                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0607n.06

                                            No. 09-4423

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                    FILED
UNITED STATES OF AMERICA,                          )                 Aug 24, 2011
                                                   )
               Plaintiff–Appellee,                 )             LEONARD GREEN, Clerk
                                                   )
                                                   ) ON APPEAL FROM THE UNITED
                       v.                          ) STATES DISTRICT COURT FOR THE
                                                   ) SOUTHERN DISTRICT OF OHIO
ADAM C. MCCLELLAN,                                 )
                                                   )
           Defendant–Appellant.                    )
                                                   )


Before: KEITH, GIBBONS, and WHITE, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. On June 7, 2008, Christopher Roush was killed

during the course of a robbery gone awry. That evening, Michael Haynie entered Roush’s home

pursuant to a plan concocted by Adam C. McClellan and Elisha Lacy Dickens to rob Roush of

money and drugs. After Haynie entered Roush’s home, a struggle ensued in which Haynie struck

Roush twice in the head with a gun. The gun discharged and hit Roush in the back of the head,

killing him.

       McClellan was convicted by a jury on six counts of an indictment, charging him with

interstate stalking, firearms crimes, and drug trafficking crimes. The district court sentenced

McClellan to a total of 480 months’ imprisonment. McClellan appeals his conviction, arguing (1)

the district court erred by denying his motion for judgment of acquittal, and, in the alternative, the


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United States v. McClellan
No. 09-4423

jury verdicts were against the manifest weight of the evidence; and (2) the district court erred in

failing to dismiss one count of the indictment. For the following reasons, we affirm McClellan’s

conviction.

                                                I.

       In the summer of 2007, defendant–appellant Adam McClellan went from Columbus, Ohio,

to Meigs County, Ohio, to cultivate marijuana. McClellan first lived in the Mason Motel in Mason,

West Virginia but soon moved into a trailer park with a woman named Tangy Laudermilt. Prior to

McClellan, Laudermilt dated the victim, Christopher Roush, and they lived together in the same

trailer park from about December 2005 until March 2007. During this time, Laudermilt and Roush

purchased crack cocaine from Frank Dickens.1 During the summer of 2007, McClellan met Frank.

The two became friends, and McClellan spent time at Frank’s house and sold Frank marijuana. After

a brief return to Columbus in the fall of 2007, McClellan and Frank’s business relationship resumed

in 2008 when McClellan sold marijuana and cocaine to Frank. Frank purchased cocaine from both

McClellan and another dealer, and, at this time, Christopher Roush was Frank’s “number one

customer.”

       In the spring of 2008, McClellan returned to Meigs County and stayed with Frank for about

three weeks. McClellan had no money and, according to Frank, often spoke about selling marijuana

and “hitting a lick”—meaning doing something illegal to get money for drugs, such as robbing

someone. While staying with Frank, McClellan met Frank’s brother, Elisha “Lacy” Dickens.


       1
        We will refer to Frank Dickens and his brother Elisha Lacy Dickens as “Frank” and “Lacy”
respectively.

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United States v. McClellan
No. 09-4423

McClellan and Frank subsequently had a disagreement, which Frank attributed to McClellan’s lack

of money and talk of his drug business in front of Frank’s children (although McClellan testified that

there was no “falling out”).

       McClellan then went to stay with Lacy. About a week before Roush was killed, Frank went

to Lacy’s house to confront McClellan because he had heard that McClellan informed Frank’s wife

and girlfriend about Frank’s interest in a third woman, Stacy Stewart. During the confrontation,

Frank hit McClellan in the face giving him two black eyes, and McClellan cut Frank with a knife.

According to Stewart, after the fight McClellan said that he wanted to “hurt Frank’s pocket.” The

fight also caused problems between Frank and Lacy Dickens because Frank felt betrayed that Lacy

still allowed McClellan to stay with him after the fight.

