                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-3342
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Arkansas
Michael Gavin,                         *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: April 14, 2009
                                 Filed: October 5, 2009
                                  ___________

Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and ROSENBAUM,1
      District Judge.
                              ___________

ROSENBAUM, District Judge.

       On February 1, 2008, a jury convicted Michael Gavin of witness tampering,
in violation of 18 U.S.C. § 1512(a)(2)(A). The district court sentenced him to 24
months imprisonment. Gavin appeals his conviction. We affirm.




       ¹The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
I. Background

       On April 4, 2007, a grand jury indicted appellant, Michael Gavin, on charges
of kidnaping, in violation of 18 U.S.C. § 1201(a)(1) and (2 ). On the eve of trial, the
parties agreed to dismiss the indictment due to a technical defect – but not before
Gavin saw the name of Douglas Hoskinson, his former cellmate, on the government’s
witness list.

       After seeing this, Gavin allegedly told Felix Green, a fellow inmate, Hoskinson
was an informer, and yelled out Hoskinson’s name at the county jail. He also wrote
a letter to fellow inmates Keith and Byrd. The letter said:

     Hey, Keith, Byrd,
     What’s up? They f---ed me off. My whole family was here. I was in
     trial clothes, and they wanted me to sign a new indictment. I refused.
     They dismissed the charges and are re-indicting me. Anyway, the
     informant in the dorm is Doug Hoskinson and one more. I was put in the
     hole the night before because Doug is on the prosecutor witness list
     against me. I saw it with my own eyes, and Doug Hoskinson’s name
     came out of Edward Walker’s mouth. I am not f---ing joking or being
     paranoid. I heard and saw his f---ing name against me for prosecution.
     Let everyone know I have never said anything in that dorm except I am
     innocent. I am sick of this s--t, and it’s over with. I am working on
     getting your change to you. There is two in the dorm, Doug Hoskinson
     and another one. Mike, I am in the dungeon, T-312.

      On December 5, 2007, after this letter came into possession of federal
authorities, the grand jury re-indicted Gavin for kidnaping. The new indictment added
a count of witness tampering, and stated Gavin, “aided and abetted by another person
known to the Grand Jury, did knowingly use intimidation against another known to
the Grand Jury, with the intent to influence, delay, and withhold the testimony of that
person . . . .” Specifically, the indictment charged that Gavin relayed information to
Hoskinson indicating he should “watch his back” if he testified against Gavin.


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       The indictment charged witness tampering, under 18 U.S.C. § 1512(a)(2)(A).
This was the wrong statute. Section 1512(a)(2)(A) prohibits the use of “physical force
or the threat of physical force” against a witness. This “threat of physical force”
contrasts with 18 U.S.C. § 1512(b)(1), which prohibits the known use of intimidation
or threats to influence testimony. It appears the prosecutor either attributed 18 U.S.C.
§ 1512(b)(1)’s language to 18 U.S.C. § 1512(a)(2)(A), or simply misnumbered the
statute. The error was not found prior to trial.

        At trial, the government introduced Gavin’s letter, as well as the testimony of
inmates Felix Green, Daryl Keith Foster, and Douglas Hoskinson. Green, Gavin’s
former cellmate, swore Gavin told him in November, 2007, that Hoskinson was the
informant. Gavin asked Green to tell other inmates about Hoskinson, and Green
testified the informer “got the message.” (Tr. 254:15.) Green also stated Gavin yelled
Hoskinson’s name throughout the Pulaski County Jail. (Tr. 254:3-5.) In response to
Gavin’s outburst, deputies transferred him to another unit. Green told the jury “it’s
not a good thing” to be known as an informer, because “you will probably get beat up,
you know.” (Tr. 255:19-25.)

        Daryl Keith Foster, the “Keith” in Gavin’s letter, testified he passed the letter
on to fellow inmate Byrd. After doing so, Foster stated he saw Byrd grab Hoskinson
on the prison’s basketball court. Although Foster said he did not hear their
conversation, he saw Byrd shaking a finger in Hoskinson’s face. Like Green, Foster
testified prison “snitches” are subject to physical harm. (Tr. 300:19-25.)

