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Click here for the full text of this decision FACTS:Eugene Chambers III was arrested in connection with an elaborate drug conspiracy. A 20-count indictment was brought against him. Count 19 charged Chambers with being a felon in possession of ammunition that has been in interstate commerce, in violation of 18 U.S.C. 922(g)(1). The 20th count had been dismissed by the time of trial. The evidence at trial related to Count 19 showed that Chambers was a convicted felon, that Chambers was aware of the ammunition in his home, although the ammunition may have been his father’s and was mixed up with Chambers’ things when he moved. The ammunition was also described as being “104 rounds of .40 caliber S&W jacketed hollow-point ammunition, distributed by Houston Cartridge Company.” The evidence further showed that Houston Cartridge produces completed rounds of ammunition in Texas. Those rounds are made of component parts (e.g., cartridge cases, bullets, powder and primers) from Texas, Colorado, South Dakota, Montana and Tennessee. There was no evidence that the completed rounds found in Chambers’ apartment had ever moved in interstate commerce. The district court denied Chambers’ motion for acquittal. The motion was based on his argument that, because there was no evidence that the completed rounds were ever in interstate commerce, the government constructively amended the indictment when it focused on the interstate commerce aspect of the component parts. The district court instructed the jury to find Chambers guilty on Count 19 if it found that he had been in possession of ammunition that was in and affected commerce before Chambers possessed it. Ammunition was defined as completed rounds and the individual parts. The jury returned a verdict acquitting Chambers of three of the drug charges but convicting him on Count 19. On appeal, Chambers argues that the evidence does not support his conviction on Count 19 because there was no evidence that the completed rounds that were referred to in the indictment were moved in interstate commerce. HOLDING:Reversed and remanded with instructions to dismiss Count 19. The court observes that 18 U.S.C. 917(a)(17)(A) states that “the term ‘ammunition’ means ammunition or cartridge cases, primers, bullets or propellant powder designed for use in any firearm.” The court says that it is “plain” that the word “ammunition” as it appears just following the word “means” in this section refers to completed rounds. An essential element of a 922(g)(1) possession of ammunition offense, which the government was required to prove beyond a reasonable doubt, is that the defendant’s charged possession of the ammunition was “in or affecting commerce.” Here, the indictment does not mention cartridge cases, primers, bullets or powder and is unambiguous in alleging one, and only one, factual basis constituting the “in or affecting commerce” element of the offense, and that is the fact that the ammunition was distributed by Houston Cartridge Co. The government presented no evidence that these rounds had been transported in interstate commerce, as alleged in the indictment. The only evidence of interstate commerce was that several of the component parts came from out of state. The government thus proved an essential element of the 922(g)(1) possession offense � that the possession was “in or affecting commerce’ � on the basis of a set of facts different from the particular facts alleged in the indictment in respect to that element. The government thus constructively amended the indictment without notice. The error was not harmless, the court rules, and distinguishes each of the cases the government cites in support of the conviction. Furthermore, Count 19 should be dismissed on remand because the evidence is ultimately insufficient to support the allegation that the completed rounds had traveled in interstate commerce, the only commerce nexus alleged. “Because we do not know whether the government will seek reindictment with different allegations we do not now opine on whether retrial under another 922(g)(1) indictment with materially different allegations would be barred by double jeopardy.’ OPINION: Garwood, J.; Garwood, Jones and Prado, JJ.

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