UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4320

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GERALD TIMMS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:19-cr-00428-FL-1)

Submitted: January 21, 2021 Decided: March 3, 2021

Before NIEMEYER and KEENAN, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Richard Croutharmel, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Gerald Timms appeals from his conviction after a jury trial of two counts of

possession of contraband in prison, in violation of

(a)(2). On appeal,

Timms challenges the quashing of his subpoena and avers that the district court’s jury

instructions improperly amended the indictment. We affirm.

Timms first asserts that the district court erred under Fed. R. Crim. P. 17(c) by

denying Timms the opportunity to subpoena vehicle models that he had built. Timms’

defense theory was that he possessed the contraband at issue (sharpened objects) in order

to build the vehicle replicas. While Timms notes that the Government relied upon his

failure to obtain approval under the appropriate Department of Justice regulations, he

contends that the Government is elevating form over substance.

The Supreme Court has ruled that the Attorney General may lawfully make

regulations instructing employees with regard to production of evidence in litigation.

United States ex rel. Touhy v. Ragen,

(1951); see also

.

The Attorney General has established such regulations, which are found at

through 16.29 and are known as the Touhy regulations. The regulations set up a

procedure by which Department of Justice officials make decisions about whether an

employee called upon to testify or to produce evidence in litigation is permitted to disclose

the requested information. See

.

After submission of a request, the Department of Justice makes a decision about

whether the testimony will be disclosed. See

and 16.24. When an agency

has enacted Touhy regulations, a litigant must proceed to seek permission from the agency,

2 and the court will then review any unfavorable agency decision under an arbitrary and

capricious standard. See Hous. Bus. J. v. Off. of the Comptroller,

, 1212 n.4

(D.C. Cir. 1996).

Timms questions the importance of Touhy protections in this case, arguing that the

policies supporting Touhy are inapplicable in this instance. However, given that Timms

“made no attempt whatsoever to comply with the . . . regulations . . . he can hardly be heard

to complain that the regulations cause him injury.” See United States v. Soriano-Jarquin,

(4th Cir. 2007) (noting that Touhy regulations apply to testimony of

agency employees in federal criminal prosecutions). Timms was warned that he needed to

comply with Touhy and, does not dispute that he failed to do so. Further, Timms does not

offer any justification for his non-compliance with Touhy. As such, the district court did

not abuse its discretion in quashing the subpoena.

Next, Timms contends that the district court constructively amended the indictment

by adding that the jury could find him guilty if he possessed “a weapon or an object that is

designed or intended to be used . . . to facilitate escape from prison.” (J.A. 273). This

portion of the definition of a prohibited object was not included in the indictment which

charged only that the objects were “a weapon and or an object that is designed and or

intended to be used as a weapon.” (J.A. 14-15).

“[I]t is the exclusive province of the grand jury to alter or broaden the charges set

out in an indictment.” United States v. Moore,

(4th Cir. 2016) (internal

quotation marks omitted). “Accordingly, it is well established that a court cannot permit a

defendant to be tried on charges that are not made in the indictment against him.” Id.

3 (internal quotation marks omitted). “An impermissible constructive amendment — also

referred to as a fatal variance — occurs when the government, usually through its

presentation of evidence or argument, or the district court, usually through its jury

instructions, broadens the possible bases for conviction beyond those presented by the

grand jury.” Id. (internal quotation marks omitted). When a constructive amendment claim

rests on allegedly erroneous jury instructions, a reviewing court must consider “the totality

of the circumstances—including not only the instructions and the indictment but also the

arguments of the parties and the evidence presented at trial—to determine whether a jury

could have reasonably interpreted the challenged instructions as license to convict on an

unindicted charge.” Id. (internal quotation marks omitted); see also United States v.

Kuehne,

(6th Cir. 2008) (“[W]here the jury instructions alone differ

from the indictment to charge the same crime, but on an alternative theory, a mere variance

occurs and a defendant must demonstrate prejudice.”). Because Timms did not challenge

the jury instructions below, his claim is reviewed for plain error. See Johnson v. United

States,

(1997).

Here, the opening statements, trial evidence, and closing arguments focused on

whether the sharpened items seized from Timms’ cell were weapons and/or objects

designed and/or intended to be weapons. The Government, in its opening statement,

forecast that the evidence would show that Timms “knowingly possessed an item of

contraband, specifically here a weapon.” (J.A. 146). In his opening statement, Timms

essentially admitted that he possessed the contraband items, but that he used them as tools

for his craft making and did not design or intend them to be weapons.

4 The witnesses uniformly testified that the sharpened items Timms possessed were

weapons. In closing argument, Government counsel recognized the Government’s burden

to prove that Timms “knowingly possessed an object defined as a weapon, an item designed

to be used as a weapon, or intended to be used as a weapon.” (J.A. 250). Government

counsel then highlighted the evidence demonstrating that these items were, in fact,

weapons. Timms’ closing argument focused on whether he designed or intended the seized

items to be used as a weapon. During the trial and during the final jury charge, the court

reminded the jury that Timms was on trial for the offenses alleged in the indictment and

nothing else. The court read the indictment as part of its instructions and provided the jury

with a copy of the indictment for use during its deliberations.

Assuming without deciding that the jury instruction was erroneous, we conclude

that Timms has not established that his substantial rights were impacted by the erroneous

jury instruction. See United States v. Ramirez-Castillo,

(4th Cir. 2014)

(plain error standard of review). Timms asserts that he was prejudiced because “it was

reasonable for the jury to infer that a sharpened object could be used to threaten a staff

member to allow Mr. Timms to exit the prison in a manner he would not otherwise be able

to facilitate on his own.” However, should the jury so conclude, the jury necessarily would

also have to conclude that the object was a weapon or intended to be used as a weapon.

Instead, to show prejudice, Timms would have to show that the jury could have convicted

him for possession of an object able to facilitate an escape from prison while, at the same

time, finding that the object was not a weapon or intended to be used as one. Inasmuch as

5 Timms has failed to do so, he has not shown a prejudicial variance and is therefore not

entitled to relief.

Accordingly, we affirm. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

6