Appendix — Budd v. United States (No. 07-1354)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 05-4098

[Filed August 15, 2007]

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

MICHAEL J. BUDD,

Defendant-Appellant.

ee a a a a a

Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 04-00508 - Lesley Brooks Wells, District Judge.

Before: COOK and McKEAGUE, Circuit Judges;

EDGAR, District Judge.”

* The Honorable R. Allan Edgar, Senior United States District

Judge for the Eastern District of Tennessee, sitting by

designation.

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COUNSEL

ARGUED: Sebastian Rucci, Poland, Ohio, for

Appellant. Gregory B. Friel, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee. ON BRIEF: Sebastian Rucci, Poland, Ohio,

for Appellant. Gregory B. Friel, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee.

McKEAGUE, J., delivered the opinion of the court,

in which EDGAR, D. J., joined. COOK, J. (pp. 14-17),

delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge. Michael J. Budd

appeals his conviction of one count of conspiracy and

three counts of depriving another of constitutional

rights under color of law. For the reasons set forth

below, we affirm.

I. BACKGROUND

A grand jury indicted Budd, once

second-in-command of the Mahoning County, Ohio

Sherriffs Department, on four counts related to his

alleged use of excessive force against inmates and

pretrial detainees in his custody. Count 1 charged

conspiracy to commit any offense against the United

States in violation of 18 U.S.C. § 371, and listed two

object offenses: (1) depriving Tawhon Easterly of his

constitutional rights under color of law in violation of

18 U.S.C. § 242; and (2) witness tampering, in

violation of 18 U.S.C. § 1512(b)(2). Counts 2, 3, and 4

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respectively charged Budd with depriving Easterly (a

pretrial detainee), Brandon Moore (a sentenced

inmate), and Stephen Blazo (a pretrial detainee) of

their constitutional rights under color of law, in

violation of 18 U.S.C. § 242. In Budd’s first trial, the

jury convicted him on Count 1 but deadlocked on the

other counts. The court entered the conviction on

Count 1 and declared a mistrial on the other counts.

Upon retrial of Counts 2, 3, and 4. Budd was convicted

on each. He now appeals..

II. CONSTRUCTIVE AMENDMENT

TO MOORE CHARGE

Budd was convicted of using excessive force against

inmate Brandon Moore in violation of 18 U.S.C. § 242.

Budd argues that because the indictment referred toa

Fourteenth Amendment basis for the right to be free

from excessive force, while the jury instructions

referred to an Eighth Amendment basis for the right,

the indictment was constructively amended. We review

the question of whether an amendment or a variance

occurred de novo. United States v. Prince, 214 F.3d

740, 756 (6th Cir. 2000) (citing United States v. Flowal,

163 F.3d 956, 962 (6th Cir. 1998)).

' In the second trial, the court redacted the conspiracy count (the

former Count 1 for which Budd was already convicted), and

renumbered the substantive counts as Counts 1, 2, and 3. To

avoid confusion, the parties’ briefs number the substantive counts

as in the first trial—that is, as Counts 2, 3, and 4—and we will do

the same.

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An indictment may be the subject of an actual

amendment, a constructive amendment, or a variance.

An actual amendment occurs when the prosecutor

actually changes the text of the indictment. Jd. at 757

(citing Martin v. Kassulke, 970 F.2d 1539, 1542 (6th

Cir. 1992)). By contrast,

[a] constructive amendment results when the

terms of an indictment are in effect altered by

the presentation of evidence and jury

instructions which so modify essential elements

of the offense charged that there is a substantial

likelihood that the defendant may have been

convicted of an offense other than the one

charged in the indictment.

United States v. Smith, 320 F.3d 647, 656 (6th Cir.

2003) (citing United States v. Stirone, 361 U.S. 212

(1960)). Both actual and constructive amendments are

considered per se prejudicial and are reversible error.

Prince, 214 F.3d at 757.

Variances, by contrast, are not per se prejudicial.

Id. Generally speaking, a variance “occurs when the

charging terms [of the indictment] are unchanged, but

the evidence at trial proves facts materially different

from those alleged in the indictment.” Jd. at 756-57

(alteration in original) (internal quotations omitted)

(quoting United States v. Flowal, 163 F.3d 956, 962

(6th Cir. 1998)). However, as this court observed in

United States v. Chilingirian, 280 F.3d 704, 712 (6th

Cir. 2002)(vacated and remanded by the Supreme

Court for reconsideration in light of Booker), “the

:

:

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distinction between a variance and a constructive

amendment is sketchy ....””

One complication is created by the fact that, under

Sixth Circuit law, “[iJfa variance infringes too strongly

upon the defendant’s Sixth Amendment right to be

informed of the nature and cause of the accusation, the

variance is considered a ‘constructive amendment.”

Prince, 214 F.3d at 757 (citing Martin, 970 F.2d at

1542). Thus, a variance in some cases is not different

in kind from a constructive amendment, but merely in

degree; ifit is serious enough, it becomes a constructive

amendment.’ “To obtain reversal of a conviction

because a variance between the indictment and the

evidence produced at trial, a defendant must satisfy a

two-prong test: (1) the variance must be demonstrated

* The dissent complains of the majority’s decision to follow this

court’s “inscrutable” precedent regarding the distinction between

a variance and a constructive amendment. However, contrary to

the dissent’s suggestion, this precedent does not contradict

Supreme Court case law on the subject, but only defines the

application of Supreme Court precedent in particular situations;

and, though our precedent in this area may not be easy to follow,

we nevertheless are obliged to do so. See 6th Cir. R. 206(c).

8 The dissent disparages this fact as logically flawed, and a

misapprehension on the part of the majority “result[ing] from

loose language in past cases.” Infra at __. However, whether or

not it is appealing as a legal rule, this court’s published cases

have clearly held that a variance can become a constructive

amendment by reason of its seriousness . See, e.g., United States

v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006); United States v.

Suarez, 263 F.3d 468, 478 (6th Cir. 2001); Prince, 214 F.3d at 757;

United States v. Manning, 142 F.3d 336, 339 (6th Cir. 1998);

United States v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989).

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and (2) the variance must affect some substantial right

of the defendant.” Id. (citing United States v.

Maliszewski, 161 F.3d 992, 1014 (6th Cir. 1998)); see

also United States v. Hynes, 467 F.3d 951, 962 (6th Cir.

2006); United States v. Suarez, 263 F.3d 468, 478 (6th

Cir. 2001); Prince, 214 F.3d at 757; United States v.

Manning, 142 F.3d 336, 339 (6th Cir. 1998); United

States v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989).

In Hynes, this court offered one manner of

distinguishing between a constructive amendment and

a variance that may become a constructive amendment

by reason of its effect on substantial rights:

“defendants can establish a variance by referring

exclusively to the evidence presented at trial, but

cannot demonstrate a constructive amendment —

which is per se prejudicial — without proof that the

important functions of an indictment were undermined

by both the evidence presented and the jury

instructions.” 467 F.3d at 962. This reflects the rule

that “[o]nce the indictment presents a factual basis for

an element of a crime, the prosecution may not rest its

proof of that element of the crime at trial on other

facts.” United States v. Caldwell, 176 F.3d 898, 902

(6th Cir. 1999).

However, a different distinction operates in cases in

which the difference between indictment and jury

instructions is not the facts of the offense, but the legal

theory. The “key question’ in determining whether

[such a] case involve[s] a variance or a constructive

amendment [i]s whether” the offense described by the

indictment and the one described by the jury

instructions are “two alternative crimes or merely two

alternative methods by which the one crime. . . could

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have been committed.” Prince, 214 F.3d at 758

(quoting Martin, 970 F.2d at 1543). The Sixth Circuit

first explained this distinction in Martin v. Kassulke,

970 F.2d 1539, 1540 (6th Cir. 1992), in which the

defendant was convicted of first-degree rape. Under

Kentucky law, first-degree rape consists of either

“sexual intercourse with another person by forcible

compulsion,” or “sexual intercourse with another

person who is incapable of consent because he .. . [i]s

physically helpless; or [i]s less than twelve years old.”

Id. at 1541-42 (quoting Ky. Rev. Stat. § 510.040). The

indictment stated that the defendant “committed the

offense of RAPE IN THE FIRST DEGREE by

knowingly and unlawfully engaging in sexual

intercourse with [the victim] by forcible compulsion

and further causing said [victim] serious physical

injury.” Id. at 1542. The jury was instructed to find the

defendant guilty “if, and only if, you believe from the

evidence beyond a reasonable doubt” that the

defendant engaged in sexual intercourse with the

victim and “[tjhat he did so by forcible compulsion, OR

[t}hat [the victim] was incapable of consent because

she was physically helpless.” Jd.

The Martin court first noted that there was a

variance between the jury instructions and the

indictment, as “[t]he jury instruction . . . mentions the

possibility that [the victim] was incapable of consent

because of physical helplessness, a possibility that had

not been mentioned in the indictment.” Jd. The court

rejected the defendant’s argument that “the due

process right to clear notice’ of criminal charges

guaranteed by the fourteenth amendment includes

notice of the exact method by which the criminal

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actions were alleged to have been committed,” and

held that

the Kentucky rape statute .. . provides only one

offense of rape with two different methods of

commission. . . . [The statute] was drafted to

define all kinds of forcible rape, by whatever

mode or method. “It actually makes no

difference to the law, the victim, nor even the

defendant, how he committed the act, it is the

violation that is defined and prohibited.”

