A Pinkerton instruction is not a constructive amendment, says the Fourth Circuit

Kirsten E. Small

The Fourth Circuit issued two published opinions today. In United States v. Ashley, the Court rejected Ashley's various challenges to his convictions for witness tampering, retaliation against an informant, and possessing a weapon in furtherance of a crime of violence. Of particular note is the court's holding--joining every other circuit to have considered the issue--that "a district court does not constructively amend an indictment by giving a Pinkerton instruction when Pinkerton liability has not been charged by the grand jury." Slip op. at 13.

In United States v. White, the court addressed the defendant's argument that his conviction under 18 U.S.C. § 922(g) for possession of a firearm after a misdemeanor domestic violence was invalid because his prior offense--for assault and battery of a family member--did not involve "physical force." See 18 U.S.C. § 921(a)(33)(A) (defining "misdemeanor crime of domestic violence" as requring the use of physical force). In support of White's conviction, the government argued that any intentional physical contact constitutes "physical force" within the meaning of the statute. This is the view of the First, Eighth, and Eleventh Circuits.

To make a long opinion short, the Fourth Circuit disagreed, joining the Seventh, Ninth, and Tenth Circuits in holding that common law battery is not "physical force." The court concluded that the outcome was determined by Johnson v. United States, 130 S. Ct. 1265 (2010), in which the Supreme Court held that "physical force" (there, under the Armed Career Criminal Act) means "violent force ... capable of causing physical pain or injury" and therefore excluded common law battery which may be accomplished by even the slightest offensive touching.