                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                     UNITED STATES COURT OF APPEALS                   January 10, 2019
                                                                    Elisabeth A. Shumaker
                                   TENTH CIRCUIT
                                                                        Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                      No. 17-1400
                                               (D.C. No. 1:16-CR-00277-RM-1)
 BERNARD MURRAY,                                          (D. Colo.)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.


      Defendant-appellant Bernard Murray appeals his conviction for violating 18

U.S.C. § 111(a)(1), arguing that the charge against him was constructively

amended by events at trial and the jury instructions. Exercising jurisdiction under

28 U.S.C. § 1291, we reject his challenge and affirm his conviction.

                                          I

      Section 111(a)(1) of Title 18 of the United States Code makes it a crime to

forcibly assault, resist, oppose, impede, intimidate, or interfere with any person

designated in 18 U.S.C. § 1114 while that person is engaged in, or on account of,


      *
              This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
the performance of official duties. See 18 U.S.C. § 111(a)(1). Persons designated

in § 1114 are “any officer or employee of the United States or of any agency in

any branch of the United States Government . . . while such officer or employee is

engaged in or on account of the performance of official duties, or any person

assisting such an officer or employee in the performance of such duties or on

account of that assistance.” 18 U.S.C. § 1114 (emphasis added).

      Mr. Murray was charged with one count of violating § 111(a)(1). The

indictment charged that M.B., 1 the victim of the crime, was “an officer and

employee of the Federal Bureau of Prisons [(‘BOP’)], an agency of a branch of

the United States government, as designated in [§ 1114].” R., Vol. I, at 13

(Indictment, dated Aug. 23, 2016). Significantly, the indictment did not charge

that M.B. was assisting a federal officer or employee at the time of the offense.

      As Mr. Murray acknowledges, the evidence at trial generally showed that

he had grabbed M.B. while she was working in the medical area of a federal

prison, held an unbent paper clip to her neck, and threatened to kill her. See

Aplt.’s Opening Br. at 3. Testimony also established, however, that at the time of

those events, M.B. was working for the BOP as a “contractor medical assistant”

rather than as an officer or employee. R., Vol. III, at 52 (Trial Tr., dated May 30,



      1
              M.B. has been referred to by other names in proceedings before both
the district court and this court. For consistency, we refer to her uniformly as
M.B.

                                         2
2017); see also Aplt.’s Opening Br. at 3 (“The evidence was uncontroverted that

[M.B.] was not an officer or employee of the [BOP] but instead worked in federal

prison facilities as a contractor.”); Aplee.’s Resp. Br. at 4 (“[T]here was no

dispute that M.B. was technically a contractor.”).

      After the presentation of the evidence, the parties gave closing arguments.

The prosecution’s closing argument included the following statement:

             The second part, as I said, was [M.B.] a person designated under
             the statute, that’s [§ 1114]. And when you look through that
             definition, you will see that part of it includes a person assisting
             an employee in the performance of that employee’s official
             duties. Okay. Well, let’s break that down. [M.B.] is a
             contractor with the [BOP]. She is assisting those employees
             within the medical services. She specifically talked about
             assisting [a physician assistant]. She is assisting all of the
             doctors, nurses, PA[s], whoever is in there telling her and
             directing her what to do. Her official duties include . . . taking
             vital signs; checking them [i.e., inmates] in; checking them off
             her call list; getting them to the correct offices that she needs to
             get them to. So those are her official duties, and she is helping
             execute those official duties for the other personnel in Health
             Services.

             So we have someone who is that person, [M.B.], assisting other
             employees in the performance of their duties. Their medical
             duties, to help these inmates in whatever medical needs they
             have. Do they need pills? Do they need their blood pressure
             check? Et cetera. You heard from [the physician assistant],
             giving you kind of a litany of things that she was looking at in
             her daily duties, and she had that contract[or], [M.B.] helping her
             ....

R., Vol. III, at 230–31 (emphasis added).




                                            3
      Following closing arguments, the district court instructed the jury. Two of

the instructions quoted, respectively, the indictment and § 111(a)(1). Another,

entitled “Instruction No. 17,” set forth the elements of the offense. R., Vol. I, at

164–65 (Jury Instrs., dated June 1, 2017). In relevant part, Instruction No. 17

required the jury to find that M.B. was a “person designated in [§ 1114]” in order

to convict Mr. Murray. Id. at 164. Instruction No. 17 further stated that:

             Persons designated in [§1114] are any of the following: (i) an
             officer of the United States or of any agency in any branch of the
             United States government, (ii) an employee of the United States
             or of any agency in any branch of the United States government,
             or (iii) any person assisting such an officer or employee in the
             performance of the officer’s or employee’s official duties.