Id. at 1543, 1545-46 (citation omitted) (quoting

Claybornv. State, 647 S.W.2d 433, 436 (Ark. 1983)

(Hickman, J., dissenting)). The Martin court therefore

reversed the district court’s grant of a writ of habeas

corpus. Id. at 1547.

This court followed Martin in Suarez, in which the

defendant, a former police officer, was convicted for

converting “victim restitution money to his own

benefit” in violation of 18 U.S.C. § 666(a)(1). 263 F.3d

at 471-72. That statute provides that “[w]hoever ...

being an agent of an organization [including a

government or government agency] . . . embezzles,

steals, obtains by fraud, or otherwise without

authority knowingly converts ... property that... is

owned by, or is under the care, custody, or control of

such organization, government, or agency” shall be

fined or imprisoned, or both. 18 U.S.C. § 666(a)(1). The

statute does not define embezzlement, theft, or fraud;

the definitions of these offenses therefore must come

from another source of state or federal law. See

Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 818, 822

(2007) (holding that “theft offense” in the Immigration

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and Nationality Act should be understood to

correspond to the “generic definition of [the] crime”);

Taylor v. United States, 495 U.S. 575, 595 (1990) (in

the Travel Act, “Congress made no attempt to define

the statutory term ‘bribery,’ but relied on the accepted

contemporary meaning”) (quoting Perrin v. United

States, 444 U.S. 37, 45 (1979)); Moore v. United States,

160 U.S. 268, 269 (1895) (supplying common-law

definitions of embezzlement and larceny for a federal

statute which used the terms but did not define them).

The Suarez court recognized that the “defendant

appears to have demonstrated the existence of a

variance. The indictment makes much of Suarez’s

deception . . . as constituting the act of conversion,

while the jury instructions make nothing of it.” 263

F.3d at 478. Thus, the indictment indicated that the

defendant obtained the property through larceny by

trick; the jury instructions “describ[ed] conversion

generally,” and thereby “may have opened up the

possibility in the jury's mind that the conversion was

accomplished by something more akin to

embezzlement. It is even arguable that they did find

this was what Suarez did, since he was acquitted of

money laundering.” Jd. at 479. However, the court

held, “under the statute, embezzlement is not a crime

alternative to the one charged, but simply another of

a number of types of knowing conversion.” Jd. The

court held that “Suarez’s defense would not, under our

case law, have been prejudiced by the variance,” and

affirmed the conviction. Id. at 479, 489.

In other Sixth Circuit cases, this court has held

that the offense described in the indictment and that

described in the jury instructions are two different

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offenses, not two methods of committing one offense,

and therefore that a constructive amendment occurred.

Budd cites United States v. Combs, 369 F.3d 925, 930

(6th Cir. 2004), in which the defendant was indicted

for unlawful possession of firearms in conjunction with

a drug trafficking offense. The jury instructions were

drawn, in somewhat disorganized fashion, from both

the definitions of “possession” and of “use” of a firearm.

369 F.3d at 935. Both offenses are prohibited by the

same statute, which provides for punishment of “any

person who, during and in relation to any crime of

violence or drug trafficking crime . . . for which the

person may be prosecuted in a court of the United

States, uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm.” 18

U.S.C. § 924(c)(1)(A) (emphasis added).

The Combs court held that possession and use,

though defined in the same subparagraph, were two

different offenses. It based this decision on (1) the fact

that the statute separates the offenses with an “or”; (2)

the fact that the legislative history indicated that the

“in furtherance of” language applied to the possession

offense but not the use offense; and (3) the fact that

use involves different conduct than possession. 369

F.3d at 931, 932-33. The court therefore held that “an

impermissible amendment of . . . the indictment

occurred.” Id. at 936.

Budd also cites United States v. Cusmano, 659 F.2d

714, 719 (6th Cir. 1981), in which the defendant was

indicted for a violation of the Hobbs Act. One element

of that offense is extortion. Jd. at 719. Extortion may

be by threat of economic loss or by threat of physical

harm. Jd. at 715. The indictment specified that the

lla

defendant had committed extortion by threatening the

victims with economic loss, while the evidence

additionally showed extortion through threats of

physical violence; the district court instructed the jury

that it could return a conviction based on either

theory. Id. at 715, 717, 719. This court stated that

“when one means of extortion is charged, a conviction

must rest on that charge and not another, even if it is

assumed that under an indictment drawn in general

terms a conviction might rest upon a showing of either

form of extortion.”* Jd. at 719. Thus, the court held

that the introduction of evidence that the defendant

committed extortion through physical violence together

with the district court’s instruction that the defendant

could be convicted on that theory constituted a

constructive amendment. Id. at 718-19.

In this case, the indictment reads in relevant

part,

Mlefendant herein and cthers known and

unknown to the Grand Jury, while acting under

color of the laws of the State of Ohio, and while

aiding and abetting each other, did use and

cause to be used excessive force on Brandon

Moore, a detainee at the Courthouse of a

judicial proceeding, resulting in bodily injury,

‘ This holding is clearly in tension with the holding in Martin. Cf.

970 F.2d at 1545-46 (“[T]he Kentucky rape statute . . . provides

only one offense of rape with two different methods of

commission. . . . Tt actually makes no difference to the law, the

victim, nor even the defendant, how he committed the act, it is the

violation that is defined and prohibited.”) (citations omitted).

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thereby willfully depriving him of rights and

privileges secured and protected by the

Constitution and the laws of the United States,

to wit: the right to Due Process of law under the

Constitution, which includes the right to be free

from excessive force amounting to punishment

by one acting under color of law.

All in violation of Title 18, United States

Code, Sections 242 and 2.

Indictment at 7. The relevant jury instruction

provides, “The first element the government must

prove is that the conduct of [the defendant] deprived

... Brandon Moore... of a right or rights secured by

the Constitution or laws of the United States. ...

Among those rights [is] . . . the Eighth Amendment

right to be free from cruel and unusual punishment.”

Transcript at 969-70. The instructions also explained

that “[t]he Eighth Amendment provides [that] inmates

like Brandon Moore, who have been sentenced for a

crime, possess the right not to be subject to

unnecessary and wanton infliction of pain.” Transcript

at 972; see also Whitley v. Albers, 475 U.S. 312, 320

(1986) (holding that “an Eighth Amendment claimant

[must] allege the unnecessary and wanton infliction of

pain,” or allege that “force was applied . .. maliciously

and sadistically for the very purpose of causing harm”)

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973)).

Brandon Moore was a convicted prisoner at the

time of the mistreatment for which Budd was

convicted. Thus, as the jury instructions correctly

explained, his right to be free from excessive force

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derives from the Eighth Amendment. Phelps v. Coy,

286 F.3d 295, 299 (6th Cir. 2002) (quoting Graham v.

Connor, 490 U.S. 386, 395 n.10 (1989)). The standard

the indictment accuses Budd of violating, “the right to

Due Process of law .. . , which includes the right to be

free from excessive force amounting to punishment,” is

the standard applicable to a pretrial detainee, which

Moore was not. Id. at 300 (“[T]he Fourteenth

Amendment... ‘Due Process Clause protects a pretrial

detainee from the use of excessive force that amounts

to punishment.”) (quoting Graham, 490 U.S. at 395

n.10).

The indictment and the jury instructions descrive

the same actions, and they specify an offense against

the same statute, 18 U.S.C. § 242, which prohibits a

person acting “under color of law” from “subjectfing]

any person ... to the deprivation of any rights,

privileges, or immunities secured or protected by the

Constitution or laws ofthe United States.” However, by

their respective citation of Fourteenth Amendment and

Eighth Amendment restrictions of the use of excessive

force, they refer to different standards under which a

violation of § 242 can be evaluated. Therefore, the “key

question’. . . [is] whether the jury instruction and

evidence introduced another crime or an ‘alternative

method[] by which the one crime . . . could have been

committed.” Suarez, 263 F.3d at 478 (second alteration

in original) (quoting Prince, 214 F.3d at 758).

In this case, althcugh it is a close question, based

on our prior cases, it seems most reasonable to

conclude that the Fourteenth Amendment and Eighth

Amendment excessive force standards describe two

alternative methods by which one crime could be

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committed, rather than two crimes. The variance

between the indictment and the jury instructions here

is most analogous to that in Suarez, in which the

offense of conviction, conversion of the funds of an

organization receiving federal benefits in violation of

18 U.S.C. § 666(a){1), incorporated as an element the

content of other laws—namely, state or federal laws

against conversion of funds, under a variety of legal

theories. In Suarez, the fact that the indictment

indicated that the conversion had been effected by

larceny by trick, while the jury instructions permitted

conviction if conversion had been accomplished by

embezzlement, entailed only a variance. This is so

although the two theories involved different times at

which the defendant had formed the intention to

convert the funds to his use,” because these were

simply two methods of committing the one crime of

conversion of funds. Likewise, in this case, the

indictment and the jury instructions address methods

of violating the statute in question that rest on

different legal rules: in this case, different

constitutional rights, and in Suarez, different

common-law conversion offenses.

5“Larceny by trick” is committed when a thief acquires possession

of an item by telling its rightful owner that “he intended to use it

for one purpose when in fact he intended” to keep it or “to sell it

and keep the proceeds.” Bell v. U~ ‘ted States, 462 U.S. 356, 359

(1983). By contrast, embezzlement occurs when the thief first

comes into possession of the property legitimately, and “the

fraudulent intent occurs later and the defendant [then] converts

the property.” Skinner v. Oklahoma, 316 U.S. 535, 539 (1942).

