I find this very interesting:
To establish the interstate nexus element, the government presented testimony of Special Agent Daniel Meade of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Meade is formally trained in trafficking techniques for firearms in the United States and his job is to determine whether or not a particular firearm traveled in or affected interstate commerce. Meade testified that the RG Industries, Model RG 31, .38 caliber revolver, serial number 019420 was a firearm. He testified that RG Industries is located in Miami, Florida, “where this firearm would have been assembled” and also stated that “[t]his particular firearm, the frame was manufactured in Miami, Florida . . . .” Meade further testified that “[o]ther than the gun] being bought and sold through interstate commerce, I don’t know how it particularly got to Texas in this instance, but it would have been bought and sold in commerce.”
A criminal defendant has a Fifth Amendment right to be “tried only on charges presented in a grand jury indictment.” United States v. Chandler, 858 F.2d 254, 256 (5th Cir. 1988). Only a grand jury has the power to amend an indictment. See id. “A jury charge constructively amends an indictment . . . if it permits the jury `to convict the defendant upon a factual basis that effectively modifies an essential element of the crime charged.'” United States v. Daniels, 252 F.3d 411, 413-14 (5th Cir. 2001) (citing Chandler, 858 F.2d at 257). The accepted test is that a “constructive amendment occurs if the jury is permitted to convict on an alternative basis permitted by the statute but not charged in the indictment.” Id. at 414 (internal quotation marks and citation omitted).
Section 922(g)(1) provides in relevant part that:
It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm.
18 U.S.C. § 922(g)(1). “Firearm” is a term of art. It means “any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive[;] . . . the frame or receiver of any such weapon[;] . . . any firearm muffler or firearm silencer[;] . . . or any destructive device.”[ 3 ] 18 U.S.C. § 921(a)(3). “To establish a violation of § 922(g)(1), the government must prove three elements beyond a reasonable doubt: (1) that the defendant previously had been convicted of a felony; (2) that he possessed a firearm; and (3) that the firearm traveled in or affected interstate commerce.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005).
So, in order to convict this guy the firearm’s violation they had to show, beyond a reasonable doubt, that the firearm traveled in or affected intersate commerce.
Why isn’t this the “Magic Bullet” that the Firearms Freedom Act folks need to win their lawsuit?