United States of America v. Jannie L. Shumpert Hood

12 United States v. Hood No. 99-3932
ambiguity and, indeed, may support the theory that Hood
acted with intent to frighten. The fact that Bolz and Swinson
did not request assistance immediately after the encounter, for
example, might suggest that the inspectors themselves did not
perceive Hood as a serious threat to their physical safety.
Similarly, Hood’s attempt to register a complaint against the
inspectors seems inconsistent with an intent to harm them.
Taken as a whole, the record before this court does not
contain evidence sufficient to support the conclusion that
Hood acted with intent to injure the inspectors. I therefore
agree with the majority that the case should be remanded for
resentencing pursuant to the minor assault characteristic,
U.S.S.G. § 2A2.3.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0149P (6th Cir.)
File Name: 00a0149p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J ANNIE L. S HUMPERT HOOD ,
Defendant-Appellant.
;>

1
No. 99-3932
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 99-00025—James S. Gwin, District Judge.
Argued: December 6, 1999
Decided and Filed: April 27, 2000
Before: JONES, BATCHELDER, and MOORE, Circuit
Judges.
_________________
COUNSEL
ARGUED: John F. McCaffrey, McLAUGHLIN &
McCAFFREY, Cleveland, Ohio, for Appellant. Steven L.
Jackson, ASSISTANT UNITED STATES ATTORNEY,
Cleveland, Ohio, for Appellee. ON BRIEF: John F.
McCaffrey, McLAUGHLIN & McCAFFREY, Cleveland,
Ohio, for Appellant. Steven L. Jackson, ASSISTANT

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2 United States v. Hood No. 99-3932
UNITED STATES ATTORNEY, Cleveland, Ohio, for
Appellee.
JONES, J., delivered the opinion of the court, in which
MOORE, J., joined. BATCHELDER, J. (pp. 9-12), delivered
a separate concurring opinion.
_________________
OPINION
_________________
NATHANIEL R. JONES, Circuit Judge. Defendant-
Appellant Jannie Shumpert Hood appeals her conviction and
sentence for assault of a federal postal officer in violation of
18 U.S.C. §§ 111(a)(1) & (b). Hood contends that the district
court erred by not specifically instructing the jury on Sixth
Amendment unanimity, and by sentencing her under U.S.S.G.
§ 2A2.2 for “aggravated assault.” We disagree with her first
contention, but agree that the district court erred in sentencing
her under § 2A2.2. Accordingly, we AFFIRM in part,
VACATE in part, and REMAND for re-sentencing.
I.
The question of determining the appropriate classification
of assault in this case is particularly fact-driven, as will be
evident from the following recital of events. On January 12,
1999, Mrs. Hood, a 47 year-old African-American, was at her
home in Cleveland’s Collinwood section. Sometime that
morning, Jim Wacker, a nineteen year old recent high school
graduate, came by to deliver the mail. Appellant Hood met
Wacker as he arrived to deliver the mail. Wacker testified
that he “backed up” when he saw the appellant open the door,
as it made him “nervous” that a black woman he did not know
was coming outside. J.A. at 104-05. Appellant, upset that her
mail was not being delivered as she desired, snatched the mail
out of Wacker’s hands. After an angry exchange of words,
Wacker promptly reported the incident to his supervisor,
whereupon the supervisor dispatched Inspectors Steven Bolz
and J.C. Swinson to probe the incident.
No. 99-3932 United States v. Hood 11
LeRoy, but he did not arrive before the inspectors had
retreated to their van and driven away. Hood testified that she
never stepped out onto the porch, and that she did not threaten
the inspectors with the knife.
By all accounts, Swinson and Bolz did not radio for backup
or request assistance from the police. Hood, by contrast,
called the post office to office to register a complaint against
the person who had called the postal inspectors on her. Hood
indicated that “They were coming to murder me.” Later that
afternoon, Hood went to the post office to complain in person.
The following day, January 13, 1999, Hood was arrested.
Hood was charged with two counts of forcibly assaulting,
resisting, opposing, impeding, intimidating, or interfering
with a federal official engaged in the performance of his
duties, in violation of 18 U.S.C. § 111. A jury acquitted
Hood of the count with respect to letter carrier Wacker, thus
indicating that they had at least a reasonable doubt about
Wacker’s version of the event. The jury convicted Hood of
the count with respect to Bolz and Swinson, indicating that
they credited the inspectors’ testimony over that of Hood.
II
Hood was properly sentenced pursuant to the aggravated
assault offense characteristic, U.S.S.G. § 2A2.2, only if she
acted “with intent to do bodily harm (i.e. not merely to
frighten).” U.S. Sentencing Guidelines Manual § 2A2.2
comment. app. n.1. I cannot agree with the majority that there
is an “absolute paucity” of evidence that Hood acted in such
a fashion. The credited testimony in this case is that Hood
barreled through her front door and held a knife
approximately one foot away from inspector Swinson’s face.
This is a non-trivial piece of evidence.
Viewed in isolation, however, this evidence is equivocal.
Hood may have rushed through the door with a knife in her
outstretched hand intending to injure the inspectors, or she
may have wanted merely to frighten them off her porch. The
remaining evidence of record does little to clarify the