       Despite any efforts at intimidation, Hoskinson testified at Gavin’s trial. He told
the jury Gavin confessed to rape and kidnaping. Hoskinson also reported seeing
Gavin’s letter and fearing “something” would happen to him. (Tr. 267:16-268:4.)

      At the conclusion of trial, the judge instructed the jury the defendant was
charged with witness tampering. The jury was further instructed that conviction
required proof “the defendant knowingly used intimidation or threats against Douglas

                                          -3-
Hoskinson,” and “did so with the intent to influence or prevent the testimony of
Douglas Hoskinson in this proceeding.” (Tr. 695:17-22.) The judge read 18 U.S.C.
§ 1512(a)(2)(A) for the jury, noting:

      [The] charge is based upon a statute which is federal law and provides
      as follows. And I’m quoting from that statute: [w]hoever uses physical
      force or the threat of physical force against any person or attempts to do
      so with intent to (A) influence, delay, or prevent the testimony of any
      person in an official proceeding, such as a trial, shall be guilty of an
      offense against the United States. (Tr. 695:9-16.)

      The parties did not object to the jury instructions.

      Gavin appeals, arguing violation of his Fifth and Sixth Amendment rights,
because the indictment used § 1521(b)(1)’s language, while referencing §
1512(a)(2)(A). He claims the jury instructions, as well as the submitted evidence,
amounted to a constructive amendment of the indictment. Finally, he argues the
evidence was insufficient to sustain a conviction under either § 1512(b)(1) or §
1512(a)(2)(A). At oral argument, the government maintained it properly charged
defendant pursuant to § 1512(a)(2)(A), and the jury reasonably convicted, finding
Gavin used “physical force or the threat of physical force” to intimidate Hoskinson.

II. Discussion

      A. Constructive Amendment

       Gavin’s trial counsel did not object to the jury instructions at trial. Under Rule
30 of the Federal Rules of Criminal Procedure (“Fed. R. Crim. P.”), a party’s failure
to object precludes appellate review, except where plain error affects substantial




                                          -4-
rights.2 See also Fed. R. Crim. P. 52(b); Jones v. United States, 527 U.S. 373, 388
(1999); Cross v. Celaver, 142 F.3d 1059, 1068 (8th Cir. 1998) (a party must object
precisely, or issue is reviewed solely for plain error). “Plain error review permits
reversal only if the error was so prejudicial as to have affected substantial rights
resulting in a miscarriage of justice.” United States v. Weaver, 554 F.3d 718, 722 (8th
Cir. 2009) (quotations omitted).

       Here the jury instructions asked if “the defendant knowingly used intimidation
or threats against Douglas Hoskinson,” when § 1512(a)(2)(A) governs the use or
threat of physical force. As a result, Gavin argues the instructions constructively
amended the indictment. The government replies, saying the material elements in the
proof and the jury instructions matched those in the indictment, thus precluding
amendment. Alternatively, the government claims that, even if the instructions
constituted a constructive amendment, Gavin cannot demonstrate plain error.

       Constructive amendment occurs when “the essential elements of the offense set
forth in the indictment are altered, either actually or in effect, by the prosecutor or the
court after the grand jury has passed upon them.” United States v. Begnaud, 783 F.2d
144, 147 n.4 (8th Cir. 1986). In United States v. Murphy, the Seventh Circuit found
constructive amendment in a similar case. 406 F.3d 857, 860 (7th Cir. 2005). There,
jury instructions asked whether defendant “knowingly intimidated or used physical

      2
        The government suggests our review is precluded because it has not “waived
waiver.” See United States v. Murphy, 406 F.3d 857, 860-861 (7th Cir. 2005). The
government is incorrect. Our review is not precluded by statute. See, e.g., United
States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004) (declining plain error review
under 18 U.S.C. § 3162(a)(2) because “[f]ailure of the defendant to move for
dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute
a waiver of the right to dismissal under this section”.) Accordingly, we review for
plain error, pursuant to Fed. R. Crim. P. 30 and 52(b). See United States v. Weaver,
554 F.3d 718, 722 (8th Cir. 2009) (“[B]ecause [defendant] did not object to the jury
instructions at trial, [the Court] review[s] the jury instructions only for plain error.”).


