PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

 

 

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

v. 

 

No. 13-2214 

CLAY O’BRIEN MANN, 

Defendant – Appellant. 

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW MEXICO 

(D.C. NO. 1:11-CR-01528-JAP-1) 

Brian A. Pori, Office of the Federal Public Defender, Albuquerque, New Mexico, for 

Defendant – Appellant. 

David N. Williams, Assistant United States Attorney (Damon P. Martinez, United States 

Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff – Appellee. 

 

 

Before KELLY, BACHARACH, and PHILLIPS, Circuit Judges. 

 

 

PHILLIPS, Circuit Judge. 

A New Mexico grand jury charged Clay O’Brien Mann with eight counts, including 

three 18 U.S.C. § 924(c) violations, arising from his shooting three people on an Indian 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 18, 2015

Elisabeth A. Shumaker 

Clerk of Court

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reservation. He appeals his sole § 924(c) conviction, which arose from his assault and 

shooting of Paula Nez. As with the other two § 924(c) counts, the government charged 

that Mann had knowingly discharged a firearm in relation to his assaulting Paula Nez. 

Under Supreme Court precedent, the discharge need not be done either “knowingly” or 

“in relation to” the underlying crime of violence. Mann did not object to the district 

court’s instructions ignoring these unnecessarily charged conditions. For the first time on 

appeal, Mann argues that the district court constructively amended his indictment by not 

instructing the jury that, to convict, it needed to find these conditions met. This, he says, 

was plain error and violated his Fifth and Sixth Amendment rights. We see no 

constructive amendment and thus no error. The charged but uninstructed language was 

mere surplusage to the true elements of the crime. Accordingly, we affirm the district 

court’s conviction and sentence. 

BACKGROUND 

A. Trial Testimony 

On July 23, 2010, late in the evening, Glenn and Paula Nez invited friends to join 

them at their undeveloped property to socialize as part of monthly fundraising for an 

upcoming Yeibichei (healing) ceremony. Glenn was scheduled to participate in the 

ceremony. About midnight, Glenn Nez called or texted Ames Jim to invite his wife and 

him to come participate. Ames and Cindy Jim were then visiting friends, Mark and Tina 

Bolding. Ames Jim was skilled at automobile-mechanic work, and was helping Mark 

Bolding repair a truck. After the two men finished repairing the truck, the two couples 

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drove together to the Nezes’ undeveloped property. Once there, they joined a group of 

about 13 or 14 people, all peaceably drinking and visiting around a bonfire. 

Earlier in the evening, at about 8:00 p.m., Mann had driven to his common-law wife’s 

property adjoining the Nezes’ land to feed his dogs.1

 At about 10:30 p.m., he returned to 

Farmington, New Mexico and bought alcohol. Mann was constructing a home on the 

property, but in the meantime he and his wife lived elsewhere.2

 He estimated that he 

returned to the property by the Nezes’ at about 12:30 a.m. Alone at the property, he drank 

most of the alcohol and set off some fireworks. Consistent with this account, Paula Nez 

testified that about midnight she saw the neighbor (Mann) arrive at his adjoining 

property. Soon afterward, she saw a firework go off from near his house. She did not 

know Mann. Nor did Mann know the Nezes, but he took offense to their occasional 

gatherings. 

Sometime about 2:30 a.m., as the Nezes and their friends continued visiting around 

the bonfire, Mann made his way to the fence-line separating the two properties and threw 

a lit artillery-shell firework into or near the bonfire. Mann watched the firework explode 

 1 Some of this background comes from Mann’s Mirandized statement to FBI agents 

two days after the shootings. At trial, the government introduced and played for the jury a 

recording of the interview, also supplying a written transcription. R. vol. I at 440. 

Although the government included information from this interview in its brief and cited 

to the page in the trial transcript where the video was played, the government did not 

include the recorded interview or the transcript for our consideration. We ordered them 

included as a supplemental record on appeal. Exercising his rights, Mann did not testify 

at trial. 