Id. (emphasis added).

      The jury found Mr. Murray guilty. The district court sentenced Mr. Murray

and entered judgment, and Mr. Murray timely appealed.

                                          II

                                          A

      Mr. Murray’s sole claim on appeal is that events at trial and the use of

Instruction No. 17 constructively amended the charge against him in violation of

the Fifth Amendment’s Grand Jury Clause. Aplt.’s Opening Br. at 1.

      “An indictment is ‘constructively amended if the evidence presented at

trial, together with the jury instructions, raises the possibility that the defendant

was convicted of an offense other than that charged in the indictment.’” United


                                           4
States v. Alexander, 447 F.3d 1290, 1297–98 (10th Cir. 2006) (quoting United

States v. Brown, 400 F.3d 1242, 1253 (10th Cir. 2005)). We review de novo

whether district court proceedings constructively amended an indictment. See

United States v. Sprenger, 625 F.3d 1305, 1307 (10th Cir. 2010); accord United

States v. Kalu, 791 F.3d 1194, 1201 (10th Cir. 2015); United States v.

DeChristopher, 695 F.3d 1082, 1095 (10th Cir. 2012).

      Mr. Murray did not object in district court to the constructive-amendment

error that he now alleges. “We review unobjected-to claims of constructive

amendment under a plain error standard.” United States v. Gonzalez Edeza, 359

F.3d 1246, 1250 (10th Cir. 2004). To establish plain error, Mr. Murray must

shoulder the burden of demonstrating “(1) an error, (2) that is plain, which means

clear or obvious under current law, and (3) that affects substantial rights.” United

States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (quoting United

States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012)); see United States v.

Balderama-Iribe, 490 F.3d 1199, 1204 (10th Cir. 2007) (noting, in effect, that the

proponent of the unobjected-to error “bears the burden of establishing that there

was plain error warranting relief”). “If he satisfies these criteria, [we] may

exercise discretion to correct the error if (4) it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Rosales-Miranda, 755

F.3d at 1258 (quoting McGehee, 672 F.3d at 876). Though “[t]he plain error

standard presents a heavy burden . . . , which is not often satisfied,” United States

                                           5
v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007), we apply the standard “less

rigidly” when reviewing potential constitutional error, United States v. Miller,

891 F.3d 1220, 1231 (10th Cir. 2018) (quoting United States v. James, 257 F.3d

1173, 1182 (10th Cir. 2001)). 2




      2
              The government argues that Mr. Murray’s claim is waived under the
invited-error doctrine, and thus entirely barred from appellate review, because he
requested and approved of the version of Instruction No. 17 used at trial.
Aplee.’s Resp. Br. at 7–9; see United States v. Cornelius, 696 F.3d 1307, 1319
(10th Cir. 2012) (“[A] defendant . . . waive[s] his right to challenge a jury
instruction by affirmatively approving it at trial.”). However, as discussed infra,
Mr. Murray does not meet the plain-error standard. Therefore, we need not
address this waiver issue. See United States v. Headman, 594 F.3d 1179, 1184
(10th Cir. 2010) (“Defendant acknowledges that he failed to raise the issue at trial
and argues that we should therefore review for plain error. The government,
however, contends that Defendant waived the issue because the court used the
intoxication instruction submitted by Defendant. The dispute is interesting, but
we need not resolve it because Defendant has not shown plain error and is
therefore not entitled to relief even if he did not waive the issue.”); see also
Cornelius, 696 F.3d at 1321 (“[W]hether we consider Cornelius’s jury-instruction
objection waived and refuse to consider its merits under the invited error doctrine,
or whether we treat the objection as forfeited and review for plain error,
Cornelius’s argument on appeal fails.”). Moreover, because Mr. Murray’s claim
fails on plain-error review even if, as he argues, this case involves a constructive
amendment, we need not consider the government’s oblique suggestion that we
analyze this case as though it involves a “simple variance.” Aplee.’s Resp. Br. at
17; see United States v. Sells, 477 F.3d 1226, 1237 (10th Cir. 2007) (observing
that a constructive amendment is “reversible per se” but a simple variance
“triggers harmless error analysis”).

                                         6
                                           B

      Mr. Murray argues that the sole basis for the crime charged in the

indictment was that M.B. was herself a federal officer or employee, whereas

(1) Instruction No. 17, (2) the evidence undergirding the prosecution’s closing

argument, and (3) the prosecution’s closing argument itself improperly permitted

the jury to convict him based on M.B.’s role in assisting federal officers or

employees. Aplt.’s Opening Br. at 10–11. The government argues (1) that there

was no constructive amendment to begin with, (2) that any error in this regard did

not affect Mr. Murray’s substantial rights, and (3) that any error did not seriously

affect the fairness, integrity, or public reputation of judicial proceedings.