“Whether a particular act is larceny by [trick] or embezzlement

thus turns... on when the felonious intent arose .. . .” Jd.

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The situation here is also distinguishable from that

in the cases Budd cites,® in which this court held there

§ Other Sixth Circuit cases finding a constructive amendment

based on the existence of two offenses are also distinguishable. In

United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002), the

defendant pled guilty to a violation of 18 U.S.C. § 924(0), which

prohibits conspiracy to possess a firearm in connection with a

drug trafficking offense or a crime of violence. However, at

sentencing, the district court selected an appropriate sentence

based on the conclusion that the defendant had actually violated

§ 924(c). That subsection criminalizes the possession of a firearm

in conjunction with a crime of violence or a drug trafficking crime,

and provides for a minimum sentence, rather than a maximum.

Id. § 924(c)(1)(A). The Stubbs court held, “There can be no doubt

that § 924(c) and § 924(o) charge different offenses. Each statute

requires different levels of proof as to conduct and mens rea. And,

most notably, these two statutory provisions call for significantly

different statutory penalties, which underJones [v. United States,

526 U.S. 227 (1999),] makes them different offenses.” 279 F.3d at

409. In this case, there is no question of different statutory

penalties for excessive force under the Eighth Amendment and

the Fourteenth Amendment.

In Watson v. Jago, 558 F.2d 330 (6th Cir. 1977), the indictment

charged the defendant with first-degree murder under a

premeditation theory. Id. at 331. The jury instructions mirrored

the charge in the indictment, but the prosecution offered at trial

evidence of first-degree murder under a felony murder theory. Id.

at 336, 339. Though the two types of first-degree murder were

prohibited by the same statute, Ohio case law held that the two

were different offenses. Jd. at 334-35 (citing Ohio v. Ferguson, 195

N.E.2d 794 (Ohio 1964)). Therefore, the Watson court held that

the indictment had been constructively amended. Id. at 339.

However, in that case, the court did not make a determination

that premeditated murder and felony murder were two different

offenses; rather, it simply followed a state court ruling to that

effect. The holding therefore is not helpful here.

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existed two different offenses, rather than two

different methods. Neither Cusmano nor Combs

addressed a situation wherein the definition of a

statutory offense is dependent on the content of other

law. In fact, in Combs, the court based its decision in

part on the fact that the two offenses were explicitly

set forth in the statute, and separated by the word

“or.” 369 F.3d at 931. In both Cusmano and Combs,

this court focused on the fact that the proof at trial

showed different offense conduct than that alleged in

the indictment. See 369 F.3d at 932-33; 659 F.2d at

719. In this case, the government did not present

evidence of different offense conduct than that alleged

in the indictment. Though the proceedings before the

grand jury are not part of the record on appeal, before

the petit jury, the government offered the testimony of

Brandon Moore and of Deputies Sam Oliver and

Jeffrey Tinkey to prove the charge of use of excessive

force against Moore. See Transcript at 66-75, 100-09,

115-24. This testimony consisted simply of a

description of Budd’s and Moore’s words and actions

during the incident; the prosecutor carefully prevented

the witnesses from speculating as to Budd’s motives or

intent. See Transcript at 117 (“No, not what his

reasons were. What about your observations... .”). It

is difficult to see how the government’s evidence

regarding this charge was in any way different from

what it would have been had Moore been a pretrial

detainee entitled to the protection of the Fourteenth

Amendment.

Thus, the Fourteenth Amendment language in the

indictment and the Eighth Amendment language in

the jury instructions describe two different methods of

committing the same crime, and the difference is

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merely a variance. Budd does not even argue that the

variance affected his “substantial rights,” other than

the right to be convicted only of an offense which

previously had been considered by a grand jury, a right

which is not implicated by a variance. Rather, in the

case of a variance, prejudice to substantial rights

occurs if the defendant is not “enabled to present his

defense and not be taken by surprise by the evidence

offered at trial,” or is not “protected against another

prosecution for the same offense.” Bergerv. United

States, 295 U.S. 78, 82 (1935); see also Martin, 970

F.2d at 1546-47; Ford, 872 F.2d at 1235. The actions

for which Budd was convicted were the same under

both theories, and, as discussed above, the prosecution

presented no proof it would not have presented for a

Fourteenth Amendment violation. Budd’s ability to

present a defense thus could not reasonably have been

undermined by the change; and there is no suggestion

that he could be subjected to double jeopardy.

Therefore, the variance did not cause prejudice to

Budd’s substantial rights, and did not rise to the level

of a constructive amendment by reason of its severity.

It. CONSTRUCTIVE AMENDMENT

TO EASTERLY CHARGE

A. Conspirator Liability Instruction

In the first trial, Count 1 charged Budd with

participation in a conspiracy to violate Easterly’s

constitutional rights, and Count 2 charged Budd with

the substantive offense of violating Easterly’s

constitutional rights. The jury convicted on the Count

1 conspiracy, but deadlocked on Count 2 (as well as on

the substantive offenses in Counts 3 and 4). At retrial

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on the substantive offenses, the court instructed the

jury on co-conspirator liability under Pinkerton v.

United States, 328 U.S. 640, 646-48 (1946), which

holds that a defendant is liable for a co-conspirator’s

crimes if they are foreseeably committed in

furtherance of the conspiracy. Budd argues that this

instruction amounted to a constructive amendment, on

the theory that by instructing the jury on a conspiracy

theory of liability under Pinkerton, the district court

constructively amended the violation of constitutional

rights charge to a (duplicative) conspiracy charge. As

noted above, we review de novo the question of

whether a constructive amendment occurred.

The majority of circuits have held that district

courts may give a Pinkerton co-conspirator liability

instruction for a substantive charge, even for a

defendant who has not been charged with conspiracy.

See, e.g., United States v. Lopez, 271 F.3d 472, 480 (3d

Cir. 2001); United States v. Macey, 8 F.3d 462, 468 (7th

Cir. 1993) (“We have long recognized that ‘{i]t is not

essential that the indictment contain a separate count

charging conspiracy in order to take advantage of the

doctrines peculiar to conspiracy.”) (quoting United

States v. Wilson, 506 F.2d 1252, 1257 (7th Cir. 1974));

United States v. Jackson, 627 F.2d 1198, 1216-17 (D.C.

Cir. 1980) (“Experienced prosecutors alert court and

counsel that they are relying on [a Pinkerton theory] in

cases where only substantive crimes are charged by

announcing that they are proceeding on a conspiracy

theory.”); Davis v. United States, 12 F.2d 253, 257 (5th

Cir. 1926) (“Although conspiracy be not charged, if it

be shown by the evidence to exist, the act of one or

more defendants in furtherance of the common plan is

in law the act of all.”). As Budd notes, the Ninth

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Circuit recently held the opposite: “It is error to use a

Pinkerton instruction in a case in which the indictment

does not allege a conspiracy.” United States v. Nakai,

413 F.3d 1019, 1023 (9th Cir. 2005). The Sixth Circuit

has not yet addressed this issue. SeeUnited States v.

Min Nan Wang, 222 F.3d 234, 240 (6th Cir. 2000) (“We

need not resolve these thorny questions.”). We find the

rule of the majority of circuits more persuasive, and

hold that a district court may properly provide a

Pinkerton instruction regarding a substantive offense,

even when the defendant is not charged with the

offense of conspiracy. Thus, the district court’s

instructions were proper with regard to the

substantive § 242 offense, and the indictment was not

constructively amended.

Budd also insists that United States v. Henning,

286 F.3d 914 (6th Cir. 2002), requires reversal. In that

case, the trial court gave a Pinkerton instruction, and

the defendant was convicted of both conspiracy and

several substantive counts. Id. at 918-19. The

defendant moved for and was granted a post-verdict

judgment of acquittal on the conspiracy count based on

insufficient evidence. Id. at 919. This court later found

plain error in the district court’s failure to reconsider

the substantive charges as well, because the Pinkerton

instruction may have produced a conviction on the

substantive charges based on a_ non-existent

conspiracy. See id. at 921. In this case, however, there

was sufficient evidence that a conspiracy existed; in

fact, Budd was convicted of conspiracy in the first trial.

It was not the absence of a con: piracy charge that led

this court to reverse in Henning; it was the absence of

a conspiracy.

20a

B. Substitution of “or” for “and”

Count 1 charged Budd with conspiracy under 18

U.S.C. § 371 as follows:

Michael J. Budd... did knowingly conspire...

to: a) deprive Tawhon Easterly of rights and

privileges secured and protected by the

Constitution . . . in violation of Title 18, United

States Code, Section 242, and b) corruptly

persuade ... another person with intent to

hinder [a federal criminal investigation], in

violation of Title 18, United States Code,

Section 1512(b)(3).

Indictment at 3-4. Budd again complains of a

constructive amendment. Although this court

generally reviews de novo the legal issue of whether

there was a constructive amendment, if the defendant

fails to object at trial to an instruction claimed on

appeal to represent a constructive amendment, this

court reviews only for plain error. See, e.g., United

States v. Brown, 332 F.3d 363, 371 (6th Cir. 2003)

(citing Cotton, 535 U.S. at 631). Budd cannot show any

error, let alone plain error, and we reject this

challenge.

Budd argues that because the object offenses are

separated by the word “and,” the trial court

impermissilly broadened the possible bases for

conviction—-and thereby constructively amended the

2la

indictment’ —when it instructed the jury to convict on

Count 1 if it found either that Budd conspired to

violate Easterly’s constitutional rights or that Budd

conspired to tamper with a witness. This challenge

must fail. United States v. Hathaway, 798 F.2d 902,

913 (6th Cir. 1986) (finding no _ constructive

amendment where the indictment charged receipt of

checks known to be “stolen, converted, and taken by

fraud,” but the court instructed the jury to convict if it

found the checks were known to be “stolen, converted,

or taken by fraud”); see also United States v.