2 Although Paula Nez owned the adjoining property for a home site, the Nezes also 

were living elsewhere. On the property that evening was a small shack and some 

automobiles and bicycles. 

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and saw people running and screaming during the ensuing chaos. The firework’s label 

warned users of its danger: “Must be used in a launcher tube. Warning: Shoots flaming 

balls.” R. vol. I at 428. When properly launched, this powerful firework would rise 200–

300 feet above the ground and explode. 

At least three people ran toward the vicinity where Mann had thrown the firework on 

the other side of the property-line fence. Unknown to them, Mann stood near the fence 

with a rifle and loaded magazines of ammunition. Mann claimed in his interview that he 

first fired a warning shot in the direction of a man charging toward him, Ames Jim. He 

admitted centering the gun, firing again from his hip and striking Ames Jim. He heard 

Ames Jim wheezing from the gunshot, and shot him again. He claimed that when Ames 

Jim fell, he saw “a girl” fall behind him, Paula Nez. He expressed surprise that he had 

shot a third person, Mark Bolding. All told, Mann fired nine shots, two striking Mr. Jim 

in the cheek and chest (killing him), one striking Paula Nez in the neck, and one striking 

Mark Bolding in the face. Mann said that after this shooting spree, he walked the short 

distance back to his house, locked it, and slowly drove away in his car. 

When Paula Nez first laid eyes on Mann by the fence, she thought she had heard 

fireworks, not gunshots. She verbally confronted Mann, saying words to this effect: 

“What are you doing? You shouldn’t be around us. We don’t know you. Get the hell out 

of here. You always been doing that, driving around us. You shouldn’t be doing that.” R. 

vol. I at 333. She testified that Mann turned around, pointed his rifle at her, and fired. As 

she lay on the ground shot, she saw Mann get in his car and drive away. 

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Tina Bolding and Cindy Jim took cover but watched the events unfold. Tina Bolding 

testified that she saw Paula Nez and her husband, Mark Bolding, fall after Mann shot 

them. She then poked her head out and watched Mann holding a rifle as he “patrolled” 

the fence line angrily shouting profanities. R. vol. I at 380. Cindy Jim testified that after 

they saw Mark Bolding and Paula Nez on the ground, they saw Mann shooting and 

yelling words to this effect: “[I’m] going to come back and shoot all of you, too[.]” R. 

vol. I at 269. Soon after that, Cindy Jim saw Mann drive away in his car. 

At 6:28 a.m., about four hours after the shootings, law enforcement officers 

apprehended Mann after finding him asleep in his car. In the back lay a rifle and in 

Mann’s jacket were four loaded magazines. A deputy sheriff testified that Mann was 

angry, yelling obscenities, and intoxicated in the patrol car. After seizing Mann’s 

semiautomatic .22 caliber rifle and testing it against the shell casings found at the 

shooting, the FBI determined that Mann’s rifle had fired the shots that killed Ames Jim 

and grievously wounded Mark Bolding and Paula Nez. Mann admitted as much in his 

FBI interview. Supp. R. at 15–16, 19, 26, 28. 

B. Procedural History 

In June 2011, a federal grand jury indicted Mann on eight counts arising from these 

shootings. This appeal focuses on counts 4 and 5 of the indictment. Count 4 charged 

Mann with assaulting Paula Nez, “such assault resulting in serious bodily injury.” R. vol. 

I at 43–44. Count 5 charged a firearms offense arising from this assault: 

On or about July 24, 2010, in San Juan County, in the District 

of New Mexico, the defendant, Clay O’Brien Mann . . . did 

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knowingly discharge and carry a firearm . . . during and in 

relation to a crime of violence, for which Clay O’Brien 

Mann . . . may be prosecuted in a court of the United States, 

namely, assault resulting in serious bodily injury as charged 

in Count 4 herein. 

In violation of 18 U.S.C. § 924(c)(1)(A)(iii). 

