                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 04-2032, 04-2293 & 04-2309
UNITED STATES OF AMERICA,
                        Plaintiff-Appellee, Cross-Appellant,
                              v.

DARRON J. MURPHY, SR.,
                      Defendant-Appellant, Cross-Appellee,
                             and


JENNIFER BAKER,
                                   Defendant, Cross-Appellee.
                        ____________
           Appeals from the United States District Court
               for the Southern District of Illinois.
       No. 03 CR 30137—G. Patrick Murphy, Chief Judge.
                        ____________
     ARGUED JANUARY 13, 2005—DECIDED MAY 4, 2005
                    ____________




 Before ROVNER, EVANS, and SYKES, Circuit Judges.
  EVANS, Circuit Judge. A jury found Darron Murphy, Sr.
guilty on an indictment charging five counts: tampering
with a witness who was going to testify against his son
(Darron Murphy, Jr.); using a firearm while doing the tam-
2                          Nos. 04-2032, 04-2293 & 04-2309

pering; being a felon in possession of a firearm; and two
counts involving crack cocaine. The same jury also found
Jennifer Baker, young Murphy’s girlfriend, guilty of aiding
and abetting Murphy, Sr. on the two counts related to wit-
ness tampering and one of the drug charges. After the jury
spoke, the trial judge, G. Patrick Murphy (there may be too
many Murphys in this case), granted Baker’s motion for a
judgment of acquittal on the two counts relating to tam-
pering. Murphy, Sr.’s motions for judgments of acquittal
were denied and he now appeals, arguing that his con-
viction on the jury tampering charge was tainted by a faulty
jury instruction. If successful on the challenge, the related
tampering charge involving the use of a firearm must also be
set aside. The government appeals Judge Murphy’s decision
to grant post-verdict relief to Baker.
  We begin with the facts. Pamela Hayden agreed to be-
come an informant for local law enforcement after being
arrested on drug charges. In December of 2002, she made
two controlled purchases of crack cocaine from Darron
Murphy, Jr., which led to his arrest.
  On the evening of May 29, 2003, Hayden was smoking
crack with three other folks at a trailer park home on Chain
of Rocks Road in Granite City, Illinois. Murphy, Sr., who
had sold drugs to Hayden several years earlier, showed up
later that night. He was friendly at first, but he soon called
Hayden a “snitch bitch hoe”1 and hit her in the head with
the back of his hand. He said he saw her name in discovery
materials from his son’s criminal case and that she was


1
  The trial transcript quotes Ms. Hayden as saying Murphy called
her a snitch bitch “hoe.” A “hoe,” of course, is a tool used for
weeding and gardening. We think the court reporter, unfamiliar
with rap music (perhaps thankfully so), misunderstood Hayden’s
response. We have taken the liberty of changing “hoe” to “ho,” a
staple of rap music vernacular as, for example, when Ludacris
raps “You doin’ ho activities with ho tendencies.”
Nos. 04-2032, 04-2293 & 04-2309                              3

responsible for putting him in jail. He put a gun—a small
chrome-plated one—to her head and said he was going to
kill her for putting his son in jail. He said this would be her
last night and her body would be found in a ditch. Murphy
then placed several calls, telling Hayden he was calling his
people to get someone to dispose of her car.
  Baker, who dealt drugs for Murphy, eventually arrived.
Murphy asked Hayden for her keys before eventually order-
ing her outside to retrieve them from her car. Once out of
the trailer, Hayden tried to run away, but she was thwarted
by Baker, who grabbed her right arm. Murphy again told
Hayden to get her keys. When Hayden stalled, an impatient
Murphy hit her with the butt of his gun, splitting open the
top of her head. After struggling for a few more minutes,
Hayden managed to get in her car and drive away. A
sheriff’s deputy discovered her at 4 a.m. She had a bleeding
gash on her head and bruises on her arm.
  Police later arrested Murphy outside his home and dis-
covered that he was carrying crack cocaine. They also ar-
rested Baker inside Murphy’s home. A search of the home
revealed more crack, a syringe, baking soda, a digital scale
used for weighing narcotics, and firearms, including the
small chrome-plated one identified by Ms. Hayden.
  In August of 2003, a federal grand jury returned a super-
seding indictment charging Murphy with five offenses:
knowingly using physical force against another person with
the intent to influence and prevent testimony in a formal
proceeding, 18 U.S.C. § 1512(a)(2)(A); knowingly using and
carrying a firearm during a crime of violence, id. § 924(c);
being a felon in possession of a firearm, id. §§ 922(g) and
924(a)(2); possession with intent to distribute at least
5 grams of crack cocaine, 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii); and conspiring to distribute and possessing
with the intent to distribute at least 5 grams of cocaine
4                         Nos. 04-2032, 04-2293 & 04-2309