Barrios-Perez, 317 F.3d 777, 779-80 (8th Cir. 2003)

(finding no constructive amendment where the drug-

conspiracy indictment was phrased in the conjunctive,

but the court instructed the jury in the disjunctive).®

IV. JURY INSTRUCTIONS

Counts 2 and 4 charged Budd with violating the

constitutional rights of Tawhon Easterly and Steven

7 See, e.g., United States v. Miller, 471 U.S. 130, 138 (1985) (citing

Stirone, 361 U.S. at 213, for the proposition that a constructive

amendment may result when the trial court “broaden[s] the

possible bases for conviction from that which appeared in the

indictment”).

® Budd’s brief also disputes the government’s position that Count

1 of the indictment involves “not two distinct conspiracies, but

only one conspiracy with different means of violating the same.”

Appellant’s Reply Brief at 1. The conspiracy statute, 18 U.S.C.

§ 371, makes it a crime for two or more persons to agree “to

commit any offense against the United States”; therefore, “any

offense against the United States” is a “different means” of

violating 18 U.S.C. § 371.

22a

Blazo, respectively, in violation of 18 U.S.C. § 242.

Both Easterly and Biazo were pretrial detainees, so

the relevant inquiry is whether Budd’s use of excessive

force violated their Fourteenth Amendment due

process rights. See Bell v. Wolfish, 441 U.S. 520, 535 &

n.16 (1979). Budd complains that the district court

misstated the law by failing to instruct the jury that

his conduct would need to “shock the conscience” to

violate the Fourteenth Amendment.

We believe Budd waived the objection. Defense

counsel initially objected to the court’s omission of the

words “shocks the conscience” from its Fourteenth

Amendment jury instructions, but at a very late stage

of the proceedings counsel told the court, “[A]s I see the

Fourteenth Amendment [instruction] ’m getting more

comfortable with it, but the Eighth Amendment one I

”

believe has this subjective stuff that’s missing... .

Transcript at 764. Although at the close of trial

defense counsel summarily rested on his prior

objections, he did not contradict his earlier statement

that he was “comfortable” with the Fourteenth

Amendment instructions. Budd cannot now complain

about the court’s explanation of the Fourteenth

Amendment standard.

However, even if Budd had preserved the objection,

it lacks merit. This court “review[s] a properly

preserved objection to a jury instruction by

determining ‘whether the charge, taken as a whole,

fairly and adequately submits the issues and

applicable law to the jury.” United States v. Blood, 435

F.3d 612, 623 (6th Cir. 2006) (quoting United States v.

Pensyl, 387 F.3d 456, 458 (6th Cir. 2004)). This court

“may reverse the trial court based on a faulty charge

23a

‘only if the instructions, viewed as a whole, were

confusing, misleading, or prejudicial.” Jd. (quoting

Pensyl, 387 F.3d at 458).

The substantive component of Fourteenth

Amendment due process protects citizens against

conduct by law enforcement officers that “shocks the

conscience.” County of Sacramento v. Lewis, 523 U.S.

833, 846 (1998). Budd stops there, arguing that the

failure to mention the words “shocks the conscience”

renders the instruction deficient and entitles hime to

acquittal. But the concept of what “shocks the

conscience” varies with context. See, e.g.,id. at 850-51.

Cases such as Graham, 490 U.S. at 395 n.10, and its

precursor, Wolfish, 441 U.S. at 535 & n.16, specifically

address substantive due process in the context of

pretrial detention. This circuit has relied on Graham

for the proposition that the Due Process Clause

protects a pretrial detainee from “excessive force that

amounts to punishment.” See, e.g., Phelps, 286 F.3d at

300. By adhering to cases such as Graham and Wolfish

in its instructions, the district court fairly and

adequately stated the law pertinent to pretrial

detainees’ substantive-due-process rights. See Blood,

435 F.3d at 623.

® With his citation to Claybrook v. Birchwell, 199 F.3d 350, 359

(6th Cir. 1999), Budd also implicitly objects to the court’s failure

to instruct the jury to convict only if he acted “maliciously and

sadistically for the very purpose of causing harm,” but this

formulation applies only in emergency-type situations such as a

prison riot or a high-speed police chase. See, e.g., Lewis, 523 U.S.

at 853-54. None of the incidents at issue under Counts 2 and 4

occurred under such conditions.

24a

V. MOTION FOR JUDGMENT OF ACQUITTAL

AS TO BLAZO CHARGE

Budd argues that the district court erred in denying

his motion for acquittal on Count 4, which charged him

with violating the Fourteenth Amendment rights of

pretrial detainee Steven Blazo by using excessive force

amounting to punishment in violation of 18 U.S.C.

§ 242. This court reviews de novo the denial of a

motion for judgment of acquittal. United States v.

Meyer, 359 F.3d 820, 826 (6th Cir. 2004). The issue is

“whether, after reviewing the evidence in the light

most favorable to the prosecution, any rational trier of

fact could have found the essential elenients of the

crime beyond a reasonable doubt.” Id. (quoting United

States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002));

see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Bell v. Wolfish and its progeny govern whether

Budd’s behavior represented “excessive force

amounting to punishment.” Under Wolfish, in the

absence of “an expressed intent to punish,” the

question is whether the challenged practice or behavior

“is reasonably related to a legitimate government

objective.” 441 U.S. at 538, 539; see also Thompson v.

County of Medina, 29 F.3d 238, 242 (6th Cir. 1994). If

the action is “arbitrary or purposeless[,] a court

permissibly may infer that the purpose of the

governmental action is punishment that may not

constitutionally be inflicted upon detainees qua

detainees.” Wolfish, 441 U.S. at 539. Although

retribution and deterrence are not legitimate

nonpunitive purposes, id. at 539 n.20, the maintenance

of security and order at detention facilities is, id. at

540, 546-47. “Prison administrators . . . should be

25a

accorded wide-ranging deference in the adoption and

execution of policies and practices that in their

judgment are needed to preserve internal order and

discipline and to maintain institutional security.” Id.

at 547 (citing cases).

Budd’s brief identifies no legitimate nonpunitive

purposes for his actions; rather, he argues, correctly,

that de minimis injuries do not support a

constitutional violation, even if intentionally inflicted.

Although a pretrial detainee’s injuries must be more

than de minimis to support a constitutional violation,

they need not be “serious” or “significant,” cf: Hudson

v. McMillian, 503 U.S. 1, 8-10 (1992) (convicted

prisoner); see also United States v. Walsh, 194 F.3d 37,

47-48 (2d Cir. 1999) (pretrial detainee), as long as

there is some degree of actual injury, Walsh, 194 F.3d

at 50.

In this case, the prosecution introduced testimony

that Budd rammed Blazo’s head into at least two

different doors, slammed his head into a table, and

repeatedly shoved him into a wall. Although the

prosecution introduced no medical evidence of the

extent of Blazo’s injuries, Blazo testified that he

requested medical attention, albeit unsuccessfully, and

that he had bumps on his head and bruising on his

body. In Hudson v. McMillian, the Supreme Court held

that the prisoner’s “minor bruises and swelling of his

face, mouth, and lip,” loosened teeth, and a cracked

dental plate were “not de minimis for Eighth

Amendment purposes.” Jd. at 4, 10. Viewed in the light

most favoravle to the prosecution, the evidence

indicates that Bbia.o’s injuries here are comparable to

those of the prisoner in Hudson.

26a

VI. MOTION FOR JUDGMENT OF ACQUITTAL

AS TO MOORE CHARGE

Budd argues that the trial court erred in denying

his motion for acquittal on Count 3, which charged

Budd with violating the constitutional rights of inmate

Brandon Moore. This court reviews de novo,and asks

whether any rational trier of fact could have found

beyond a reasonable doubt that Budd violated the

Eighth Amendment rights of Brandon Moore, a

convicted and sentenced inmate. Meyer, 359 F.3d at

- 826. Budd cannot meet this standard, and we reject

this challenge.

In Hudson, the Supreme Court clarified the law

applicable to convicted prisoners’ excessiveforce claims.

The Court held that when corrections officials use force

to keep order, and this force is alleged to violate the

Eighth Arinendment right» of prisoners, “the core

judicial inquiry is that set out in Whitley [v. Albers,

475 U.S. 312 (1986)]: whether force was applied in a

good-faith effort to maintain or restore discipline, or -

maliciously and sadistically to cause harm.” 503 U.S.

at 7.

More recently, the Supreme Court has invoked

Whitley to hold that the “unnecessary and wanton

infliction of pain . . . constitutes cruel and unusual

punishment forbidden by the Eighth Amendment.”

Hope v. Pelzer, 536 U.S. 730, 737 (2002). Hope went on

to reaffirm that “[almong ‘unnecessary and wanton’

inflictions of pain are those that are ‘totally without

penological justification.” Id. (quoting Rhodes uv.

Chapman, 452 U.S. 337, 346 (1981)). Controlling an

emergency situation and maintaining order are

27a

legitimate penc!ogical justifications, see, e.g., Bell, 441

USS. at 540, 546-47, but when safety concerns have

abated or an emergency has been dispelled, the

justification may disappear. See Hope, 536 U.S. at 738.

