United States v. Chambers

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 29, 2005

Charles R. Fulbruge III
Clerk
No. 03-51274

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EUGENE CHAMBERS, III, also known as Gino,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before GARWOOD, JONES, and PRADO, Circuit Judges.

GARWOOD, Circuit Judge:

Eugene Chambers, III (Chambers) appeals his conviction under

18 U.S.C. § 922(g)(1) for being a felon in possession of

ammunition. We reverse his conviction and remand to the district

court with instructions to dismiss that count of the indictment.

1
Facts and Proceedings Below

Chambers, along with two co-defendants, stood trial in June of

2003 on a 20-count superceding indictment that alleged an elaborate

drug conspiracy and other related crimes. Chambers was charged in

five counts of the indictment, namely in one count of conspiracy,

from January 1998 to August 2002, to manufacture and distribute

more than 50 kilograms of cocaine base, in two counts of aiding and

abetting the distribution of cocaine base on, respectively, October

9 and November 17, 2001, in one count of conspiracy, from January

1998 to August 2002, to launder money, and, finally, in count 19,

with being a felon in possession of ammunition on or about August

8, 2002, contrary to section 922(g)(1). The money laundering

conspiracy count was dismissed before the case was submitted to the

jury. The jury on July 1, 2003 returned a verdict of not-guilty as

to three drug counts but found Chambers guilty of Count 19, the

ammunition count.

With respect to Chambers’ conviction, the evidence at trial

established the following. First, Chambers was a convicted felon.

Second, although the only evidence on the subject indicated that

the ammunition belonged to Chambers’ father and had been

inadvertently included among Chambers’ things when he moved out of

his father’s San Antonio apartment, Chambers was aware of the

ammunition’s presence in his new home. Finally, the ammunition in

question, as alleged in the indictment, consisted of “104 rounds of

2
.40 caliber S&W jacketed hollow-point ammunition, distributed by

Houston Cartridge Company.” The authorities discovered the rounds

at Chambers’ new residence while executing a search warrant there

connected to the drug investigation. The ammunition was visible in

a box in a pantry-like closet in the apartment Chambers shared with

his fiancee in San Antonio, Texas. Other than a few unidentified

rounds, the ammunition was in its original packaging and the

evidence established that it was manufactured by the Houston

Cartridge Company in Willis, Texas, just outside of Houston, Texas.

Jim Butz, the owner of Houston Cartridge Company, testified that he

produces, in Texas, completed rounds, using brass (cartridge cases)

from Texas and sometimes from Colorado, bullets (projectiles) from

Texas, South Dakota and Montana, powder from Tennessee, and primers

from South Dakota. Houston Cartridge Company sold the rounds it

produced at various places, including gun shows in San Antonio and

other Texas locations. There is no evidence that any of the

completed rounds found in Chambers’ apartment, as opposed to some

of their components, had ever moved in interstate commerce.1

At the close of the government’s case in chief Chambers moved

for judgment of acquittal under Rule 29(a), FED. R. CIV. P., as to

the ammunition count on the ground that there was “not evidence

that the ammunition which was manufactured in Houston was in

1
There is no evidence as to either the source or any
interstate movement of any of the few rounds (or any components
thereof) found in the closet at Chambers’ residence which were not
identified as Houston Cartridge Company rounds.

3
interstate commerce” and that to look to some of the component

parts “is a constructive amendment to the indictment, which is

improper.” The district court denied the motion. At the close of

all the evidence, Chambers renewed his Rule 29(a) motion and the

district court again denied it.

The court instructed the jury that to convict on the

ammunition count it had to find “that the possession of the

ammunition was in and affecting commerce, that is that before the

defendant possessed the ammunition, it had travelled at sometime

from one state to another,” and, over Chambers’ objection (9 R.

754-56; 10 R 1211-12), that “[t]he term ammunition means ammunition

or cartridge cases, primers, bullets or propellant powders designed

for use in any firearm.” In both its opening and rebuttal closing

arguments the government, expressly relying on this instruction,

contended that the “in and affecting commerce element” of the

ammunition count was proven by the evidence that “the components,

before they were assembled, crossed state lines” and “the

components moved in interstate commerce before it was assembled .