                                           -5-
force” against a potential witness. The indictment, however, only accused defendant
of using physical force – it did not mention intimidation. Id. at 860. The Seventh
Circuit concluded that, where the instructions added the element of intimidation, the
trial court had constructively amended the indictment.

       Here, we similarly conclude the instructions altered the offense’s essential
elements. The indictment charged defendant with violating 18 U.S.C. §
1512(a)(2)(A), which bars the use or threat of physical force to influence a witness.
The jury instructions, however, asked whether defendant “knowingly used
intimidation or threats against Douglas Hoskinson . . . with the intent to influence or
prevent” his testimony. When it added the element of intimidation, and failed to
reference the use of physical force, the court constructively amended the indictment.

         In the absence of objection at trial, we need not precisely decide whether
constructive amendment compels reversal in all cases. Cf. United States v. Gill, 513
F.3d 836, 850 (8th Cir. 2008) (declining to decide whether constructive amendment
constitutes reversible error per se where jury instructions did not constructively amend
indictment). The Supreme Court may require automatic reversal of constructive
amendments when a claim is preserved and reviewed for harmless error. See, e.g.,
Stirone v. United States, 361 U.S. 212, 214 (1960). But the Supreme Court has set
forth the method for evaluating errors that were “not brought to the attention of the
court.” United States v. Olano, 507 U.S. 725, 731 (1993) (citing Fed. R. Crim. P.
52(b)). In the absence of any trial objection, we review for plain error.

       We find this amendment does not rise to the level of plain error. There is
simply no showing that the error “affected [Gavin’s] substantial rights” or “seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United
States v. Aleman, 548 F.3d 1158, 1164 (8th Cir. 2008). Section 1512(a)(2)(A) of Title
18 was read to the jury. The jury heard substantial evidence showing Gavin yelled out
Hoskinson’s name in the jail, wrote fellow inmates telling them of Hoskinson’s
betrayal, and of Hoskinson’s fear for his safety. The government also presented

                                          -6-
testimony from which the jury could find a risk of assault for jailhouse snitches.
There is no reasonable probability Gavin would have been acquitted under the correct
jury instruction.

      B. Variance

       Gavin also argues the government’s introduction of his letter at trial
constructively amended the indictment, because “the letter set out a distinct method
and means of alleged witness tampering that was not contained in the indictment.”
(Def.’s Br. 22.) The government notes this is actually a claim of variance, rather than
constructive amendment. See United States v. Begnaud, 783 F.2d 144, 147 n. 4 (8th
Cir. 1986) (“[A] variance occurs when the essential elements of the offense set forth
in the indictment are left unaltered but the evidence offered at trial proves facts
materially different from those alleged in the indictment.”) This is, in fact, a claim of
variance.

      The difficulty is, “[a] variance between the indictment and proof at trial requires
reversal of a conviction only if the variance actually prejudiced the defendant.”
United States v. Begnaud, 783 F.2d 144, 148 (8th Cir. 1986). Once again, the
indictment apprised Gavin of the evidence against him. It charged him with violating
18 U.S.C. § 1512(a)(2)(A) — using “physical force or the threat of physical force”
against Hoskinson to influence his testimony. It accused him of relaying a message
to Hoskinson “through others housed at the Pulaski County Jail.” The indictment also
alleged Gavin “relayed information” to Hoskinson, telling him he “had better watch
his back” if he testified against Gavin.

