Indictment for “Felonious” Rather Than “Forcible” Assault Not Defective

US v. Johnson: Johnson was in a car with fellow gang members who thought they wound up in pursuit of a car full of rival gang members – at whom Johnson shot eight times (nobody was hit or hurt). Turns out the car was actually driven by FBI agents. Johnson was charged with a discharging a firearm in connection with a crime of violence and assaulting federal officers in an indictment that charged they had been “feloniously” assaulted rather than “forcibly” assaulted, as 18 U.S.C. §111 states. Johnson was convicted at trial and sentenced to 198 months in prison.

On appeal, the Fourth Circuit affirmed his convictions and sentence. In particular, the court rejected Johnson’s challenge to the indictment. Johnson argued that the indictment was defective because, rather than use the “forcibly” language of the statute, it used the term “feloniously.” Applying plain error, court found there was no error because the indictment adequately put Johnson on notice of the charge against him, the district court instructed the jury properly (i.e., it used “forcibly” language), and the jury’s verdict on the firearm charge, which included a finding “that Johnson fired eight shots . . . inherently included a finding that Johnson assaulted the officers with force.” The Government conceded that there was error and it was plain, but argued Johnson’s substantial rights had not been violated, with which the court also agreed.