       After the fight, Lacy and McClellan began to make progress on a plan to set up a “trap house”

for the sole purpose of selling drugs. Neither McClellan nor Lacy wanted to stay in the house, so

McClellan contacted Michael Haynie, whom he had met in the spring of 2008. Haynie informed

McClellan that he needed a place to stay because he was out of work; McClellan offered him a place

to stay, a few meals, and an introduction to Lacy. Haynie came to Meigs County in his girlfriend’s

white 1992 Dodge Spirit. On Friday, June 6, 2008, the day before Roush was killed, McClellan

picked Haynie up in a green pickup truck, and they later met Lacy. Haynie understood that they were

“going to hit a lick” but was unsure of what that would be—there was talk of breaking into a

veterinary clinic, stealing drugs, and robbing someone who sold drugs. Haynie testified that the men

suggested that Roush was a good target because he was gun shy, and that “[i]f you go in and show

a gun, he’s going to comply with your demands” and not report the robbery. The three men went

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United States v. McClellan
No. 09-4423

to pick up Haynie’s car and drove the 1992 Dodge Spirit back and forth between Ohio and West

Virginia, where Lacy and McClellan pointed out “dope houses,” including Roush’s home in West

Virginia. According to Haynie’s testimony, the three went to pick up Lacy’s car and met at Lacy’s

house, where Lacy “provide[d] a [black automatic] .45 [caliber handgun], and he wanted [Haynie]

and [McClellan] to do a run, go over there and hit it.” According to Haynie, the plan was that he

would keep the money from robbing Roush, and the drugs would go to McClellan and Lacy. At trial,

McClellan denied that he participated in the planning of this robbery.

       After getting the gun on the night of June 6, Haynie testified that he and McClellan went to

Roush’s house. Haynie approached the house with the gun and knocked; when there was no answer,

Haynie returned to the car. The two returned to Lacy’s home in Ohio. In the early hours of June 7,

McClellan and Haynie left Lacy’s and drove the Dodge Spirit to the Mason Hotel in West Virginia.

McClellan used a false name to rent the room, which Haynie testified was paid for by Lacy.

       After sleeping, on the morning of June 7, McClellan woke up sick. At this point, the

testimony of Haynie and McClellan begins to differ greatly. Both testified that McClellan went to

get morphine. McClellan testified that he fell asleep shortly after taking the morphine pills and when

he awoke, Haynie was gone and had already committed the robbery.

       Haynie testified that later in the evening of June 7, he, McClellan, and Lacy were together

in the hotel in West Virginia planning the robbery. McClellan had the .45 in his bag, and Lacy came

to the hotel with bandanas. When it was dark and after Lacy left, McClellan and Haynie dressed in

dark clothes, baseball caps, and bandanas. McClellan gave the gun to Haynie, and Haynie checked

to see that it was loaded. The two drove the Dodge Spirit to Roush’s house at approximately

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United States v. McClellan
No. 09-4423

10:00–10:30 pm. Haynie went to the door of Roush’s house while McClellan waited in the car.

Shane Leach answered the door, and Haynie instructed him to give him drugs and money. When

Leach said there were none, Haynie racked the slide of the gun and struck Leach, causing Leach to

run from the house. When Haynie was inside the house, he struck Roush with the gun and knocked

him to the floor. This strike caused the gun to discharge into the ceiling. When Roush got up from

the floor, Haynie struck him again with the gun, which discharged a second bullet into Roush’s head.

Haynie fled, and McClellan went back to Ohio with him. Roush died as a result of the bullet wound.

        McClellan’s testimony was that he missed the entire robbery and that as he was walking out

of the hotel to purchase cigarettes, Haynie drove up. Both McClellan and Haynie testified that

McClellan showed Haynie the pond in Meigs County in which Haynie disposed of the gun. The two

then drove to Athens, Ohio, and Haynie dropped McClellan off so McClellan could meet Lacy.

McClellan purchased new clothes, and after he failed to find a ride, he called Haynie to come back

to Athens and pick him up.

        Haynie was arrested on July 29, 2008, and McClellan surrendered himself to authorities on

July 31, 2008. On August 26, 2008, a grand jury returned a six-count indictment against McClellan

and Haynie. On January 5, 2009, Haynie pled guilty three counts of the original indictment and was

later sentenced to 687 months’ imprisonment followed by 60 months’ supervised release. On

January 6, 2009, the grand jury returned a six-count superseding indictment against McClellan and

Lacy.