. . ammunition includes the components, as the judge told you.”

The government did not argue there was any evidence that any of the

completed rounds alleged in the indictment had moved in interstate

commerce. Chambers’ counsel argued that though some components of

the completed rounds may have traveled in interstate commerce, the

completed rounds themselves did not.

4
After the jury returned its verdict on July 1, 2003 finding

Chambers guilty of the ammunition count and not guilty of the other

counts with which he was charged, Chambers timely moved under Rule

29(c) for judgment of acquittal as to the ammunition count on the

ground that there was no evidence any of the “104 rounds of .4o

caliber . . . ammunition, distributed by the Houston Cartridge

Company . . . had been transported in interstate commerce” as

alleged in the indictment, and that conviction could not rest on

evidence that some component parts had separately moved in

interstate commerce before being assembled into such rounds as that

would constitute a constructive amendment of the indictment

contrary to United States v. Stirone, 80 S.Ct. 270 (1960). This

motion was denied.

Chambers was subsequently sentenced to 235 months’

imprisonment to be followed by five years of supervised release.

In his timely appeal to this court, Chambers contends, inter

alia, that the evidence is insufficient to support his conviction

because there is no evidence that his possession of ammunition was

“in and affecting” commerce as alleged in the indictment in that

none of the completed rounds charged in the indictment were shown

to have moved in interstate commerce, and that his conviction may

not be sustained on evidence that some component parts of those

rounds had traveled interstate before Houston Cartridge Company

assembled them into the completed rounds, as that would constitute

5
a constructive amendment of the indictment.2

Discussion

Count 19 of the indictment alleges that

“On or about August 8, 2002, in the Western District of
Texas, Defendant, Eugene Chambers, III, having been
convicted of a crime punishable by imprisonment for a
term exceeding one year did knowingly possess in and
affecting commerce ammunition, to wit: 104 rounds of
.40 caliber S&W jacketed hollow-point ammunition,
distributed by the Houston Cartridge Company, which had
been transported in interstate commerce, in violation
of Title 18, United States Code, Sections 922(g)(1) and
924(a)(2).”

Section 922(g)(1) provides in relevant part that

“It shall be unlawful for any person . . . who has been
convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to
ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or
foreign commerce.”

Section 917(a)(17)(A) of Title 18 provides that “[a]s used in

this chapter” (chapter 44, which consists of sections 921-931):

“The term ‘ammunition’ means ammunition or cartridge
cases, primers, bullets, or propellant powder designed
for use in any firearm.”

It is plain that the word “ammunition” as it appears just

following “means” in section 917(a)(17)(A) refers to completed

2
Our disposition of this contention makes it unnecessary to
address Chambers’ other points of error, including his contention
that as applied here the component parts definition of ammunition
(18 U.S.C. § 917(a)(17)(A)) exceeds Congress’s Commerce Clause
power. We assume, arguendo, no exceeding of Commerce Clause power
in the instant conviction.

6
rounds. Substituting the section 917(a)(17)(A) definition into

section 922(g)(1), the latter statute would read in relevant part

as follows:

“It shall be unlawful for any person . . . who has
been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to . .
. possess in or affecting commerce, any firearm or
ammunition [i.e., completed rounds] or cartridge cases,
primers, bullets, or propellant powder designed for use
in any firearm.”

An essential element of a section 922(g)(1) possession of

ammunition offense, which the government is required to prove

beyond a reasonable doubt in order to obtain a conviction, is that

the defendant’s charged possession of the ammunition was “in or

affecting commerce.” United States v. Ybarra, 70 F.3d 362, 365

(5th Cir. 1995).