In this case, several officials took Moore and his

codefendants to wait in a witness room following their

sentencing. Moore’s hands and feet were shackled, and

his hands were cuffed to a bellychain. Moore began.

“making fun of the whole situation” and “bragging

about how many years he received,” but was not

“physically doing anything to threaten any of the

deputies.” Transcript at 68, 80-81. Budd told Moore to

“shut the f*** up and sit down,” and then forced Moore

into a chair.’° Id. at 69. Budd then ordered the two

codefendants removed, leaving Budd, Deputy Tinkey,

Deputy Oliver, and Moore in the witness room. After

“a few short minutes,” Budd grabbed the seated and

compliant Moore by the collar and “slammed” him into

the steel frame of a window, leaving “a crease in

{Moore’s} forehead.” Id. at 69-70. Budd then ordered

Tinkey to hold Moore against the window. Budd

attempted to pull up Moore’s sagging pants, and

Moore, though still shackled, reacted by “jumping” at

Budd. It is unclear whether this reaction was an

attempt to harm Budd, mere surprise at Budd’s

actions, or a reflexive response to what was actually an

© Deputy Tinkey testified that Budd forced Moore into the chair

because he did not comply with the order to “shut the f*** up and

sit down.” Deputy Oliver, however, did not mention this supposed

noncompliance and in fact testified that when Moore was chatting

with his codefendants, he did not “attempt physically to do

anything that was inconsistent with” what he was told to do, nor

did he “disobey orders.” Transcript at 119.

28a

attack by Budd on Moore.” In any event, Tinkey

immediately took Moore to the ground to secure him.

Tinkey then told Moore to remain on the ground and

took a few steps back.

Once on the ground, Moore did not move around,

did not try to get back up, and did not verbally or

physically threaten anyone—Tinkey testified that

Moore “wasn’t going anywhere” and “wasn’t a threat to

anyone.” Id. at 73. Budd agitated and cursiing Moore,

stepped on Moore’s back with both feet.” Moore

testified that his face was scratched up and his back

was “sterting to feel numb”; he later unsuccessfully

requested medical attention. Jd. at 108. Officer Oliver

testified that he saw no law-enforcement reason for

Budd’s actions; Officer Tinkey testified that he did not

see “any need” for Budd’s aciions and that “being

obnoxious” is not a reason to use force on a prisoner.

Id. at 75, 95. Budd disputed this characterization. He

testified that when he slammed Moore into the

window, he “was trying to restore order to a volatile

situation,” and when he stepped on Moore’s back, he

was “attemptling] to protect himself from injury.”

Transcript at 45.

1! Deputy Tinkey testified that he didn’t know whether Moore was

merely startled or whether he was attempting to attack Budd.

Deputy Oliver testified that Budd had actually “jammed [Moore’s

pants] up into his crotch . . . pretty hard” and “kind of lifted him

up” by his pants.

12 Deputy Oliver testified that Budd actually stepped on Moore’s

back twice—once before the pants-hiking incident and once after.

29a

A rational factfinder could have concluded that

Budd acted without penological justification and

therefore unnecessarily and wantonly inflicted pain on

Moore in violation of the Eighth Amendment. See

Hope, 536 U.S. at 737. Given the other officers’

testimony, the jury reasonably could have seen Budd’s

supposed justifications as incredible. That is, Tinkey

testified that when Budd slammed Moore into the

window, a few minutes had passed since Moore had

mouthed off, and that in any event, “being obnoxious”

does not justify the use of force. Moreover, Moore was

restrained, compliant, and alone in the room with

three officers. The jury rationally could have

disbelieved that this was a “volatile situation.”

Similarly, the jury could have disbelieved Budd’s

supposed concern for his safety when he stepped on

Moore’s back with both feet, given Tinkey’s testimony

that the prone, restrained inmate “wasn’t going

anywhere” and “wasn’t a threat to anyone.” Moore’s

injuries here, which included a dented forehead and

numbness to his back, in which a bullet had previously

become permanently lodged, were also comparable to

those of the inmate in Hudson, and thus not de

minimis. Therefore, we reject this challenge.

Budd also argues that the trial court should have

granted his motion for judgment of acquittal on Count

3 because Moore never identified Budd as the person

who assaulted him. This claim is totally meritless.

Deputy Tinkey, on both direct and cross-examination,

identified Budd as the one who assaulted Moore.

30a

Deputy Oliver did the same. The fact that Moore did

not also identify Budd is irrelevant.”

VIL. CONCLUSION

For these reasons, we AFFIRM the judgment of

the district court.

DISSENT

COOK, Circuit Judge, dissenting. I concur in all but

Part II of the majority's «r'nion. I dissent because I

conclude there was a constructive amendment to

Count 3—not a mere variance.’

In deciding how to distinguish a constructive

amendment from a mere variance, the majority favors

this court’s inscrutable doctrine? over clearer

8 Budd’s citation to Thigpen v. Cory, 804 F.2d 8938, 896-897 (6th

Cir. 1986), is inapt. In that case, this court concluded that an

eyewitness’s line-up identification was unreliable under the

five-factor test of Neil v. Biggers, 409 U.S. 188 (1972). This has

nothing to do with Budd’s claim that the government needed

Moore’s eyewitness testimony in addition to the eyewitness

testimony of two officers.

1 Because I would reverse based on a constructive amendment to

Count 3, I would not reach the issues discussed in Part VI of the

majority’s opinion. That said, I agree with the substance of the

majority’s analysis.

* United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002)

(“{[Tlhe distinction between a variance and a constructive

amendment is sketchy.”); United States v. Hathaway, 798 F.2d

902, 910 (6th Cir. 1986) (“[T]he distinction between a variance

3la

commands from the Supreme Court. Having chosen a

framework to decide the issue, the majority misapplies

it on its own terms. Because this topic has troubled

this court for years, I offer for consideration my

understanding of the doctrine.

Defendants may invoke one of three theories to

complain of inconsistencies between the indictment

and either the jury instructions, the proof at trial, or

both: (1) actual amendment, (2) constructive

amendment, or (3) variance. See, e.g., United States v.

Hathaway, 798 F.2d 902, 910 (6th Cir. 1986)

(identifying these three distinct theories). The first

theory, actual amendment, traces to Ex parte Bain,

121 U.S. 1 (1887), overruled on other grounds by

United States v. Cotton, 535 U.S. 625, 629-31 (2002).

The grand jury indicted Bain and other bank officials

for making false statements “with intent to deceive the

comptroller of the currency and the agent appointed to

examine the [bank’s] affairs.” Jd. at 4. Thirteen months

later, the prosecution moved the trial court to strike

the words “the comptroller of the currency and” from

the indictment. Jd. at 5. The trial court granted the

motion and struck the language, and Bain was

convicted. The Supreme Court granted Bain’s habeas

corpus petition, concluding that this rewriting of the

indictment ran afoul of the Fifth Amendment’s

command that “{njo person shall be held to answer for

a capital, or otherwise infamous crime, unless on a

presentment or indictment of a grand jury.” Id. at 6,

13-14. Specifically, the conviction could not stand

because the grand jury had never considered the

and a constructive amendment is at best ‘shadowy ... .”).

32a

government's new theory that Bain had made false

statements intending to deceive the agent, but not the

comptroller. See id. at 13 (“[A]lfter the indictment was

changed it was no longer the indictment of the grand

jury who presented it.”). The Court reasoned that the

grand-jury component of the Fifth Amendment checks

overzealous prosecution and ensures that a citizen is

not exposed to the risks and expense of a trial unless

a grand jury composed of his peers determines that he

should. See id. at 12 (citing Jones v. Robbins, 74 Mass.

(8 Gray) 329 (1857)); see alsoUnited States v. Beeler,

587 F.2d 340, 342 (6th Cir. 1978) (noting that the most

important reason for the rule barring actual and

constructive amendments is “the assurance that a

group of citizens independent of prosecutors or law

enforcement officials have reviewed the allegations

and determined that the case is worthy of being

presented to a jury for a determination of the

defendant’s guilt or innocence”); United States uv.

Moore, 129 F.3d 873, 878 (6th Cir. 1997) (citing Beeler,

587 F.2d at 342).

The second theory, constructive amendment, is a

legal fiction developed after Bain—a prosecutor could

no longer physically rewrite the indictment, but he

could still effectively rewrite the indictment by leaving

its language untouched, but proposing jury

instructions that embody a new theory or crime. This

presents the same evil as an actual amendment: no

grand jury passed on the essential description of the

crime that ultimately formed the basis for conviction,

a circumstance that contravenes the Fifth

33a

Amendment.’ Thus, courts developed the legal fiction

of a “constructive amendment” to prevent this

mischief. In Stirone v. United States, 361 U.S. 212

(1960), the seminal Hobbs Act‘ for interfering with

interstate commerce in sand, but the trial court

permitted government to argue that the defendant

interfered with interstate commerce in steel, too, and

the defendant was convicted. Jd. at 213-14. The

‘Supreme Court reversed the defendant’s conviction,

noting that “[a]lthough the trial court did not permit a

formal amendment of the indictment, the effect of

what it did was the same.” Jd. at 217. Stirone reveals

two distinguishing features of a _ constructive

amendment. First, a constructive amendment involves

not just a “variation between pleading and proof,” id.,

but also an irregularity in the jury instructions, seeid.

at 219 (“[Wle cannot know whether the grand jury

would have included in its indictment a charge that

commerce in steel from a nonexistent steel mill had

been interfered with. Yet because of the court’s

admission of evidence and under its charge this might

have been the basis upon which the trial jury convicted

petitioner.” (emphasis added)). Second, a constructive

amendment is not amenable to harmless-error

3 Of course, correction of a scrivener’s error presents no

problem. See, e.g., Russell v. United States, 369 U.S. 749, 770

(1962) (“[A]n indictment may not be amended except by

resubmission to the grand jury, unless the change is merely a

matter of form.” (citing Bain, 121 U.S. 1) (emphasis added)).