        At McClellan’s trial, the government moved to amend this indictment, resulting in the

following charges. Count 1 charged knowingly traveling in interstate commerce with the intent to

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United States v. McClellan
No. 09-4423

injure or harass Roush, and in the course of, or as a result of, such travel, the defendants placed

Roush in reasonable fear of death or serious bodily injury, and such acts resulted in the death of

Roush, in violation of 18 U.S.C. §§ 2261A(1), 2261(b)(1), and 2. Count 2 charged knowingly using,

carrying, brandishing, and discharging a firearm during and in relation to a crime of violence, that

is, traveling in interstate commerce with the intent to injure or harass Roush, in violation of 18

U.S.C. §§ 924(c) and 2. Count 3 charged knowingly traveling in interstate commerce, with the intent

to commit a crime of violence to further conspiracy to distribute and possess with intent to distribute

a controlled substance, and thereafter committing and attempting to commit the crime of violence,

that is robbery and/or burglary to further such unlawful activity, and the crime of violence resulted

in the death of Roush, in violation of 18 U.S.C. §§ 1952 and 2. Count 4 charged knowingly using,

carrying, brandishing, and discharging a firearm during and in relation to a crime of violence, that

is traveling in interstate commerce with the intent to commit a crime of violence to further an

unlawful activity, in violation of 18 U.S.C. § 924(c) and 2. Count 5 charged knowingly,

intentionally, and unlawfully combining, conspiring, confederating, and agreeing with each other and

with diverse other persons, to possess with the intent to distribute a mixture or substance containing

a detectable amount of cocaine and crack, in violation of 21 U.S.C. § 846. Finally, count 6 charged

knowingly using, carrying, brandishing, and discharging a firearm during and in relation to a drug

trafficking crime, and, in so doing, the defendants committed murder as defined in 18 U.S.C. § 1111,

the unlawful killing of Roush with malice aforethought, in violation of 18 U.S.C. §§ 924(c),

924(j)(1), and 2.



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United States v. McClellan
No. 09-4423

       McClellan moved for judgment of acquittal regarding counts 1, 2, 3, 4, and 6 at the close of

the government’s case. The district court denied the motion with respect to counts 1, 2, 3, and 6, and

reserved ruling on count 4. McClellan renewed his motion with respect to all counts at the close of

all of the evidence, and the district court denied the motion with respect to all counts. On May 27,

2009, the jury convicted McClellan of all counts of the amended indictment. In a separate trial, Lacy

was also convicted on all six counts and sentenced to 600 months’ imprisonment. McClellan was

sentenced to 360 months as to counts 1 and 3 to run concurrently, 240 months as to count 5 to run

concurrently, 120 months total as to counts 2, 4, and 6 to run consecutively for a total sentence of

480 months’ imprisonment. McClellan appeals his conviction.

                                                 II.

       McClellan first challenges the district court’s denial of his motion for judgment of acquittal

as to counts 1, 2, 3, 4, and 6. In the alternative, he argues that the jury verdicts are against the

manifest weight of the evidence.

                                                 A.

       Before the case was submitted to the jury, McClellan moved for a judgment of acquittal

pursuant to Federal Rule of Criminal Procedure 29. We review the denial of a Rule 29 motion for

judgment of acquittal de novo and the district court’s factual findings for clear error. United States

v. Al-Zubaidy, 283 F.3d 804, 808 (6th Cir. 2002). The district court should grant this motion if

“there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable

doubt.” United States v. Fawaz, 881 F.2d 259, 261 (6th Cir. 1989) (internal quotation marks

omitted). In reviewing the district court’s denial of McClellan’s motion for acquittal, we “view the

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United States v. McClellan
No. 09-4423

evidence and all reasonable inferences in the light most favorable to the government.” United States

v. Gibson, 675 F.2d 825, 829 (6th Cir. 1982). We “cannot weigh the evidence or judge credibility

independently in deciding whether the District Court erred in submitting the case to the jury.” Id.

