U.S. v. Doucet ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-4420
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERMIT A. DOUCET,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
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(June 16, 1993)
Before REYNALDO G. GARZA, WILLIAMS, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
A jury found Kermit Doucet guilty of one count of
possession of an unregistered firearm modified to fire as a machine
gun in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Doucet
appeals the verdict. We reverse and remand.
I
In 1983 Doucet bought an AR-15 semi-automatic rifle and
a "sear" that would allow it to be converted into an automatic
rifle. The gun dealer gave Doucet the Treasury Department forms
advising him that if the gun was to be used as an automatic it
would have to be registered and applicable taxes would have to be
paid. Shortly after the purchase Doucet tried the gun using the
sear but found that it constantly jammed. A friend of Doucet's
placed a copper shim in the rifle that made it work better with the
sear. However, Doucet said he never used the gun again as an
automatic and never again put the sear into it.
In 1989, James Doucet, Kermit's brother, borrowed money
from Kermit. After a year passed James had still not paid the
money back to Kermit. When Kermit demanded the money and
threatened to seize some collateral, James resisted and became
upset.
On October 3, 1990, James approached agents of the Bureau
of Alcohol, Tobacco and Firearms to tell them that his brother,
Kermit, possessed an unregistered fully automatic assault rifle.
The ATF equipped James with a telephone recording device and
instructed him to contact his brother about the rifle. On
October 14, James contacted Kermit and they discussed the machine
gun. In the conversation Kermit described the location "where [he]
usually go[es] to shoot it" as "extremely remote" and as "safe to
shoot it." He also said the rifle was "ready to go" and said that
it "don't jam."
On October 18, James again contacted Kermit to see if he
could borrow the gun. Once again, the ATF wired James to record
the conversation. Kermit demonstrated how to load and operate the
machine gun and explained how the sear makes the AR-15 fully
automatic. Kermit told James "This is against the law" and in
describing the advantage of the sear he remarked that if someone
comes along, "Pop that thing and throw the sear away, you'll be
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legal . . . that's what makes it awesome." Kermit gave James
several magazine clips and a thousand rounds of ammunition.
Kermit's brief contends that the recorded conversation also reveals
that he had trouble getting the sear into the rifle, showing his
unfamiliarity with the way the device works.
James left and surrendered the weapon to ATF agents. A
grand jury initially indicted Kermit on a three-count indictment
charging him with 1) possession of a firearm that had been modified
to fire as a machine gun, 2) possession of an unregistered firearm
modified to fire as a machine gun, and 3) transferring a firearm
modified to fire as a machine gun. Counts one and three were
subsequently dropped and Doucet was tried before a jury on only the
count charging possession of an unregistered firearm modified to
fire as a machine gun. The jury found Doucet guilty. The district
court sentenced him to twelve months of unsupervised probation and
a $5,000.00 fine.
II
At trial, Doucet admitted that he had modified the weapon
for his brother's use as charged in the indictment but maintained
that he had no predisposition to modify the weapon. He claimed
that the evidence showed that he had never used the weapon as an
automatic, that it had stayed in a gun cabinet for years, with the
sear in a separate closet, and that he inserted the sear only at
his brother's request and with great difficulty. Thus, he said he
had been entrapped.
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Doucet argues that on the last day of trial the
government realized it was going to lose, so it changed its theory
of the case. Under the new theory, Doucet could be convicted for
mere possession of the unregistered, unassembled component parts of
a machine gun, even though he had been indicted for possession of
an unregistered firearm already modified to serve as a machine gun.
This new "indictment" would avoid Doucet's entrapment defense
because it did not depend on Doucet's assembling the machine gun at
his brother's prodding.