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10 United States v. Hood No. 99-3932
1According to Inspectors Bolz and Swinson, Ms. Hood was yelling
for someone named “Danny,” and shouting that the inspectors were going
to shoot her. Ms. Hood, however, testified that she called for her nephew,
“LeRoy,” saying merely, “LeRoy, come here.”
After this incident, Wacker radioed his supervisor and
reported that he had been assaulted. The Post Office
dispatched two postal inspectors, Stephen Bolz and Jean
Swinson, to investigate.
According to the inspectors, they first found James Wacker
and obtained his account of his encounter with Hood. They
then went to Hood’s house, where, upon arrival, they knocked
on the door and rang the doorbell. After some delay, Hood
appeared at a window. The inspectors identified themselves.
After further delay, Hood opened the door, rushed out, and
held a steak knife six to twelve inches away from Swinson’s
face. Hood appeared to be very angry and said, “I didn’t call
you. Get off my porch.” The inspectors backed off the porch.
Once he was off the porch, Bolz, for the first time in a
thirteen-year career in law enforcement, drew his service
revolver. Bolz would later testify that this “was a defensive
reaction to what I felt was a dangerous situation.” Hood saw
the weapon and began to yell, “He’s got a gun. He’s going to
shoot me.” The inspectors retreated to their vehicle and drove
back to the post office.
Hood’s account of this episode, once again, differs
significantly. Hood testified that after the inspectors had rung
the doorbell, she went to the window and tapped on it. In
response, Swinson “stuck her head around,” allowing Hood
to see her. Hood proceeded to the door while still holding a
knife that she had been using to prepare breakfast. She
opened the door and, for the first time, Swinson displayed her
credentials. The inspectors said nothing, however. Because
they remained silent, Hood, after several moments, told them
to get off her porch. The inspectors went down the steps, and
Bolz pulled back his coat, revealing his gun. The gun looked
like it was pointing at Hood. Hood summoned her nephew1
No. 99-3932 United States v. Hood 3
Bolz and Swinson arrived at Hood’s home while she was in
the middle of preparing breakfast for her nephew. The record
shows that after Bolz and Swinson arrived on the porch and
rang the doorbell, Mrs. Hood looked out the window to see
who was at the door. Upon observing Bolz and Swinson,
Mrs. Hood went to the door while still holding the knife she
used to prepare breakfast. The inspectors testified that when
Mrs. Hood came to the window, they displayed their
credentials prior to her coming outside onto the porch. The
porch was very small, approximately the same width as
Appellant’s storm door. It was supported by a pillar that,
given the porch’s small size, prevented the door from fully
opening. Thus, anyone standing to the left side of the porch,
as was Bolz, would be blocked behind the door and pillar.
Mrs. Hood testified that she first noticed Swinson’s
credentials when she opened the door. While Appellant
stated that she merely opened the doors, Swinson testified that
Mrs. Hood came “barreling out” of the house. Bolz stated
that she came out of the house “very loud and angry.” J.A. at
132-33. In any event, when Bolz noticed that she had a steak
knife in her hand, he backed off the porch, as did Swinson,
and drew his firearm on Appellant. Seeing the weapon, she
began screaming to her nephew, “Danny, he’s got a gun. He’s
going to shoot me.” The inspectors quickly backed away
from the house, and returned in their unmarked van to the
Collinwood post office. Mrs. Hood called the station to
register a complaint, and, later in the day, personally went to
the station to complain about the incident.
On February 10, 1999, a federal grand jury returned a three
count indictment against Appellant Hood, alleging three
separate individual assaults against Bolz, Swinson, and
Wacker in violation of 18 U.S.C. § 111(a) & (b). The Bolz
and Swinson counts alleged that Hood committed the assault
through the use of a deadly weapon in violation of § 111(b).
On March 30, 1999, Appellant moved to compel election
between multiplicitous counts, asserting that the separate Bolz
and Swinson charges actually constituted a single act of
assault. J.A. at 23. The Government did not object to this

