United States v. David Wayne Hull

Before RENDELL and VAN

ANTWERPEN, Judges, Circuit ACKERMAN, Judge District *. ANTWERPEN, VAN Circuit Judge. Wayne appeals David from the judgment of conviction entered the Dis- trict Court after guilty he found aby jury on 7 of 10 counts related to explo- sives, firearms, and witness tampering. We will vacate Hull’s conviction * Ackerman, Honorable Harold A. Jersey, sitting by designation. Senior Unit- New ed Judge States District for the District of affidavit, to “min- wiretap agents promised judgment con- and affirm Count interceptions screening imize” the out: remaining to all counts. viction as minutes; calls under two calls not involv- I. ing interceptee; Hull or other named na- “non-criminal and conversations Hull, Imperi- Wayne the admitted David right The reserved the agents ture.” group White splinter of the Wizard al “spot-check” of these calls to “ensure Klan, Ku Klux was arrested Knights of the that the conversations have not turned February A search warrant on 2003. practice, proce- matters.” In criminal on his by law enforcement was executed for monitoring dure involved initial identi- handguns, a found loaded Agents home. verification; minute ty subject and one tube, weapons, am- military-style rocket if the call fell into monitoring without munition, in- accompanying a silencer and category; above then two minutes of active manufacture, diagrams and for structions so monitoring “spot-checking”; for and making and pipe for bombs instructions completed. forth until the call was Several and, components, booby-traps, explosives intercepts resulting were later used home, damaged by explo- outside the cars in Hull’s trial. containing parts of but still sions or reg- Hull licenses did not have bombs. eventually by Hull a federal was indicted weapons explo- for istrations indictment followed grand jury, which was sives, or the silencer. superseding indictment. ten-count charged indictment Hull superseding The Hull surveil- The FBI had had 1, 2, 3, and with: Counts years, investigation for several lance and and unregistered (pipe firearms bombs to infil- government informant utilizing silencer) dates; trans- on various Count infor- the KKK. This trate and observe bomb); (pipe fer of a firearm Count and members of the mant met Hull other bomb); (pipe of a firearm manufacture privately gatherings KKK various and 8, teaching demonstrating, Counts and watched Hull’s house. The informant distributing regarding, information and of sev- participated the detonation and bomb with making and explosives, and and other eral bombs teaching or information intent that the The informant testing of silencers. crime of violence” used for a “Federal making bombs also discussed bomb”) (“unlawful on Hull, requested repeatedly with dates; 9, possession of a fire- two Count At for him. Hull construct bombs felon; by a arm in commerce interstate point, apparently Hull deduced some attempting to influence and Count that, just allegedly informant testimony of a witness. him with steps provide took fuse) (minus components instead guilty moved pleaded also bomb. The informant completed pipe suppressed. wiretap interceptions have the FBI to record conver- cooperated with the denied the motion District Court Hull, in September beginning sations to a May 2004, and the case was tried Pennsylva- jury in Western District weeks, the of several Dis- nia. Over the course Judge A from the Eastern District FBI testimony from wiretap jury heard various Pennsylvania approved trict ex- 13, 2003, technical agents, and law enforcement January interception order on cooper- informants and perts, and several suspects’ phones, including Hull’s various girlfriends, ating witnesses. One Hull’s supporting In the phones. home and cell Rusch, trial, testified that she Deborah had At the close of the the District legal helped using secretary her jury. instructed the In particular, position and skills format articles for the District Court refused to include a publication newspaper. in- a KKK proposed instruction from Hull that in or- topics including dealt with articles der to be guilty “transferring]” found of propane explosives manufacture tank firearm, had he to know and intend that bombs; and pipe several were attributed fuse, unassembled and without to an author identified “Unknown constitute a firearm. The District Court Terrorist.” Rusch had also had conversa- jury did instruct the explosives. Hull about tions with Rusch qualify a b.omb could as a “Federal later several received letters from violence,” crime of expressing deep after in prison, while he was and turned these doubts noting over issue and that the letters over to the FBI. The letters asked my court up had “made mind this.” conversations; her to “remember” several 28, 2004, May jury On returned ver- to say they merely “casually were guilty dicts on 3 of the 10 counts dat[ing]” calling girl- instead of herself his (possession of a on 2 of pipe bomb 3 rele- friend; things reminded her of she dates, vant and distribution of information “knew”; things listed she “must tell ... to date). related to a bomb on one The and, critically, the jury”; most to tell the jury guilty found Hull of the remaining jury that did she not believe Hull wrote 21, 2005, counts. On March the District Terrorist” “Unknown articles. She Court sentenced Hull to months im- was then instructed to burn one prisonment for the distribution of informa- stand, letters. On the Rusch testified in- (Count tion to 7), related bomb stead that she did not recall ever speaking run concurrently with sentences of 120 specific FBI agent, alleged as months imprisonment for each of the re- letters, and that she did believe Hull to be maining six counts of conviction. Hull now Terrorist, most, the Unknown as but not appeals myriad his conviction on ground's.1 all, of the articles writing matched his style. II. defense,

