US v. Blair

Filing 920060711

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. of the Officers scene conducting one a post-incident round of The

investigation

recovered

intact

ammunition, two spent projectiles, and one spent casing.

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 exceeding commerce, of one 9mm a crime year, caliber punishable did by imprisonment possess had in for a term

knowingly

and

affecting and

ammunition

which

been

shipped

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." also 18 U.S.C. § 921 (a)(17)(A).

Id. at 271; see

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 This was also the Blair, in

scope of the definitions contained therein).

definition with which the jury was properly instructed.

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. 4

*

presented in the materials before us and argument would not aid the decisional process. AFFIRMED

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