Here, the indictment, which makes no mention of cartridge

cases, primers, bullets or powder, is unambiguous and plainly

alleges one, and only one, factual basis constituting the “in or

affecting commerce” element of the offense, namely that the

possessed “rounds of .40 caliber S&W . . . ammunition, distributed

by the Houston Cartridge Company . . . had been transported in

interstate commerce.” However, the government presented no

evidence that these rounds had been transported in interstate

commerce as the indictment alleged. Rather, the only “in or

affecting commerce” proof was that, in the process of its Texas

assembly of the complete rounds Houston Cartridge Company

7
incorporated into them previously acquired powder from Tennessee,

primers from South Dakota and bullets (projectiles) from Montana.3

The government thus proved an essential element of the section

922(g)(1) possession offense – that the possession was “in or

affecting commerce” – on the basis of a set of facts different from

the particular facts alleged in the indictment in respect to that

element.

The government contends that at most there was a harmless

variance, not a constructive amendment of the indictment. However,

as we said in United States v. Adams, 778 F.2d 1117, 1123 (5th Cir.

1985):

“Stirone requires that courts distinguish between
constructive amendments of the indictment, which are
reversible per se, and variances between indictment and
proof, which are evaluated under the harmless error
doctrine. The accepted test is that a constructive
amendment of the indictment occurs when the jury is
permitted to convict the defendant upon a factual basis
that effectively modifies an essential element of the

3
The evidence shows Houston Cartridge Company acquired some
of its casings (“brass”) “locally” and some from a supplier in
Dallas (there was no evidence of where the supplier got them) and
some from Colorado. There was no estimate of the fraction of
casings from any of the three sources nor any other evidence which
would allow the jury to find beyond a reasonable doubt that the
casings on any of the rounds in question had traveled in interstate
commerce.
With respect to the bullets (projectiles), Butz of Houston
Cartridge Company testified that he acquired jacketed bullets from
South Dakota or Montana, but the lead projectiles “I buy locally.”
He also testified that of the rounds found in Chambers’ residence
“the full metal jacket ammunition is not mine.” However, when then
asked “if that’s your ammunition . . . those bullets came from
South Dakota or Montana,” he responded “Those came from Montana.”

8
offense charged [in the indictment]. . . . In such cases,
reversal is automatic, because the defendant may have
been convicted on a ground not charged in the
indictment.” (emphasis added).

Stirone is directly analogous. There the defendant was

charged and convicted of extortion in violation of the Hobbs Act,

18 U.S.C. § 1951, which denounces “[w]hoever in any way or degree

obstructs, delays, or affects commerce . . . by robbery or

extortion or attempts or conspires so to do.” The indictment

alleged that the victim, Rider, had a contract to supply concrete

from his Pennsylvania plant to be used in the construction of a

steel processing plant in Pennsylvania, and that to perform his

contract Rider caused supplies and materials to be shipped from

outside of Pennsylvania to his Pennsylvania plant.

The Supreme Court noted that:

“The indictment went on to charge that Stirone, using his
influential union position, ‘did . . . unlawfully
obstruct, delay [and] affect interstate commerce between
the several states of the United States and the movement
of the aforesaid materials and supplies in such commerce,
by extortion . . . of $31,274.13 . . . inducted by fear
and by the wrongful use of threats of labor disputes and
threats of the loss of, and obstruction and prevention
of, performance of his contract to supply ready mixed
concrete.’” Id., 80 S.Ct. at 271.

The district court, over objection, permitted “evidence of an

effect on interstate commerce not only in sand brought into

Pennsylvania from other states but also in interference with steel

shipments from the steel plant in Pennsylvania into Michigan and

Kentucky”, id., and permitted the jury to find the requisite

9
commerce element on either basis. Id. at 272. The Court of

Appeals affirmed the conviction, holding that the evidence was

sufficient to satisfy that element under either theory, and that

although the indictment did not allege an effect on commerce on the

basis of steel shipments that amounted only to “a variance,” which

did not require reversal as the defendant clearly was not surprised

and did not object on the basis that such evidence went beyond the

indictment. United States v. Stirone, 262 F.2d 571, 574 (3d Cir.

1959).

