                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 02-4131
      ___________

United States of America,             *
                                      *
                    Appellee,         *
                                      *
      v.                              *
                                      *
Gregory Collins,                      *
                                      *
                    Appellant.        *
                                          Appeals from the United States
                                          District Court for the
                                          Southern District of Iowa.

      ___________

      No. 03-1239
      ___________

United States of America,             *
                                      *
                   Appellant,         *
                                      *
      v.                              *
                                      *
Gregory Collins,                      *
                                      *
                   Appellee.          *
                                   ___________

                             Submitted: October 23, 2003

                                  Filed: November 21, 2003
                                   ___________

Before RILEY, HEANEY, and SMITH, Circuit Judges.
                            ___________

HEANEY, Circuit Judge.

       Gregory Collins challenges his conviction for disposing firearms to a person
he knew or had reasonable cause to know was an unlawful user of or addicted to a
controlled substance, in violation of 18 U.S.C. § 922(d)(3). Collins argues that the
district court constructively amended the indictment by incorrectly instructing the
jury on the law. We agree, and reverse the conviction.1

I. Facts

      Collins was a police officer with the Davenport Police Department for twenty-
two years. In 1998, Collins, then a supervisor in the Vice and Narcotics Unit, was
present during a search of the home of Jay Chepanonis. The search revealed drugs,
drug paraphernalia, firearms, ammunition, and $13,000 in cash. The police seized
these items. Following the search, William J. Hurt, another officer with the
department, interviewed Chepanonis. During the interview, Chepanonis admitted to
recently using drugs, as well as dealing drugs from his residence. Chepanonis

      1
       Because we find the constructive amendment issue dispositive, we reverse the
conviction without evaluating the other arguments made on appeal. See United States
v. ITT Blackburn Co., 824 F.2d 628, 630 (8th Cir. 1987) (refusing to evaluate
additional issues on appeal because a reversal on the basis of an invalid indictment
was dispositive).

                                        -2-
decided to cooperate with the police, and the Drug Enforcement Agency supervised
his cooperation for approximately two months. Shortly after his cooperation ceased,
Chepanonis demanded the return of the firearms and cash the officers had seized
earlier. Hurt negotiated an agreement between Chepanonis and Collins, in which
Collins agreed to return to Chepanonis the firearms, ammunition, and $6,500 in cash.
The Davenport Police Department retained the remaining $6,500 in cash.

       The government indicted Collins for stealing $3,978 of the $6,500 seized from
Chepanonis, and for knowingly returning firearms to Chepanonis, an unlawful user
of a controlled substance. The jury found Collins not guilty of the theft charge, but
guilty of returning firearms to Chepanonis, a person whom Collins had reasonable
cause to believe was an unlawful drug user. On appeal, Collins makes three
arguments: (1) that the district court constructively amended the indictment by adding
an element to the firearms law in its jury instructions and by incorrectly defining an
unlawful user; (2) that the firearms law is unconstitutionally vague as applied to the
defendant; (3) and that the district court erred in sentencing. The government cross-
appeals, arguing the district court abused its discretion in granting the defendant a
downward departure for aberrant behavior.

II. Analysis

       A jury instruction can function as a constructive amendment to an indictment
“if it modifies the essential elements of the offense charged in the indictment.”
United States v. Griffin, 215 F.3d 866, 869 (8th Cir. 2000). When an indictment is
modified in this manner, the defendant’s Fifth Amendment right to be charged by a
grand jury has been violated, resulting in reversible error. United States v. Harris,
344 F.3d 803, 804 (8th Cir. 2003) (per curiam); United States v. Emery, 186 F.3d
921, 927 (8th Cir. 1999) (stating “[a] constructive amendment . . . is reversible error
per se”).



                                         -3-
       Collins maintains that the district court constructively amended the firearms
charge by instructing the jury that § 922(d)(3) contained a prospective element.
Section 922(d)(3) states, “It shall be unlawful for any person to sell or otherwise
dispose of any firearm or ammunition to any person knowing or having reasonable
cause to believe that such person . . . is an unlawful user of or addicted to any
controlled substance.” 18 U.S.C. § 922(d)(3). In Jury Instruction 11, the district
court directed the jury on the elements of the firearm offense in the following manner:

      The Government is not required to prove that the unlawful user was
      using a controlled substance at the moment the defendant returned the
      firearms to him;[2] but the Government is required to prove that at the
      time the firearms were returned the Defendant knew or had reasonable


      2
         The district court borrowed this language from case law concerning
§ 922(g)(3), which makes it a crime for a drug user to be in possession of a firearm.
For purposes of § 922(g)(3), the drug user is not required to be using drugs at the
exact moment he obtained the firearms: “The plain language requires that the
government only prove [the defendant] was an ‘unlawful user’ or addicted to a
controlled substance during the time he possessed the firearms.” United States v.
McIntosh, 23 F.3d 1454, 1458 (8th Cir. 1994). Accordingly, the relevant section of
the model instruction for § 922(g)(3) states,

      The term “unlawful user of a controlled substance” means a person who
      uses a controlled substance in a manner other than as prescribed by a
      licensed physician. The defendant must have been actively engaged in
      use of a controlled substance during the period of time he possessed the
      firearm, but the law does not require that he used the controlled
      substance at the precise time he possessed the firearm. An inference that
      the person is a user of a controlled substance may be drawn from
      evidence of a pattern of use or possession of a controlled substance that
      reasonably covers the time the firearm was possessed.

Model Crim. Jury Instr. 8th Cir. 6.18.922(g)(3). We are not deciding here whether
this definition of an “unlawful user” is appropriate in the context of § 922(d)(3).

