United States v. Shumpert Hood

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

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UNITED STATES ATTORNEY, Cleveland, Ohio, for LeRoy, but he did not arrive before the inspectors had Appellee. retreated to their van and driven away. Hood testified that she never stepped out onto the porch, and that she did not threaten JONES, J., delivered the opinion of the court, in which the inspectors with the knife. MOORE, J., joined. BATCHELDER, J. (pp. 9-12), delivered a separate concurring opinion. By all accounts, Swinson and Bolz did not radio for backup or request assistance from the police. Hood, by contrast, _________________ called the post office to office to register a complaint against the person who had called the postal inspectors on her. Hood OPINION indicated that “They were coming to murder me.” Later that _________________ afternoon, Hood went to the post office to complain in person. The following day, January 13, 1999, Hood was arrested. NATHANIEL R. JONES, Circuit Judge. Defendant- Appellant Jannie Shumpert Hood appeals her conviction and Hood was charged with two counts of forcibly assaulting, sentence for assault of a federal postal officer in violation of resisting, opposing, impeding, intimidating, or interfering 18 U.S.C. §§ 111(a)(1) & (b). Hood contends that the district with a federal official engaged in the performance of his court erred by not specifically instructing the jury on Sixth duties, in violation of 18 U.S.C. § 111. A jury acquitted Amendment unanimity, and by sentencing her under U.S.S.G. Hood of the count with respect to letter carrier Wacker, thus § 2A2.2 for “aggravated assault.” We disagree with her first indicating that they had at least a reasonable doubt about contention, but agree that the district court erred in sentencing Wacker’s version of the event. The jury convicted Hood of her under § 2A2.2. Accordingly, we AFFIRM in part, the count with respect to Bolz and Swinson, indicating that VACATE in part, and REMAND for re-sentencing. they credited the inspectors’ testimony over that of Hood. I. II The question of determining the appropriate classification Hood was properly sentenced pursuant to the aggravated of assault in this case is particularly fact-driven, as will be assault offense characteristic, U.S.S.G. § 2A2.2, only if she evident from the following recital of events. On January 12, acted “with intent to do bodily harm (i.e. not merely to 1999, Mrs. Hood, a 47 year-old African-American, was at her frighten).” U.S. Sentencing Guidelines Manual § 2A2.2 home in Cleveland’s Collinwood section. Sometime that comment. app. n.1. I cannot agree with the majority that there morning, Jim Wacker, a nineteen year old recent high school is an “absolute paucity” of evidence that Hood acted in such graduate, came by to deliver the mail. Appellant Hood met a fashion. The credited testimony in this case is that Hood Wacker as he arrived to deliver the mail. Wacker testified barreled through her front door and held a knife that he “backed up” when he saw the appellant open the door, approximately one foot away from inspector Swinson’s face. as it made him “nervous” that a black woman he did not know This is a non-trivial piece of evidence. was coming outside. J.A. at 104-05. Appellant, upset that her mail was not being delivered as she desired, snatched the mail Viewed in isolation, however, this evidence is equivocal. out of Wacker’s hands. After an angry exchange of words, Hood may have rushed through the door with a knife in her Wacker promptly reported the incident to his supervisor, outstretched hand intending to injure the inspectors, or she whereupon the supervisor dispatched Inspectors Steven Bolz may have wanted merely to frighten them off her porch. The and J.C. Swinson to probe the incident. remaining evidence of record does little to clarify the