* That statute provided that “[wJhoever in any way or degree

obstructs, delays, or affects commerce or the movement of any

article or commodity in commerce, by robbery or extortion” shall

be fined or imprisoned, or both. 18 U.S.C. § 1951(a).

34a

analysis. Jd. at 217 (“Deprivation of such a basic right

is far too serious to be treated as nothing more than a

variance and then dismissed as harmless error.”).

The third theory, alluded to in Stirone, is the

variance. Stirone makes clear that a variance results

when there is a “variation between pleading and

proof,” see id., but the jury instructions properly mirror

the language of the indictment, see id. at 215, 217-18

(explaining Berger v. United States, 295 U.S. 78

(1935)). In Berger, the irregularity came when the

prosecution introduced proof of a second conspiracy in

addition to the one charged. 295 U.S. at 79-81. The

Court questioned whether the variance “affect[ed] the

substantial rights” of the defendant, id. at 82, and

concluded that it did not, id. at 83-84. Berger confirms

that a variance has nothing to do with the defendant’s

Fifth Amendment grand jury right: the Court never

mentioned the concept. Instead, a variance issue turns

on whether the defendant (1) has sufficient notice of

the allegations to mount a defense, and (2) will be

protected against double jeopardy. Jd. at 82. These

lesser concerns require reversal only if the defendant

shows prejudice to a substantial right. Jd.

These three cases demonstrate that distinguishing

a constructive amendment from a variance requires

review of the jury instructions. When the jury

instructions mirror the indictment and the defendant

claims only that the proof at trial diverged from the

indictment, he can complain only of a variance and

must show prejudice. But when the jury instructions

do not mirror the indictment—as was true in Budd’s

case—the defendant’s claim is properly categorized

35a

under the “constructive amendment” rubric.®° Although

Budd’s indictment charges him with violating 18

U.S.C. § 242 by depriving inmate Moore of his

Fourteenth Amendment rights, the court instructed

the jury to convict if it found that Budd violated 18

U.S.C. § 242 by depriving Moore of his Eighth

Amendment rights. In other words, after the

government secured an indictment premised on a

Fourteenth Amendment deprivation, it switched

theories and tried the case—jury instructions and

all—based on an Eighth Amendment deprivation.

Following this circuit’s rule that a constructive

amendment is per se prejudicial, see, e.g., United

States v. Prince, 214 F.3d 740, 757 (6th Cir. 2000)

(collecting cases), I would reverse Budd’s conviction on

this count and remand for resentencing.

The majority avoids the three Supreme Court cases

I describe above and instead attempts to draw from

this court’s precedent a principle that “a variance in

some cases is not different in kind from a constructive

amendment, but merely in degree; if it serious enough,

it becomes a constructive amendment.” Ante at 3. For

two reasons, I cannot agree. First, the concepts of

“variance” and “constructive amendment” differ in

° The proof invariably will differ too—after all, the prosecution

has to prove its new theory—but this proof aspect is not the

crucial distinction.

* | assume the majority traces this principle to cases framing the

question as whether a variance “rose to the level” of a constructive

amendment. See, e.g., United States v. Hynes, 467 F.3d 951, 962

(6th Cir. 2006); United States v. Barrow, 118 F.3d 482, 489 (6th

Cir. 1997).

36a

kind, not degree: either the jury instructions mirror

the indictment, or they do not. The principle identified

by the majority likely results from loose language in

past cases; that is, labeling what is actually just a

prejudicial variance a “constructive amendment.” If

the court reverses based only on irregularities of proof,

it is because the variance prejudiced the defendant’s

substantial rights, not because it was a constructive

amendment. Second, the practical implications of a

framework where a variance can “rise to the level” of

a constructive amendment reveal its flaw. Presumably,

under the majority’s framework, the defendant must

show that a supposed variance “rose to the level” of a

constructive amendment by showing that he was

actually prejudiced. If the defendant must show actual

prejudice to get per se treatment, this would eliminate

the need for even the concept of prejudice per se—every

case would turn on whether the defendant had shown

“enough” actual prejudice.

The majority ultimately turns to Martin, Prince,

and Suarez to decide whether the irregularities in this

case represented a variance or a_ constructive

amendment, inquiring “whether the jury instruction

and evidence introduced another crime or an

‘alternative method[] by which the one crime .. . could

have been committed.” Suarez, 263 F.3d at 478

(quoting Prince, 214 F.3d at 758). It finds a mere

variance, concluding that violating Moore’s Fourteenth

Amendment rights is merely an “alternative method”

by which Budd could have violated 18 U.S.C. § 242. I

cannot agree. Moore was a convicted inmate whose

rights against excessive force sound excessive force

37a

sound exclusively in the eighth amendment,’ so the

only “method” by which Budd could have violated 18

U.S.C. § 242 would have been by depriving Moore of

his Eighth Amendment rights against cruel and

unusual punishment. Depriving Moore of Fourteenth

Amendment rights against excessive force amounting

to punishment-—rights that, based on his inmate status,

Moore does not even have-—simply is not a “method” by

which Budd could have violated 18 U.S.C. § 242.°

” See, e.g., Gravely v. Madden, 142 F.3d 345, 348—49 (6th Cir.

1998) (noting that Whitley v. Albers, 475 U.S. 312 (1986), “made

it clear that the legal status of the victim of the excessive force

determines whether the Fourth, the Eighth, or the Fourteenth

Amendment governs his excessive force claims”); Pelfrey v.

Chambers, 43 F.3d 1034, 1036-37 (6th Cir. 1995) (noting that

after Graham v. Connor, 490 U.S. 386 (1989), convicted prisoners

may raise excessive-force claims only under the Eighth

Amendment); Cornwzll v. Dahlberg, 963 F.2d 912, 916 (6th Cir.

1992) (“Since [convicted prisoner] Cornwell’s excessive force claim

... can only be properly considered under the Eighth Amendment

{after Graham v. Connor], we hold that the district court erred in

submitting this claim of excessive force to the jury under the

Fourth Amendment.”).

8 In Hynes, this court offered another formulation for

distinguishing a variance from a constructive amendment. The

majority mentions Hynes, ante at 3, but quickly brushes it aside,

apparently reasoning that Hynes applies only in cases where “the

difference between indictment and jury instructions is not the

facts of the offense, but the legal theory,” ante at 3. Again, I

respectfully disagree. Hynes posits that a _ constructive

amendment results “when an indictment’s terms are effectively

altered by the presentation of evidence and jury instructions that

so modify essential elements of the offense charged that there is

a substantial likelihood the defendant [was] convicted of an

38a

In the last few paragraphs of Part II, the majority

appears to dismiss any irregularity in this case by

reasoning that the “evidence” or “proof” presented to

the grand jury would have been the same whether the

indictment had charged an Eighth or Fourteenth

Amendment deprivation. Ante at 7. I respectfully

suggest that by focusing on Budd’s actions and

ignoring his mental state, the majority misses the

point. The grand jury never decided that Budd should

stand trial for using “malicious and sadistic” or

“unnecessary and wanton” excessive force on inmate

Moore. See Bain, 121 U.S. at 10-13 (discussing the

protection afforded by the grand jury). And although

widespread experience suggests that the grand jury

offense other than that charged in the indictment.” 467 F.3d at

961-62 (quoting United States v. Combs, 369 F.3d 925, 936 (6th

Cir. 2004)). This clearly seems to cover situations where the

inconsistency lies not only in the facts, but also in the legal

theory. And applying this formulation to Budd’s case also dictates

the conclusion that there was a constructive amendment to his

indictment. The inconsistency between the jury instructions’

Eighth Amendment language (“malicious and sadistic” or

“unnecessary and wanton”) and the indictment’s Fourteenth

Amendment language (“excessive force that amounts to

punishment”) plainly modified the mens rea element: it is more

difficult to establish that a corrections officer acted “maliciously

and sadistically” toward an inmate—who constitutionally may be

punished—than to prove that the officer’s conduct toward a

pretrial detainee “amounted to punishment.” E.g., Phelps v. Coy,

286 F.3d 295, 299 (6th. Cir. 2002\“The question of which

amendment supplies Phelps’s rights is not merely academic, for

the standards of liability vary significantly according to which

amendment applies.”).

39a

was unlikely to tarry over mens rea subtleties,’ the

Supreme Court has explicitly forbidden us from

speculating on subjects such as whether the g-and jury

would have indicted Budd for an Eighth Amendment

deprivation just as it actually indicted him for a

Fourteenth Amendment deprivation. As the Court said

in United States v. Russell,

To allow . . . the court[] to make a subsequent

guess as to what was in the minds of the grand

jury at the time they returned the indictment

would deprive the defendant of a _ basic

protection which the guaranty of the

intervention of a grand jury was designed to

secure. ... This underlying principle is reflected

by the settled rule in the federal courts that an

indictment may not be amended 2xcept by

resubmission to the grand jury, unless the

change is merely a matter of form.

369 U.S. 749, 770 (1962) (citing Bain, 121 U.S. 1, and

Stirone, 361 U.S. 212). No grand jury ever concluded

that Budd should stand trial for the more-serious level

of excessive force that the government needed to prove

to the petit jury, and this contravenes the Fifth

Amendment. I respectfully dissent.