        McClellan challenges the district court’s denial of his motion for acquittal on counts 1, 2, 3,

4, and 6. In order to evaluate these challenges, we must determine, viewing the evidence in the light

most favorable to the government, whether there is any evidence upon which a reasonable mind

might fairly conclude guilt beyond a reasonable doubt.

                                                   1.

        In count 1, McClellan was charged with interstate stalking in violation of 18 U.S.C.

§§ 2261A(1), 2261(b)(1) and (2). “Section 2261A has three main elements: (a) that interstate travel

occurred; (b) that [McClellan’s] intent was to injure or harass another person; and (c) that the person

he intended to harass or injure was placed in reasonable fear of death or serious bodily injury to

herself or a member of her family as a result of that travel.” Al-Zubaidy, 283 F.3d at 808. McClellan

argues that the government failed to satisfy the “interstate commerce” element of the crime because

it failed to provide proof of a temporal nexus between the travel and the intent to injure or harass.

The government does not contest the requirement for the existence of a nexus, but it maintains that

it presented evidence sufficient to establish “a nexus between McClellan’s and Haynie’s interstate

travel from Ohio to West Virginia and their intent to injure or harass.”

        In Al-Zubaidy, the defendant similarly argued that the government failed to establish at trial

that he had “crossed state lines with the intent to injure or harass.” 283 F.3d at 808. In that case, the

court inferred intent from the totality of the circumstances. Id. at 809. The defendant’s interstate

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United States v. McClellan
No. 09-4423

travel occurred several days after the victim moved to that state; the defendant’s harassment of the

victim’s family occurred almost immediately after his interstate travel; but the defendant’s

harassment of the victim did not occur until almost two months after his interstate travel. Id. at 809.

It is true that the intent must be formed upon the act of interstate travel, but in order to infer such

intent there is no requirement that the travel and the harassment be within a particular temporal

proximity. Indeed, in Al-Zubaidy, despite the several-day period between the defendant’s interstate

travel and his harassment of the victim’s parents and the greater two-month period between the

defendant’s interstate travel and the harassment of the victim, the court found that this “evidence

supporting the district court’s finding that [the defendant] possessed the requisite intent certainly

‘would allow a rational trier of fact to find the defendant guilty beyond a reasonable doubt,’” and

thus survived de novo review. Id. at 809.

       In making his argument, McClellan separates the incidents of June 6 and June 7, 2008.

McClellan claims that the testimony at trial indicated that the men devised the plan to rob Roush

only after they had crossed state lines and were already in the West Virginia hotel early on June 7.

But we see no reason to view the events that occurred late on June 7, 2008, as isolated from the very

similar events of the night before. The evidence presented at trial suggests that the robbery on June

7 was intertwined with the June 6 attempt, and there is sufficient evidence to establish a nexus

between McClellan’s intent to injure or harass Roush and his interstate travel in the early morning

hours of June 7 from Ohio to the Mason Hotel in West Virginia.

       For instance, during redirect examination of Haynie by the government’s attorney, when

asked when they went “across that bridge . . . to the Mason hotel” in West Virginia, what they were

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United States v. McClellan
No. 09-4423

“going over to do ultimately in West Virginia,” Haynie responded, “Rob Red[, Roush’s nickname].

Rob Roush.” Haynie stated that they were “[j]ust waiting until Saturday night [June 7]. Need a

place to stay, and we can’t stay at Lacy’s all day. He’s got traffic coming and going. He don’t want

to be seen with me.” Haynie’s testimony alone was sufficient that a reasonable mind might fairly

conclude guilt beyond a reasonable doubt on the crime of stalking. We may infer intent “‘from the

totality of circumstances surrounding the commission of the prohibited act.’” Al-Zubaidy, 283 F.3d

at 809 (quoting United States v. Stagman, 446 F.2d 489, 493 (6th Cir. 1971)). This statement from

Haynie’s testimony alone supports the inference that McClellan and Haynie had formed the requisite

intent when initially crossing the border on June 6. This statement also supports the notion that their

intent carried over to the next morning, June 7, when they again crossed the state border to stay in

a hotel in West Virginia; its implication is that they did not go to West Virginia simply to rest but

rather crossed the state line to lie in wait for the next attempt. An argument not only that the intent

to rob Roush formed on July 6 had vanished by the early morning hours on June 7, but also that no

reasonable jury could conclude that this intent had carried over, cannot be sustained.2



