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Eighth Circuit Reverses Convictions Due to Constructive Amendment of Charges

by Mark Wilson

The United States Court of Appeals for the Eighth Circuit reversed a man’s convictions for interfering with two forestry workers, ruling that the prosecution and court constructively amended his charges.

Thomas McDill owned property adjacent to the Black Hills National Forest in South Dakota. On May 20, 2013, McDill went to the United States Forestry Service (“USFS”) district office to ask about slash piles of bush and tree trimmings on forest land.

Essentially, over the course of several weeks, he persistently and aggressively questioned two USFS workers, Patricia Hudson and Gwen Lipp, on various matters related to USFS policies. They reported McDill to USFS law enforcement officer Eric Nelson, who eventually issued citations to McDill for “intentionally interfering” with a “USFS employee in the process of her duties” with respect to Hudson and a second citation for “harassment + interference w/USFS employee in process of her duties” with respect to Lipp, both in violation of 36 C.F.R. § 261.3(c).

A person violates 36 C.F.R. § 261.3(c) by threatening, intimidating, or intentionally interfering with a USFS employee. During a bench trial, the court convicted McDill on both citations on the theory that he intimidated or threatened Hudson and Lipp. The trial court then imposed a $650 fine.

The Eighth Circuit reversed the convictions. The Court determined that both the prosecution and the trial court constructively amended the charges. “Because the citations charged McDill with harassment [which is not prohibited by § 261.3(c)] and interference, the verdict was permissible only if it rested on the theory that McDill intentionally interfered with Hudson and Lipp,” the Court instructed.

The appellate court began its analysis by noting “that a defendant may not be tried on charges that were not made in the indictment.” It explained that constructive amendment occurs when the “essential elements of the offense” set forth in the charging instrument “are altered, either actually or in effect, by the prosecutor or the court,” resulting in a “substantial likelihood” that the defendant was convicted of an uncharged offense.

According to the Court, the government’s case focused on establishing that McDill intimidated Hudson and Lipp, but he was not charged with that offense. Additionally, in explaining its verdict, the trial court discussed McDill’s intimidating behavior. In light of the prosecution and court’s focus on intimidation, “there was a least a substantial likelihood that McDill was convicted of an offense for which he was not charged,” the Eighth Circuit concluded.

The Court determined that the “constructive amendment materially and substantially affected McDill’s right to notice of the charges against him. McDill’s trial defense focused primarily on the allegations of the citation: harassment and interference.” Accordingly, the constructive amendment undermined his ability to prepare and present a meaningful defense, and as a result, the Eighth Circuit reversed his convictions and remanded for further proceedings. See: United States v. McDill, 871 F.3d 628 (8th Cir. 2017).  

 

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