Of the District of New Hampshire, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 09-2144

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES BUNCHAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Howard and Stahl, Circuit Judges,

and DiClerico, District Judge. *

Terrance J. McCarthy, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney,

with whom Carmen M. Ortiz, United States Attorney, was on brief,

for appellee.

November 24, 2010
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STAHL, Senior Circuit Judge. Defendant-Appellant James

Bunchan was convicted by a jury for use of a facility of interstate

commerce in the commission of murder-for-hire and solicitation to

commit a crime of violence. The case arose from Bunchan's efforts

to hire someone to kill the people whom he expected to testify

against him in a pending federal fraud prosecution. He now appeals

his convictions and sentence, arguing that the district court

constructively amended the indictment when it instructed the jury

as to the solicitation offense, improperly instructed the jury on

nullification, and imposed an unreasonable sentence of 300 months.

We reject Bunchan's claims and affirm the district court.

I. Facts and Background

This appeal follows a conviction, and thus we recount the

facts in the light most favorable to the verdict. United States

v. Mercado, 412 F.3d 243, 245 (1st Cir. 2005).

On November 21, 2005, Bunchan was arrested for and later

charged with forty counts of conspiracy, mail fraud, and money

laundering for his part in a pyramid scheme that stole nearly $20

million from more than five hundred people, mostly of Cambodian

descent (the "fraud case"). In May 2006, while detained at the

Plymouth County Correctional Facility awaiting trial, Bunchan asked

David Augustin, a fellow inmate, whether he knew of anyone whom

Bunchan could hire to murder one of the primary witnesses who was

to testify for the government. Augustin advised the FBI of
Pirozzolo was not listed as a victim in this letter. 1

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Bunchan's overture and subsequently became a cooperating witness.

At the behest of the FBI, Augustin continued to discuss

with Bunchan the murder-for-hire plot. During their conversations,

two of which were audio and video recorded, Bunchan wrote out

various lists of the people he sought to have killed. He also

discussed the possibility of having Assistant U.S. Attorney Jack

Pirozzolo, the prosecutor in Bunchan's fraud case, murdered. The

FBI provided Augustin with the name, phone number, and address of

an undercover police officer, "Jamal," who posed as a hit man for

the operation, and Augustin relayed Jamal's contact information to

Bunchan.

In July 2006, Bunchan wrote a letter to Jamal listing the

twelve individuals to be murdered. The letter included the

victims' names, their priority, their places of residence, and the

amount of money Bunchan was willing to pay for the murder of each.1

Bunchan sealed the envelope and placed it in the prison's outgoing

mail. The FBI received the letter and conducted DNA and

handwriting analysis that positively identified Bunchan as the

author. It later alerted Bunchan that it was aware of the murderfor-hire scheme and warned him to stop pursuing further action. 

In March 2007, a grand jury returned an indictment

against Bunchan for: (1) use of a facility of interstate commerce

in commission of murder-for-hire in violation of 18 U.S.C. § 1958,
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and (2) solicitation of a crime of violence in violation of 18

U.S.C. § 373.

Thereafter, Bunchan was tried on the forty charges in his

fraud case. He was convicted of most of the offenses and sentenced

to a term of 420 months imprisonment. In arriving at the sentence,

the district court considered Bunchan's conduct as it related to

the murder-for-hire charges then pending. This court upheld the

convictions and sentence on appeal. United States v. Bunchan, 580

F.3d 66 (1st Cir. 2009).

Trial on the murder-for-hire charges commenced on April

27, 2009, and the jury found Bunchan guilty on both counts. The

district court sentenced Bunchan to 300 months imprisonment,

applying an upward departure of seven months pursuant to United

States Sentencing Guideline § 5K2.0. The district court ordered

the sentence to run consecutively to the fraud sentence, except

that its first sixty months would run concurrently, to reflect the

fraud sentence's accounting for the murder-for-hire conduct. This

appeal followed.

II. Analysis

Bunchan argues for a reversal of his convictions because:

(1) the district court improperly instructed the jury as to the

elements of the solicitation offense, thereby constructively

amending the indictment; and (2) the district court improperly

instructed the jury as to its power to nullify. He also asserts
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that even if his convictions are upheld, the court should remand

for resentencing because his 300-month sentence is unreasonable.

We review each of these arguments in turn.

A. Constructive Amendment Claim

"A constructive amendment occurs when the charging terms

of the indictment are altered, either literally or in effect, by

prosecution or court after the grand jury has last passed upon

them." United States v. Celestin, 612 F.3d 14, 24 (1st Cir. 2010)

(quotations and citations omitted). A primary objective of the

rule against constructive amendments is to ensure that the

defendant has notice of the charges against him. United States v.

Dubon-Otero, 292 F.3d 1, 5-6 (1st Cir. 2002). Plain error review

applies to an unpreserved claim such as this, requiring: (1) an

error; (2) that is plain; (3) that affected the defendant's

substantial rights; and (4) that also seriously impaired the

fairness, integrity, or public reputation of the judicial

proceedings. United States v. Brandao, 539 F.3d 44, 57 (1st Cir.

