Source: cases/18usc922/f3d-481-882-us-v-nance.case
Case source: https://www.neochart.com/catalog/cases/f3d/volume_481/0882_01/index.html
The district court instructed the jury that the government must prove that the firearm in question had traveled in interstate commerce prior to Nance’s possession of it and that this fact could be proven by showing that prior to the date of the crime the firearm had crossed a state line.
The jury was not required to find that the firearm had a substantial effect on interstate commerce.
Rather, the instruction given was sufficient to establish an interstate nexus.
The government's obligation was to prove the particular possession charged, not some earlier occasion of possession.
The “on or about” language permits the jury to conclude that the offense charged occurred on some date reasonably close to the one contained in the indictment, but does not permit conviction of an uncharged offense that occurred in close temporal proximity to the charged offense.
The December 8 evidence was relevant to establish Nance’s access to the safe and his ability to exercise control over the weapon on December 12 and properly admissible.
If this evidence could be considered a variance, its admission did not prejudice defendant.
The only method of convicting the defendant of the offense charged in the indictment was to prove that he had constructive possession of that firearm, i.e., he had the right to exercise physical control over it, knew that he had that right, and intended to exercise that right.
Because I strongly believe that there is a substantial likelihood that Nance was convicted of a crime other than the one charged in the indictment, I would reverse the conviction.
casedsl 1 case /f3d/481/0882-01 name United States v. Nance cite 481 F.3d 882 (2007) court United States Court of Appeals for the Sixth Circuit date 2007-04-06 url catalog/cases/f3d/volume_481/0882_01/index.html source ir/caselaw/f3d_481.jsonl sha1=d1ff69d49d82c21704ed6f6ebc8205a86b135a92 chars=40933 law 18usc922 (g)(1) role applied posture criminal; jury conviction on one felon-in-possession count, 235-month armed-career-criminal sentence; defendant appeals the commerce-nexus jury instruction, a claimed constructive amendment / variance (evidence of handling the gun four days before the charged date), the ACCA enhancement and reasonableness; affirmed, one judge dissenting on constructive amendment; sufficiency of the evidence not raised result claimant-won element commerce-possession : not-reached role rule-announced variant prior-interstate-movement/crossed-state-line-before-possession rule @3871..4159 | The district court instructed the jury that the government must prove that the firearm in question had traveled in interstate commerce prior to Nance’s possession of it and that this fact could be proven by showing that prior to the date of the crime the firearm had crossed a state line. rule @4388..4487 | The jury was not required to find that the firearm had a substantial effect on interstate commerce. held @4553..4631 | Rather, the instruction given was sufficient to establish an interstate nexus. gloss Jury-instruction review only (abuse of discretion): the requested "affected commerce" / substantial-effect instruction was properly refused. The opinion states no evidence about where the gun was made or travelled and does not review sufficiency on this element. element possession : not-reached scope procedural count single count, possession "on or about December 12, 2003" theory constructive possession on the charged date (key to a locked safe in another person's residence); admitted handling four days earlier used as evidence of access and control variant constructive/control fact @1147..1296 [supports] | Upon executing the search warrant, officers discovered a locked safe containing a firearm. Nance told the officers which key to use to open the safe. fact @1819..1979 [supports] | Terry Wayne Curry, an informant who had been assisting the gang task force, testified that he had seen Nance open the same safe using a key on a prior occasion. fact @2276..2478 [supports] | Nance stated that four days prior to his December 12 arrest he had been asked to put the gun away by Nicole Parker, who was at the house, and that he did so because children were sometimes at the house. fact @636..843 [cuts-against] | On December 12, 2003, members of the Jackson police department’s gang task force went to 228 Shelby Street in Jackson, Tennessee to serve an arrest warrant on Martedis McPhearson, who lived at the residence. rule @16634..16750 | The government's obligation was to prove the particular possession charged, not some earlier occasion of possession. rule @16782..17062 | The “on or about” language permits the jury to conclude that the offense charged