U.S. v. Hien Van Tieu, 00-4190.

• Citation: 279 F.3d 917
• Decision Date: 06 February 2002
• Docket Number: No. 00-4190.,00-4190.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. HIEN VAN TIEU, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

279 F.3d 917

UNITED STATES of America, Plaintiff-Appellee, v. HIEN VAN TIEU, Defendant-Appellant.

No. 00-4190.

United States Court of Appeals, Tenth Circuit.

February 6, 2002.

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Wayne T. Dance, Assistant United States Attorney; Michelle M. Christiansen, Assistant United States Attorney, and Paul M. Warner, United States Attorney, on the brief, Salt Lake City, UT, for Plaintiff-Appellee.

Robert Breeze, Salt Lake City, UT, for Defendant-Appellant.

Before EBEL, BALDOCK, and KELLY, Circuit Judges.

BALDOCK, Circuit Judge.

In 1997, Defendant Hien Van Tieu was released on parole after serving time for a felony conviction. As part of his parole agreement, Defendant consented to regular visits to his residence by parole officers, and to searches of his premises based upon reasonable suspicion of a crime or parole violation. During the course of a search, parole officers discovered a semi-automatic 9mm pistol and a magazine containing 35 rounds of ammunition between the mattresses in Defendant's bedroom. Defendant lived in his parents' home with several other relatives and family friends. The door to his bedroom did not lock and others in the home had access to the room.

A jury subsequently convicted Defendant of being a felon in possession of a firearm, in violation of 18 U.S.C § 922(g)(1). The district court sentenced him to 41 months imprisonment and three years supervised release. Defendant appeals, asserting (1) the district court's jury instructions constituted an unlawful constructive amendment of the indictment, and (2) the evidence at trial was insufficient to support a finding that he knowingly possessed a firearm. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

II.

Section 922(g)(1) provides: "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." 18 U.S.C. § 922(g)(1). At trial, the Government introduced evidence Defendant possessed both the firearm and ammunition. The jury instructions set forth the elements of the crime under the statute, and specifically instructed that a guilty verdict could be based on knowing possession of either a firearm or ammunition.¹ The district court provided a special verdict form that required the jury to rule separately and unanimously on each.² The jury returned a guilty verdict on knowing possession of a firearm and a guilty verdict on knowing possession of ammunition. After trial, the district court granted Defendant's motion to vacate the ammunition verdict because the Government did not establish the ammunition had traveled in or affected interstate commerce as required under the statute. The district court then sentenced Defendant for a single violation of 18 U.S.C. § 922(g)(1).

II.

Defendant argues the district court erred in instructing the jury he could be convicted for possessing ammunition. According to Defendant, this instruction constitutes a constructive amendment to the indictment. The grand jury indictment charged Defendant with possession of: "a firearm and semi-automatic weapon, as defined in 18 U.S.C. Section 921(a)(3) and (30), to wit, a INTRATEC 9mm pistol TEC-DC9, serial number D073183, with a magazine containing 35mm rounds of ammunition, all in violation of 18 U.S.C. § 922(g)(1)(emphasis added)." Defendant claims the indictment's use of the term "with" instead of an "and" limits his jeopardy to possession of a firearm. We review de novo the legal question of whether the district court proceedings constructively amended the indictment. United States v. Moore, 198 F.3d 793, 795 (10th Cir. 1999).

The prohibition on constructive amendments is derived from (1) the Fifth Amendment which limits a defendant's jeopardy to offenses charged by a grand jury, and (2) the Sixth Amendment which guarantees the defendant notice of the charges against him. Id. A constructive amendment occurs when the Government, through evidence presented at trial, or the district court, through instructions to the jury, broadens the basis for a defendant's conviction beyond acts charged in the indictment. United States v. Gauvin, 173 F.3d 798, 805 (10th Cir.1999). To constitute a constructive amendment, the district court proceedings must modify an essential element of the offense or raise the possibility the defendant was convicted of an offense other than that charged in the indictment. Id. Where an indictment properly pleads violation of a statute, and the defendant was not misled about the nature of the charges, his substantive rights are not prejudiced. Moore, 198 F.3d at 795.

Though not perfectly drafted, the indictment clearly charges defendant with a violation of 18 U.S.C. § 922(g)(1). A violation of § 922(g)(1) occurs if Defendant knowingly possessed "any firearm or ammunition." 18 U.S.C. § 922(g)(1). The indictment refers both to the firearm and ammunition, giving notice of the factual basis of the offense. The indictment's description of a "firearm with ammunition" rather than a "firearm or ammunition" does not, as Defendant claims, modify an element of the offense or allow conviction for an offense other than that charged. See Moore, 198 F.3d at 795-96. A review of the record confirms Defendant was not misled by the terms of the indictment. Defendant introduced evidence challenging his knowing possession of both the firearm and the ammunition. Both were found together between the mattresses in Defendant's bedroom and his defense to knowing possession was identical as to each. We conclude Defendant was not misled by the indictment or prejudiced by the jury instructions.

In any event, Defendant's constructive amendment claim is subject to review for harmless error. See United States v. Prentiss, 256 F.3d 971, 983-84 (10th Cir.2001)(en banc)(holding defects in an indictment are subject to harmless error review). Even if we assumed the jury instructions improperly allowed the jury to convict for possession of ammunition, the error was rendered harmless when the district court dismissed the ammunition charge. The special verdict form required the jury to unanimously determine whether Defendant knowingly possessed a firearm and the jury returned a guilty verdict on this charge. The district court sentenced Defendant solely on his possession of the firearm. The special verdict and the post-trial proceedings clearly render harmless any possible error presented by the jury instructions. See id. at 984.

III.

Defendant next argues the evidence presented at trial was insufficient to support a finding he knowingly possessed a firearm or ammunition as required under § 922(g)(1). We review sufficiency of evidence claims de novo. See United States v. Vallo, 238 F.3d 1242, 1246 (10th Cir. 2001). Evidence is sufficient to support a conviction if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. at 1247. In reviewing the evidence, we do not weigh conflicting evidence or consider witness credibility, as that duty is delegated exclusively to the jury. United States v. Sanders, 240 F.3d 1279, 1281 (10th Cir.2001). We resolve any...