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After this incident, Wacker radioed his supervisor and Bolz and Swinson arrived at Hood’s home while she was in reported that he had been assaulted. The Post Office the middle of preparing breakfast for her nephew. The record dispatched two postal inspectors, Stephen Bolz and Jean shows that after Bolz and Swinson arrived on the porch and Swinson, to investigate. rang the doorbell, Mrs. Hood looked out the window to see who was at the door. Upon observing Bolz and Swinson, According to the inspectors, they first found James Wacker Mrs. Hood went to the door while still holding the knife she and obtained his account of his encounter with Hood. They used to prepare breakfast. The inspectors testified that when then went to Hood’s house, where, upon arrival, they knocked Mrs. Hood came to the window, they displayed their on the door and rang the doorbell. After some delay, Hood credentials prior to her coming outside onto the porch. The appeared at a window. The inspectors identified themselves. porch was very small, approximately the same width as After further delay, Hood opened the door, rushed out, and Appellant’s storm door. It was supported by a pillar that, held a steak knife six to twelve inches away from Swinson’s given the porch’s small size, prevented the door from fully face. Hood appeared to be very angry and said, “I didn’t call opening. Thus, anyone standing to the left side of the porch, you. Get off my porch.” The inspectors backed off the porch. as was Bolz, would be blocked behind the door and pillar. Once he was off the porch, Bolz, for the first time in a Mrs. Hood testified that she first noticed Swinson’s thirteen-year career in law enforcement, drew his service credentials when she opened the door. While Appellant revolver. Bolz would later testify that this “was a defensive stated that she merely opened the doors, Swinson testified that reaction to what I felt was a dangerous situation.” Hood saw Mrs. Hood came “barreling out” of the house. Bolz stated the weapon and began to yell, “He’s got a gun. He’s going to that she came out of the house “very loud and angry.” J.A. at shoot me.” The inspectors retreated to their vehicle and drove 132-33. In any event, when Bolz noticed that she had a steak back to the post office. knife in her hand, he backed off the porch, as did Swinson, and drew his firearm on Appellant. Seeing the weapon, she Hood’s account of this episode, once again, differs began screaming to her nephew, “Danny, he’s got a gun. He’s significantly. Hood testified that after the inspectors had rung going to shoot me.” The inspectors quickly backed away the doorbell, she went to the window and tapped on it. In from the house, and returned in their unmarked van to the response, Swinson “stuck her head around,” allowing Hood Collinwood post office. Mrs. Hood called the station to to see her. Hood proceeded to the door while still holding a register a complaint, and, later in the day, personally went to knife that she had been using to prepare breakfast. She the station to complain about the incident. opened the door and, for the first time, Swinson displayed her credentials. The inspectors said nothing, however. Because On February 10, 1999, a federal grand jury returned a three they remained silent, Hood, after several moments, told them count indictment against Appellant Hood, alleging three to get off her porch. The inspectors went down the steps, and separate individual assaults against Bolz, Swinson, and Bolz pulled back his coat, revealing his gun. The gun looked1 Wacker in violation of 18 U.S.C. § 111(a) & (b). The Bolz like it was pointing at Hood. Hood summoned her nephew and Swinson counts alleged that Hood committed the assault through the use of a deadly weapon in violation of § 111(b). On March 30, 1999, Appellant moved to compel election 1 According to Inspectors Bolz and Swinson, Ms. Hood was yelling between multiplicitous counts, asserting that the separate Bolz for someone named “Danny,” and shouting that the inspectors were going and Swinson charges actually constituted a single act of to shoot her. Ms. Hood, however, testified that she called for her nephew, assault. J.A. at 23. The Government did not object to this “LeRoy,” saying merely, “LeRoy, come here.”

