United States v. Blair

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4560
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS BLAIR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-03-302)
Submitted: June 1, 2006 Decided: July 11, 2006
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew J. Johnston, Spartanburg, South Carolina, for Appellant.
Jonathan S. Gasser, United States Attorney, A. Lance Crick,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Defendant-Appellant, Dennis Blair, appeals his conviction for
being a felon in possession of ammunition that had been transported
in interstate commerce, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 924(e). Finding no error, we affirm.
I.
On February 11, 2002, in Union, South Carolina, Blair engaged
in an argument with Emmette Dawkins, which resulted in Blair firing
two shots at Dawkins. Officers conducting a post-incident
investigation of the scene recovered one intact round of
ammunition, two spent projectiles, and one spent casing. The
casings were 9mm and had a manufacturer’s stamp of “MRP.” Evidence
presented at trial demonstrated that this manufacturer’s stamp
indicated that the casings were manufactured in Brazil and that
ammunition of this type was not manufactured in South Carolina. At
trial, Blair was found guilty of the one count charged in the
indictment--“That on or about February 11, 2002, in the District of
South Carolina, the Defendant, DENNIS BLAIR, after having been
convicted of a crime punishable by imprisonment for a term
exceeding one year, did knowingly possess in and affecting
commerce, 9mm caliber ammunition which had been shipped and
transported in interstate commerce.” J.A. at 14. The jury was
instructed with the statutory definition of ammunition, which
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“means ammunition or cartridge cases, primers, bullets, or
propellant powder designed for use in a firearm.” Id. at 271; see
also 18 U.S.C. § 921 (a)(17)(A).
II.
On appeal, Blair contends that the jury instructions in this
case constructively amended his indictment by allowing him to be
convicted based on a theory not present in his indictment.
Specifically, Blair argues that the indictment only mentioned
“ammunition” that had traveled in interstate commerce--meaning that
the jury should have been allowed to convict him only on a theory
that he possessed whole ammunition that had traveled across state
lines--not on a theory that he possessed the component parts of
ammunition that traveled across state lines, in accordance with the
statutory definition of ammunition. We disagree.
Blair acknowledges that he did not raise this objection below
and that our review is therefore for plain error. See Fed. R.
Crim. Proc. 52(b); United States v. Olano, 507 U.S. 725, 732
(1993). In this case, we hold that there is no plain error because
there was no error at trial.
The government presented evidence at trial that the component
parts of the ammunition found at the scene had traveled in
interstate commerce. Blair argues that this evidence does not
demonstrate that whole ammunition traveled in interstate commerce
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because Blair could have reloaded the ammunition himself in South
Carolina.* Because, Blair contends, his indictment referred only
to “ammunition” and not to the component parts of that ammunition,
he should not have been convicted upon only a demonstration that
the component parts of the ammunition traveled in interstate
commerce.
This argument fails. “Ammunition” has a statutory definition,
which indicates that “[t]he term ‘ammunition’ means ammunition or
cartridge cases, primers, bullets, or propellant powder designed
for use in any firearm.” 18 U.S.C § 921(a)(17)(A). This is the
meaning of the term “ammunition” as used in all of the statutes
under which Blair was indicted. Id. at § 921(a)(indicating the
scope of the definitions contained therein). This was also the
definition with which the jury was properly instructed. Blair, in
effect, argues that the government had an obligation to define
every term used in his indictment, even though those terms had
clear statutory definitions. Blair points to no authority
requiring the government to take on this burden, and we can find
none.
III.
In sum, we affirm Blair’s conviction. We dispense with oral
argument because the facts and legal contentions are adequately
*
Reloading is a process though which used shell casings are
repacked with propellant powder and a projectile.
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presented in the materials before us and argument would not aid the
decisional process.
AFFIRMED
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