UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 92-4420

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KERMIT A. DOUCET,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________________________________________________ (June 16, 1993)

Before REYNALDO G. GARZA, WILLIAMS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

A jury found Kermit Doucet guilty of one count of

possession of an unregistered firearm modified to fire as a machine

gun in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Doucet

appeals the verdict. We reverse and remand.

I

In 1983 Doucet bought an AR-15 semi-automatic rifle and

a "sear" that would allow it to be converte d into an automatic

rifle. The gun dealer gave Doucet the Treasury Department forms

advising him that if the gun was to be used as an automatic it

would have to be registered and applicable taxes would have to be

paid. Shortly after the purchase Doucet tried the gun using the2

sea r but found that it constantly jammed. A friend of Doucet's

placed a copper shim in the rifle that made it work better with the

sear. However, Doucet said he never used the gun again as an

automatic and never again put the sear into it.

In 1989, James Doucet, Kermit's brother, borrowed money

from Kermit. After a year passed James had still not paid the

money back to Kermit. When Kermit demanded the money and

threatened to seize some collat eral, James resisted and became

upset.

On October 3, 1990, James approached agents of the Bureau

of Alcohol, Tobacco and Firearms to tell them that his brother,

Kermi t, possessed an unregistered fully automatic assault rifle.

The ATF equipped James with a tel ephone recording device and

instructed him to contact his brother about the rifle. On

October 14, James contacted Kermit and they discussed the machine

gun. In the conversation Kermit described the location "where [he]

usually go[es] to shoot it" as "extremely remote" and as "safe to

shoot it." He also said the rifle was "ready to go" and said that

it "don't jam."

On October 18, James again contacted Kermit to see if he

could bor row the gun. Once again, the ATF wired James to record

the conversation. Kermit demonstrated how to load and operate the

machine gun and explained how the sear makes the AR-15 fully

automatic. Kermit told James "This is against the law" and in

describing the advantage of the sear he remarked that if someone

comes along, "Pop that thing and throw the sea r away, you'll be3

legal

. . . that's what makes it awesome." Kermit gave James

several magazine clips an d a thousand rounds of ammunition.

Kermit's brief contends that the recorded conversation also reveals

that he had trouble getting the sear into the rifle, showing his

unfamiliarity with the way the device works.

James left and surrendered the weapon to ATF agents. A

grand jury initia lly indicted Kermit on a three-count indictment

charging him with 1) possession of a firearm that had been modified

to fire as a machine gun, 2) possession of an unregistered firearm

modified to fire as a machine gun, and 3) transferring a firearm

modified to fire as a machine gun. Counts one and three were

subsequently dropped and Doucet was tried before a jury on only the

count charging possession of an unregiste red firearm modified to

fire as a machine gun. The jury found Doucet guilty. The district

court sentenced him to twelve months of unsupervised probation and

a $5,000.00 fine.

II

At trial, Doucet admitted that he had modified the weapon

for his brother's use as charged in the indictment but maintained

that he had n o predisposition to modify the weapon. He claimed

that the evidence showed that he had never used the weapon as an

automatic, that it had stayed in a gun cabinet for years, with the

sear in a separat e closet, and that he inserted the sear only at

his brother's request and with great difficulty. Thus, he said he

had been entrapped.4 Doucet argues that on the last day of trial the

government realized it was going to lose, so it changed its theory

of the case. Under the new theory, Doucet could be convicted for

mere possession of the unregistered, unassembled component parts of

a machine gun, even though he had been indicted for possession of

an unregistered firearm already modified to serve as a machine gun.

This new "ind i ctment" would avoid Doucet's entrapment defense

because it did not depend on Doucet's assembling the machine gun at

his brother's prodding.

Doucet says this change in theory was manifested in two

ways. First, Doucet points to the disparity between the theory of

the c ase propounded in the government's opening argument and the

theory offered in its closing argument. In its opening argument,

the government emphasized Doucet's actions in putting the sear into

the AR-15 on October 18, 1990--this act constituted the

"possession" for whic h Doucet was charged. The government never

made mention of Doucet's possession of the unassembled co mponent

parts for several years as a basis for the conviction. In closing

argument, however, the government's counsel repeatedly emphasized

the fact that Doucet had possessed the unassembled parts of the AR15 for several years. The prosecutor told the jury:

T he next question we've got to ask is whether he

possessed a machine gun, and I told you before, I believe

the judge is going to instruct you as to the law. What

a machine g un is is this. A machine gun is either a

weapon that shoots fully automatic, or if you have a

weapon and you have other pieces that you can put in the

weapo n and make them shoot fully automatic, then you

possess--or that's a machine gun. I believe that's what

the judge is going to instruct you as to the law, and5 listen carefully when he instructs you. He [Doucet]

possessed an unregistered machine gun.

