                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 03-4699
EDGARDO OSCAR NIEVES, JR.,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                Richard D. Bennett, District Judge.
                         (CR-02-68-RDB)

                      Submitted: April 28, 2004

                      Decided: September 8, 2004

    Before WIDENER, LUTTIG, and SHEDD, Circuit Judges.



Reversed by unpublished per curiam opinion.


                             COUNSEL

David W. Fischer, LAW OFFICES OF FISCHER & PUTZKI, P.A.,
Glen Burnie, Maryland, for Appellant. Thomas M. DiBiagio, United
States Attorney, Debra L. Dwyer, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                     UNITED STATES v. NIEVES
                             OPINION

PER CURIAM:

   Edgardo Oscar Nieves, Jr., appeals his jury conviction of possess-
ing a machinegun, in violation of 18 U.S.C. § 922(o)(1) (2000), for
which he was sentenced to twenty-one months in prison. We reverse.

  In February 2002, a District of Maryland Grand Jury returned a
one-count indictment against Nieves that read as follows:

    the defendant did knowingly and unlawfully possess a
    machinegun, to wit: a Norinco 7.62 x39mm rifle, serial
    number 9205229, modified to shoot automatically more than
    one shot, without manual reloading, by a single function of
    the trigger, in violation of Title 18, United States Code,
    922(o)(1).

Under 26 U.S.C. § 5845(b) (2000), the term "machinegun," which is
the heart of this appeal, is defined in the following manner:

    The term "machinegun" means any weapon which shoots, is
    designed to shoot, or can be readily restored to shoot, auto-
    matically more than one shot, without manual reloading, by
    a single function of the trigger. The term shall also include
    the frame or receiver of any such weapon, any part designed
    and intended solely and exclusively, or combination of parts
    designed and intended, for use in converting a weapon into
    a machinegun, and any combination of parts from which a
    machinegun can be assembled if such parts are in the pos-
    session or under the control of a person.

   The Government’s theory of the case was that Nieves illegally pos-
sessed a specific Norinco 7.62 x39mm AK-47, serial number
9205229 ("AK-47"), which was functional as found by Government
agents during a search of the guesthouse at Nieves’s parents’ farm.
The Government’s theory further provided that when the gun was dis-
covered by agents, it was already modified by Nieves to fire more
than one shot with each trigger squeeze, thereby making it a "ma-
                       UNITED STATES v. NIEVES                        3
chinegun." Nieves accomplished this, the Government argued, by
intentionally modifying the gun’s hammer. Nieves’s theory of the
case was that he did not "possess" the AK-47 because he had aban-
doned it by the time Government agents found it. During the Govern-
ment’s presentation of evidence, it introduced a collection of various
gun parts. These parts were also found by Government agents during
their search of the guesthouse.

   After the close of evidence, Nieves objected to a proposed jury
instruction as it related to the definition of a "machinegun" under 26
U.S.C. § 5845(b). The Government requested that the complete legal
definition of "machinegun" be read to the jury, including the last sen-
tence of § 5845(b), which refers only to gun "parts." Nieves argued
that the indictment only charged him with possession of a specific
AK-47; it did not state that he violated federal law through possession
of gun parts. Therefore, Nieves urged the court to omit the last sen-
tence of § 5845(b) when defining "machinegun" to the jury. The dis-
trict court rejected Nieves’s request and charged the jury with the full
definition of a machine gun under § 5845(b), including the disputed
"parts" sentence.

   Nieves filed a post-trial motion under Fed. R. Crim. P. 33, arguing
that the indictment was impermissibly broadened or "constructively
amended" by the jury instruction on the definition of a "machinegun."
Nieves argued that the jury could have convicted him solely because
he possessed machine gun parts, whereas the indictment specified
only the possession of a specific, functioning AK-47, already modi-
fied by Nieves to fire automatically. The district court denied the
motion. Nieves timely noted an appeal. On appeal, Nieves again
argues that the indictment was constructively amended by the jury
instruction on the definition of "machinegun," requiring reversal of
his conviction. The Government maintains that the jury instruction
was proper and that no constructive amendment occurred.

   The Fifth Amendment to the United States Constitution states: "No
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury." U.S.
CONST. amend. V. The purpose of this "Grand Jury Clause" is to
provide a check on the prosecutorial power of the State by ensuring
that only an independent and neutral body of defendant’s peers can
4                      UNITED STATES v. NIEVES
frame the factual contours of the alleged criminal activity. See United
States v. Stirone, 361 U.S. 212, 217-19 (1960). Because only a grand
jury has the constitutional authority to frame an indictment, any sub-
sequent actual or "constructive" expansion in the reach of the indict-
ment is impermissible. Thus, "[w]here an essential element of the
charges has been altered without resubmission to the grand jury,
‘deprivation of such a basic [constitutional] right is far too serious to
be treated as nothing more than a variance and then dismissed as
harmless error.’" United States v. Zingaro, 858 F.2d 94, 98 (2d Cir.
1988) (quoting Stirone, 361 U.S. at 217).

   We recently summarized the "constructive amendment" doctrine in
the following manner:

    A defendant may only be tried on charges alleged in an
    indictment, and only "the grand jury may broaden or alter
    the charges in the indictment." United States v. Randall, 171
    F.3d 195, 203 (4th Cir. 1999) (internal quotation and cita-
    tion omitted). An indictment is constructively amended
    "when the essential elements of the offense . . . are altered
    to broaden the possible bases for conviction beyond what is
    contained in the indictment." United States v. Keller, 916
    F.2d 628, 634 (11th Cir. 1990); see also United States v.
    Floresca, 38 F.3d 706, 710 (4th Cir. 1994) [(en banc)] ("A
    constructive amendment to an indictment occurs when
    either the government, [the court], or both, broadens the
    possible bases for conviction beyond those presented by the
    grand jury.").

United States v. Bolden, 325 F.3d 471, 493 (4th Cir. 2003). A con-
structive amendment is reversible error "per se," even if there was
sufficient evidence to convict the defendant on the specific charges
made out by the grand jury. Floresca, 378 F.3d at 711. An indictment
"may not be amended except by resubmission to the grand jury,
unless the change is merely a matter of form." Russell v. United
States, 369 U.S. 749, 770 (1962).

   Guided by these principles, we conclude that the indictment charg-
ing Nieves with violating § 922(o)(1) was constructively amended by
the jury charge, in combination with the introduction of the gun parts
                      UNITED STATES v. NIEVES                       5
evidence. The gun parts evidence, coupled with the jury charge,
impermissibly broadened the basis for conviction beyond that speci-
fied in the grand jury indictment. See Stirone, 361 U.S. at 217-18;
United States v. Leichtnam, 948 F.2d 370, 375-81 (7th Cir. 1991). We
therefore reverse Nieves’s conviction. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

                                                         REVERSED