Doucet says this change in theory was manifested in two
ways. First, Doucet points to the disparity between the theory of
the case propounded in the government's opening argument and the
theory offered in its closing argument. In its opening argument,
the government emphasized Doucet's actions in putting the sear into
the AR-15 on October 18, 1990--this act constituted the
"possession" for which Doucet was charged. The government never
made mention of Doucet's possession of the unassembled component
parts for several years as a basis for the conviction. In closing
argument, however, the government's counsel repeatedly emphasized
the fact that Doucet had possessed the unassembled parts of the AR-
15 for several years. The prosecutor told the jury:
The next question we've got to ask is whether he
possessed a machine gun, and I told you before, I believe
the judge is going to instruct you as to the law. What
a machine gun is is this. A machine gun is either a
weapon that shoots fully automatic, or if you have a
weapon and you have other pieces that you can put in the
weapon and make them shoot fully automatic, then you
possess--or that's a machine gun. I believe that's what
the judge is going to instruct you as to the law, and
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listen carefully when he instructs you. He [Doucet]
possessed an unregistered machine gun.
The prosecutor added:
[W]e can show that he [Doucet] did possess it [the
machine gun]. We can show that with evidence, and we can
show that it was unregistered. We showed it with
evidence, and we can show that it was a machine gun, and
we showed that with evidence. We have shown that from
March 5th of 1983 until October 18th of 1990 he possessed
an unregistered machine gun.
Finally, in his rebuttal to Doucet's claims of entrapment, the
prosecutor offered this:
Well, I told you what a firearm is, and the judge is
going to tell you. I accept that burden because there's
no evidence that a government agent came in and made him
possess an unregistered firearm. He'd been possessing
the thing since 1983. If he's got the parts--based on
what the law says that the judge is going to instruct you
on, I believe, he had the parts, and the parts are the
firearm itself, so there's no question that he possessed
an unregistered firearm because he didn't register it by
his own words. No question.
Second, the government gave the district court a
supplemental jury instruction on the last day of trial before the
last defense witness was to testify. That jury instruction defines
"machine gun" almost exactly as it appears in the National Firearms
Act, 26 U.S.C. § 5845(b):
A machine gun is defined as any weapon which shoots, is
designed to shoot, or can be readily restored to shoot,
automatically more than one shot without manual
reloading, by a single function of the trigger. The term
machine gun shall also include any combination of parts
from which a machine gun can be assembled if such parts
are in the possession or under the control of a person.
(emphasis added). Thus, possession of the unassembled parts of a
machine gun would qualify as possession of a "machine gun" under
the definition. The definition was not included in the
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government's original list of requested charges submitted prior to
trial.
Doucet argues that the effect of the instruction
containing the definition of a machine gun and the government's
closing argument was to permit the jury to convict him for mere
possession of the unregistered component parts of a machine gun,
rather than for the offense for which he was indicted: possession
of an unregistered assembled machine gun. This amounts, he
contends, either to a per se reversible amendment in the indictment
or a prejudicial variance between the proof offered at trial and
the indictment, citing United States v. Salinas, 654 F.2d 319 (5th
Cir. 1981).
The government responds that Doucet was indicted and
convicted for the same offense: possession of an unregistered
assembled machine gun. It says that there was no possibility that
the jury was confused about what it was convicting Doucet for
because the trial judge clearly laid out the elements of the
offense. The trial court instructed the jury that it could find
Doucet guilty only if he knew he had a "gun" in his possession; the
gun was modified to fire as a machine gun; and he knew the weapon's
characteristics and that it was a fully automatic weapon. Thus,
according to the elements of the offense, Doucet could only be
convicted for possessing an unregistered assembled machine gun.
The government concludes--without argument or explanation--that the
instruction regarding the definition of a machine gun did not
broaden the possible basis for conviction. Further, the government
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does not address the significance of the prosecutor's closing
argument in light of the late-added jury charge.
III
The Fifth Amendment provides for criminal prosecution
only on the basis of a grand jury indictment. Only the grand jury
can amend an indictment to broaden it. Stirone v. United States,
361 U.S. 212, 215-16, 80 S. Ct. 270 (1960). The amendment need not
be explicit to constitute reversible error, but may be implicit or
constructive. This occurs when the jury is permitted to convict
the defendant upon a factual basis that effectively modifies an
essential element of the offense charged. United States v.
Baytank, 934 F.2d 599, 606 (5th Cir. 1991). Constructive amendment
requires reversal of the conviction. Id. Moreover, it is clear
that the indictment may be amended constructively by the actions of
either the court or the prosecutor. Salinas, 654 F.2d at 324.