2008); see also United States v. Olano, 507 U.S. 725, 732 (1993).

Bunchan argues that the district court constructively

amended the indictment when it instructed the jury on the charge of

solicitation to commit a crime of violence. He claims that the

district court improperly instructed the jury that he was charged

with "obstruction of justice," which was not within the indictment

nor an element of the solicitation offense. Further, because there
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are many "obstruction of justice" offenses, not all of which

include an element of physical force, the instruction lowered the

government's burden and created jury confusion.

The district court detailed the two elements of the 

solicitation offense to the jury, as follows:

First, that Mr. Bunchan solicited, commanded,

induced, or otherwise tried to persuade

another person . . . to commit, what's called,

a federal felony.

Now, what's involved here is a little bit more

complex, in the sense that the federal felony

here is essentially Obstruction of Justice,

and the means of Obstruction of Justice that

the Government says were involved here was to

kill witnesses.

It's not directly Murder. It's Obstruction of

Justice, but the means that are undertaken are

to commit murder of those witnesses, so that

they wouldn't be able to testify in the

federal charge -- the federal trial -- that

Mr. Bunchan was then facing.

The second element the Government must prove

is that the defendant's actions strongly

indicated that he intended the other person .

. . to commit the crime of Obstruction of

Justice by Murder . . . .

Well, I'll tell you, as a matter of law, that

. . . Obstruction of Justice by Murder has, as

part of its elements -- the use or attempted

use or threatened use of physical force

against the person or property of the

witnesses in this case or the victims in this

case.

These instructions did not charge Bunchan with

obstruction of justice. Rather, they reviewed correctly the two

elements of the charged solicitation offense: (1) that the
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defendant had the intent for another to commit a felony that has as

an element the use, attempted use, or threatened use of physical

force against a person or property; and (2) that under

circumstances strongly corroborative of that intent, the defendant

solicited, commanded, induced, or otherwise endeavored to persuade

the other person to commit the felony. See 18 U.S.C. § 373. To

state the obvious, both elements necessarily include reference to

an underlying violent felony. Here, that felony was obstruction of

justice by means of killing witnesses who were to testify in

Bunchan's fraud case.

The district court's description of the underlying felony

-- the murdering of witnesses -- was consistent with that alleged

in the indictment, demonstrating that Bunchan had notice. The

indictment specifically charged Bunchan with solicitation of

another "to kill victims and witnesses to prevent their attendance

or testimony in an official proceeding, here a pending federal

trial on fraud charges against the defendant, in violation of 18

U.S.C. § 1512(a)(1)(A)."

Bunchan is correct that the indictment did not use the

term "obstruction of justice." The indictment did, however, both

reference and incorporate 18 U.S.C. § 1512, the crime of tampering

with a witness, victim, or an informant. That section of the

United States Code is part of the obstruction of justice chapter

and criminalizes the murder or attempted murder of another "with
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intent to prevent the attendance or testimony of any person in an

official proceeding." 18 U.S.C. § 1512(a)(1)(A). The district

court's reference to "obstruction of justice" by means of killing

witnesses, then, did not amend the indictment -- it elucidated it.

See United States v. Hernandez, 490 F.3d 81, 84 (1st Cir. 2007).

Further, the district court's instructions did not lower

the government's burden or create jury confusion as to which

obstruction of justice offense was relevant. To be sure,

"obstruction of justice" is an umbrella term that includes a wide

array of offenses, not all of which are qualifying felonies for

purposes of § 373. Here, however, the district court instructed

the jury on the specific obstruction of justice felony at issue,

the murdering of witnesses, and it properly told the jury that this

felony includes as an element physical force against a person or

property.

B. Jury Nullification Claim

Bunchan next argues, as a second unpreserved claim, that

the district court improperly instructed the jury as to its power

to nullify. After reviewing the role of jurors and the substantive

law to be applied, the district court stated:

So, Ladies and Gentlemen, let's turn to how

you go about your business. As I told you,

you don't have to follow my instructions

anymore; in fact, that's the critical part of

this. We expect you to, but, then, we send

you into a room, we close the door, and we

can't tell whether or not you're doing what we

ask you to do.
We therefore need not reach the third prong of plain error 2

review and determine whether this statement would result in per se

prejudice as a structure error. Cf. Sullivan v. Louisiana, 508

U.S. 275 (1993) (finding improper instruction of reasonable doubt

definition a structural error).

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Bunchan asserts that this passage encouraged the jury to

abdicate its primary function of finding facts and applying them to

the law to the detriment of his constitutional rights. Although an

innovative argument indeed, considering that the weight of the

evidence against Bunchan suggests that jury nullification, if

anything, would have helped his cause, we find no error here.

 A juror's duty is to apply the law as provided by the

court. United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir.

1993). Neither the court nor counsel should encourage jurors to

exercise their power to nullify. Id. Challenged instructions must

be evaluated not in isolation, but in the context of the entire

charge, and statements ambiguous in the abstract can be cured when

read in conjunction with the whole. Jones v. United States, 527

U.S. 373, 391 (1999); United States v. Gonzalez, 570 F.3d 16, 21

(1st Cir. 2009).