base, id. and § 846. Baker was charged with aiding and
abetting Murphy on the first two counts and with the count
5 conspiracy offense.
  After the close of evidence during their joint trial,
Judge Murphy instructed the jury that to sustain a charge
of witness tampering the government had to prove that
Murphy knowingly intimidated or used physical force against
a witness. This instruction strayed from the language of the
indictment, which charged Murphy only with using physical
force. The indictment contained no mention of intimidation.
But Murphy voiced no objection to the instruction. In
granting Baker’s request for a judgment of acquittal as to
the tampering counts, Judge Murphy concluded that there
was no evidence that Baker knew Hayden’s identity as a
witness when the assault occurred.
  Baker was sentenced to a term of 78 months on the drug
conspiracy count. Murphy was sentenced to 151 months on
the drug counts, 120 months on the witness tampering and
felon-in-possession counts. These sentences were ordered to
run concurrent. The kicker for Murphy was a mandatory
consecutive 84-month sentence (for a total of 235 months)
on the charge of using a firearm while committing the vio-
lent crime of witness tampering.
  Murphy claims that the jury instruction he now chal-
lenges constructively amended the indictment in violation
of his Fifth Amendment rights. Put another way, he argues
that the jury found him guilty of conduct for which he was
never charged. Because Murphy agreed to the suspect in-
struction, he waived the issue, which ordinarily precludes
appellate review. E.g., United States v. Murry, 395 F.3d
712, 717 (7th Cir. 2005); United States v. Cooper, 243 F.3d
411, 415 (7th Cir. 2001). We say “ordinarily” because the
government has “waived waiver” by asserting that we can
review Murphy’s grievance under the plain error standard.
See United States v. Morgan, 384 F.3d 439, 443 (7th Cir.
Nos. 04-2032, 04-2293 & 04-2309                               5

2004). To establish plain error, Murphy must show (1) error,
(2) that is plain, (3) affects substantial rights, and (4) seri-
ously affects the fairness, integrity, or public reputation of
the judicial proceedings, i.e., affected its outcome. See
United States v. Olano, 507 U.S. 725, 732 (1993);
United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir.
2004); United States v. Trennell, 290 F.3d 881, 886 (7th Cir.
2002).
  Murphy has demonstrated the first three prongs. “An
indictment that is constructively amended at trial violates
the Constitution because the Fifth Amendment requires an
indictment of a grand jury to guarantee that the allegations
in the indictment and the proof at trial match in order to
insure that the defendant is not subject to a second pros-
ecution, and to give the defendant reasonable notice so that
he may prepare a defense.” Trennell, 290 F.3d at 888
(internal quotation and citations omitted). Here, the judge
constructively amended the indictment by instructing the
jury that Murphy could be found guilty of witness tamper-
ing if he knowingly intimidated or used physical force
against Hayden. The judge apparently based his instruction
on the old version of the witness tampering statute, which
prohibited both intimidation and the use of physical force
under the same subparagraph. See 18 U.S.C. § 1512(b)(1)
(1996). Murphy, however, was charged with violating
§ 1512(a)(2)(A), which criminalizes “physical force or the
threat of physical force,” with no mention of intimidation.
That conduct is criminalized in a separate offense,
§ 1512(b)(1).
  The government says there was no error because the
“intimidation” provision is a lesser included offense of the
“physical force” provision. Not true. Under Federal Rule of
Criminal Procedure 31(c), a jury may find a defendant
guilty of “an offense necessarily included in the offense
charged.” United States v. McCullough, 348 F.3d 620, 624
(7th Cir. 2003). A lesser offense is necessarily included in
6                            Nos. 04-2032, 04-2293 & 04-2309

the charged offense if its elements are a subset of the
elements of the charged offense. Id. (citing Schmuck v.
United States, 489 U.S. 705, 716 (1989)). An offense cannot
be “lesser included” if it contains an element not required
by the greater one. Id. That is what we have here—
§ 1512(b)(1) criminalizes “intimidation,” which covers be-
havior unrelated to physical force, while § 1512(a)(2)(A)
does not. The two subparagraphs are separate offenses.
  As is often the case in plain error review, however,
Murphy cannot prevail under the fourth prong, as he cannot
show that he probably would have been acquitted but for
the overbroad instruction. See Trennell, 290 F.3d at 887.
Had the jury instruction been limited to physical force, the
jury would have obviously reached the same result because
there was strong evidence of physical force and injury. To
argue, as Murphy does now, that “[i]t is entirely possible
that the jury may not have believed Ms. Hayden’s testimony
that Mr. Murphy hit her, but did believe that Mr. Murphy
intimidated her,” is mere conjecture of the highest order.
Hayden testified that Murphy hit her in the head, and that
claim was corroborated by her medical records and by
several witnesses who saw her injuries.2
  On to Baker. Judges do not set aside jury verdicts very
often, and when they do, they must have a good reason for
doing so. As we have stated, “Rule 29 does not authorize the
judge to play thirteenth juror.” United States v. Genova, 333
F.3d 750, 757 (7th Cir. 2003). A judgment of acquittal
should be entered only if there is insufficient evidence to