R. vol. I at 44 (emphasis added). Mann’s appeal concerns this emphasized language. 

Although the district court did not instruct on “discharge,”3

 Mann’s counsel told the 

district court that he had “no objections to the instructions as proffered by the court.” R. 

vol. I at 592. Because Instruction 3 quoted the charging language for each of the 

indictment’s eight charges, the jury had before it the full charge stated above. The jury 

convicted Mann on count 1, involuntary manslaughter of Ames Jim; count 2, a § 924(c) 

count incorporating count 1;4

 count 4, assault resulting in serious bodily injury to Paula 

Nez; count 5, a § 924(c) count incorporating count 4; and count 7, assault resulting in 

serious bodily injury to Mark Bolding. R. vol. I at 189–90. 

Two weeks after the jury’s verdict, Mann filed a “motion to arrest judgment.” He 

argued that the district court must vacate his conviction under count 5 because a recently 

decided case, Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), required that the 

jury find “discharge” of a firearm. Because Mann had not objected to the court’s jury 

instructions, the district court reviewed for plain error. To establish plain error, Mann 3 Unlike “use,” “carry,” or “brandish”—legal terms needing defined in instructions to 

guide the jury—“discharge” needs no legal clarification. A firearm either discharges or 

not. The real problem in not “instructing on discharge” was that the district court failed to 

tell the jury that it must unanimously find discharge beyond a reasonable doubt. 

4 The district court later vacated Mann’s conviction on count 2 after concluding that 

involuntary manslaughter is not a crime of violence as defined by § 924(c)(3). 

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needed to demonstrate: “(1) an error; (2) that is plain; (3) that affects substantial rights; 

and (4) that seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Brown, 400 F.3d 1242, 1253 (10th Cir. 2005). 

 Applying this analysis, the district court concluded that it had erred by “[f]ailing to 

instruct the jury on the element of discharging a firearm” and that this error was plain.5

 

R. vol. I at 747–48. Specifically, it recognized that the Supreme Court in Alleyne—

decided less than a month before the trial—had compelled that juries find § 924(c) 

sentencing enhancements beyond a reasonable doubt, overruling an earlier holding that 

permitted district judges to do so by a preponderance of the evidence. See Alleyne, 133 S. 

Ct. at 2155 (overruling Harris v. United States, 536 U.S. 545 (2002)). But addressing the 

third prong of plain-error analysis, the district court concluded that the error had not 

prejudiced Mann. In particular, the district court found it “highly unlikely that the jury 

verdict would have differed had the jury been properly instructed that discharging was an 

element of 18 U.S.C. § 924, because Defendant never contested that he fired shots.” R. 

vol. I at 749. 

The district court sentenced Mann to three concurrent terms of 51 months—the low 

end of the advisory-guidelines range—on his involuntary-manslaughter and two assault 

convictions. In addition, the court sentenced Mann to a consecutive term of 120 months 

 5

 The government argued that the district court had not erred, relying on the jury 

verdict form, which for count 5 read: “We, the jury, find the defendant, Clay O’Brien 

Mann . . . _______________ of discharging a firearm in furtherance of an act of violence, 

as charged in Count 5 of the Indictment.” R. vol. I at 189. 

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for his § 924(c) conviction incorporating his assault of Paula Nez.6 Mann timely 

appealed. 

DISCUSSION 

A. Plain Error Review 

Because Mann failed to raise the constructive-amendment argument in the district 

court, we review this claim for plain error. United States v. Cavely, 318 F.3d 987, 999 

(10th Cir. 2003). To show plain error, Mann must demonstrate that there is “(1) an error; 

(2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the 

fairness, integrity, or public reputation of judicial proceedings.” Brown, 400 F.3d at 1253. 

If Mann satisfies all four prongs, we “may then exercise [our] discretion to notice [the] 

forfeited error.” United States v. Gonzalez Edeza, 359 F.3d 1246, 1250 (10th Cir. 2004) 

(quoting United States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003)). “Meeting all four 

prongs is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009) 

(citation and internal quotation marks omitted). We will find plain error only when an 

error is “particularly egregious,” and the failure to remand for correction would produce a 

“miscarriage of justice.” United States v. Frost, 684 F.3d 963, 972 (10th Cir. 2012). 