Here, although the challenged passage is unusual when

read in isolation, we find no error when considered in the context

of the full jury charge. Moments before the district court 2

uttered the passage, it told the jury that "jury instructions are

something you have to consider very, very carefully," and that

"this is a case that has to be decided solely on the basis of the
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evidence that's actually presented here, in accordance with the law

that I'm about to give you." The district court explained the

presumption of innocence and stressed that the government was

required to prove all of the elements of the charged offenses

beyond a reasonable doubt. It told the jurors that they were the

fact finders, and it then instructed them on the law of both of the

offenses charged.

Following the challenged passage, the district court

explained that "[w]e expect you to decide the case on the evidence

and in light of the law, and what we're looking for is a collective

judgment." It urged the jury to engage in "a rational discussion,"

and cautioned that "[e]ach juror in the end must decide this case

for himself or herself, but . . . in the context of the evidence

and the law that I've given you." Finally, the district court

expressed its "hope . . . that the instructions are clear enough,"

and it directed the jury to put in writing any questions it had

about them so that the court could respond.

Taken collectively, these instructions did not encourage

jury nullification. Rather, they repeatedly directed the jury to

heed the instructions and to apply the facts to the law in reaching

a result in the case. Indeed, the lack of any objection by either

party suggests that, in context, the challenged passage was not

troubling. Cf. United States v. Marshall, 109 F.3d 94, 100 (1st

Cir. 1997) (noting that contemporaneous objection is an "excellent
We also question the extent to which the passage at issue 3

would call to mind nullification. Because the district court made

the statement moments before deliberations began, the court may

have simply meant to indicate that the jurors no longer needed to

follow its earlier and often repeated instruction that cautioned

against discussing the case prior to the close of the trial.

Nonetheless, the district court could have been more circumspect

with its choice of words. 

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test" for determining whether a prosecutor improperly vouched

during closing argument).3

C. Sentencing Claim

Lastly, we turn to Bunchan's claim that his 300-month

sentence is substantively unreasonable. Bunchan asserts that his

sentence violates 18 U.S.C. § 3553(a) and is greater than necessary

because his sentence in the fraud case already accounted for his

murder-for-hire conduct. He argues that the sentence therefore

creates a disparity among similarly charged offenders and does not

promote respect for the law.

We have already upheld the propriety of the 420-month

fraud sentence and its consideration of the murder-for-hire scheme.

Bunchan, 580 F.3d at 73 & n.11. We now do the same for the 300-

month sentence imposed for the murder-for-hire scheme.

The court reviews the substantive reasonableness of a

sentence "under a deferential abuse-of-discretion standard." Gall

v. United States, 552 U.S. 38, 51 (2007). We consider the totality

of the circumstances and give due deference to the district court.

See id.; United States v. Wallace, 573 F.3d 82, 97 (1st Cir. 2009).
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A sentence will stand so long as there is "a plausible sentencing

rationale and a defensible overall result." Id. (quoting United

States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).

Here, the district court carefully reviewed both

Bunchan's uncontested guideline sentencing range ("GSR") of 235-293

months and the § 3553(a) factors, finding them to weigh in favor of

a significant sentence. It explained that Bunchan's offenses were

serious and required a severe sentence because they posed

institutional dangers to the legal system, unlike the typical

murder-for-hire scheme. It cannot be overlooked that one of the

original victims was Pirozzolo, the prosecutor in the fraud case.

General deterrence also counseled for a significant sentence, and

specific deterrence still had import despite Bunchan's age because

the murder-for-hire conduct began while Bunchan was in prison.

With respect to penological impact, the district court noted

Bunchan's need for medical treatment and the prison system's

ability to provide the requisite care.

The district court next considered the issue of

disparity. It discussed at length its finding that the GSR was too

low in view of the public nature of the crime, which was outside

the heartland of a typical murder-for-hire plot. The 300-month

sentence was based on the combined statutory maximum penalties for
18 U.S.C. § 1958 carried a statutory maximum of 120 months, 4

and 18 U.S.C. § 373 carried a statutory maximum of 180 months. 

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the two offenses, and the upward departure was grounded in § 5K2.0 4

of the United States Sentencing Guidelines because the Guidelines

did not adequately capture the institutional concerns this case

raised.

With respect to Bunchan's specific claim that the

district court failed to appreciate the fraud sentence's

consideration of the murder-for-hire scheme, we find it unavailing.

The district court invited both parties to provide guidance as to

how it should consider the fraud sentence imposed. The government

offered in its memorandum and at sentencing that the conduct

accounted for no more than sixty months of the fraud sentence.

Bunchan never contested this figure, nor did he offer an

alternative. Because the murder-for-hire conduct was only one of

seven independent factors considered in calculating Bunchan's fraud

sentence, we find reasonable the district court's decision to have

the first sixty months of Bunchan's 300-month sentence run

concurrently with the fraud sentence. 

III. Conclusion

For the foregoing reasons, we affirm Bunchan's

convictions and sentence.

So ordered.