Hull took the stand own his and testified that neither he nor the White challenges raises five to his convic- Knights espoused violence, tion, had ever one of which we find meritorious and had anyone. intended to hurt He will denied thus address first in detail. Hull al- Terrorist,” being (1) the “Unknown or that leges he “possession” that: of a pipe had bomb, ever demonstrated how to charged indictment, make in the does anyone or participated in detonat- not qualify as a “Federal vio- ing any pipe All (2) bombs. the firearms § lence” 842(p)(2)(A); under 18 U.S.C. explosives components, he alleged, were the evidence was prove insufficient to for legitimate purposes. (3) He claimed that tampering change; witness the wire- along he all knew that the informant taps was should have suppressed been due to helping enforcement, law and therefore the Government’s failure properly “min- purposefully give (4) refused him an interceptions; assem- imize” purpose for the bled bomb. making, possessing, transferring a fire- jurisdiction 1. The pursuant District Court had pursuant to U.S.C. 1291. 3231; to 18 U.S.C. jurisdiction we have vio- a Federal crime constitutes because not be convicted arm, Hull could ” added) lence; (emphasis unas- not intend that he did firearm; and into sembled, be assembled charged that indictment superseding The posses- felon 922(g)(1), crime of violence” at issue “Federal firearm, We is unconstitutional. solely the “unlawful sion of outright, bomb,” contention on or about November rejected this last have below, will out “crime of further consideration As we set give it 2002.2 and will not in the is not statute. Singletary, violence” defined United States here. Cir.2001). jury Court instructed District that: unregistered “[P]ossession

III. of violence.... is a federal crime argument presents first Hull’s prove does not have government Court, in this impression of first matter recipient intended defendant court of knowledge, our and to someplace or up information to blow convicted, Count Hull was appeals. They somebody. need up blow violating 842(p)(2)(A): 18 U.S.C. that the defendant intended prove relating information Distribution of “(p) to make and recipient of information devices, and explosives, destructive to the bomb.” possess thereafter mass weapons of destruction. simple alleges that (1) In this subsection— Definitions. bomb, the or deto- as use opposed as qualify cannot nation of (A) has device’ the term ‘destructive of violence” “Federal in section meaning as

the same conviction at 842(p)(2)(A), § that his and 921(a)(4); exercise 7 must be vacated. We Count (B) has the same ‘explosive’ term the law, questions of such review over plenary 844(j); and as in section meaning violence, is a crime of whether a crime as (C) de- ‘weapon of mass term the Luster, 199, 200 United States inas meaning has same the struction’ Cir.2002). the convic- will vacate We 2332a(e)(2). section tion Count unlawful for It shall be Prohibition. that fact regrettable first the We note any person— analysis do have the benefit we not (A) mak- or the demonstrate on this by teach District Court ruling the or explosive, initially a destruc- ex- ing or of an Court issue. District device, weapon de- parties during or a of mass tive “concern” the pressed its struction, satisfied or to distribute “if the trial element, to, why in even pertaining means information crime of violence the Transferring it or into it? part, the manufacture that element put whole or device, pos- going person the other explosive, implies use of an destructive is,] teaching charge, destruction, it [that [t]he .... of mass sess weapon or charge.” transfer, teaching the teaching, not demon- the intent Hull and the 1109. Both stration, for, App. vol. IV. be used or information on the memoranda submitted of, activity Government or furtherance er, challenge the con- does not therefore charged Hull with identical 2. Count 842(p)(2)(A) § as to crime, of 18 U.S.C. May 2002. struction but committed in around Count 8. guilty of howev- Count found “(a) trial, later point, and while an offense that as an has element use, use, returned to again, District Court the issue attempted or threatened on the expressing doubt Government’s the- physical person use of force against the charge, ory analyze it did not another, or property of issue the record: (b) any other offense that felony is a this, your “I read about briefs whether that, nature, its involves a sub- or not mere alone constitutes stantial risk I it very a crime of violence. think is a or property may of another question. I haven’t up my close made be used in the committing course Probably do, mind I on this. what will added) (emphases offense.” though, might jury I submit it to Supreme Leocal consid proffered by government, ered whether a conviction for a state DUI motions, if post-verdict they then find offense that require proof did not guy guilty, then If it’s moot. mental qualified state nonetheless as a they him guilty, find then as matter crime of violence under 16. The Court law, I can rule whether or not to take 16(a) concluded it did not fit either out the And if it goes verdict. then (b). 16(a), Under the Court held that Court Appeals, at least we’ll have requires “use” employment” the “active If I’m wrong, verdict. we’ll have to do force, and degree therefore a of intent again.” App. vol. IV. 1348. higher Leocal, than negligence. 543 U.S. The District Court gave then the request- 125 S.Ct. 377. Nor did the DUI jury ed instruction we set have forth 16(b), conviction qualify under above, without further discussion. “covers naturally offenses that involve a regard § to 842(p)(2)(A), With 18 U.S.C. in acting disregard of the risk that we treading fairly are undisturbed physical force might against be used an ground. 842(p) Section was added to the ” other committing Leocal, the offense. 1999, criminal code P.L. see 106-54 10, 543 at (emphasis U.S. 125 S.Ct. 377 2(a), § 17, (Aug. 1999), 113 Stat. 398 added). 16(b) “Thus, § plainly does not yet applied only has been sparingly encompass all offenses a which create ‘sub country. across the stantial injury risk’ that will result from a Unfortunately, as we noted above person’s conduct. The ‘substantial risk’ in § 842(p) does not define “Federal crime of 16(b) § force, relates to the of use not to Accordingly, violence.” Supreme possible of person’s effect a conduct.” recently instructed courts to look at 7, 125 at Id. 10 n. S.Ct. 377. § 18 U.S.C. 16’s definition of “crime of Here the Government allege does not purposes violence” for the of 18 U.S.C. that pipe bomb involves the § 842(p). Ashcroft, 1, Leocal v. 543 7 U.S. force, actual of physical only that it 4, 377, n. 125 S.Ct. 160 L.Ed.2d 271 involves a physi substantial risk of use of (“a number of statutes criminalize conduct against cal force light another. In of this that has as an element the of commission holding, and Leocal's we therefore confine See, § of crime violence under e.g., 18 16(b). analysis our to § 18 U.S.C. Leocal, 842(p)”). § U.S.C. which exam- ined in usage term, detail 16’s Leocal “categoi'ical” dictates a approach therefore analysis controls our determining to whether a crime is a crime 842. 18 Leocal, 16 defines 8, “crime of violence. 543 U.S. at 125 violence” as follows: 377; Gonzales, Oyebanji S.Ct. see also