 6 But for a careless error by the government, Mann might well have had another 

consecutive 25-year term added to his sentence. See 18 U.S.C. § 924(c)(1)(C)(i). During 

its deliberations, the jury noticed something the government had not—count 8 premised 

its § 924(c) charge on an “assault resulting in serious bodily injury [to Mark Bolding] as 

charged in Count 6 herein,” but the referenced assault was really charged not in count 6 

but in count 7. After realizing the government’s mistake, the district court dismissed 

without prejudice count 8, the § 924(c) charge based on Mann’s assault on Mark Bolding 

resulting in serious bodily injury. R. vol. I at 186, 570–71. 

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B. Mann’s Theory on Appeal 

Mann argues that the district court constructively amended count 5 of his indictment 

by not instructing the jury that, to convict, it needed to find beyond a reasonable doubt 

that he knowingly discharged his firearm in relation to his assault of Paula Nez. To show 

the first two prongs of plain error (error that was plain), he relies on the district court’s 

admitted Alleyne error and on Supreme Court cases prohibiting constructive amendments 

to indictments. To show substantial prejudice under plain-error’s third prong, he argues 

that the jury may not have convicted him if instructed on count 5 as it was charged 

because the government failed to present overwhelming evidence in support. He 

maintains that his mistakenly shooting Paula Nez (as he claimed in his FBI interview) is 

inconsistent with “knowingly” discharging his rifle “in relation to” assaulting her. He 

argues that the jury may have believed his mistaken-shooting account because it acquitted 

him of assaulting her with intent to cause bodily injury.7

 To meet plain-error’s fourth 

prong, Mann argues that “permitting the jury to convict Mr. Mann of a broader offense 

than the one charged in the indictment must be said to have seriously affected the 

fairness, integrity, or public reputation of judicial proceedings.” Appellant’s Br. at 22. 

 

 7 The district court instructed on assault as follows: “‘Assault’ means any intentional 

attempt, not because of accident or mistake, to inflict injury upon someone else, when 

coupled with an apparent present ability to do so, and includes any intentional display of 

force that would give a reasonable person cause to expect immediate bodily harm, 

whether or not the threat or attempt is actually carried out or the victim is injured.” R. vol. 

I at 160. 

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C. Elements of § 924(c) Violations 

The district court properly instructed the jury on the base elements of a § 924(c) 

violation.8

 By finding Mann guilty of that count, the jury necessarily found that Mann 

had knowingly carried a firearm during and in relation to a crime of violence 

prosecutable in a court of the United States. This alone required a five-year mandatoryminimum sentence.9 See 18 U.S.C. § 924(c)(1)(A)(i). To trigger the mandatory-minimum 

ten-year sentence under § 924(c)(1)(A)(iii), the district court needed either (1) the jury’s 

finding beyond a reasonable doubt that Mann had discharged a firearm during his assault 

 8

 For the three § 924(c) counts, the district court instructed that Mann had “used or 

carried” a firearm. R. vol. I at 162. The indictment did not charge that Mann had “used” 

the firearm. R. vol. I at 44. The district court got little help from the parties—Mann’s 

proposed instructions recited “used” and ignored “carried,” and the government’s 

proposed instructions recited “used or carried.” R. vol. I at 79, 116. This is not an issue 

on appeal, but we note for future cases that the government’s failure to cross-reference its 

indictment and its jury instructions can cause unnecessary problems. The government’s 

inattention also affected the jury verdict form, where the jury was asked if Mann had 

discharged his firearm “in furtherance” of an “act of violence” as charged in count five. 

Because Mann was not charged under the “possession in furtherance” prong of § 924(c), 

this language too was mistaken. 