       2
         If this is not sufficient, however, the government points to other evidence that corroborates
Haynie’s testimony. First, McClellan was familiar with Roush as they both had lived with the same
woman and both did business with Frank Dickens. Second, McClellan had motives of retaliating
against Frank for their fight and of eliminating competition from a rival drug dealer. Third, the
similarities between the June 6 and June 7 incidents at Roush’s home indicate that the intent was also
similar. As the government asserts, “the same basic plan was repeated”: “The robbery was to occur
at Roush’s house; Haynie was given the same .45 gun to have with him when he went into the house;
Haynie was to demand drugs and money; and McClellan was to wait outside the car.” Fourth, by
checking into the hotel under a false name, McClellan indicated that he had ill intentions. Fifth,
there was evidence that McClellan had told his cell-mate that the men had decided to rob Roush and
that McClellan had wished to “hit” people who bought drugs from Frank Dickens.

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United States v. McClellan
No. 09-4423

       There is more than sufficient evidence from which a reasonable mind might fairly conclude

guilt beyond a reasonable doubt on count 1. See Fawaz, 881 F.2d at 261. We affirm the district

court’s decision denying McClellan’s motion for acquittal on count 1.

                                                  2.

       McClellan also contests the denial of his motion for acquittal on counts 2 through 4 because

these counts are derivative of count 1 or required the same nexus between interstate travel and intent.

Count 2 charged McClellan with using, carrying, or possessing a firearm during and in relation to

a crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2. The underlying crime of violence was

the stalking provided for in count 1, so McClellan claims that because count 1 could not be proved,

neither could count 2. Count 3 charged McClellan with traveling in interstate commerce with the

intent to commit a crime of violence to further an unlawful activity, that being conspiracy to

distribute and possess with intent to distribute a controlled substance, in violation of 21 U.S.C.

§ 846, and thereafter committing and attempting to commit the crime of violence, that being robbery

and/or burglary, to further such unlawful activity, and the crime of violence resulted in the death of

Roush, in violation of 18 U.S.C. §§ 1952 and 2. Similar to the argument in count 1, McClellan

argues that the plan to rob Roush had been abandoned by the time they went to the West Virginia

hotel on July 7, and, therefore, no intent to commit the crime was formed at the time of the interstate

travel. Count 4 charged McClellan with using, carrying, or possessing a firearm during and in

relation to a crime of violence to further unlawful activity, in violation of 18 U.S.C. §§ 924(c) and

2. The underlying crime of violence was provided for in count 3, so McClellan claims that if count

3 cannot be proven, neither can count 4.

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United States v. McClellan
No. 09-4423

        Because evidence upon which a reasonable mind might fairly conclude guilt beyond a

reasonable doubt on count 1 was presented prior to the motion for acquittal, we find that McClellan’s

arguments on counts 2, 3, and 4 similarly fail.

                                                    3.

        Count 6 charged McClellan with aiding and abetting the knowing use, carrying, brandishing,

and discharging of a firearm during and in relation to the crime of conspiracy to possess with the

intent to distribute in violation of 21 U.S.C. § 846, and in doing so committed murder as defined in

18 U.S.C. § 1111, in violation of 18 U.S.C. §§ 924(c), (j)(1), and 2. McClellan argues that because

the parties stipulated that Roush died as a result of an accidental discharge, there was no malice

aforethought as required for murder, defeating the portion of his charge under § 924(j).

        “All that is necessary to prove that a death is a murder under section 924(j) . . . is to show that

it was an ‘unlawful killing of a human being with malice aforethought,’” and thus proof of second

degree murder is sufficient to prove murder under § 1111. United States v. Ricketts, 317 F.3d 540,

544–45 (6th Cir. 2003). Our circuit has found that a “gross deviation from a reasonable standard of

care establishe[s] the requisite malice aforethought to hold [someone] accountable for second degree

murder.” United States v. Milton, 27 F.3d 203, 208 (6th Cir. 1994). “Malice aforethought may be

inferred when the defendant grossly deviates from the standard of care to such an extent that a jury

could conclude that he must have been aware of a serious risk of death or serious bodily injury.”