Aplee.’s Resp. Br. at 10–24.

      We conclude that, even assuming arguendo that Mr. Murray could prevail

as to the first three prongs of the plain-error standard, his challenge fails as to the

fourth. In reaching this conclusion, we are guided by our decision in Gonzalez

Edeza. In that case, an indictment charged that the defendant had unlawfully

traveled in interstate commerce, but the district court instructed the jury that, in

order to find the defendant guilty, the government was required to prove that the

defendant had traveled “or used facilities in” interstate commerce. 359 F.3d

at 1250. This court ruled that, although there was “little doubt” that a

constructive-amendment claim could satisfy the first three prongs of the plain-

error standard, Mr. Gonzalez Edeza did not satisfy the fourth prong. Id. at

                                           7
1250–51. That is, the charged “traveling” count and the uncharged “use-of-

facilities” crime were “closely linked,” as the charging statute criminalized both

types of conduct, and there was “overwhelming and essentially uncontroverted

evidence” of Mr. Gonzalez Edeza’s guilt on the uncharged crime, i.e., that he

used telephones to facilitate the operations of a drug conspiracy. Id. at 1252.

Thus, “allowing [the] conviction to stand would not seriously affect the fairness,

integrity, or reputation of judicial proceedings.” Id. at 1253.

      The outcome of Mr. Murray’s appeal is dictated by Gonzalez Edeza. Here,

as there, the statute under which Mr. Murray was indicted criminalized both the

charged conduct (involving a federal officer or employee) and the uncharged

conduct (involving someone assisting such an officer or employee); thus, the

charged and uncharged offenses were, within the meaning of Gonzalez Edeza,

“closely linked.” Id. at 1252. Furthermore, evidence of Mr. Murray’s guilt of the

uncharged conduct—more specifically, M.B.’s status as a contractor assisting

federal officers or employees—was overwhelming and uncontroverted. R.,

Vol. III, at 52; see also Aplt.’s Opening Br. at 3; Aplee.’s Resp. Br. at 4. Thus,

even assuming arguendo that Mr. Murray could satisfy the first three prongs of

the plain-error standard, allowing his conviction to stand would not “seriously

affect the fairness, integrity, or reputation of judicial proceedings,” Gonzalez

Edeza, 359 F.3d at 1253; consequently, as in Gonzalez Edeza, Mr. Murray cannot

satisfy the fourth prong of the plain-error standard.

                                          8
       In analyzing the fourth prong of the plain-error standard, Gonzalez Edeza

discussed at length the Supreme Court’s opinions in United States v. Cotton, 535

U.S. 625 (2002), and Johnson v. United States, 520 U.S. 461 (1997), and made

clear that it was “[f]ollowing [their] teachings.” 359 F.3d at 1251. Mr. Murray,

however, characterizes Gonzalez Edeza’s reading of Johnson and Cotton as

“overbroad,” citing our decision in Brown. Aplt.’s Opening Br. at 16–17. The

cited portion of Brown reads:

              In Johnson and Cotton, the fourth prong of plain error review
              was interpreted to prohibit recognition of plain error when
              evidence of a defendant’s guilt on the charged crime is
              “overwhelming” and “essentially uncontroverted.” See Johnson,
              520 U.S. at 469–70 (finding that error did not satisfy the fourth
              prong); see also Cotton, 535 U.S. at 633–34 (same). Therefore,
              if overwhelming and essentially uncontroverted evidence exists
              in the record to support Mr. Brown’s guilt on the charged crime
              . . . , the alleged constructive amendment cannot satisfy the
              fourth prong of plain error review.

400 F.3d at 1254 (parallel citations and footnote omitted). Contrary to Johnson

and Cotton, says Mr. Murray, the evidence to convict him of the charged crime

was insufficient as a matter of law, Aplt.’s Opening Br. at 17; therefore, those

two cases would not support rejection of his fourth-prong plain-error showing.

Mr. Murray thus reasons that, insofar as Gonzalez Edeza supports a rejection of

his plain-error showing at the fourth prong, the panel there must have used an

“overbroad” reading of Johnson and Cotton that is at odds with those controlling

precedents.