The prosecutor added:

[W]e can show that he [Doucet] di d possess it [the

machine gun]. We can show that with evidence, and we can

show that it was unregistered. We showed it with

evidence, and we can show that it was a machine gun, and

we showed that with evidence. W e have shown that from

March 5th of 1983 until October 18th of 1990 he possessed

an unregistered machine gun

.

Finally, in his rebuttal to Doucet's claims of entrapment, the

prosecutor offered this:

Well, I told you what a fir earm is, and the judge is

going to tell you. I accept that burden because there's

no evidence that a government agent came in and made him

possess an unregistered firearm. He'd been possessing

the thing since 1983. I f he's got the parts--based on

what the law says that the judge is going to instruct you

on, I believe, he had the parts , and the parts are the

firearm itself, so there's no question that he possessed

an unregistered firearm because he didn't register it by

his own words. No question.

Second, the government gave the district court a

supplemental jury instruction on the last day of trial before the

last defense witness was to testify. That jury instruction defines

"machine gun" almost exactly as it appears in the National Firearms

Act, 26 U.S.C. § 5845(b):

A machine gun is defined as any weapon which shoots, is

designed to shoot, or can be readily restored to shoot,

automatically more than one shot without manual

reloading, by a single function of the trigger. T he term

machine gun shall also include any combination of parts

from which a machine gun can be assembled if such parts

are in the possession or under the control of a person

.

(emphasis added). Thus, possession of the unassembled parts of a

machine gun would qualify as possession of a "machine gun" under

the definition. The definition was not included in the6

government's original list of requested charges submitted prior to

trial.

Doucet argues that the effect of the instruction

containing the definition of a machine gun and the government's

closing argument was to p ermit the jury to convict him for mere

possession of the unregistered component part s of a machine gun,

rather than for the offense for which he was indicted: possession

of an unregistered assembled machine gun. This amounts, he

contends, either to a per se reversible amendment in the indictment

or a prejudicial variance between the proof offered at trial and

the indictment, citing United States v. Salinas

, 654 F.2d 319 (5th

Cir. 1981).

The governmen t responds that Doucet was indicted and

convicted for the same offense: possession of an unregistered

assembled machine gun. It says that there was no possibility that

the jury was confused about what it was convicting Doucet for

because the trial judge clearly laid out the elements of the

offense. The trial court instructed the jury that it could find

Doucet guilty only if he knew he had a "gun" in his possession; the

gun was modified to fire as a machine gun; and he knew the weapon's

characteristics and that it was a fully automatic weapon. Thus,

according to the elements of the offense, Doucet could only be

convicted for possessing an unregistered assembled machine gun.

The government concludes--without argument or explanation--that the

instruction regarding the definition of a ma chine gun did not

broaden the possible basis for conviction. Further, the government7

does not address the significance of the prosecutor's closing

argument in light of the late-added jury charge.

III

The Fifth Amendment provides for criminal prosecution

only on the basis of a grand jury indictment. Only the grand jury

can amend an indictment to broaden it. Stirone v. United States

,

361 U.S. 212, 215-16, 80 S. Ct. 270 (1960). The amendment need not

be explicit to constitute reversible error, but may be implicit or

constructive. This occurs when the jury is permitted to convict

the defendant upon a factual basis that effectively modifies an

essential element of the offense charged. U nited States v.

Baytank

, 934 F.2d 599, 606 (5th Cir. 1991). Constructive amendment

requires reversal of the conviction. I d

. Moreover, it is clear

that the indictment may be amended constructively by the actions of

either the court or the prosecutor. Salinas , 654 F.2d at 324.