United States v. Conatser, 514 F.3d 508, 523 (6th Cir. 2008) (internal quotation marks omitted).

        In McClellan’s case, the district court correctly defined killing someone with “[m]alice

aforethought as . . . either to kill another person deliberately and intentionally or to act with callous

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United States v. McClellan
No. 09-4423

and wanton disregard for human life,” not merely an intentional killing. The district court did not

distinguish between McClellan’s and Haynie’s conduct in determining whether the acts committed

were sufficiently callous and demonstrated wanton disregard for human life. During its ruling on

the motion for acquittal, it concluded that “a reasonable jury could find the act of pistol whipping

someone . . . to sufficiently constitute the acts that are described in the definition of malice

aforethought.” The district court then denied the Rule 29 motion with respect to count 6.

        In its brief, the government frames its argument in a similar way. The government cites to

evidence of McClellan’s giving the .45 gun to Haynie who made sure it was loaded. The

government then set forth that a reasonable jury could find that Haynie acted recklessly with callous

and wanton disregard for human life and in a manner that was a gross deviation from a reasonable

standard of care. Thus Haynie, aided and abetted by McClellan, was aware of a serious risk of death

or serious bodily harm. At oral argument, the government conceded that under an aiding and

abetting theory of liability, Haynie’s reckless actions may not be sufficient to attribute the requisite

intent to McClellan; nonetheless, the government argued that McClellan’s conduct also leads to an

inference that he acted with malice aforethought. We need not determine whether Haynie’s actions,

which are sufficient to infer his intent, are also sufficient to implicate McClellan as an aider and

abetter. We agree with the government’s position that McClellan’s actions alone allow us to infer

malice aforethought. A reasonable jury could have found that, by sending Haynie into Roush’s

house with a loaded gun to commit a robbery, McClellan grossly deviated from a reasonable standard

of care such that he was aware of a serious risk of death or serious bodily injury. See Milton, 27 F.3d

at 208; Conatser, 514 F.3d at 523.

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United States v. McClellan
No. 09-4423

                                                  B.

       In the alternative, McClellan states that the jury verdicts were against the manifest weight

of the evidence. Because McClellan never specifically made a motion for a new trial based on the

verdict being against the manifest weight of the evidence, he has waived this issue on appeal. United

States v. Grubbs, 506 F.3d 434, 443 (6th Cir. 2007) (citing United States v. Lutz, 154 F.3d 581, 589

n.2 (6th Cir. 1998)).

                                                 III.

       McClellan also contends that the district court erred in failing to dismiss count 4 after the

government’s amendment of the charge at trial. We review the sufficiency of an indictment de novo.

United States v. Combs, 369 F.3d 925, 934 (6th Cir. 2004). “The indictment must be read as a

whole, accepting the factual allegations as true, and construing those allegations in a practical sense

with all the necessary implications.” United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007).

“An indictment is sufficient if it, first, contains the elements of the offense charged and fairly

informs a defendant of the charge against which he must defend, and, second, enables him to plead

an acquittal or conviction in bar of future prosecutions for the same offense.” United States v.

Anderson, 605 F.3d 404, 411 (6th Cir. 2010) (quoting Hamling v. United States, 418 U.S. 87, 117

(1974)) (internal quotation marks and editorial marks omitted). “It is generally sufficient that an

indictment set forth the offense in the words of the statute itself, as long as those words of

themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the

elements necessary to constitute the offence intended to be punished.” Hamling, 418 U.S. at 117

(internal quotation marks omitted); see also United States v. Hudson, 491 F.3d 590, 593 (6th Cir.

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United States v. McClellan
No. 09-4423

2007) (quoting same). “However, the recitation of statutory language must be accompanied with

such a statement of the facts and circumstances as will inform the accused of the specific offense,

coming under the general description with which he is charged.” McAuliffe, 490 F.3d at 531

(internal quotation marks omitted).