                                          9
      This argument cannot avail Mr. Murray, however. Gonzalez Edeza’s

reading of the import of Johnson and Cotton binds us. Moreover, the Gonzalez

Edeza panel specifically recognized that the holdings of Johnson and Cotton were

predicated on a different factual scenario, relating to the government’s evidence

regarding the charged offenses—a scenario that Mr. Murray mistakenly tries to

make relevant here—but nevertheless expressly concluded that the legal analysis

of the two cases supported its rejection of the defendant’s fourth-prong plain-

error showing. 359 F.3d at 1251 (“Although [Johnson and Cotton] addressed

instances in which the overwhelming and essentially uncontroverted evidence

pertained to the charged crime, we do not find their reasoning limited to such

cases. Instead, we read this principle to extend to closely linked crimes as well,

recognizing that ‘[r]eversal for error, regardless of its effect on the judgment,

encourages litigants to abuse the judicial process and bestirs the public to ridicule

it.’” (quoting Johnson, 520 U.S. at 470)). In sum, we are not free to depart from

Gonzalez Edeza’s interpretation of Johnson and Cotton, nor has Mr. Murray

offered a persuasive reason why that interpretation should cause us disquiet.

      Mr. Murray also relies on Miller, which we similarly find inapposite.

There, while the indictment charged the defendant with submitting an application

containing a specific false statement regarding the suspension of his medical

license, witnesses testified at trial about a second false statement in the same

application concerning his surrender of a federal controlled-substance

                                          10
registration. 891 F.3d at 1232. The district court’s jury instructions did not

“narrow the basis for the [charge] back down to the specific false statement

charged in the indictment [i.e., related to the suspension of the defendant’s

medical license].” Id. The prosecution’s closing argument also suggested that the

jury could find the defendant guilty based on the uncharged statement. Id. at

1233. This court concluded that the plain-error standard was met, rejecting the

government’s argument regarding the plain-error standard’s fourth

prong—specifically, that the defendant’s guilt of the charged crime was

overwhelming. Id. at 1236–37. We noted that, although the district court had

ruled that the charged statement was false as a matter of law, it was “hotly

disputed at trial” whether the defendant had made that statement with criminal

intent, as he testified that he “honest[ly] belie[ved]” that he did not need to report

the suspension of his medical license because the suspension had subsequently

been “vacated.” Id. at 1236. This testimony thus belied the government’s fourth-

prong contention that the evidence of the defendant’s guilt of the charged offense

was overwhelming, leading the Miller panel to conclude that the defendant had

carried his plain-error burden. Id. at 1238.

      At bottom, Miller is distinguishable because the panel there was concerned

with resolving a different question—one framed by the government’s argument.

Specifically, in conducting its plain-error analysis, Miller was concerned with the

strength of the government’s evidence regarding the charged offense—as the

                                          11
government argued it was “overwhelming,” id. at 1236 (quoting the government’s

brief)—not with the strength of the government’s evidence as to an uncharged,

but “closely linked,” 359 F.3d at 1252, offense, which was the focus of the

apposite plain-error analysis in Gonzalez Edeza. Consistent with the different

concerns of the panels in the two cases, it is noteworthy that Miller wholly failed

to discuss or even mention Gonzalez Edeza.

      In any event, insofar as there is conflict between the holdings of Gonzalez

Edeza and Miller, we must treat the earlier decision—Gonzalez Edeza—as

controlling. See, e.g., United States v. Reese, 745 F.3d 1075, 1083 (10th Cir.

2014) (“[W]e have held that where . . . an outlier exists—that is, when two panel

decisions conflict—the earlier decision controls.”). 3

      Following the controlling guidance of Gonzalez Edeza, we conclude that

allowing Mr. Murray’s conviction to stand will not “seriously affect the fairness,

integrity, or reputation of judicial proceedings.” 359 F.3d at 1253. Mr. Murray




      3
              Relatedly, given the specific earlier holding in Gonzalez Edeza that
the fourth prong of the plain-error standard is not satisfied on facts very similar to
those here, we conclude that Mr. Murray is not benefitted by Miller’s general
statement that a finding in a defendant’s favor on the third prong of the plain-
error standard will “ordinarily” make it “natural to conclude” that the fourth
prong is also satisfied. Miller, 891 F.3d at 1237 (quoting United States v.
Gonzalez-Huerta, 403 F.3d 727, 745 (10th Cir. 2005)). And because Gonzales
Edeza is factually on-point and controlling, we see no need to turn to out-of-
circuit cases that are purportedly “consistent with” Miller in resolving this case.
See Aplt.’s Reply Br. at 16–18.

                                          12
has therefore failed to satisfy the plain-error standard, and his conviction must be

affirmed.

                                         III

      For the foregoing reasons, we AFFIRM Mr. Murray’s conviction.



                                       ENTERED FOR THE COURT




                                       Jerome A. Holmes
                                       Circuit Judge




                                         13