        Trial testimony supported these accusations. Inmate Green testified Gavin
yelled Hoskinson’s name during lock-up. The evidence showed Gavin wrote inmates
Keith and Byrd saying Hoskinson would testify against him at trial. Hoskinson
testified he read this letter and feared for his safety. Although no evidence directly
showed Gavin told Hoskinson to “watch his back,” the evidence did demonstrate

                                          -7-
Gavin relayed the message to Hoskinson that he should fear for his safety. There is
no material difference between the indictment’s accusations and the evidence
presented at trial.

      C. Sufficiency of Evidence

       Finally, the Court considers Gavin’s claims that the evidence does not support
his conviction and his conduct was protected by a First Amendment right of free
expression. Gavin maintains that, where the jury received no evidence
suggesting physical force, he cannot be convicted under § 1512(a)(2)(A).3 “Evidence
is sufficient to sustain a conviction if, when viewed in the light most favorable to the
government, it offers substantial support for the verdict.” See United States v.
Slaughter, 128 F.3d 623, 627 (8th Cir. 1997). This Court will reverse “only if no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
United States v. Langley, 549 F.3d 726, 729 (8th Cir. 2008). To establish a violation
of witness tampering under § 1512(a)(2)(A), the government must show Gavin used
or threatened physical force with the intent of curtailing Hoskinson’s involvement in
his prosecution. See United States v. West, 303 F. App’x 156, 157 (4th Cir. 2008).

      Viewed in this fashion, the evidence is fully sufficient to sustain Gavin’s
conviction under 18 U.S.C. § 1512(a)(2)(A). The use of this statute has been affirmed
in similar instances, when defendants attempted to intimidate jailhouse snitches and
informers. See West, 303 F. App’x at 156 (affirming a conviction under §
1512(a)(2)(A) where one individual made a cutting motion across his neck to
discourage an informer from testifying). The Seventh Circuit upheld a § 1512(a)(2)(A)
conviction where a prisoner threatened an informer through a middleman, despite the


      3
        Gavin also argues there was insufficient evidence to support a conviction
under § 1512(b)(1). The Court disagrees; the jury convicted Gavin under §
1512(a)(2)(A), as such, the Court need not address whether the evidence would have
been sufficient to convict under § 1512(b)(1).

                                          -8-
fact that the informer never received the threatening message. See also United States
v. England, 507 F.3d 581 (7th Cir. 2007) (“[T]he statute prohibits expressing an intent
to inflict injury on another through physical force.”).

       Gavin’s letter to Keith and Byrd accused Hoskinson of snitching and said Gavin
was “sick of this s--t” and “its over with.” Keith said he read the letter and passed it
on to Byrd, and saw Byrd shake his finger in Hoskinson’s face. Inmate Green testified
Gavin told him to “relay” a message to the other inmates about Hoskinson. (Tr.
254:4.) Multiple individuals testified to the risk of violence for jailhouse snitches.
Finally, Hoskinson testified he saw the letter and feared for his safety. Gavin enlisted
inmates to aid him in intimidating Hoskinson. A jury could well find his actions
threatened physical force and were an attempt to discourage Hoskinson’s testimony.

      Finally, we reject Gavin’s claim that his behavior is protected by the First
Amendment. It is “well settled that threats of violence are . . . unprotected speech.”
United States v. Dinwiddie, 76 F.3d 913, 922 (8th Cir. 1996).

III. Conclusion

       The prosecutor’s double error in drafting the indictment passed without
objection. Neither the government, nor the defense, objected to the jury instructions
which charged elements not mentioned in the second indictment. These facts,
however, do not amount to plain error. When Gavin exposed Hoskinson as an
informer in a prison setting, he intentionally exposed Hoskinson to fellow inmates’
scorn and anger, thus causing Hoskinson’s intimidation. We find this evidence
sufficient, as did the jury, to uphold defendant’s conviction of violating 18 U.S.C. §
1512(a)(2)(A).

                        ______________________________



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