 

9

 In his briefing, Mann suggests that he could not be convicted of a § 924(c) offense if 

the jury found the base § 924(c) offense (knowingly carrying a firearm during and in 

relation to the crime of violence) but did not find “discharge” as charged in the 

indictment. If that is his position, we disagree with it. We acknowledge that Alleyne calls 

“brandishing” an “element” (Supreme Court’s quotation marks) that must be submitted to 

the jury and describes as a “new, aggravated crime” the core crime plus the “fact 

triggering the mandatory minimum sentence.” 133 S. Ct. at 2155, 2161. But we believe 

this simply means that without a jury’s finding the aggravating fact beyond a reasonable 

doubt—except as Recuenco allows—the non-aggravated penalty applies. See Alleyne, 

133 S. Ct. at 2164 (vacating sentence because jury had not found “brandishing” despite 

having a space to do so on the verdict form, and remanding for “resentencing consistent 

with the jury’s verdict,” meaning the base “use or carry” conviction under § 924(c) still 

stood despite the jury’s rejecting the sentencing-enhancer for “brandishing”). See also 

United States v. Alleyne, No. 3:10-CR-00134-REP-1, Doc. No. 67 (Sept. 7, 2010) (verdict 

form). 

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of Paula Nez, see Alleyne, 133 S. Ct. at 2155, or (2) the district judge’s own supportable 

finding that the jury would have done so based on overwhelming evidence, see 

Washington v. Recuenco, 548 U.S. 212, 220–21 (2006). See also Neder v. United States, 

527 U.S. 1, 8–13 (1999) (concluding that harmless-error analysis applied to district 

court’s failure to instruct on materiality, an element of the charged fraud offenses). As 

mentioned, the district court used the second option after failing the first. Mann does not 

address Recuenco or challenge that it permitted this. Instead, on appeal, he extends his 

argument past the district court’s failure to instruct on mere discharge and argues that—

once charged—the district court needed to instruct the jury that, to convict, it must find 

beyond a reasonable doubt that Mann “knowingly discharged” a firearm “in relation to” 

his assault on Paula Nez. 

In Dean v. United States, 556 U.S. 568, 570 (2009), a bank robber accidentally 

discharged his firearm while reaching over a teller to collect money from her drawer. 

Because a firearm was discharged during the robbery, the district court imposed a tenyear mandatory minimum sentence as § 924(c)(1)(A)(iii) required. Id. at 571. On appeal, 

Dean argued that the sentencing enhancement “requires proof that the defendant intended 

to discharge the firearm.” Id. Examining the statute’s text, the Court disagreed, noting 

that “[i]t does not require that the discharge be done knowingly or intentionally, or 

otherwise contain words of limitation.” Id. at 572. Mann acknowledges that Dean 

interprets § 924(c) to cover accidental discharges, but he asserts that the discharge must 

be “in relation to” the crime of violence. Dean itself forecloses this position, noting that 

“in relation to” modifies “only the nearby verbs ‘uses’ and ‘carries.’” Id. at 573. 

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Consistently, the Court concluded that “[t]here is no basis for reading ‘in relation to’ to 

extend all the way down to modify ‘is discharged.’” Id. Accordingly, the Supreme Court 

has expressly rejected as an element of § 924(c)(1)(A)(iii) a “knowing” discharge of a 

firearm “in relation to” the underlying crime of violence. 

Undoubtedly, the government’s charging language was far from ideal. The question 

Mann now raises is whether the government is stuck with its charged language (and the 

need to prove it) even though it exceeds the statutory elements. 

D. Plain-Error Analysis 

We begin our plain-error analysis of Mann’s constructive-amendment argument by 

asking whether Mann can even show error. We note that he claims error based on 

“Alleyne and [United States v.] Stirone, [361 U.S. 212 (1960)], and this Court’s decisions 

on constructive amendment of indictments. . . .” Appellant’s Br. at 21. Accordingly, we 

evaluate each of these two distinct bases in determining whether the district court 

constructively amended his indictment contrary to law. 