®° Empirically, the grand jury returns an indictment in the

overwhelming majority of cases. See, eg., United States uv.

Navarro- Vargas, 408 F.3d 1184, 1195 & nn.14—15 (9th Cir. 2005)

(en banc). Colloquially, “a grand jury would indict a ham

sandwich.” E.g., id. at 1195.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF OHIO

No. 04-cr-508

[Filed July 26, 2005]

UNITED STATES OF AMERICA,

Vv.

MICHAEL J. BUDD,

)

)

)

)

JUDGMENT IN A CRIMINAL CASE

Martin Yavorcik/sebastian Rucci

Defendant’s Attorney

THE DEFENDANT:

* * *

[X} was found guilty on count(s) one, two, three and

four of the oriainal indictment after a plea of not

guilty.

The defendant is adjudicated guilty of these offenses:

4la

Title & Nature of Offense

Section Offense Ended Count

18 U.S.C. Conspiracyto 12/28/2001 one

§ 371, § 242 Deprive Civil

and §1512 Rights Under

(b\(3) Color of law

and Corruptly

Hindering,

Delaying or

Preventing

Communication

to a law Enforcement

Officer or Federal

Judge

18 U.S.C. Deprivation of 10/23/2002 Two,

§ 242 Rights Under Three

and 2 Color of Law and

Four

The defendant is sentenced as provided in pages 2

through 6 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984, as

affected by U.S. v. Booker.

* *

It is ordered that the defendant must notify the

United States attorney for this district within 30 days

of any change of name, residence, or restitution,

mailing the address defendant until all fines,

restitution, costs, and special assessments imposed by

this judgment fully paid. If ordered to pay restitution,

the defendant must notify the court and United States

42a

attorney of material changes in economic

circumstances.

21 Julv 2005

Date of Imposition of Judgment

/s/

Signature of Judge

Leslev Wells, United States District Judge

Name and Title of Judge

7/25/2005

Date

IMPRISONMENT

The defendant is hereby committed to the custody

of the United States Bureau of Prisons to be

imprisoned for a total term of:

SIXTY (60) MONTHS AS TO COUNT ONE OF

THE ORIGINAL INDICTMENT; NINETY-SEVEN

(97) MONTHS AS TO COUNTS TWO, THREE

AND FOUR OF THE ORIGINAL INDICTMENT;

SENTENCE TO RUN CONCURRENTLY WITH

EACH OTHER.

The court makes the following recommendations to

the Bureau of Prisons:

[X] The defendant is remanded to the custody of the

United States Marshal.

43a

RETURN

I have executed this judgment as follows:

* * *

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of:

THREE (3) YEARS AS TO COUNTS ONE,

TWO, THREE AND FOUR OF THE ORIGINAL

INDICTMENT; SENTENCE TO RUN

CONCURRENTLY WITH EACH OTHER.

The defendant must report to the probation

office in the district to which the defendant is

released within 72 hours of release from the

custody of the Bureau of Prisons.

The defendant shall not commit another federal,

state or local crime.

The defendant shall not unlawfully possess a

controlled substance. The defendant shall refrain from

any unlawful use of a controlled substance. The

defendant shall submit to one drug test within 15 days

of release from imprisonment and to two periodic drug

tests thereafter, as determined by the court.

{X] The above drug testing condition is

suspended, based on the court’s determination

that the defendant poses a low risk of future

substance abuse. (Check, if applicable.)

44a

[X] The defendant shall not possess a firearm,

destructive device, or any other dangerous

weapon. (Check, if applicable.)

[X] The defendant shall cooperate in the

collection of DNA as directed by the probation

officer. (Check, if applicable.)

* * *

If this judgment imposes a fine or restitution, it is

a condition of supervised release that the defendant

pay in accordance with the Schedule of Payments sheet

of this judgment.

The defendant must comply with the standard

conditions that have been adopted by this court as well

as with any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial

district without the permission of the court or

probation officer;

the defendant shall report to the probation

officer and shall submit a truthful and complete

written report within the first five days of each

month;

the defendant shall answer truthfully all

inquiries by the probation officer and follow the

instructions of the probation officer;

45a

the defendant shall support his or her

dependents and meet other family

responsibilities;

the defendant shall work regularly at a lawful

occupation, unless excused by the probation

officer for schooling, training, or other

acceptable reasons;

the defendant shail notify the probation officer

at least ten days prior to any change in

residence or employment;

the defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use,

distribute, or administer any controlled

substance or any paraphernalia related to any

controlled substances, except as prescribed by a

physician;

‘the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

the defendant shall not associate with any

persons engaged in criminal activity and shall

not associate with any person convicted of a

felony, unless granted permission to do so by the

probation officer;

the defendant shall permit a probation officer to

visit him or her at any time at home or

elsewhere and shall permit confiscation of any

contraband observed in plain view of the

probation officer;

46a

the defendant shall notify the probation officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer;

the defendant shall not enter into any

agreement to act as an informer or a special

agent of a law enforcement agency without the

permission of the court; and

as directed by the probation officer, the

defendant shall notify third parties of risks that

may be occasioned by the defendant’s criminal

record or personal history or characteristics and

shall permit the probation officer to make such

notifications and to confirm the defendant’s

compliance with such notification requirement.

SPECIAL CONDITIONS OF SUPERVISION

[X] The defendant shall pay any remaining balance of

the fine, as directed by the Probation Department.

47a

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal

monetary penalties under the schedule of payments on

Sheet 6.

Assessment’ Fine Restitution

TOTALS $400.00 12,500.00 ied

* * *

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,

payment of the total criminal monetary penalties are

due as follows:

A [X] Lump sum payment of $12.500 due

immediately, balance due

{ }] not later than , or

[X] in accordance [ JC, []D, [ JE, or [X]F below; or

* *K *#

F X Special instructions regarding the payment of

criminal monetary penalties:

A special assessment of $400.00 is due in

full immediately; $100.00 as to each count

one, two, three and four of the original

indictment. Any remaining balance of the

fine shall be paid through the Bureau of

Prisons Inmate Financial Responsibility

Program.

48a

PAYMENT IS TO BE MADE PAYABLE

AND SENT TO THE CLERK, U.S.

DISTRICT COURT.

* * *

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) fine interest, (6)

community restitution, (7) penalties, and (8) costs,

including cost of prosecution and court costs.

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 05-4098

[Filed January 23, 2008]

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

MICHAEL J. BUDD,

Defendant-Appellant.

i a a a i

BEFORE: COOK and MCKEAGUE, Circuit

Judges; and EDGAR, District Judge.

The court having received a petition for rehearing

en banc, and the petition having been circulated not

only to the original panel members but also to all other

active judges of this court, and no judge of this court

having requested a vote on the suggestion for

* Hon. R. Allan Edgar, Senior United States District Judge for

the Eastern District of Tennessee, sitting by designation.

%

3

i

i il a te i alk

50a

rehearing en banc, the petition for rehearing has been

referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. Accordingly, the

petition is denied. Judge Cook would grant rehearing

for the reasons stated in her dissent.

ENTERED BY ORDER OF THE COURT

Is/

Leonard Green, Clerk

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF OHIO

No. 04-cr-508

[Filed July 26, 2005]

UNITED STATES OF AMERICA,

v.

MICHAEL J. BUDD,

INDICTMENT

The Grand Jury charges that:

General Allegations

1. At all times relevant to this indictment, the

Mahoning County Sheriffs Department (“Sheriff's

Department”) was a law enforcement agency in

Mahoning County, Ohio. Among other functions, the

Sheriffs Department operated the Mahoning County

Jail (“Jail”), in Youngstown, Ohio and transported

detainees in its custody to and from court proceedings.

2. At all times relevant to this indictment, the

Mahoning County Courthouse (“Courthouse ) was a

52a

building in Mahoning County, Ohio that was used to

conduct judicial proceedings.

3. At all times relevant to this indictment,

employees of the Sheriffs Department guarded people

who were being held at the Jail, transported people in

their custody to and from judicial proceedings at the

Courthouse and were responsible for conducting

themselves in compliance with federal, state and local

laws, including the United States Constitution.

4. At all times relevant to this indictment,

defendant MICHAEL J. BUDD (“BUDD”) was

employed by the Sheriffs Department, working as a

Major. In that capacity, BUDD was the second highest

ranking official in the Sheriffs Department. Therefore,

in addition to the powers and duties of a deputy,

BUDD had supervisory authority over all employees of

the Sheriffs Department other than the Sheriff and

was responsible for supervising and directing all

aspects of the Sheriffs Department’s operations.

5. At all times relevant to this indictment, Mark

Dixon, Raymond Hull, John Rivera, Ronald Kaschak

and Ryan Strange were employed by the Sheriffs

Department, working as deputies at the Jail under

BUDD’s supervision and command.

6. At all times relevant to this indictment, Ronald

Denson and William Deluca were employed by the

Sheriffs Department, working as supervisors at the

Jail under BUDD’s supervision and command.

7. At all times relevant to this indictment, Tawhon

Easterly was a person who was being held as a pretrial

53a

detainee in the Jail; that is Easterly was under the

custody and care of the Sheriffs Department after

being charged with a crime but prior to any trial or

adjudication relating to the charges against him.

8. At all times relevant to this indictment, Brandon

Moore was a person who was in the custody and care

of the Sheriffs Department. Brandon Moore attended

a sentencing in the Courthouse on or about October 23,

2002, and his sentence was formally docketed on or

about October 29, 2002.