The Supreme Court reversed. It noted that the Hobbs Act’s “in

any way or degree” language manifested an intent “to use all the

constitutional power Congress has to punish interference with

interstate commerce by extortion,” and that the evidence was

sufficient as to the sand shipped into Pennsylvania. Stirone at

272. The Court assumed, arguendo, that the evidence was sufficient

as to the steel shipments. Id. The Court did not dispute the

Court of Appeals’ determination that the accused was not surprised,

or prejudiced in his trial defense, by the evidence and instruction

as to the steel, but held nevertheless, since that was not alleged

in the indictment, that it

“. . . destroyed the defendant’s substantial right to be
tried only on charges presented in an indictment returned
by a grand jury. Deprivation of such a basic right is
far too serious to be treated as nothing more than a
variance and then dismissed as harmless error. . . . The
very purpose of the requirement that a man be indicted by
grand jury is to limit his jeopardy to offenses charged
by a group of his fellow citizens acting independently of

10
either prosecuting attorney or judge. Thus the basic
protection the grand jury was designed to afford is
defeated by a device or method which subjects the
defendant to prosecution for interference with interstate
commerce which the grand jury did not charge.” Id. at
273-74 (footnote omitted).

The Court concluded in words fully applicable here:

“. . . when only one particular kind of commerce is
charged to have been burdened a conviction must rest on
that charge and not another, even though it be assumed
that under an indictment drawn in general terms a
conviction might rest upon a showing that commerce of one
kind or another had been burdened.” Id. at 274.

We note that in Stirone there was no departure from the

indictment in respect to what the defendant did, or when, where or

to whom he did it, or what his conduct immediately threatened,

namely Rider’s contract to supply concrete to the steel plant

construction job. Nor was there any departure from the indictment

so as to allow conviction under any different language segment or

portion of the statute alleged in the indictment.

Following Stirone we have found constructive amendments in a

number of analogous contexts.

In Adams, a prosecution under 18 U.S.C. § 922(a)(6),

proscribing the knowing furnishing, in connection with the purchase

of a firearm from a dealer, of “false, fictitious, or

misrepresented identification,” the indictment alleged that the

defendant Adams

“in connection with his acquisition of a firearm . . .
from . . . a licensed dealer, did knowingly furnish . .
. a false, fictitious and misrepresented identification,
that is, a Mississippi Driver’s License Number XXX-XX-

11
7243, to the firearms dealer, which identification was
likely to deceive the firearms dealer with respect to a
fact material to the lawfulness of the acquisition of the
firearm by [defendant] . . . in that [defendant]
represented that he was Ernest Cole, whereas, in truth
and in fact, as he then well knew, he was Ernest Adams .
. . .”

The driver’s license identified in the indictment, which was placed

in evidence, was in the name of Ernest Cole and showed an address

in Meridian, Mississippi, although Adams’s residence was actually

in Detroit, Michigan. We held it error to allow conviction on the

basis that the driver’s license was false as to either the name or

the address on it, although the evidence would sustain either, and

that the allegation as to the falsity of the name could not be

disregarded as surplusage. Citing Stirone we stated:

“when only one particular kind of falsity is charged to
have been made in furnishing a license, a conviction must
rest on that charge and not another, even though a
conviction might have rested on a more general indictment
that omitted the reference to Ernest Cole.”

Other decisions of this court are to like effect. See United

States v. Davis, 461 F.2d 83, 90-91 (5th Cir. 1972) (conspiracy to

violate 18 U.S.C. § 1708 which “proscribes the possession of mail

matter which has been stolen ‘from or out of any mail, post office,

. . . letter box, . . . mail receptacle, . . . or other authorized

depository for mail matter;’” where indictment alleged letters,

contents of which defendants conspired to unlawfully possess

knowing they were stolen, had been “stolen . . . out of an

authorized depository for mail matter,” but the evidence did not

12
show letters were taken from “an authorized depository for mail

matter” as alleged, conspiracy conviction reversed, even though

evidence showed a violation of section 1708 in that the letters

were unlawfully taken from the “mail,” “[s]ince the Government

chose to charge a section 1708 violation in a particular manner, we

hold that in any conviction pursuant to that indictment the

prosecution is bound by the particular allegations contained

therein and it cannot obtain a conviction by proof of a violation

of the same statute in a manner not alleged”); United States v.