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4 United States v. Hood No. 99-3932
motion, and a superseding two count indictment was
subsequently issued on April 14. Count one of the
superseding indictment collapsed the charges against Bolz
and Swinson into one collective charge, while count two, the
Wacker charge, remained unchanged from the initial
indictment.
During the two-day trial, Mrs. Hood requested a specific
unanimity instruction, requiring the jury to unanimously find
that she assaulted both Swinson and Bolz to convict. The
Court denied this request, and instructed the jury that it could
convict if it found that Mrs. Hood “forcibly assaulted or
resisted or opposed or impeded or intimidated or interfered
with J.C. Swinson or Steven D. Bolz.” J.A. at 227 (emphasis
added). The jury subsequently convicted Hood of count one,
and acquitted her on count two. The probation officer’s pre-
sentencing report provided that Hood never “lung[ed]
forward” with the knife, but that she “did advance toward
[Bolz and Swinson] on the porch.” The district court applied
the guideline provision for “aggravated assault,” increased the
base offense level by three for brandishing or threatening the
use of a deadly weapon, and sentenced Appellant to 27
months imprisonment. Hood filed this timely appeal,
contending that the district court erred both in failing to cure
a purportedly duplicitous indictment and in sentencing her
under the “aggravated assault” guideline.
II.
“The trial court is ‘vested with broad discretion in
formulating its charge and will not be reversed unless the
charge fails accurately to reflect the law.’” United States v.
Busacca, 863 F.2d 433, 435 (6th Cir. 1988) (per curiam)
(citation omitted). Accordingly, we review the trial court’s
jury instruction for an abuse of discretion. Id. Raising a
mixed question of law and fact, we review de novo the district
court’s application of U.S.S.G. § 2A2.2.
No. 99-3932 United States v. Hood 9
____________________
CONCURRENCE
____________________
ALICE M. BATCHELDER, Circuit Judge, concurring. I
concur in the majority’s disposition of this case. I write
separately to highlight some facts material to and necessary
for an understanding of both the charges against the defendant
and the § 2A2.2 sentencing issue that did not find their way
into the majority opinion.
I
On January 12, 1999, substitute letter carrier James Wacker
arrived at 888 E. 139th Street, the Collinwood home of Jannie
L. Shumpert Hood. Hood is a forty-eight-year-old African-
American woman with a history of mental illness. Due to
mail theft problems, Hood had installed a lock on her
mailbox. A diagram on the mailbox instructed postal workers
how Hood wished her mail to be delivered.
According to Wacker, as he was preparing to deliver
Hood’s mail, Hood exited her house and began yelling that he
was putting the mail in the wrong place. Hood snatched the
mail from him and demanded to know his name. At some
point during the encounter, Wacker testified, Hood shoved
him. Wacker testified that he was frightened and nervous,
and he therefore did not tell Ms. Hood his true name. Hood
threatened to call the post office, prompting Wacker to give
his correct name.
Hood’s rendition of the events differs considerably.
According to Hood, she came out of the house and Wacker
handed her the mail. She inquired if Wacker would be her
regular letter carrier and, receiving a negative response, asked
his name. Wacker gave a false name. Sensing the deception,
Hood said, “Oh, you are lying,” and ordered Wacker off her
porch. As he left, Wacker stated his true name. Hood denies
ever having shoved Wacker.

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8 United States v. Hood No. 99-3932
in applying that provision. Given these facts and the
expansive definition of § 2A2.3 “minor assault” as “a
felonious assault not covered by § 2A2.2,” we conclude that
§ 2A2.3 is the guideline provision “most applicable” to
Hood’s conduct.
III.
Because we do not deem the district court’s jury instruction
erroneous, but do conclude that it erred in sentencing
Appellant under U.S.S.G. § 2A2.2, we AFFIRM her
conviction but VACATE her sentence. Accordingly, we
REMAND for re-sentencing in accordance with U.S.S.G.
§ 2A2.3.
No. 99-3932 United States v. Hood 5
A.
Duplicitous indictments implicate the protections of the
Sixth Amendment guarantee of jury unanimity. An
indictment is duplicitous if “it joins in a single count two or
more distinct and separate offenses.” United States v.
Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981). “The vice of
duplicity is that a jury may find a defendant guilty on the
count without having reached a unanimous verdict on the
commission of any particular offense.” Id. (citation omitted);
see also United States v. Washington, 127 F.3d 510, 513 (6th
Cir. 1997). By collapsing separate offenses into a single
count, duplicitous indictments thereby prevent the jury from
convicting on one offense and acquitting on another. See id.
Duplicitous charges, however, are not necessarily fatal to an
indictment. See Robinson, 651 F.2d at 1194. A defendant
may move, as did Hood, to require the government to “elect
either the count or the charge within the count upon which it
will rely,” or the court may “particulariz[e] the distinct
offense charged in each count” in its jury instruction. Id.
Moreover, a specific unanimity instruction is generally not
required unless: “1) a count is extremely complex; 2) there is
variance between the indictment and the proof at trial; or 3)
there is a tangible risk of jury confusion.” United States v.
Sanderson, 966 F.2d 184, 187 (6th Cir. 1992).
Additionally, a single act of assault against multiple officers
constitutes one offense, and therefore does not implicate Sixth
Amendment prohibitions on duplicity. See Ladner v. United
States, 358 U.S. 169, 176 (1958) (holding, under the
predecessor of § 111, that two federal officers wounded by a
single shot constituted a single assault); United States v.
Beckner, 983 F.2d 1380, 1386 n.1 (6th Cir. 1993) (asserting
that we cannot separately sentence defendants for injuring
multiple federal officers when injuries are caused by single
act); United States v. Theriault, 531 F.2d 281, 285 (5th Cir.
1976) (“The test is whether there is more than one act
resulting in the assaults, not whether more than one federal
officer is injured by the same act.”). In differentiating
whether an attack against multiple officials is a single assault

