mental illness. Due to
[Bolz and Swinson] on the porch.” The district court applied       mail theft problems, Hood had installed a lock on her
the guideline provision for “aggravated assault,” increased the    mailbox. A diagram on the mailbox instructed postal workers
base offense level by three for brandishing or threatening the     how Hood wished her mail to be delivered.
use of a deadly weapon, and sentenced Appellant to 27
months imprisonment. Hood filed this timely appeal,                  According to Wacker, as he was preparing to deliver
contending that the district court erred both in failing to cure   Hood’s mail, Hood exited her house and began yelling that he
a purportedly duplicitous indictment and in sentencing her         was putting the mail in the wrong place. Hood snatched the
under the “aggravated assault” guideline.                          mail from him and demanded to know his name. At some
                                                                   point during the encounter, Wacker testified, Hood shoved
                              II.                                  him. Wacker testified that he was frightened and nervous,
                                                                   and he therefore did not tell Ms. Hood his true name. Hood
  “The trial court is ‘vested with broad discretion in             threatened to call the post office, prompting Wacker to give
formulating its charge and will not be reversed unless the         his correct name.
charge fails accurately to reflect the law.’” United States v.
Busacca, 863 F.2d 433, 435 (6th Cir. 1988) (per curiam)              Hood’s rendition of the events differs considerably.
(citation omitted). Accordingly, we review the trial court’s       According to Hood, she came out of the house and Wacker
jury instruction for an abuse of discretion. Id. Raising a         handed her the mail. She inquired if Wacker would be her
mixed question of law and fact, we review de novo the district     regular letter carrier and, receiving a negative response, asked
court’s application of U.S.S.G. § 2A2.2.                           his name. Wacker gave a false name. Sensing the deception,
                                                                   Hood said, “Oh, you are lying,” and ordered Wacker off her
                                                                   porch. As he left, Wacker stated his true name. Hood denies
                                                                   ever having shoved Wacker.
8    United States v. Hood                      No. 99-3932      No. 99-3932                         United States v. Hood      5

in applying that provision. Given these facts and the                                           A.
expansive definition of § 2A2.3 “minor assault” as “a
felonious assault not covered by § 2A2.2,” we conclude that         Duplicitous indictments implicate the protections of the
§ 2A2.3 is the guideline provision “most applicable” to          Sixth Amendment guarantee of jury unanimity. An
Hood’s conduct.                                                  indictment is duplicitous if “it joins in a single count two or
                                                                 more distinct and separate offenses.” United States v.
                             III.                                Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981). “The vice of
                                                                 duplicity is that a jury may find a defendant guilty on the
  Because we do not deem the district court’s jury instruction   count without having reached a unanimous verdict on the
erroneous, but do conclude that it erred in sentencing           commission of any particular offense.” Id. (citation omitted);
Appellant under U.S.S.G. § 2A2.2, we AFFIRM her                  see also United States v. Washington, 127 F.3d 510, 513 (6th
conviction but VACATE her sentence. Accordingly, we              Cir. 1997). By collapsing separate offenses into a single
REMAND for re-sentencing in accordance with U.S.S.G.             count, duplicitous indictments thereby prevent the jury from
§ 2A2.3.                                                         convicting on one offense and acquitting on another. See id.
                                                                 Duplicitous charges, however, are not necessarily fatal to an
                                                                 indictment. See Robinson, 651 F.2d at 1194. A defendant
                                                                 may move, as did Hood, to require the government to “elect
                                                                 either the count or the charge within the count upon which it
                                                                 will rely,” or the court may “particulariz[e] the distinct
                                                                 offense charged in each count” in its jury instruction. Id.
                                                                 Moreover, a specific unanimity instruction is generally not
                                                                 required unless: “1) a count is extremely complex; 2) there is
                                                                 variance between the indictment and the proof at trial; or 3)
                                                                 there is a tangible risk of jury confusion.” United States v.
                                                                 Sanderson, 966 F.2d 184, 187 (6th Cir. 1992).
                                                                   Additionally, a single act of assault against multiple officers
                                                                 constitutes one offense, and therefore does not implicate Sixth
                                                                 Amendment prohibitions on duplicity. See Ladner v. United
                                                                 States, 358 U.S. 169, 176 (1958) (holding, under the
                                                                 predecessor of § 111, that two federal officers wounded by a
                                                                 single shot constituted a single assault); United States v.