Salinas, 601 F.2d 1279, 1287-91 (5th Cir. 1979) (convictions for,

inter alia, violations of 18 U.S.C. § 656 (and aiding and abetting)

which proscribes misapplication of bank funds by “an officer,

director, agent or employee of . . . any . . . insured bank;” in

several of the section 656 counts the indictment alleged the

respective capacities of the appellants with respect to the victim

bank, that Woodul was president and Salinas and Sanchez were each

a director, no other office or position in or with the bank of any

of the appellants being alleged in such counts; it was undisputed

at trial that Woodul was president and Sanchez a director at all

the relevant times; the trial court instructed the jury that it

could find the required relationship of each appellant to the

victim bank under these section 656 counts if it found “that the

defendant was an ‘officer, director, agent, or employee’” of the

bank; we held that this was a constructive amendment of the

13
indictment requiring reversal of these counts under Stirone as it

allowed the finding of an element of the section 656 offense on a

factual basis not alleged in the indictment); United States v.

Bizzard, 615 F.2d 1080 (5th Cir. 1980) (conviction for violating 18

U.S.C. § 2113(d) denouncing whoever in committing bank robbery

“assaults any person, or puts in jeopardy the life of any person by

the use of a dangerous weapon;” indictment alleged that in robbing

bank defendants “put in jeopardy the life of . . . by means and use

of a dangerous weapon, that is, a pistol;” held that instruction

allowing jury to convict on basis of “assault” in committing bank

robbery constituted a constructive amendment of the indictment,

contrary to Stirone); United States v. Salinas, 654 F.2d 319, 323-

35 (5th Cir. 1981)4 (conviction for aiding and abetting 18 U.S.C.

§ 656 violation alleged in the indictment to have been committed by

Woodul, as bank president, in authorizing a specifically described

improper loan to a specifically described customer, reversed

because by his jury charge “allowing the jury to convict if it

found that the principal whom Salinas aided and abetted was an

officer, director, employee, or agent of the bank when the

indictment charged him only with aiding and abetting a specific

named individual, Woodul, the trial judge modified an essential

element of the offense” contrary to Stirone); United States v.

4
Overruled in other respects, United States v. Adamson, 700
F.2d 953, 965 n.18 (5th Cir. en banc, 1983).

14
McRary, 665 F.2d 674, 679 (5th Cir. 1982) (indictment charging

kidnaping under 18 U.S.C. § 1221 alleged the victim was

“transported in foreign commerce;” the evidence showed the

transportation was not in foreign commerce but was rather within

the “high seas jurisdiction” also specified in section 1221;

conviction reversed because “[t]he substitution at trial of a new

element of the offense (high seas jurisdiction) for the one

contained in the indictment (foreign commerce) is a fatal variance

between the indictment and the proof. See, e.g., United States v.

Stirone . . .”); United States v. Mize, 756 F.2d 353, 355 (5th Cir.

1985) (conviction under 18 U.S.C. § 656 for misapplying funds of a

bank which is a “Federal Reserve Bank, member bank, national bank

or insured bank;” indictment alleged bank was a member bank;

conviction may not be sustained on evidence that bank was an

insured bank, as that would constitute a constructive amendment of

the indictment contrary to Stirone); United States v. Doucet, 994

F.2d 169, 172 (5th Cir. 1993) (where indictment alleged possession

of unregistered assembled machine gun, conviction may not be

sustained on basis of possession of combination separate parts from

which machine gun could be assembled, even though the relevant

statute also included that in its definition of machine gun, as to

do so would constitute constructive amendment of the indictment).

See also, e.g., United States v. Figueroa, 666 F.2d 1375, 1377-80

(11th Cir. 1982); United States v. Weissman, 899 F.2d 1111 (11th

15
Cir. 1990); United States v. Leichtnam, 948 F.2d 370, 374-81 (7th

Cir. 1991).