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6 United States v. Hood No. 99-3932
or multiple assaults, federal courts have inquired whether
officers were injured by “distinct successive criminal
episodes, rather than two phases of a single assault.” United
States v. Segien, 114 F.3d 1014, 1022 (10th Cir. 1997)
(internal quotations and citation omitted); accord United
States v. Lewis, 435 F.2d 417, 420 (D.C. Cir. 1970) (citation
omitted).
Appellant Hood contends that her alleged conduct
constituted “two separate and distinct offenses under
18 U.S.C. § 111.” It is on this presupposition that she asserts
that in instructing the jury it could convict if she assaulted
Swinson or Bolz, the district court allowed the jury to convict
without the unanimity required by the Sixth Amendment. We
conclude, however, that the district court did not abuse its
discretion in instructing the jury it could convict on the basis
of a single assaultive event. In Ladner, the Supreme Court
held that a defendant committed a single act of assault, as
opposed to multiple separate assaults, when he fired a single
shot from a shotgun and wounded two officers. See 358 U.S.
at 176. Even more similar to this case is the D.C. Circuit’s
holding in Lewis. While both officials were actually wounded
in Ladner, in Lewis, the defendant fired one shot at two
officers, and missed both of them. See 435 F.2d at 419. The
court held that this conduct constituted a single assaultive act,
rather than individual assaults against each officer. See id.
Similarly, here, there was only one assaultive event. Bolz
conceded that Hood did not lunge at him or Swinson, and
there is no evidence that she made any aggressive or
threatening statements toward either of them. Moreover,
Hood has not pointed the court to any separate acts that could
plausibly imply two “distinct successive criminal episodes .”
B.
The first step in applying the guidelines is to “[d]etermine
the applicable offense guideline section” found in “Statutory
Index (Appendix A),” which is designed to “assist” in
determining the guideline provision applicable to particular
criminal conduct. U.S.S.G. § 1B1.1(a); see United States v.
No. 99-3932 United States v. Hood 7
Winters, No. 94-4269, 1995 WL 462415 (6th Cir. 1995)
(unpublished per curiam). The index provides the guideline
section “ordinarily applicable” to the convicting statute;
however:
[i]f, in an atypical case, the guideline section indicated
for the statute of conviction is inappropriate because of
the particular conduct involved, use the guideline section
most applicable to the nature of the offense conduct
charged in the count of which the defendant was
convicted.
U.S.S.G., app. A.
The guidelines indicate that §§ 2A2.2 and 2A2.4 are the
provisions “ordinarily applicable” to convictions under
18 § U.S.C. § 111. Even though the presentence investigation
report concluded that § 2A2.2, covering aggravated assaults,
might be “excessive for the circumstances of this case,” the
district court nevertheless applied § 2A2.2, stating that it
made “its finding in reliance upon the statutory index.”
“Aggravated assault” under § 2A2.2 is defined as follows:
[A] felonious assault that involved (A) a dangerous
weapon with intent to do bodily harm (i.e. not merely to
frighten), or (B) serious bodily injury, or (C) an intent to
commit another felony.
U.S.S.G. § 2A2.2 comment. (n.1). Correspondingly, the
§ 2A2.3 guideline for “minor assault” is explicitly defined as
“a felonious assault not covered by § 2A2.2.” U.S.S.G.
§ 2A2.3 comment. (n.1).
Given the absolute paucity of evidence that Mrs. Hood had
an intent to do bodily harm, or commit another felony, we
must conclude that the district court erred in applying the
“aggravated assault” guideline. Mrs. Hood made no verbal
threats or statements that she intended to do the postal
workers any harm, and Bolz conceded that Appellant did not
lunge at them with the knife. This record does not support the
application of § 2A2.2, and the district court therefore erred

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