Opinion
CRIMINAL NO. 1:06CR239.
January 3, 2007
ORDER
THIS MATTER is before the Court on Defendant's motion to dismiss the indictment based upon failure to state a crime and his motion to exclude evidence of prior state charge pursuant to Rule 403. A ruling on the motion to exclude evidence will be deferred until time of trial.
The indictment alleges that the Defendant, having been convicted of a felony by the State of North Carolina in 1993, knowingly possessed ammunition, a single 45-caliber shell casing, in violation of 18 U.S.C. § 922(g)(1). Bill of Indictment, filed August 9, 2006; Defendant's Memorandum in Support of Motion for Funds to Obtain Transcript, filed November 22, 2006, at 1. Section 922(g) states it is unlawful for a previously convicted felon to "possess in or affecting commerce, any firearm or ammunition[.]" 18 U.S.C. § 922(g). Defendant asserts "[t]he term ammunition is defined in 18 U.S.C. § 922 in the plural sense as . . . cartridge cases, primers, bullets, or propellant powder designed for use in any firearm." Defendant's Motion to Dismiss the Indictment, filed December 28, 2006, at 1.
Defendant's definition of "ammunition," is not contained in 18 U.S.C. § 922, but rather § 921, which states "[t]he term `ammunition' means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm." 18 U.S.C. § 921(a)(17)(A). Although the Fourth Circuit has not specifically ruled on whether the term "ammunition" as used in 18 U.S.C. §§ 921(a)(17)(A) and 922(g) encompasses both a singular and plural definition, the First Circuit has so specifically held. See United States v. Cardoza , 129 F.3d 6, 9-10 (1st Cir. 1997). "We think the common sense, everyday understanding of the word `ammunition' encompasses a single bullet or cartridge. . . . If the word `ammunition' was incapable of meaning one bullet, one would not refer to a `single round of ammunition.'" Id. at 10 (citing O'Connell v. Shalala , 79 F.3d 170, 176 (1st Cir. 1996) ("courts are bound to afford statutes a practical, commonsense reading")) (footnote omitted). Additionally, in Cardoza the First Circuit observed the Supreme Court of the United States, in a case interpreting 18 U.S.C. § 922(h), referred to ammunition as encompassing a single bullet. Id. at 10 n. 1 ("We note that even the Supreme Court has assumed, albeit in dicta, that the term `ammunition' means a single bullet.") (citing United States v. Batchelder , 442 U.S. 114, 121 n. 7 (1979) ("[B]ecause § 922(h) alone proscribes receipt of ammunition, a felon who obtained a single bullet could receive a 5-year sentence. . . .")).
Accordingly, this Court agrees with the First Circuit's analysis and determination that the term "ammunition" as used in 18 U.S.C. §§ 921(a)(17)(A) and 922(g) encompasses both a singular and plural definition.
IT IS, THEREFORE, ORDERED that the Defendant's motion to dismiss the indictment for failure to state a crime is hereby DENIED. IT IS FURTHER ORDERED that a ruling on Defendant's motion to exclude evidence is hereby deferred until time of trial.