The government relies on our decisions in United States v.

Munoz, 150 F.3d 401, 407, 416-17 (5th Cir. 1998), and United States

v. Robles-Vertiz, 155 F.3d 725, 727-29 (5th Cir. 1998). Those

cases are inapposite, however, because they deal with the situation

where it is clear that the indictment and the evidence both refer

to the same single actual set of facts constituting an element of

the offense but the indictment misdescribes those facts in some

particular that is both irrelevant to the element in question and

does not tend to describe some actually separate set of facts not

embraced within those reflected by the evidence. Thus, in Munoz

the defendant was charged under section 922(g)(1) as a convicted

felon in possession of a sawed-off shotgun (count II) and a pistol

(count III), and was convicted of both counts. We rejected his

contention that count II of the indictment was constructively

amended because it alleged that the sawed-off shotgun was a 12

gauge, while the evidence showed it was a 20 gauge. That was

nothing more than a misdescription of the same identical weapon.

We distinguished United States v. Leichtnam, 948 F.2d 370, 374-80

(7th Cir. 1991), noting that “[u]nlike that case, the Government

here only proffered one gun to substantiate the charge in count

II.” Munoz, 150 F.3d at 417 n.14. In Leichtnam, the only firearm

count alleged the defendant did “use and carry a firearm, to wit:

16
a Mossberg rifle . . . during and in relation to . . . drug

trafficking,” but the evidence showed that the rifle and two

handguns (along with drugs, drug paraphernalia, ledgers, and the

like) were found in defendant’s house and the jury charge

authorized conviction on the basis of use or carrying “a firearm,”

without limiting it to the rifle. The Seventh Circuit reversed,

holding that constituted a constructive amendment of the

indictment, relying on Stirone and, among other decisions, those of

our court in Adams and Salinas and of the Eleventh Circuit in

Weissman and Figueroa.

Robles-Vertiz is inapposite for the same reason. There the

defendant was charged with transporting an illegal alien. The

evidence showed he was stopped by the border patrol while driving

his car carrying a single passenger, an alien “woman named Anna

Guerro, also known as Monica Martinez-Salazar.” The indictment,

however, alleged that the alien transported was “Monica Ramirez-

Sanchez,” and “no evidence was introduced concerning anyone named

‘Monica Ramirez-Sanchez.’” Id., 155 F.3d at 727. We rejected the

contention that this amounted to a constructive amendment of the

indictment, stating:

“. . . here the error was merely one of transcription.
Indeed, there is a common first name, and the surnames
evince a certain phonetic congruity. The government was
not . . . arguing a theory different from what it had
alleged in the indictment. The change in names did not
reflect a change in the alleged conduct.
The error in the indictment was analogous to a
spelling error. The government intended to name Anna

17
Guerrero, also known as Monica Martinez-Salazar, but
through a mistake . . . government erroneously entered
her name as Monica Ramirez-Sanchez.
Were ‘Monica Ramirez-Sanchez’ a person involved in
Robles-Vertiz’s smuggling scheme, this would be a
different case. That is because the indictment would
have been broadened – the prosecution could have secured
a conviction by proving the smuggling of either woman.
In that circumstance, the government would be prosecuting
a theory that it had not presented to the grand jury.”
Id. at 729 (footnote omitted).

Here, by contrast, the government seeks to uphold the

interstate commerce element of the offense on the basis of facts –

transportation of powder from Tennessee to Texas, of primer from

South Dakota to Texas and of projectiles from Montana to Texas

before any of those items were incorporated into any completed

rounds – which facts are all wholly different than and distinct and

separate from the only facts alleged in the indictment in respect

to commerce, namely the necessarily subsequent transportation in

interstate commerce of the completed rounds (as to which there was

no evidence).

The government also relies on United States v. Mosby, 60 F.3d

454 (8th Cir. 1983), and United States v. Danielson, 199 F.3d 666

(2d Cir. 1999).