                                                                 Beckner, 983 F.2d 1380, 1386 n.1 (6th Cir. 1993) (asserting
                                                                 that we cannot separately sentence defendants for injuring
                                                                 multiple federal officers when injuries are caused by single
                                                                 act); United States v. Theriault, 531 F.2d 281, 285 (5th Cir.
                                                                 1976) (“The test is whether there is more than one act
                                                                 resulting in the assaults, not whether more than one federal
                                                                 officer is injured by the same act.”). In differentiating
                                                                 whether an attack against multiple officials is a single assault
6     United States v. Hood                        No. 99-3932      No. 99-3932                       United States v. Hood          7

or multiple assaults, federal courts have inquired whether          Winters, No. 94-4269, 1995 WL 462415 (6th Cir. 1995)
officers were injured by “distinct successive criminal              (unpublished per curiam). The index provides the guideline
episodes, rather than two phases of a single assault.” United       section “ordinarily applicable” to the convicting statute;
States v. Segien, 114 F.3d 1014, 1022 (10th Cir. 1997)              however:
(internal quotations and citation omitted); accord United
States v. Lewis, 435 F.2d 417, 420 (D.C. Cir. 1970) (citation         [i]f, in an atypical case, the guideline section indicated
omitted).                                                             for the statute of conviction is inappropriate because of
                                                                      the particular conduct involved, use the guideline section
   Appellant Hood contends that her alleged conduct                   most applicable to the nature of the offense conduct
constituted “two separate and distinct offenses under                 charged in the count of which the defendant was
18 U.S.C. § 111.” It is on this presupposition that she asserts       convicted.
that in instructing the jury it could convict if she assaulted
Swinson or Bolz, the district court allowed the jury to convict     U.S.S.G., app. A.
without the unanimity required by the Sixth Amendment. We
conclude, however, that the district court did not abuse its          The guidelines indicate that §§ 2A2.2 and 2A2.4 are the
discretion in instructing the jury it could convict on the basis    provisions “ordinarily applicable” to convictions under
of a single assaultive event. In Ladner, the Supreme Court          18 § U.S.C. § 111. Even though the presentence investigation
held that a defendant committed a single act of assault, as         report concluded that § 2A2.2, covering aggravated assaults,
opposed to multiple separate assaults, when he fired a single       might be “excessive for the circumstances of this case,” the
shot from a shotgun and wounded two officers. See 358 U.S.          district court nevertheless applied § 2A2.2, stating that it
at 176. Even more similar to this case is the D.C. Circuit’s        made “its finding in reliance upon the statutory index.”
holding in Lewis. While both officials were actually wounded        “Aggravated assault” under § 2A2.2 is defined as follows:
in Ladner, in Lewis, the defendant fired one shot at two
officers, and missed both of them. See 435 F.2d at 419. The           [A] felonious assault that involved (A) a dangerous
court held that this conduct constituted a single assaultive act,     weapon with intent to do bodily harm (i.e. not merely to
rather than individual assaults against each officer. See id.         frighten), or (B) serious bodily injury, or (C) an intent to
                                                                      commit another felony.
  Similarly, here, there was only one assaultive event. Bolz
conceded that Hood did not lunge at him or Swinson, and             U.S.S.G. § 2A2.2 comment. (n.1). Correspondingly, the
there is no evidence that she made any aggressive or                § 2A2.3 guideline for “minor assault” is explicitly defined as
threatening statements toward either of them. Moreover,             “a felonious assault not covered by § 2A2.2.” U.S.S.G.
Hood has not pointed the court to any separate acts that could      § 2A2.3 comment. (n.1).
plausibly imply two “distinct successive criminal episodes .”
                                                                      Given the absolute paucity of evidence that Mrs. Hood had
                               B.                                   an intent to do bodily harm, or commit another felony, we
                                                                    must conclude that the district court erred in applying the
  The first step in applying the guidelines is to “[d]etermine      “aggravated assault” guideline. Mrs. Hood made no verbal
the applicable offense guideline section” found in “Statutory       threats or statements that she intended to do the postal
Index (Appendix A),” which is designed to “assist” in               workers any harm, and Bolz conceded that Appellant did not
determining the guideline provision applicable to particular        lunge at them with the knife. This record does not support the
criminal conduct. U.S.S.G. § 1B1.1(a); see United States v.         application of § 2A2.2, and the district court therefore erred