occurred on some date reasonably close to the one contained in the indictment, but does not permit conviction of an uncharged offense that occurred in close temporal proximity to the charged offense. held @8185..8353 | The December 8 evidence was relevant to establish Nance’s access to the safe and his ability to exercise control over the weapon on December 12 and properly admissible. held @8354..8445 | If this evidence could be considered a variance, its admission did not prejudice defendant. gloss REAL RULING: constructive amendment / variance (and admissibility of the December 8 statement), not sufficiency of possession - hence not-reached, scope procedural. The jury found possession; the appeal did not challenge sufficiency and this court does not hold that the evidence established it. What the court decides is that proof of an earlier actual possession did not constructively amend the indictment or prejudicially vary from it, because it was evidence of constructive possession on the charged date. The cuts-against line is the only fact in the majority opinion pointing away from control (the house and safe were at another person's residence); the court does not discuss it. element possession : not-reached scope dissent opinion Holschuh, D.J., concurring in part and dissenting in part count single count, possession "on or about December 12, 2003" variant constructive/control fact @34323..34553 [cuts-against] | It is undisputed that on the date of the offense charged in the indictment, December 12th, the defendant did not have actual possession of the firearm. It was found by the police in a safe in the home of a friend of the defendant. fact @30118..30241 [cuts-against] | The evidence of this separate, uncharged incident of possession, however, was submitted to the jury without any limitation. rule @34554..34831 | The only method of convicting the defendant of the offense charged in the indictment was to prove that he had constructive possession of that firearm, i.e., he had the right to exercise physical control over it, knew that he had that right, and intended to exercise that right. held @18669..18848 | Because I strongly believe that there is a substantial likelihood that Nance was convicted of a crime other than the one charged in the indictment, I would reverse the conviction. gloss The dissent would vacate for constructive amendment (the actual-possession instruction and the prosecutor's rebuttal invited conviction for the uncharged December 8 handling; unanimity doubtful); it does not say constructive possession on December 12 was unproven, and agrees the December 8 statement was relevant to it. element status.g1 : not-reached gloss Felon status not contested; the prior convictions (two armed robberies, aggravated burglary, facilitation of armed robbery) are analysed only as ACCA predicates. misfit New: the decided question is WHICH possession (which date / incident) the conviction rests on. Possession under 922(g) is charged per incident; the notation has no notion of the charged unit, so "evidence of an earlier actual possession is admissible proof of the later constructive possession but may not itself be the offense" is a relation between two possession variants (actual on Dec. 8 -> constructive on Dec. 12) that lives only in `theory`/gloss. Recorded under possession as `not-reached` with scope procedural (an indictment/variance ruling, not an element holding). misfit Known (no value for "found by the jury, not reviewed"; jury-instruction review has no basis): the jury found possession but the appellate court never reviewed sufficiency, so the possession block is `not-reached` + scope procedural and the verdict is visible only in gloss. The commerce block is an approved instruction, written rule-announced/not-reached, which likewise hides that the jury did find the nexus. misfit About half of the majority opinion is sentencing: ACCA (18 U.S.C. 924(e)) predicate analysis of Tennessee aggravated burglary and facilitation of armed robbery (categorical approach, Shepard), and reasonableness of the 235-month sentence. No declared id; not recorded. A pro se suppression argument was held waived (Fed. R. Crim. P. 12) - also not an element. misfit The majority notes that the defendant asked for an innocent-possession / necessity instruction for the December 8 handling and that the district court refused it; neither opinion decides whether such a defense exists, and the law file declares no such defense id. misfit Known (polarity whole-line, whose version): the statement that Nicole Parker asked Nance to put the gun away was contradicted by Parker's testimony; the fact line cannot mark it as the defendant's own disputed account. The dissent block's facts are trial-record events (no limiting instruction), not facts of the offense.