In Mosby the Eighth Circuit held that where the section

922(g)(1) indictment charged defendant, a felon, with

“‘possess[ing], in or affecting commerce, . . . ammunition,’” id.

at 455, the verdict of guilty was supported by evidence that he

possessed completed rounds the components of which came from

18
outside of the state of possession, although the completed rounds

did not. However, there is nothing in the Mosby opinion to suggest

that the indictment was other than wholly general, or that it ever

alleged any particular facts respecting the “in or affecting

commerce” element of the offense, or that it ever alleged anything

respecting completed rounds. Mosby is hence inapposite as it

addresses the situation spoken to in the italicized portion of the

following passage from Stirone, viz:

See also Adams, 778 F.2d at 1125.5 Cf. United States v. Williams,

679 F.2d 504, 507-09 (5th Cir. 1982) (Hobbs Act indictment alleging

interstate commerce effect only in conclusory terms is sufficient).

Danielson is more closely in point. There the opinion quotes

the section 922(g)(1) indictment as alleging that the defendant

“. . . ‘did possess ammunition in and affecting commerce,
and did receive ammunition which had been shipped and
transported in interstate and foreign commerce, to wit,
7 rounds of .45 calibre ammunition.’ (emphasis added).”

5
Adams states(after quoting the above passage from Stirone):
“Similarly, when only one particular kind of falsity is
charged to have been made in furnishing a license, a
conviction must rest on that charge and not another, even
though a conviction might have rested on a more general
indictment that omitted the reference to Ernest Cole.”
Adams at 1125 (footnote omitted).

19
Id., 199 F.3d at 668.

The government’s expert testified that the “exterior or brass shell

casing (the ‘shell’)” on each of the seven completed rounds

defendant was found in possession of in New York bore the stamp of

the manufacturer of the completed round and reflected that the

rounds had been manufactured in states other than New York and had

traveled in interstate commerce. However, on cross examination the

expert:

“admitted that while the shells definitely traveled in
interstate commerce into New York, it was possible that
the rounds could have been ‘reloaded’ entirely in New
York. In this process, a gun ‘buff’ could have saved
money by refilling a spent shell with a new bullet,
propellent powder, and primer.” Id at 668-69.

The trial court, over defense objection, instructed in terms of the

definition of ammunition contained in section 921(a)(17)(A). The

Second Circuit rejected the defendant’s claim that this constituted

a constructive amendment of the indictment. It distinguished

Stirone merely by stating that “the challenged deviation is so much

less significant than the deviation[] that led to the overturning

of the conviction[] in Stirone.” Danielson at 670. We note that

there are some at least arguably relevant differences between this

case and Danielson. Chambers’ indictment is clear in alleging that

the “possess in or affecting commerce” element of section 922(g)(1)

– the only commerce related portion of section 922(g)(1) charged

here – consisted of the completed rounds “distributed by the

Houston Cartridge Company” having been “transported in interstate

20
commerce.” It is far less clear that the Danielson indictment

charged possession “in or affecting commerce” on the basis that the

completed rounds possessed had been transported in interstate

commerce. The indictment there charged both the “possess in or

affecting commerce any . . . ammunition” and the “receive any . .

. ammunition which has been shipped or transported in interstate or

foreign commerce” branches of section 922(g)(1), and all the

“receive” allegations in Danielson can be read merely as

additionally charging that latter branch of section 922(g)(1)

rather than as a factual particularization of the “possess in or

affecting commerce” branch also charged. Perhaps of greater

significance, the Danielson indictment would be more comparable to

that here had it alleged after its reference to the “7 rounds”

something like “manufactured by Remington Peters” (the expert there

identified “rounds marked ‘RP’ [as] . . . manufactured by Remington

Peters in Arkansas”). And in Danielson there was no allegation or

evidence that the rounds actually were (or were not) reloaded

rounds, while in this case the only allegation is that the rounds

possessed were those distributed by Houston Cartridge Company and

the evidence shows that (contrary to the allegation in the

indictment) such rounds had not been transported in interstate

commerce. In any event, we conclude that the result in Danielson

cannot govern here consistent with Stirone and our above cited

cases construing and applying it. Here, an essential element of

21
the offense is established on the basis of facts wholly different,

separate and distinct from those particularized in the indictment.