                                         -4-
      cause to believe there was a risk that Mr. Chepanonis would unlawfully
      use a controlled substance while in possession of the firearms.

(Appellant’s Addendum at 13-14.) Collins argues that the district court’s use of the
phrase “reasonable cause to believe there was a risk that Mr. Chepanonis would
unlawfully use a controlled substance” alters the charge from the indictment; the
inquiry shifts from whether the defendant knew or had reasonable cause to know
Chepanonis was an unlawful user at the time the defendant returned the firearms to
him, to whether the defendant had reasonable cause to believe there was a risk
Chepanonis would become an unlawful user at some time after the defendant returned
the firearms.

       The government maintains that while the defendant did object to the district
court’s jury instruction, he did not object on the grounds that he puts forth here – that
the instruction violated the defendant’s Fifth Amendment rights.3 Therefore, the


      3
          Counsel for Collins objected to Jury Instruction 11 by stating the following:

             Your Honor, once again, I am renewing my objection to the
      definition of the unlawful user of a controlled substance as I have
      previously asked. I believe the definition that I had presented closely
      tracks the Ninth, Fourth and Fifth Circuits and that an unlawful user
      should be defined as receiving a firearm contemporaneously with the
      unlawful use of a controlled substance.

             Knowing that the court is not going that far, under instruction No.
      11, we have the last paragraph – second to the last paragraph, about
      halfway through where it says, “The defendant knew or had reasonable
      cause to believe there was a risk that Mr. Chepanonis would unlawfully
      use a controlled substance while in possession of a firearm.”

            I don’t like the unmodified use of the work “risk” there because
      walking across the street tonight to go home is a risk. It’s not a
      substantial risk – or if you’re walking across the street, you may be hit

                                           -5-
government maintains the objection was not preserved for appeal, and we should
review the district court’s instruction for plain error. In support of this argument, the
government relies on United States v. Stuckey, 220 F.3d 976 (8th Cir. 2000), in which
this court refused to consider whether a jury instruction constructively amended the
indictment.

       In Stuckey, defense counsel objected to a supplemental jury instruction;
counsel did not, however, explicitly state to the district court that the instruction
violated the defendant’s Fifth Amendment rights by serving as a constructive
amendment to the indictment. Id. at 982. The Eighth Circuit noted that the defense’s
objection “perhaps sufficed to preserve the objection for review on appeal without
subjecting it to the plain error standard of review . . . [b]ut the objection did not
precisely identify the error as a violation of Stuckey’s Fifth Amendment rights.” Id.
The court went on to evaluate whether the defendant articulated a constructive
amendment argument on appeal, and ultimately concluded he did not, based on the
lack of argument presented in his brief. Id.




      by a car. Well, there is always a risk when you walk across a street that
      you may be hit by a car. Is it a substantial risk? No. Is it a reasonable
      risk? Maybe. But that risk is always there, and there’s always a risk that
      a person could use drugs two years from now, three years from now,
      four years from now. There’s always that risk that a person who hasn’t
      even used drugs in his life may start using in the future, just like alcohol.
      They may not have used alcohol in their entire life and two years from
      now or four years from now there’s that risk, but it’s not substantial, and
      under the context of this case and in my example it wouldn’t be
      reasonable.

(Tr. at 538-39.) While defense counsel identified the “risk” language as
objectionable, we agree that he did not specifically object to instruction 11 on Fifth
Amendment grounds.

                                          -6-
       The Stuckey Court did not consider the defendant’s constructive amendment
argument because the defendant failed to present it to the court on appeal, not because
of the adequacy of the objection at the district court. While the Stuckey Court noted
the defendant’s failure to object to the jury instruction on Fifth Amendment grounds,
the court never stated that this would result in plain error review. Even if we were to
review the jury instruction for plain error, however, we would still reverse.

       We agree with the defendant that the district court’s instruction constructively
amended the indictment. The statute plainly states that it is unlawful for a person to
dispose of a firearm to any person “knowing or having reasonable cause to believe
that such person . . . is an unlawful user of or addicted to a controlled substance.” 18
U.S.C. § 922(d)(3) (emphasis added). When the district court instructed the jury to
find Collins guilty if he reasonably believed there was a risk Chepanonis would be
an unlawful user while in control of the returned firearms, this broadened the scope
of the statute considerably. The statute requires an evaluation of Chepanonis’s status
as an unlawful user at the time of the disposal of the firearms to him; the district
court’s instruction, however, focused the jury on Chepanonis’s status as an unlawful
user at any point after the firearms were in his possession. Although the district court
indicated that the risk language was intended to target the harm the statute was meant
to prevent, at the same time the instruction significantly altered the nature of the
charges Collins faced.

       The Eighth Circuit has not prepared a model instruction for § 922(d)(3). In
fact, to our knowledge no case in the Eighth Circuit, or any other circuit, has
specifically addressed subsection (d)(3) of § 922. The district court’s instruction in
this case would have been adequate if it had eliminated the risk language, and instead
stated the following:

      The Government is not required to prove that the unlawful user was
      using a controlled substance at the moment the defendant returned the

                                          -7-
      firearms to him; but the Government is required to prove that at the time
      the firearms were returned the Defendant knew or had reasonable cause
      to believe Mr. Chepanonis was an unlawful user of a controlled
      substance.

This instruction tracks the language of the statute, and provides the jury with
adequate guidance in reaching its decision.

III. Conclusion

      The district court’s instructions to the jury in regards to § 922(d)(3)
constructively amended the indictment, and is reversible error per se. Accordingly
we reverse the conviction and remand for proceedings consistent with this opinion.
                     ______________________________




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