USA v. Danielson, Docket No. 98-1689

• Decision Date: 01 August 1999
• Docket Number: Docket No. 98-1689
• Citation: 199 F.3d 666
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. ARTHUR DANIELSON, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 666

199 F.3d 666 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. ARTHUR DANIELSON, Defendant-Appellant.

Docket No. 98-1689

August Term, 1999

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued: Dec. 8, 1999

Decided: Dec. 22, 1999

Appeal from a judgment of the United States District Court for the Southern District of New York (Robert P. Patterson, Judge), sentencing defendant to, inter alia, 180 months' imprisonment following conviction under 18 U.S.C. 922(g). Plaintiff claims that the District Court permitted a constructive amendment of the charges against him and improperly sentenced him under the Armed Career Criminal Act, 18 U.S.C. 924(e) ("ACCA"). We conclude that there was no constructive amendment of the indictment and that the District Court did not commit plain error in sentencing defendant under the ACCA.

Affirmed.

Georgia J. Hinde, New York, NY, for Defendant-Appellant.

Alexandra A.E. Shapiro, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney, Hector Gonzalez, Assistant United States Attorney, of counsel) New York, NY, for Appellee.

Before: OAKES, CARDAMONE, and CABRANES, Circuit Judges.

PER CURIAM:

Following a one-week jury trial before Judge Robert P. Patterson in the United States District Court for the Southern District of New York, defendant-appellant Arthur Danielson was convicted on June 3, 1997 on one count of knowing possession by a convicted felon of ammunition, in violation of 18 U.S.C. 922(g). On October 9, 1998, Judge Patterson sentenced Danielson pursuant to the Armed Career Criminal Act, 18 U.S.C. 924(e) ("ACCA"), to, inter alia, 180 months' imprisonment. On appeal, Danielson contests the validity of his conviction, claiming that the District Court permitted a constructive amendment of the charges against him. Danielson also challenges his sentence, raising an issue of first impression with respect to whether the District Court improperly counted his 1982 conviction for weapons possession in the second degree as a "violent felony" as that term is defined under the ACCA. Because we conclude that there was no constructive amendment of the indictment, and that it was not plain error to enhance Danielson's sentence under the ACCA, we affirm.

I.

Danielson was arrested on March 13, 1997 in the passenger seat of a car that police had pursued on a fifteen-minute high-speed chase through the streets and highways of New York City. When the police finally succeeded in stopping the car, which was registered to Danielson's wife, they apprehended Danielson and found on his person a pair of handcuffs, a handcuff key, and a leather gun holster. The police took from the passenger seat of the car an ammunition clip containing seven rounds of ammunition, and in the back seat discovered a bulletproof vest marked "Police" and a pair of walkie-talkies. Finally, in searching the side of the road for items they had seen discarded from the car during the chase, the police recovered another empty gun holster and a leather case containing fake New York Police Department and Drug Enforcement Agency shields.

On April 2, 1997, a Grand Jury sitting in the Southern District issued a one-count indictment charging Danielson with possession of ammunition after having been convicted of a felony, in violation of 18 U.S.C. 922(g). Specifically, the indictment alleged that Danielson

unlawfully, wilfully, and knowingly 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). Trial commenced on May 27, 1997.

At trial, the government called as an expert witness Anthony Annunziato, a special agent with the United States Department of the Treasury's Bureau of Alcohol, Tobacco, and Firearms. Annunziato explained that each live round of ammunition is made up of four components: a projectile bullet, an exterior brass shell casing (the "shell"), propellent powder within the shell, and a primer that ignites the powder. Each shell bears a manufacturer's stamp; the rounds Danielson possessed were marked "RP," "WCC," or "MRP." Annunziato testified that rounds marked "RP" were manufactured by Remington Peters in Arkansas, "WCC" by Winchester Cartridge Company in Illinois, and "MRP" by Magnatech Recreational Products in Nevada. On this basis, he testified on direct examination that the rounds had traveled in interstate commerce.