2
  This result might actually be good news for Murphy, perhaps
preventing a pyrrhic victory. After all, the district court mistak-
enly sentenced him under the old witness tampering statute, see
18 U.S.C. § 1512(b)(1) (1996). That provision carried a maximum
sentence of 10 years incarceration, which is what Murphy re-
ceived. On remand, Murphy could receive double that, as the re-
vised statute carries a 20-year maximum. Id. § 1512(a)(3)(B)(ii).
Nos. 04-2032, 04-2293 & 04-2309                            7

sustain the jury’s findings. United States v. O’Hara, 301
F.3d 563, 569 (7th Cir. 2002). Under this standard, a trial
judge should reverse a jury verdict only if, viewing the
evidence in the light most favorable to the prosecution, the
record contains no evidence on which a rational jury could
have returned a guilty verdict. Id. at 569-70.
  Here, Judge Murphy overturned the jury’s verdicts be-
cause he concluded that there was no evidence that Baker
knew at the time that the woman she grabbed (Hayden)
was the informant responsible for Murphy, Jr.’s woes:
    There is no evidence that [Baker] was present or knew
    of the threats made in the trailer by Murphy, Sr. Nor is
    there any evidence that [Baker] showed up at the
    trailer at the behest of Murphy, Sr. Assuming that a
    jury could infer that [Baker] was summoned to the
    trailer by Murphy, Sr., there is no evidence at all as to
    the content of this assumed communication between
    Murphy, Sr. and [Baker]. In order to sustain the guilty
    verdicts on Counts 1 and 2, there must be evidence that
    [Baker] “knowingly” aided and abetted these offenses.
    Accordingly, the first requisite of the “knowledge” re-
    quirement is proof that [Baker] knew that the female
    running from the trailer that she blocked and grabbed
    was the CI responsible for Murphy, Jr.’s arrest and
    detention. There is no such evidence.
  We believe Judge Murphy got it right—the record is
devoid of evidence that Baker knew that Hayden was being
worked over because she was a snitch. The government ar-
gues that there is “overwhelming” circumstantial evidence
to allow the jury to make such an inference. Specifically, it
cites four circumstances: Baker knew that a woman named
Hayden was the informant; Murphy made calls for assis-
tance and Baker eventually showed up at the trailer; Baker
assisted in the assault; and Baker remarked the next day
that Hayden should not have been left alive. Of this
8                          Nos. 04-2032, 04-2293 & 04-2309

evidence, her nasty comment is most incriminating, but
even it does not establish that Baker knew at the time of the
assault that Hayden was the snitch. The comment was
decidedly vague and was made long after the incident
occurred. Indeed, none of the evidence identified by the
government suggests that Baker knew that Hayden was an
informant at the time of the assault. Had Baker been merely
charged with helping Murphy beat up Hayden, there would
be no question that a guilty verdict would be sustainable.
But a vital link between the evidence and the charge in the
indictment is missing. Judge Murphy was correct in setting
aside the verdicts.
  One final matter before we leave this case. The govern-
ment argued that if the convictions of Ms. Baker on counts
1 and 2 were reinstated, the sentence imposed upon
Mr. Murphy should be vacated and his case remanded to
the district court so it could consider a leadership-role up-
ward departure under the guidelines as to him. Murphy
argued that such a procedure would be violative of the rule
announced in Blakely v. Washington, 124 S. Ct. 2531 (2004),
as interpreted by us in United States v. Booker, 375 F.3d 508
(2004). Subsequently, of course, the Supreme Court changed
the rules of the game in Booker v. United States, 125 S. Ct.
738 (2005), holding that the federal sentencing guidelines
were no longer mandatory. Although Murphy has not
directly challenged his sentence and Baker has limited her
involvement on appeal to resisting the efforts of the govern-
ment to reinstate her convictions, we think both, because
they were sentenced under the old unconstitutional regime,
should, in the interest of justice, get the benefit of the pro-
cedures we recently announced in United States v. Paladino,
401 F.3d 471 (7th Cir. 2005), if they so desire. (In this
regard, see United States v. Macedo, 2005 WL 851498 (7th
Cir. Apr. 14, 2005), where we held that raising a Booker
argument on a petition for rehearing in a direct appeal is
sufficient to get the benefit of Paladino.)
Nos. 04-2032, 04-2293 & 04-2309                             9

  Accordingly, to summarize, we affirm Murphy’s convic-
tions, reject the challenge to the order vacating the convic-
tions of Baker on counts 1 and 2, and order both Murphy
and Baker to tell us, within 14 days, whether they want us
to issue a limited remand, per Paladino, to the district court
for the purpose of having the judge determine if their
sentences should be changed because the guidelines are
now advisory only.


A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—5-4-05
