Court: Court of Appeals for the Second Circuit; December 21, 1999; Federal Appellate Court
Arthur Danielson was convicted in the United States District Court for the Southern District of New York for knowing possession of ammunition as a convicted felon, violating 18 U.S.C. § 922(g). Following his conviction on June 3, 1997, he was sentenced on October 9, 1998, to 180 months' imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Danielson appealed, arguing that the District Court allowed a constructive amendment of the charges and improperly categorized a 1982 weapons possession conviction as a "violent felony" under the ACCA.
The Court of Appeals for the Second Circuit affirmed the District Court's decision, ruling that there was no constructive amendment to the indictment and that the sentencing under the ACCA did not constitute plain error. The context of the case involved Danielson's arrest following a high-speed police chase, during which various items, including ammunition, were found in the car and on his person. The Grand Jury's indictment specifically charged him with possession of seven rounds of .45 caliber ammunition that had moved in interstate commerce.
Trial began on May 27, 1997, with the government presenting Anthony Annunziato, an expert from the Bureau of Alcohol, Tobacco, and Firearms, who testified about the components of live ammunition: projectile bullet, brass shell casing, propellant powder, and primer. Annunziato identified the manufacturer stamps on the rounds possessed by Danielson—"RP," "WCC," and "MRP"—indicating they were produced by companies in Arkansas, Illinois, and Nevada, respectively. He asserted that these rounds had traveled in interstate commerce, though he acknowledged on cross-examination the possibility that they could have been reloaded in New York.
Judge Patterson instructed the jury to interpret "ammunition" broadly according to the definition in 18 U.S.C. 921(a)(17)(A), which includes all component parts. Defense counsel objected, arguing that this instruction improperly expanded the indictment, which specifically identified seven rounds of ammunition. Despite repeated objections throughout the trial and post-conviction motions, the judge’s instruction remained unchanged.
On the trial's first day, the government provided prior felony information indicating that Danielson faced enhanced penalties under the Armed Career Criminal Act (ACCA) if convicted. After some confusion regarding which of Danielson's past convictions qualified as "violent felonies," the government identified three: a 1967 burglary conviction, a 1971 attempted robbery conviction, and a 1982 criminal possession of a weapon conviction. Judge Patterson accepted these as valid under the ACCA, and Danielson was sentenced to 180 months' imprisonment. Danielson subsequently appealed, arguing that the jury instructions had improperly broadened the indictment, allowing for conviction on uncharged conduct.
To meet the interstate commerce requirement, the government must demonstrate that the ammunition involved was "in or affecting" interstate commerce, as established in *United States v. Sanders*. The indictment against Danielson specified possession of 7 rounds of .45 caliber ammunition that had traveled in interstate commerce. An indictment is considered constructively amended when trial evidence broadens the basis for conviction beyond the indictment's charges, which violates the grand jury clause of the Fifth Amendment. However, such an amendment must impact an essential element of the offense. Courts allow flexibility in proof as long as the defendant receives notice of the core criminality.
In this case, the court rejected Danielson's argument that the District Court allowed a constructive amendment by permitting the government to claim that shells, not entire rounds, had traveled in interstate commerce. The key element was that Danielson possessed ammunition that traveled in interstate commerce, not the specific nature of that ammunition. The court determined that Danielson was adequately notified of the charges against him, and the allegations and proof substantially corresponded. The court referenced *United States v. Robison*, where a conviction was upheld despite a minor variation in the type of weapon used, noting that the deviation in Danielson's case was even less significant. This aligns with precedents affirming convictions when trial proof differed from indictment allegations but was not materially different.
The constructive amendment cases cited by Danielson, specifically Stirone v. United States and United States v. Zingaro, are distinguishable from his situation. In Stirone, the Supreme Court overturned a Hobbs Act conviction due to jury instructions allowing alternative proof of interstate commerce that diverged from the indictment. Similarly, in Zingaro, the court's failure to restrict jury consideration to the charges at hand led to an overturned conviction. In contrast, Danielson's case involves a lesser deviation; he argues that the government only proved that a component of each of the seven ammunition rounds traveled in interstate commerce, rather than each round itself. This deviation is deemed insignificant compared to those in Stirone and Zingaro, therefore not warranting vacating his conviction.
Regarding sentencing under the Armed Career Criminal Act (ACCA), Danielson raises whether a conviction under N.Y. Penal Law 265.03 qualifies as a "violent felony." If the District Court's conclusion that it does was not plain error, Danielson faces a mandatory fifteen-year sentence; if it was plain error, his sentence could be reduced to eighteen to twenty-four months. The ACCA defines "violent felony" as any crime punishable by over one year in prison that involves the use or threat of physical force or predicate crimes such as burglary or arson. Danielson did not object to the District Court's classification of his 1982 conviction as a violent felony, thus the review is limited to assessing plain error, which requires finding a clear, obvious mistake that significantly impacts judicial fairness or integrity.
In Taylor v. United States, the Supreme Court established a "categorical approach" for determining whether a prior conviction is a "violent felony" under the Armed Career Criminal Act (ACCA), focusing on the conviction's facts and statutory definitions. In cases where a statute includes both qualifying and non-qualifying conduct, courts may examine the charging instrument and jury instructions to assess the nature of the conviction. New York Penal Law Section 265.03 defines criminal possession of a weapon in the second degree as possessing a loaded firearm with unlawful intent, which generally fits the ACCA's violent felony criteria. However, this is complicated by N.Y. Penal Law 265.15(4), which establishes a rebuttable presumption of unlawful intent based on possession of weapons.
The presiding judge in Danielson's 1982 trial instructed jurors to determine if Danielson had the conscious aim to use the firearm unlawfully, indicating that his conviction was not solely based on possession. Therefore, the District Court's conclusion that Danielson's 1982 conviction qualified as a violent felony under the ACCA was not plain error. The judgment affirmed Danielson's conviction under 18 U.S.C. 922(g) and his enhanced sentence under the ACCA. Additionally, Danielson did not demonstrate any prejudice from the proceedings, and the court did not determine if a de novo review would yield a different outcome.
