Appeal from the United States District Court for the Western District of Louisiana. D.C. DOCKET NUMBER CR-91-60002-01. JUDGE John M. Shaw
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.
In 1983 Doucet bought an AR-15 semi-automatic rifle and a "sear" that would allow it to be converted 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 the sear 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 collateral, 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, Kermit, possessed an unregistered fully automatic assault rifle. The ATF equipped James with a telephone 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 goes 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 borrow 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 sear away, you'll be legal . . . that's what makes it awesome." Kermit gave James several magazine clips and 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 initially 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 unregistered 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.
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 no 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 separate closet, and that he inserted the sear only at his brother's request and with great difficulty. Thus, he said he had been entrapped.
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 "indictment" 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 case 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 which Doucet was charged. The government never made mention of Doucet's possession of the unassembled component parts for several years as a basis for the conviction. In closing argument, however, the ...