       The language in the original indictment was as follows:

                                              COUNT 4
                On or about June 7, 2008, in the Southern District of Ohio and elsewhere, the
       defendants, ADAM C. MCCLELLAN, ELISHA LACY DICKENS and Michael A.
       Haynie who is not named as a defendant in this Superseding Indictment, did
       knowingly use, carry, brandish and discharge a firearm, that is, a pistol, during and
       in relation to a crime of violence, for which they may be prosecuted in a court of the
       United States, that is, traveling in interstate commerce with the intent to commit a
       crime of violence to further an unlawful activity, in violation of 18 U.S.C. § 1952,
       and in so doing, the defendants, ADAM C. MCCLELLAN, ELISHA LACY DICKENS
       and Michael A. Haynie, committed murder as defined in 18 U.S.C. § 1111, that is the
       unlawful killing of Christopher Roush, with malice aforethought.
                In violation of 18 U.S.C. § 924(c), 924(j)(1) and 2.

(Emphasis added). At trial, the prosecution asked to amend this count to remove the italicized

language. After this revision was made, the district court asked McClellan’s lawyer if he had any

objection to the stated amendment with respect to count 4, to which he replied, “No, Your Honor.”

During McClellan’s motion for acquittal, McClellan’s counsel objected to the sufficiency of count

4; the government responded; and the court reserved judgment on the issue. The district court ruled

after further argument during the jury charge conference. The district court found the amended

indictment language to be sufficient.

       The charged offense in count 4 is a violation of 18 U.S.C. § 924(c). Section 924(c)(1)(A)

criminalizes any person who “uses or carries a firearm, or who . . . possesses a firearm” “during and


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United States v. McClellan
No. 09-4423

in relation to any crime of violence . . . for which the person may be prosecuted in a court of the

United States.” We understand this offense to have two elements: (1) the using and carrying of a gun

and (2) the commission of a federal crime of violence. United States v. Rodriguez-Moreno, 526 U.S.

275, 280–81 (1999) (emphasizing that the “crime of violence element of the statute” is an essential

element). Thus, the indictment must charge both the carrying or use of the gun and the crime of

violence. McClellan claims that the “charge as amended fails to allege the specific underlying

offense to which the § 924(c) offense attaches,” because it failed to mention the burglary or robbery

or a reference to count 3. The government argues that count 4 states the crime of violence, which

is “traveling in interstate commerce with the intent to commit a crime of violence to further an

unlawful activity, in violation of 18 U.S.C. § 1952.”

       First, we observe that the amended indictment tracked the language of § 924(c), as well as

§ 1952(a)(2), which is “generally sufficient.” See Hudson, 471 F.3d at 593. Moreover, we note that

count 4 is not to be read in isolation. It immediately follows count 3, which charged McClellan with

“knowingly travel[ing] in interstate commerce . . . with the intent to commit a crime of violence to

further an unlawful activity, that is conspiracy to distribute and possess with intent to distribute a

controlled substance, in violation of 21 U.S.C. § 846, and thereafter committ[ing] and attempt[ing]

to commit the crime of violence, that is robbery and/or burglary to further such unlawful activity,

and the crime of violence resulted in death of Christopher Roush.” The recitation of statutory

language in count 4, specifically referring to McClellan’s offense under § 1952, accompanied by the

facts and circumstances describing the charge under § 1952 in count 3, was sufficient to inform



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No. 09-4423

McClellan of the offense elements and the charge against him. See McAuliffe, 490 F.3d at 531;

Anderson, 605 F.3d at 411.

        In an unpublished table opinion, we addressed an argument almost identical to that made by

McClellan. In United States v. Allgood, count 5 of the superseding indictment charged defendant

Allgood thus:

               . . . ALLGOOD . . . knowingly used and carried firearms, to wit, [description
        of guns] during and in relation to a crime of violence for which [he] may be
        prosecuted in a court of the United States, to wit, Title 18, United States Code,
        Section 1952.
               In violation of Title 18, United States Code, Section 924(c).

