Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1025 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.John Henry YOUNG, Defendant-Appellant.

No. 88-3242.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 11, 1989.* Decided Aug. 15, 1989.

Paul G. Hatfield, District Judge, Presiding

Before EUGENE A. WRIGHT, WILLIAM A. NORRIS and BEEZER, Circuit Judges.


MEMORANDUM** 

John Henry Young appeals his conviction on several counts arising out of an altercation between Young and a federal officer. We affirm in part and vacate in part.

* On March 23, 1988, Young and his cousin, James Snell, were shooting gophers on the Fort Belknap Indian Reservation in Montana. Two Bureau of Indian Affairs police officers stopped Snell's automobile for running a stop sign. One of the officers, Sergeant Oats, recognized Young as the subject of an outstanding tribal warrant. When Oats attempted to arrest Young, a struggle ensued over possession of Young's rifle before the officers subdued him.

Young was indicted on three charges: I) assault on a federal officer; II) possession of a firearm as a convicted felon, and III) use of a firearm during a crime of violence. 18 U.S.C. §§ 111; 922(g); 924(c). The jury convicted him on all three counts, and he was sentenced to 120 months imprisonment each for counts I and II, and a mandatory five-year consecutive term on count III. Young timely appeals the final judgment of the district court. Fed. R. Crim. P. 4(b). We have jurisdiction, and review these questions of law de novo.

II

Young claims that his equal protection rights were violated because the jury venire contained an insufficient number of Native Americans. This claim is frivolous.

The transcript of voir dire indicates that approximately 6 persons, out of a venire of 31,1  replied affirmatively to counsel's question as to whether they were partly or entirely of Native American descent. Following voir dire, Young's attorney objected to the venire on grounds that "the jury of [Young's] peers would require that a sizable number of Native Americans be present on the--on the jury." The objection was overruled.

To show a prima facie violation of the requirement that a jury venire be a fair cross-section of the community, as a predicate for either a statutory or constitutional claim, Young must show:

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

United States v. Sanchez-Lopez, No. 88-3102, slip op. 6623, 6629 (9th Cir. June 22, 1989) (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)).

Young does not attempt to show that the number of Native Americans on the venire was not fair or reasonable in relation to their numbers in the community, or that they were systematically excluded. We cannot even begin an absolute disparity analysis. See Sanchez-Lopez, slip op. at 6631.

Young suggests that he had a right to have Native Americans on his petit jury. He did not. Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). Young makes no claim that the prosecutor improperly used his peremptory challenges to exclude Native Americans. See id. at 89.

III

Young asserts that he was unfairly prejudiced by a variance between the indictment and the proof at trial. Count II of the indictment alleged that "Young, having been convicted on July 18, 1980, of first degree robbery, a felony punishable by imprisonment for more than one year, in the Superior Court for Spokane County, State of Washington ... did knowingly possess a firearm...." At trial, the government introduced a record of conviction for first-degree robbery in Spokane County bearing a date in February, 1978. Young moved for dismissal of the count. The prosecutor conceded the variance, stated that he had not noticed it until the trial date, and contended that it was not material. The district court agreed. Both parties discussed the issue in their arguments to the jury, but it was not specifically addressed in the instructions.

A variance between the indictment and the proof at trial is reversible error if the defendant's substantial rights are prejudiced by it. See, e.g., United States v. Friedman, 593 F.2d 109, 116 (9th Cir. 1979) (alleged conviction for offense other than that charged). Prejudice may arise in three ways: 1) inadequate opportunity to prepare a defense and exposure to unanticipated evidence at trial, 2) deprivation of the right to be tried only on charges made by a grand jury, and 3) prejudicial evidentiary spillover. United States v. Morse, 785 F.2d 771, 775 (9th Cir.), cert. denied, 476 U.S. 1186 (1986). Spillover applies only to a multidefendant trial. United States v. Anguiano, 873 F.2d 1314, 1317-18 (9th Cir. 1989).

Young alleges surprise and unanticipated evidence, but does not specifically state how he was prejudiced. There is no indication, for example, that he would have been able to rebut the evidence that he had been convicted in 1978 if that date had been included in the indictment. It is true that, to a certain degree, evidence of a 1980 conviction was "unanticipated evidence." However, the facts are very different from those we recently found to justify reversal. United States v. Chavez, 845 F.2d 219, 221-22 (9th Cir. 1988). In Chavez, the government's bill of particulars affirmatively misled the defendants into believing that they would not have to prepare a defense against the allegation that they supervised persons other than those named in the bill in a continuing criminal enterprise. We held that they were unfairly prejudiced when evidence on the issue was introduced at trial. Id.

By contrast, Young was on notice that a first-degree robbery conviction from Spokane County, Washington, was at issue. The exact date of the conviction was not of such importance that the error deprived Young of a reasonable opportunity to prepare a defense. The case resembles United States v. Hoke more than it does Chavez. United States v. Hoke, 610 F.2d 678, 679 (9th Cir. 1980) (error in indictment as to name of federal agency insuring financial institution not a prejudicial variance).

The line between a fatal variance that implicates the constitutional right to a grand jury, and a nonprejudicial one, has not been crystal-clear. Compare United States v. Miller, 471 U.S. 130 (1985), with Stirone v. United States, 361 U.S. 212 (1960). A distinction we have found relevant considers whether the variance affects an essential element of the crime. If the government proves an element omitted from the indictment, the conviction cannot stand. United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979). On the other hand, the government need not prove facts asserted in an indictment that go beyond the essential elements to be proven. United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir.), cert. denied, 479 U.S. 855, 889 (1986). Of course, surplusage that goes beyond the elements must not unfairly prejudice the defendant. Id.

The indictment alleged the essential element of a prior conviction for a felony. 18 U.S.C. § 922(g). The date of the conviction is not an element; there is no statute of limitations on when the prior conviction had to have occurred. Id.; see United States v. Francisco, 575 F.2d 815, 818 (10th Cir. 1978). The specified date was thus surplusage. Any potential prejudice arising from its falsity was minimized by the fact that it was accompanied by several other surplus facts that correctly pointed the defendant toward the government's projected proof of the element: the specific offense, and the place of conviction.

Young argues that he was prejudiced because the variance may have led the jury to believe he had committed two robberies rather than one. The record assures us that it was clear to the jury that only one prior offense was at issue. We find no reasonable possibility of material prejudice to Young's right to a fair trial.

IV

The district court imposed penalty assessments of $150 pursuant to 18 U.S.C. § 3013. As this statute is null and void ab initio, we vacate the assessments sua sponte. E.g., Anguiano, 873 F.2d at 1321.

AFFIRMED in part, VACATED in part.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

Young claims that the panel included 70 persons. There was apparently another venire in the same jury room at one time. Our holding is in no way affected even if we assume Young's number to be correct