First, we observe that we have already concluded that the Alleyne error here—failure 

to instruct the jury that it must find discharge beyond a reasonable doubt—does not 

qualify Mann to any relief in view of the overwhelming evidence that he did discharge a 

firearm during the assaults. In fact, in his recorded FBI interview—played for the jury—

Mann admitted several times that he had discharged his firearm. On appeal, Mann 

concedes that “the jury would have found the mere fact of discharge of a firearm on 

Count 5.” Appellant’s Rep. Br. at 3. 

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Thus, despite the district court’s failure to instruct the jury that it must find that Mann 

had discharged a firearm, the error was harmless beyond a reasonable doubt because 

overwhelming evidence established the “discharge.” See Recuenco, 548 U.S. at 214–15 

(affirming enhanced sentence for second-degree assault with a firearm despite the jury’s 

not being presented the question whether the assault was with a “firearm” instead of a 

generic “deadly weapon,” because the government had introduced overwhelming 

evidence that defendant had in fact used a firearm during the assault); United States v. 

Pizarro, 772 F.3d 284, 287 (1st Cir. 2014) (affirming enhanced drug sentence despite 

error in not instructing the jury on individualized drug quantity for aggravated conspiracy 

count and aggravated possession count after concluding “beyond a reasonable doubt that 

the omitted element[s] [were] uncontested and supported by overwhelming evidence, 

such that the jury verdict would have been the same absent the error[s]”); United States v. 

King, 751 F.3d 1268 (11th Cir. 2014) (affirming enhanced § 924(c) sentence for 

brandishing a firearm despite Alleyne error because video surveillance and victim 

testimony made it “clear beyond a reasonable doubt that a rational jury would have found 

King guilty of brandishing a firearm absent the Alleyne error.”); United States v. Cureton, 

739 F.3d 1032, 1046 (7th Cir. 2014) (affirming on same basis because it was highly 

unlikely that a jury would not have found brandishing based on the victim’s testimony 

that defendant had held a gun to her head); United States v. Mack, 729 F.3d 594, 606–09 

(6th Cir. 2013) (affirming on same basis because “the jury would have found beyond a 

reasonable doubt . . . that the defendant brandished a firearm during the robberies. . . .”). 

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Having lost on Alleyne, and having conceded that issue rather than appeal it, Mann 

cannot uproot the first two prongs of plain error from the district court’s Alleyne analysis 

and replant them in his constructive amendment analysis. The two claims of error are 

distinct. Even so, the government endorses Mann’s shortcut, conceding that Mann can 

satisfy the first two prongs of plain error for his constructive-amendment argument by 

transplanting the conceded Alleyne error. This concession is mistaken. Even if Mann 

were allowed to use an error under one theory to establish error under a different theory, 

he would still fail. Alleyne does not require a district court to instruct that a jury must find 

that a defendant “knowingly discharged” a firearm “in relation to” an underlying crime of 

violence. The error he claims under Alleyne is not the error needed to show a constructive 

amendment. 

Second, we reject Mann’s argument that under Supreme Court cases the district court 

impermissibly constructively amended the indictment. In making his constructiveamendment argument, Mann first and primarily relies on Ex parte Bain, 121 U.S. 1 

(1887). He analogizes his case to Bain, focusing on Bain’s reversing a district court for 

striking extraneous language from an indictment. Specifically, as here, the government in 

Bain charged conduct unneeded to sustain its statutory burden. There, the government 

charged that the defendants had made a “false statement and report in manner and form 

. . . with intent to deceive the comptroller of the currency and the agent appointed to 

examine the affairs of said association. . . .” Id. at 4 (emphasis in original). The district 

court struck the italicized language from the indictment because nothing in the criminal 

statute required intent to deceive the comptroller of currency. Id. 

