Tyrone Power Moore v. United States , 512 F.2d 1255 ( 1975 )

PER CURIAM:

Tyrone Power Moore appeals his conviction of possessing a prohibited firearm, a violation of 26 U.S.C. §§ 5861 and 5871. The indictment charged that Moore possessed a “sawed-off 12 gauge shotgun.” The weapon introduced at trial, however, was certified to be a “[f]ire-arm made by inserting a 11 inch piece of galvanized pipe into barrel of flare gun and welding same with solder. The pipe is of the size that will chamber a 12 gauge shotgun shell.” [sic]. Section 5845 of Title 26 of the United States Code defines “firearm” to include a “shotgun” having a barrel of less than 18 inches; a “shotgun” is “a weapon designed or redesigned . . . and intended to be fired from the shoulder ..” Because his weapon clearly was never intended to be fired from the shoulder, Moore contends it is not a “shotgun” and therefore not a “firearm” proscribed by Section 5861. This argument overlooks the further definition of “firearm” as “any other weapon” which means “a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell

Moore, however, suggests that reliance on the provision for “any other weapon” creates a fatal variance between the indictment and the proof at trial. Nevertheless, it is clear that he was in no way prejudiced by the variance in the instant case. Prior to trial, defense counsel was supplied with a copy of the Treasury Department Certification, which fully described the modified flare gun. Thus, the indictment is most properly read as charging possession of an unlawful firearm; the faulty description is mere surplusage.

Moore contends finally that it was error to allow an agent of the Bureau of Alcohol, Tobacco and Firearms, who was qualified as a firearms expert to testify that the weapon was a prohibited type of shotgun within the meaning of federal law. While it may be preferable to avoid expert testimony going to the ultimate issue, we can discern no prejudice to Moore. His weapon was clearly an unlawful one, and any conceivable error in the admission of expert testimony was harmless.

Affirmed.