940 F.2d 663, 1991 WL 150733, at *2 (6th Cir. 1991) (table). The preceding count charged Allgood

with traveling in interstate commerce “with intent to commit a crime of violence and to further an

unlawful activity and thereafter attempted to commit a crime of violence to further an unlawful

activity, to wit: the use of firearms to obtain marijuana.” Id. We found that § 1952(a)(2) is a crime

of violence, and “there can be no doubt that it fits the description of § 924(c)(3)(B).” Id. at *7.

Section 924(c)(3)(B) defines a crime of violence as a felony “that by its nature, involves a substantial

risk that physical force against the person or property of another may be used in the course of

committing the offense.” Section 1952(a)(2) provides for punishment of “[w]hoever travels in

interstate or foreign commerce . . . with intent to . . . commit any crime of violence to further any

unlawful activity.” Our court in Allgood reasoned, “Interstate travel with intent to commit a crime

of violence by one who thereafter performs or attempts to perform the crime of violence is obviously

a felony that involves ‘by its nature’ a substantial risk of physical force.” Allgood, 1991 WL 150733,



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United States v. McClellan
No. 09-4423

at *7. We thus affirmed the district court’s denial of Allgood’s motion to dismiss count 5 of the

indictment. Id.

        We find Allgood persuasive. After amendment, count 4 of McClellan’s indictment on its face

charged McClellan with (1) “knowingly us[ing], carry[ing], brandish[ing] and discharg[ing] a

firearm, that is, a pistol” during (2) a “crime of violence, for which they may be prosecuted in a court

of the United States, that is, traveling in interstate commerce with the intent to commit a crime of

violence to further an unlawful activity, in violation of 18 U.S.C. § 1952.” This clearly implicates

§ 1952(a)(2). And although the specific crime of violence was not stated in count 4, as reasoned in

Allgood, the commission of an offense under § 1952(a)(2), which specifically implicates the

commission or attempt to commit a “crime of violence to further any unlawful activity,” involves

a crime of violence as imagined under § 924.

        We conclude that the allegations of count 4 of the indictment were sufficient.

                                                  IV.

        For the foregoing reasons, we affirm McClellan’s conviction.




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United States v. McClellan
No. 09-4423

       HELENE N. WHITE, Circuit Judge (concurring). I write separately with respect to the

issue addressed in Part II.A.3 of the majority opinion. Although Haynie’s conduct during the

botched robbery would certainly qualify under the gross-deviation prong for proving malice, it is less

clear whether furnishing a firearm to another with the expectation that the person robbed will

immediately cooperate constitutes conduct that is “a gross deviation from a reasonable standard of

care,” United States v. Milton, 27 F.3d 203, 208 (6th Cir. 1994). See United States v. Pearson, 203

F.3d 1243, 1271 (10th Cir. 2000) (concluding that the defendant’s conduct in providing a loaded gun

to an accomplice for use in robbing a restaurant, where the accomplice accidentally fired the gun and

killed a restaurant employee, does not establish the requisite degree of recklessness to demonstrate

malice aforethought for the purposes of proving second-degree murder under 18 U.S.C. § 1111).

       Nevertheless, because § 1111 permits the inference of malice from the intent to commit the

underlying felony — here, robbery — the malice element is satisfied. See United States v. Watkins,

86 F.3d 1157, 1996 WL 272391, at *3 (6th Cir. 1996) (unpublished table opinion) (citing United

States v. Thomas, 34 F.3d 44, 49 (2d Cir. 1994)) (“Section 1111 of Title 18 of the U.S.[ ]Code . . .

incorporates the common law understanding that the requirement of malice aforethought for First

Degree murder is satisfied if a person is killed during the perpetration of a felony.”); accord United

States v. Allen, 247 F.3d 741, 783-84 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953

(2002); United States v. Chanthadara, 230 F.3d 1237, 1252-53 (10th Cir. 2000); Pearson, 203 F.3d

at 1270; United States v. Tham, 118 F.3d 1501, 1508 (11th Cir. 1997); United States v. Flores, 63

F.3d 1342, 1371 (5th Cir. 1995); United States v. Chischilly, 30 F.3d 1144, 1159-60 (9th Cir. 1994).



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