9. At all times relevant to this indictment, Stephen

Blazo was a person who was in the custody and care of

the Sheriffs Department. Stephen Blazo was arrested

in or about the first week of July 2000, and taken to

the Jail to be processed and interrogated.

The Grand Jury further charges:

COUNT 1

[18 U.S.C. § 371 - Conspiracy]

1. Paragraphs 1-9 of the General Allegations are

incorporated by reference in this count of the

indictment.

2. On or about December 28, 2001, in the Northern

District of Ohio, Eastern. Division and elsewhere,

MICHAEL J. BUDD, defendant herein, and Raymond

Hull, Mark Dixon, John Rivera, Ryan Strange, Ronald

Denson, William Deluca, Ronald Kaschak and others

known and unknown to the Grand Jury, did knowingly

and willfully conspire, combine, confederate and agree

54a

with each other to: a) deprive Tawhon Easterly of

rights and privileges secured and protected by the

Constitution and laws of the United States, to wit: the

right to Due Process of law under the Constitution,

which includes the right to be free from excessive

forceamounting to punishment by one acting under

color of law, in violation of Title18, United States Code,

Section 242, and b) corruptly persuade and engage in

misleading conduct toward another person with intent

to hinder, delay or prevent the communication to a

federal law enforcement officer or federal judge of

information relating to the commission or possible

commission of a federal offense, in violation of Title 18,

United States Code, Section 1512(b)(3).

Manner and Means of the Conspiracy

3. It was part of the conspiracy that MICHAEL J.

BUDD and supervisors at the Jail directed that guards

beat an inmate after they heard that he had struck a

female guard.

4. It was part of the conspiracy that guards twice :

took Tawhon Easterly from his cell to more isolated

areas of the Jail and used excessive force on him.

5. It was part of the conspiracy that supervisors

and guards did not complete required use of force

reports in order to further conceal the improper

beatings of Tawhon Easterly.

6. It was part of the conspiracy that over nine

months after the fact, a false report was completed to

hinder efforts to investigate the improper beatings of

Tawhon Easterly.

Overt Acts

7. In furtherance of this conspiracy, and to

accomplish its objectives, the conspirators committed

the following overt acts, among others, in and around

Youngstown, Ohio: ’

8. On or about December 28, 2001, a person known

to the Grand Jury identified Tawhon Easterly as the

person who had struck a female guard.

9. On or about December 28, 2001, Ronald Denson

directed that Tawhon Easterly be taken from his cel]

and escorted to the recreation area, where there were

no inmates at the time.

10. On or about December 28, 2001, Raymond Hull,

Mark Dixon, Ryan Strange, Ronald Denson and others

known to the Grand Jury proceeded to the recreation

area and surrounded Tawhon Easterly, restraining his

movement.

11. On or about December 28, 2001, Raymond Hull,

Mark Dixon and Ryan Strange beat Tawhon Easterly:

12 On or about December 28, 2001, defendant

MICHAEL J. BUDD passed orders through supervisor

William Deluca that Tawhon Easterly was to be put in

the hospital as punishment for hitting a guard.

13. On or about December 28, 2001, defendant

MICHAEL J. BUDD passed orders through supervisor

Ronald Denson that Tawhon Easterly was to be put in

the hospital as punishment for hitting a guard.

56a

14. On or about December 28, 2001, William Deluca

instructed deputies in the Jail thet, pursuant to

instructions from senior management, they were to use

force on Tawhon Easterly in order to punish him.

15. On or about December 28, 2001, Raymond Hull,

Mark Dixon, John Rivera and Ronald Kaschak went to

Tawhon Easterly’s cell and took him from the cell.

16. On or about December 28, 2001, Raymond Hull,

Mark Dixon, John Rivera and Ronald Kaschak

surrounded Tawhon Easterly and took him to an

isolated area of the Jail.

17. On or about December 28, 2001, Raymond Hull,

Mark Dixon, John Rivera and Ronald Kaschak beat

Tawhon Easterly.

18. On or about December 28, 2001, Raymond Hull

and John Rivera dragged Tawhon Easterly naked

through the Jail’s lockdown unit to an isolation cell.

19. On or about September 10, 2002, MICHAEL J.

BUDD directed that Ronald Kaschak come to his office

in the Jail.

20. On or about September 10, 2002, MICHAEL J.

BUDD threatened that Ronald Kaschak would he fired

if he did not give a false statement regarding the

beating of TawhonEasterly.

21. On or about September 10, 2002, Ronald

Kaschak gave a false statement regarding the beating

of Tawhon Easterly.

57a

All in violation of Title 18, United States Code,

Section 371.

The Grand Jury further charges:

COUNT 2

[18 U.S.C. §§ 242 and 2 - Deprivation of Rights

Under Color of Law]

1. Paragraphs 1-9 of the General Allegations and

3-6 of Count 1 of this indictment are incorporated by

reference in this count.

2. On or about December 28, 2001, in the Northern

District of Ohio, Eastern Division, MICHAEL J.

BUDD, defendant herein, Raymond Hull, Mark Dixon,

John Rivera, William Deluca, Ronald Denson, Ronald

Kaschak and others known and unknown to the Grand

Jury, while acting under color of the laws of the State

of Ohio, and while aiding and abetting each other, did

use and cause to be used excessive force on Tawhon

Easterly, a pretrial detainee at the Jail, resulting in

bodily injury, thereby willfully depriving him of rights

and privileges secured and protected by the

Constitution and laws of the United States, to wit: the

right to Due Process of law under the Constitution,

which includes the right to be free from excessive force

amounting to punishment by one acting under color of

law.

All in violation of Title 18, United States Code,

Sections 242 and 2.

The Grand Jury further charges:

58a

COUNT 3

[18 U.S.C. §§ 242 and 2 - Deprivation of Rights

Under Color of Law]

1. Paragraphs 1-9 of the General Allegations and

3-6 of Count 1 of this indictment are incorporated by

reference in this count.

2. On or about October 23, 2002, in the Northern

District of Ohio, Eastern Division, MICHAEL J.

BUDD, defendant herein and others known and

unknown to the Grand Jury, whileacting under color

of the laws of the State of Ohio, and while aiding and

abetting each other, did use and cause to be used

excessive force on Brandon Moore, a detainee at the

Courthouse for a judicial proceeding, resulting in

bodily injury, thereby willfully depriving him of rights

and privileges secured and protected by the

Constitution and laws of the United States, to wit: the

right to Due Process of law under the Constitution,

which includes the right to be free from excessive force

amounting to punishment by one acting under color of

law.

All in violation of Title 18, United States Code,

Sections 242 and 2.

The Grand Jury further charges:

COUNT 4

[18 U.S.C. §§ 242 and 2 -- Deprivation of Rights

Under Color of Law]

59a

i. Paragraphs 1-9 of the General Allegations and

3-6 of Count 1 of this indictment are incorporated by

reference in this count.

2. In or about the first week of July 2000, in the

Northern District of Ohio, Eastern Division,

MICHAEL J. BUDD, defendant herein, while acting

under color of the laws of the State of Ohio, aided and

abetted and did use and cause to be used excessive

force on Stephen Blazo, a detainee at the Jail,

resulting in bodily injury, thereby willfully depriving

him of rights and privileges secured and protected by

the Constitution and laws of the United States, to wit:

the right to Due Process of law under the Constitution,

which includes the right to be free from excessive force

amounting to punishment by one acting under color of

law.

All in violation of Title 18, United States Code,

Sections 242 and 2.

The Grand Jury further charges:

U.S. SENTENCING GUIDELINES (“U.S.S.G.”)

ALLEGATIONS

1. The General Allegations and Counts 1-4 of this

indictment are realleged and incorporated by reference

herein for purposes of alleging facts under the U.S.S.G.

2. The following additional allegations are set forth

for the purpose of applying the U.S.S.G.

3. With respect to Count 1 of this indictment: (A)

Aggravated assault was intended to occur (U.S:S.G.

60a

§2X1.1(a)); (B) The assault involved more than

minimal planning (U.S.S.G. § 2A2.2(b)(1)); (C) The

victim sustained bodily injury (U.S.S.G. § 2A2.2(b));

(D) The defendant knew and should have known that

the victim of the offense was a vulnerable victim

(U.S.S.G. § 3A1.1(b)(1)); and (E) The victim was

physically restrained in the course of the offense

(U.S.S.G. § 3A1.3).

3. With respect to Count 2 of this indictment: (A)

The offense involved two or more participants

(U.S.S.G. § 2H1.1(a)(2)); (B) The defendant knew and

should have known that the victim of the offense was

a vulnerable victim (U.S.S.G. § 3A1.1(b)(1)); and (C)

The victim was physically restrained in the course of

the offense (U.S.S.G. § 3A1.3).

4. With respect to Count 3 of this indictment: (A)

The offense involved two or more participants

(U.S.S.G. § 2H1.1(a)(2)); (B) The defendant knew and

should have known that the victim of the offense was

a vulnerable victim (U.S.S.G. § 3A1.1(b)(1)); and (C)

The victim was physically restrained in the course of

the offense (U.S.S.G. § 3A1.3).

5. With respect to Count 4 of this indictment: (A)

The defendant knew and should have known that the

victim of the offense was a vulnerable victim (U.S.S.G.

§ 3A1.1(b)(1)); and (B) The victim was physically

restrained in the course of the offense (U.S.S.G.

§3A1.3).

A TRUE BILL FOREPERSON