This Court faced a situation analogous to the instant one
in United States v. Beard, 436 F.2d 1084 (5th Cir. 1971). There
the government indicted the defendant under an embezzlement
statute. During trial the government realized that while the facts
developed did not charge a violation of the particular statute
cited in the indictment, they did charge a violation of a similar
statute not named in the indictment. Consequently, the government
urged conviction under the original indictment for violation of the
new statute. Id. at 1086. In reversing the conviction for
constructive amendment of the indictment, this Court noted:
Permission was not asked of or given by the trial judge
for formal amendment of the indictment, but nevertheless
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the indictment was in effect amended by the government's
change in position during the course of the trial when
the fatal defects in the proof came to light . . . .
Id. at 1087 (emphasis added). Although Beard involved an effective
amendment of the indictment to charge an offense under a statute
different from the one cited in the indictment, its logic applies
where the effective amendment is to change the theory under which
the government is pursuing conviction for violation of the same
statute. Either way, the defendant is not apprised by the
indictment of the particular theory he will have to counter at
trial and the jury is permitted to convict on a basis broader than
that charged in the grand jury's indictment. See also United
States v. Salinas, 654 F.2d 319, 323-24 (5th Cir. 1981).
More importantly, Beard recognizes that the government's
change in position during the trial can be sufficient to work a
constructive amendment of the indictment even where the court does
not formally alter the elements of the offense in the jury charge.
The only question, then, is whether the government changed its
theory during the trial so as to urge the jury to convict on a
basis broader than that charged in the indictment.
There can be no doubt, and the government does not argue
to the contrary, that the indictment charged Doucet with possession
of an unregistered assembled machine gun. Possession of the
unassembled component parts of that gun would be insufficient to
convict him under the original indictment, as the government must
concede. Indeed, the government's opening argument plainly
indicated that the government would prove only that Doucet
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possessed the assembled machine gun. The original jury instruction
submitted by the government did not include the expansive
definition of a machine gun the government later offered. Doucet
accordingly prepared his defense to the charge that he had
possessed an assembled automatic weapon.
By the last day of the trial, the direction of the
government's prosecution had changed. On that day it first offered
its supplemental jury instruction--to which Doucet objected--that
included the definition of a machine gun. The jury charge defines
"machine gun" to include its unassembled component parts. Based on
that definition a reasonable jury could conclude that a "machine
gun" could be the unassembled parts Doucet had possessed since
1983. That conclusion was fortified by the prosecutor's repeated
claims in closing argument that "he [Doucet] had the parts, and the
parts are the firearm itself." The prosecutor compounded the
error in these claims by referring the jury each time to the jury
charge containing the new definition of a machine gun. The
prosecutor thus invited the jury to convict Doucet of a crime for
which he was never indicted: possession of the unassembled parts of
a machine gun. That blatant invitation differed materially from
what the original indictment called on the jury to do and seriously
undercut the defense that Doucet had prepared in response to the
original terms of the prosecution. It was, therefore, a
constructive amendment to the indictment.
Doucet argues also that because the district court's jury
charge permitted him to be convicted for mere possession of an
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unassembled machine gun, he did not have the requisite mens rea to
be found guilty. Specifically, he claims that he never knew that
Congress had amended the law to provide for registration of an
unassembled machine gun, citing Lambert v. California, 355 U.S.
225, 78 S. Ct. 240 (1957). It is unnecessary to address this
contention since the conviction is reversed because of the
constructive amendment to the indictment discussed above.
IV
The government asserts in its brief that "[t]here is no
possibility for the jury to have thought that mere possession of
the sear only or of the two parts separately would have constituted
the offense for which the defendant was indicted and for which he
was tried." That claim flies in the face of the government's own
closing argument and the jury charge the government submitted on
the very last day of trial. The government here lured Doucet into
constructing an entrapment defense against a charge that the
government ultimately abandoned at trial in favor of a broader
basis for conviction. But an indictment is not putty in the
government's hands. Having used Doucet's own brother as an
investigative arm of the ATF--itself a lamentable tactic that
coldly exploits familial relationships--the government proceeded to
play charades with his trial. Les jeux sont faits.
As noted above, a constructive amendment to an indictment
requires reversal of the conviction. The conviction is reversed
and remanded to the district court for further proceedings.
REVERSED and REMANDED.
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