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On appeal to the Supreme Court, the defendant argued that the district court had 

constructively amended the indictment. The government opposed this by contending that 

the stricken language was “surplusage” and that “the grand jury would have found the 

indictment without this language.” Id. at 9. The Supreme Court rejected the government’s 

approach, concluding that it was not for the Supreme Court to “say whether [the grand 

jury] would or not [have indicted]” and that “[t]he party can only be tried upon the 

indictment as found by such grand jury, and especially upon all its language found in the 

charging part of that instrument.” Id. at 9–10. 

If Bain were still good law on this point, Mann might well prevail. But it is not. 

Although Mann acknowledges United States v. Miller, 471 U.S. 130 (1985), in his brief, 

he fails to give the case its full import. In Miller, a unanimous Court addressed Bain 

head-on, restating Bain’s second proposition10 before rejecting it: Bain can support the 

proposition that the striking out of parts of an indictment invalidates the whole of the 

indictment, for a court cannot speculate as to whether the grand jury had meant for any 

remaining offense to stand independently, even if that remaining offense clearly was 

included in the original text. Id. at 142. 

Reviewing its post-Bain cases, the Court noted that “when defendants have sought to 

rely on Bain for this point, this Court has limited or distinguished the case, sustaining 

convictions where courts had withdrawn or ignored independent and unnecessary 

 10Bain’s first proposition against broadening an indictment still holds. That 

proposition relates not to a district court’s striking surplusage from an indictment but to a 

conviction’s being “based on an offense that is different from that alleged in the grand 

jury’s indictment.” Miller, 471 U.S. at 142. 

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allegations in the indictments.” Id. at 144 (citing Ford v. United States, 273 U.S. 593, 602 

(1927), and Salinger v. United States, 272 U.S. 542, 549 (1926)). In “explicitly rejecting” 

Bain’s second proposition, the Miller Court noted that the case “has simply not survived” 

and rejected any notion that it is “an unconstitutional amendment to drop from an 

indictment those allegations that are unnecessary to an offense that is clearly contained 

within it. . . .” Id. at 144. 

Faced with Miller’s plain holding, Mann refers us to Stirone, 361 U.S. at 218–19, 

which preceded Miller by 25 years. Nothing in that case supports Mann’s constructiveamendment argument. Stirone addressed Bain’s first proposition, which Miller left intact. 

Specifically, Stirone disallowed the government from broadening its indicted Hobbs Act 

count at trial. Id. at 219. Although the government charged that the defendant had 

impeded commerce by delaying shipments of ready-mix concrete across state lines for 

use in erecting a steel plant, the government sought to convict on an uncharged theory—

that he had impeded interstate commerce by interfering with steel shipments between 

states. Id. at 213. See also United States v. Farr, 536 F.3d 1174, 1180 (10th Cir. 2008) 

(reversing district court for allowing government to broaden charges from willfully 

evading quarterly employment tax to failure to pay trust-fund recovery penalty). Mann 

does not argue that the district court erred in this fashion. Instead, he argues a 

broadening-by-subtraction position that Miller expressly rejected. 

Nor has our court been slow to recognize the difference between cases involving 

Bain’s first and second propositions. Consistently with Miller, we have rejected Bainarguments similar to the one Mann makes here. See, e.g., United States v. Smith, 838 F.2d 

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436, 439–40 (10th Cir. 1989) (limiting necessary proof to the elements of the offense and 

not finding a constructive amendment by not requiring the government to prove 

surplusage from the indictment—that invoices were for amounts “intended for 

[defendants’] personal use unrelated to said project”) (emphasis original). 

We conclude that Mann fails even to show error, the first of the four needed showings 

to establish plain error. Thus, we have no need to address the third or fourth prongs of 

plain-error analysis. See United States v. Pablo, 696 F.3d 1280, 1301 (declining to 

address other prongs of plain-error review because defendant failed on the third prong). 

CONCLUSION 

We therefore hold that Mann’s conviction on count 5 and its resulting sentence are 

lawful, and we AFFIRM the judgment of the district court. 

Appellate Case: 13-2214 Document: 01019432167 Date Filed: 05/18/2015 Page: 17