On cross examination, Annunziato 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. The reloaded shell would constitute a "new" round.

Over defense counsel's objection, Judge Patterson charged the jury that in determining whether Danielson had possessed ammunition that had traveled in interstate commerce, the jury could consider the term "ammunition" as it is defined for purposes of 922(g): "Any ammunition or cartridge cases, primers, bullets or propellent powder designed for use in any firearm." 18 U.S.C. 921(a)(17)(A). Defense counsel argued that as the indictment specifically had identified seven rounds of ammunition, Judge Patterson's instruction on the statutory definition of ammunition, which is framed in the disjunctive to include the component parts of a round, constituted an impermissible broadening of the indictment. Counsel contested this point to no avail at the close of the government's case, during the charge conference, during jury deliberations, and in defendant's post-conviction motion under Rule 29 of the Federal Rules of Criminal Procedure.

On the first day of trial, the government filed a prior felony information notifying Danielson that, if convicted, he was subject to enhanced penalties under the ACCA. While there was some confusion about which three of Danielson's numerous criminal convictions could or would serve as the predicate "violent felonies" required for him to be sentenced under the ACCA, the government ultimately submitted that his 1967 conviction for burglary in the third degree, his 1971 conviction for attempted robbery in the third degree, and his 1982 conviction for criminal possession of a weapon in the second degree were violent felony convictions under the ACCA. Judge Patterson accepted this conclusion, to which defense counsel did not object, and sentenced Danielson under the ACCA to, inter alia, 180 months' imprisonment. This timely appeal followed.

II.

A. Constructive Amendment

Danielson contends that Judge Patterson's instructions impermissibly broadened the allegations set forth in the indictment, allowing the jury to convict him of conduct with which he had not been charged. Section 922(g) provides in relevant part:

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

To satisfy the interstate commerce requirement, the government need only make a minimal showing that the ammunition in question was "in or affecting" interstate commerce. See United States v. Sanders, 35 F.3d 61, 62-63 (2d Cir. 1994) (per curiam). As noted above, the indictment charged that Danielson possessed "ammunition . . . to wit, 7 rounds of .45 calibre ammunition" that had traveled in interstate commerce.

As we have had occasion to explain in the past,

[a]n indictment is constructively amended when the proof at trial broadens the basis of conviction beyond that charged in the indictment. Constructive amendment of an indictment is a per se violation of the grand jury clause of the Fifth Amendment.

However, an impermissible alteration of the charge must affect an essential element of the offense, and we have consistently permitted significant flexibility in proof, provided that the defendant was given notice of the core of criminality to be proven at trial.

United States v. Patino, 962 F.2d 263, 265-66 (2d Cir. 1992) (internal citations and quotation marks omitted). We also have observed that "[c]onstructive amendment occurs when the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment." United States v. Wallace, 59 F.3d 333, 337 (2d Cir. 1995) (internal quotation marks omitted). The critical determination is whether the allegations and the proof "substantially correspond." Patino, 962 F.2d at 266 (internal quotation marks omitted).

We reject Danielson's claim that the District Court permitted a constructive amendment by allowing the government to proceed on the theory that the shells, rather than the entire rounds, had traveled in interstate commerce. The essential element of the offense charged was that Danielson possessed ammunition that had traveled in interstate commerce, not the precise nature of that ammunition. Whether the government proved that shells or entire rounds had so traveled, there is no doubt that Danielson had notice of the "core of criminality" to be proven at trial and that he was convicted of the offense charged in the indictment. Thus, in this case, the allegations and proof "substantially correspond."

The Sixth Circuit's decision in United States v. Robison, 904 F.2d 365 (6th Cir. 1990) which we cited with approval in Patino, is instructive on this point. In Robison, the Court affirmed a conviction where the indictment had charged use of a .357 Magnum but the proof at trial demonstrated use of a shotgun. The comparatively minor...