This Court faced a situation analogous to the instant one

in United States v. Beard

, 436 F.2d 1084 (5th Cir. 1971). There

the government indicted the defe ndant under an embezzlement

statute. During trial the government realized that while the facts

developed did not charge a violation of the particular statute

cited in the indictment, they did charge a violation of a similar

statute not named in the indictment. Consequently, the government

urged conviction under the original indictment for violation of the

new statute. I d

. at 1086. In reversing the conviction for

constructive amendment of the indictment, this Court noted:

Permission was not asked of or given by the trial judge

for formal amendment of the indictment, but nevertheless8 the indictment was in effect amended by the government's

change in p osition during the course of the trial when

the fatal defects in the proof came to light . . . .

Id

. at 1087 (emphasis added). Although B eard involved an effective

amendment of the indictment to charge an offense under a statute

different from the one cited in the indictment, its logic applies

where the effective amendment is to change the theory under which

the government is pursuing convictio n for violation of the same

statute. Either way, the defendant is not apprised by the

indictment of the particular theory he will have to counter at

trial and the jury is permitted to convict on a basis broader than

that charged in the grand jury's indictment. S ee also United

States v. Salinas , 654 F.2d 319, 323-24 (5th Cir. 1981).

More importantly, Beard recognizes that the government's

change in position during the trial can be sufficient to work a

constructive amendment of the indictment even where the court does

not formally alter the elements of the offense in the jury charge

.

The only question, then, is whether the government changed its

theory during the trial so as to urge t he jury to convict on a

basis broader than that charged in the indictment.

There can be no doubt, and the government does not argue

to the contrary, that the indictment charged Doucet with possession

of an unregistered assembled mach ine gun. Possession of the

unassembled compo nent parts of that gun would be insufficient to

convict him under the original indictment, as the government must

concede. Indeed, the government's opening argument plainly

i ndicated that the government would prove only that Doucet9

possessed the assembled machine gun. The original jury instruction

submitted by the government did not include the expansive

definition of a machine gun the government later offered. Doucet

accor dingly prepared his defense to the charge that he had

possessed an assembled automatic weapon.

By the last day of the trial, the direction of the

government's prosecution had changed. On that day it first offered

its supplemental jury instruction--to which Doucet objected--that

included the definition of a machine gun. The jury charge defines

"machine gun" to include its unassembled component parts. Based on

that definition a reasonable jury could conclude that a "machine

gun" could be the unassembled parts Doucet had possessed since

1983. That conclusion was fortified by the prosecutor's repeated

claims in closing argument that "he [Doucet] had the parts, and the

parts are the firearm itself." The prosecutor compounded the

error in these claims by referring the jury each time to the jury

charge containing the new definition of a machine gun. The

prosecutor thus invited the jury to convict Doucet of a crime for

which he was never indicted: possession of the unassembled parts of

a machine gun. That blatant invitation differed materially from

what the original indictment called on the jury to do and seriously

undercut the defense that Doucet had prepared in response to the

original terms of the prosecution. It was, therefore, a

constructive amendment to the indictment.

Doucet argues also that because the district court's jury

charge permitted him to be convicted for mere possession of an10

unassembled machine gun, he did not have the requisite mens rea to

be found guilty. Specifically, he claims that he never knew that

Congress had amended the law to provide for registration of an

unassembled machine gun, citing Lambert v. Californ ia , 355 U.S.

225, 78 S. Ct. 240 (1957). It is unnecessary to address this

contention since the conviction is reversed because of the

constructive amendment to the indictment discussed above.

IV

The government asserts in its brief that "[t]here is no

possibility for the jury to have thought that mere possession of

the sear only or of the two parts separately would have constituted

the offense for which the defendant was indicted and for which he

was tried." That claim flies in the face of the government's own

closing argum ent and the jury charge the government submitted on

the very last day of trial. The government here lured Doucet into

constructing an entrapment defens e against a charge that the

government ultimately abandoned at trial in favor of a broader

b asis for conviction. But an indictment is not putty in the

government's hands. Having used Doucet's own brother as an

investigative arm of the ATF--itself a lamentable tactic that

coldly exploits familial relationships--the government proceeded to

play charades with his trial. Les jeux sont faits.

As noted above, a constructive amendment to an indictment

requires reversal of the conviction. The conviction is reversed

and remanded to the district court for further proceedings.

REVERSED and REMANDED

.