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motion, and a superseding two count indictment was ____________________ subsequently issued on April 14. Count one of the superseding indictment collapsed the charges against Bolz CONCURRENCE and Swinson into one collective charge, while count two, the ____________________ Wacker charge, remained unchanged from the initial indictment. ALICE M. BATCHELDER, Circuit Judge, concurring. I concur in the majority’s disposition of this case. I write During the two-day trial, Mrs. Hood requested a specific separately to highlight some facts material to and necessary unanimity instruction, requiring the jury to unanimously find for an understanding of both the charges against the defendant that she assaulted both Swinson and Bolz to convict. The and the § 2A2.2 sentencing issue that did not find their way Court denied this request, and instructed the jury that it could into the majority opinion. convict if it found that Mrs. Hood “forcibly assaulted or resisted or opposed or impeded or intimidated or interfered I with J.C. Swinson or Steven D. Bolz.” J.A. at 227 (emphasis added). The jury subsequently convicted Hood of count one, On January 12, 1999, substitute letter carrier James Wacker and acquitted her on count two. The probation officer’s pre- arrived at 888 E. 139th Street, the Collinwood home of Jannie sentencing report provided that Hood never “lung[ed] L. Shumpert Hood. Hood is a forty-eight-year-old African- forward” with the knife, but that she “did advance toward American woman with a history of mental illness. Due to [Bolz and Swinson] on the porch.” The district court applied mail theft problems, Hood had installed a lock on her the guideline provision for “aggravated assault,” increased the mailbox. A diagram on the mailbox instructed postal workers base offense level by three for brandishing or threatening the how Hood wished her mail to be delivered. use of a deadly weapon, and sentenced Appellant to 27 months imprisonment. Hood filed this timely appeal, According to Wacker, as he was preparing to deliver contending that the district court erred both in failing to cure Hood’s mail, Hood exited her house and began yelling that he a purportedly duplicitous indictment and in sentencing her was putting the mail in the wrong place. Hood snatched the under the “aggravated assault” guideline. mail from him and demanded to know his name. At some point during the encounter, Wacker testified, Hood shoved II. him. Wacker testified that he was frightened and nervous, and he therefore did not tell Ms. Hood his true name. Hood “The trial court is ‘vested with broad discretion in threatened to call the post office, prompting Wacker to give formulating its charge and will not be reversed unless the his correct name. charge fails accurately to reflect the law.’” United States v. Busacca, 863 F.2d 433, 435 (6th Cir. 1988) (per curiam) Hood’s rendition of the events differs considerably. (citation omitted). Accordingly, we review the trial court’s According to Hood, she came out of the house and Wacker jury instruction for an abuse of discretion. Id. Raising a handed her the mail. She inquired if Wacker would be her mixed question of law and fact, we review de novo the district regular letter carrier and, receiving a negative response, asked court’s application of U.S.S.G. § 2A2.2. his name. Wacker gave a false name. Sensing the deception, Hood said, “Oh, you are lying,” and ordered Wacker off her porch. As he left, Wacker stated his true name. Hood denies ever having shoved Wacker.

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in applying that provision. Given these facts and the A. expansive definition of § 2A2.3 “minor assault” as “a felonious assault not covered by § 2A2.2,” we conclude that Duplicitous indictments implicate the protections of the § 2A2.3 is the guideline provision “most applicable” to Sixth Amendment guarantee of jury unanimity. An Hood’s conduct. indictment is duplicitous if “it joins in a single count two or more distinct and separate offenses.” United States v. III. Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981). “The vice of duplicity is that a jury may find a defendant guilty on the Because we do not deem the district court’s jury instruction count without having reached a unanimous verdict on the erroneous, but do conclude that it erred in sentencing commission of any particular offense.” Id. (citation omitted); Appellant under U.S.S.G. § 2A2.2, we AFFIRM her see also United States v. Washington, 127 F.3d 510, 513 (6th conviction but VACATE her sentence. Accordingly, we Cir. 1997). By collapsing separate offenses into a single REMAND for re-sentencing in accordance with U.S.S.G. count, duplicitous indictments thereby prevent the jury from § 2A2.3. convicting on one offense and acquitting on another. See id. Duplicitous charges, however, are not necessarily fatal to an indictment. See Robinson, 651 F.2d at 1194. A defendant may move, as did Hood, to require the government to “elect either the count or the charge within the count upon which it will rely,” or the court may “particulariz[e] the distinct offense charged in each count” in its jury instruction. Id. Moreover, a specific unanimity instruction is generally not required unless: “1) a count is extremely complex; 2) there is variance between the indictment and the proof at trial; or 3) there is a tangible risk of jury confusion.” United States v. Sanderson, 966 F.2d 184, 187 (6th Cir. 1992). Additionally, a single act of assault against multiple officers constitutes one offense, and therefore does not implicate Sixth Amendment prohibitions on duplicity. See Ladner v. United States, 358 U.S. 169, 176 (1958) (holding, under the predecessor of § 111, that two federal officers wounded by a single shot constituted a single assault); United States v. Beckner, 983 F.2d 1380, 1386 n.1 (6th Cir. 1993) (asserting that we cannot separately sentence defendants for injuring multiple federal officers when injuries are caused by single act); United States v. Theriault, 531 F.2d 281, 285 (5th Cir. 1976) (“The test is whether there is more than one act resulting in the assaults, not whether more than one federal officer is injured by the same act.”). In differentiating whether an attack against multiple officials is a single assault

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