Conclusion

Since there was no evidence that any of the completed rounds

distributed by Houston Cartridge Company which appellant possessed

had been transported in interstate commerce as alleged in the

indictment, appellant’s conviction must be reversed. Evidence that

prior to the Texas assembly of the completed rounds by Houston

Cartridge Company, the powder, primer and bullets (projectiles),

which later became component parts of the completed rounds, had

separately traveled to Texas from, respectively, Tennessee, South

Dakota and Montana, none of which was in any way alleged in the

indictment, may not be relied on to establish the “in or affecting

commerce” element of the offense because to do so would allow that

element to be established on the basis of a set of facts wholly

different, separate and distinct from the one set of facts

particularly alleged in the indictment relevant to that element,

and would thus constitute an impermissible constructive amendment

of the indictment, contrary to Stirone and our decisions

implementing it.

We accordingly reverse the conviction and order count 19 of

the superceding indictment dismissed.6

6
Where the indictment has been constructively amended, by
prosecution evidence wholly outside the proper scope of the
indictment and/or by a jury charge authorizing a verdict of guilty

22
thereon, but there is evidence within the proper scope of the
indictment which supports the verdict, then the normal remedy is to
reverse for a new trial. See Stirone; United States v.
Fitzpatrick, 581 F.2d 1221, 1224 n.4 (5th Cir. 1978); Adams, 778
F.2d at 1125 n.13.
Here, however, as Chambers urged in his motions for judgment
of acquittal, there is no evidence to support the “in or affecting
commerce” element of the offense on the factual basis alleged in
the indictment. Chambers’ motions for judgment of acquittal should
have been granted. See United States v. Eaton, 501 F.2d 77, 79-80
(5th Cir. 1974); Davis, 461 F.2d at 91; McRary, 665 F.2d at 680 &
n.10; Figueroa, 666 F.2d at 1379-80. See also Adams, 778 F.2d at
1125 n.13; Wright, King & Klein, Federal Practice and Procedure:
Criminal, § 516 at 48 (“The appropriate method to raise the claim
[of constructive amendment] is by a motion for judgment of
acquittal, or by objection to the introduction of evidence . . .”).
However, in Salinas, 654 F.2d at 322, the court reversed and
remanded for a new trial, and, although the opinion does not
discuss why we chose to remand for a new trial rather than simply
reverse, our discussion of the evidence indicates that there was no
evidence to support the charge as made in the indictment, apart
from that which constituted a constructive amendment. See id. at
323-325. However, this aspect of our Salinas opinion, supra, is
inconsistent with what we did in our earlier cases of Davis and
Eaton, neither of which Salinas cites. In Mize this court set
aside a conviction where there was no evidence that the bank, whose
funds the defendant Mize misapplied contrary to 18 U.S.C. § 656,
was a member bank of the Federal Reserve System, as alleged in the
indictment, although the evidence did show that it was insured by
the FDIC (which was not alleged), both sorts of banks being within
§ 656, and the jury charge authorized conviction if the bank was
“an insured bank.” We held “we must reverse Mize’s conviction,
subject to reindictment and retrial.” Id., 756 F.2d at 354. The
Mize opinion reflects that the defendant did not object to the jury
charge and although she moved for judgment of acquittal at the
close of the government’s case in chief that motion did not refer
to the referenced discrepancy between the indictment and the
evidence and was not renewed at the close of all the evidence. Id.
at 355.
The dismissal we order here precludes retrial on count 19 of
the instant superceding indictment because we held the evidence is
insufficient to support its allegation that the completed rounds in
question had traveled in interstate commerce, the only commerce
nexus alleged. Burks v. United States, 98 S.Ct. 2141 (1978).
Because we do not know whether the government will seek
reindictment with different allegations we do not now opine on

23
REVERSED

whether retrial under another § 922(g)(1) indictment with
materially different allegations would be barred by double
jeopardy.