WASHINGTON – A federal appeals court has overturned the machinegun conviction of a Baltimore man who argued that jury instructions in his trial allowed jurors to consider evidence not included in his formal charge.
Edgardo Nieves Jr., 27, had served 11 months of a 21-month sentence when a three-judge panel of the 4th U.S. Circuit Court of Appeals issued its decision Wednesday.
His attorney, David Fischer, said Thursday he would begin working to secure Nieves’ release from the federal penitentiary in Morgantown, W.Va. Fischer said he has urged the U.S. Attorney’s office not to retry the case.
In December 2001, agents of the Bureau of Alcohol, Tobacco and Firearms searched Nieves’ home in Baltimore after receiving an anonymous tip that he owned a machine gun. They found no weapons but interviewed Nieves, who told them he had a broken AK-47 at his parents’ farm in Cecilton.
After searching the farm’s guest house, the agents found an AK-47. Originally a semiautomatic weapon, which is legal in Maryland, the government claimed at trial that Nieves had filed down its hammer to make it into a fully automatic — and illegal — weapon.
Agents also found various machine gun parts, which they presented during trial.
Nieves was charged in February 2002 with possession of a machine gun — even though he argued at trial that he did not “possess” the gun, as he had abandoned it before the agents searched the house.
But in his instructions to the jury, U.S. District Judge Richard Bennett read the complete federal definition of a machine gun, which includes both the weapon and parts to assemble the weapon.
Nieves objected to the jury instruction, but was overruled. He was convicted last summer.
In his appeal, Nieves argued the government’s use of a wider definition of machine gun had “constructively amended” his indictment, in essence expanding it to allow the jury consider his possession of parts — for which he was not indicted. He said that was a violation of the Fifth Amendment, which says that no one can “be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”
The circuit court panel agreed, and reversed his conviction.
Officials with both the U.S. Attorney’s Office and the ATF declined to comment on the ruling Thursday. But Fischer hailed the unpublished opinion.
“This narrows the scope that the government can proceed in these types of prosecutions,” he said.
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