139 Cir.2005). pipe comes danger ... from a bomb 260, “This 262 418 of possession, and not from the offense look to the elements us to requires conviction, pipe rather from the of use of the the offense added factor nature of Leocal, relating facts at particular bomb. See U.S. than Leocal, (“ at 543 U.S. employ- crime.” petitioner’s requires S.Ct. 377 ‘use’ active task, then, ment”) States, is deter- 377. Our Bailey 125 S.Ct. (citing v. United simply “possessing” 137, 143, mine whether 133 L.Ed.2d U.S. in- naturally an “offense[] is (1995) (substantive holding superseded person acting disregard statute)); Bailey, 516 volved U.S. might used be physical force

risk (“use requires ... more than a S.Ct. committing the offense.” another against showing possession”). To commit of mere Leocal, 377. We S.Ct. U.S. merely had possession, the offense not. hold that dominion over the to exercise control or physical bomb. There is risk that in favor argument The Government’s against might be used another Be- charge is this: the District Court’s regard- possession, for a commit the offense of “legitimate” uses there are no cause bomb, they legiti- are such bombs have and because less whether items, dangerous purpose or not. mate Cf. (3d Cir.2005) Bowers, “substantial risk involves the complete (“[A] force.” physical Were committed felon has However, test, Gov- agree. might we if nature of that violence 16(b): ignores remainder of ernment there is such that ‘substantial offense committing “may used in the course ‘physical risk’ that he will use force’ added). (emphasis Gov- offense,” ‘in of his pos- another the course acknowledge fails argument ernment’s added). weapon.”) (emphasis session of in Leocal re- Supreme Court contrast, Hull been in the charged had importance of the emphasized the peatedly then using indictment be used in com- requirement that the force “in- of such an offense would commission offense, and mitting the here offense risk volve[] substantial of “The risk that possession. one but of against property the force may occur when an individual accident may in the course of another be used simply while intoxicated is the drives 18 U.S.C. committing” that offense. thing risk that the individual same as the 16(b). type § a is the Use of bomb against another in may physical force ‘use’ “violent, Supreme of crime[]” active Leocal, committing offense.” the DUI of a crime vio- Court found constituted 377. This element at n. 125 S.Ct. U.S. Leocal, § at 16. 543 U.S. lence under 16(b) important. perhaps § the most of added). Posses- (emphasis 125 S.Ct. rejected, as dissimilar The Leocal Court crime; an “active” simply not such sion insufficient, inter- the definition and a that increases the likelihood of “A crime 4B1.2(a)(2)’s of defini- U.S.S.G. pretation a itself be crime of violence need violence,” required which of “crime of tion Lane, States v. crime of violence.” United a which serious presents “conduct (7th Cir.2001), quoted F.3d injury of anoth- potential risk Bowers, at 522. in approval Leocal, n. er.” U.S. theory definition, contrast, The Government’s by This latter 377. and is off’ at moment might “go of bomb possession have

might covered unredeemably, inherently, and therefore pipe bomb. i.e., by vice, dangerous, is further foreclosed our use force within meaning Gonzales, in Tran v. 414 § recent decision 16. Cir.2005). Tran F.3d 464 addressed points Government us to several burning or exploding”

whether “reckless other statutes under which have courts of violence constituted crime possession found the mere of a “firearm” and concluded that it did not. We held to constitute a crime of do violence. We 16(b) “§ raising crimes are those not find these persua- statutes or case law risk that the actor will inten- substantial respect sive with to the case at hand. The tionally use in force the furtherance of the heavily Government relies most a Fifth Id., 414 (emphasis offense.” at 471 in case, Jennings, Circuit United States v. original). We reasoned that: (5th Cir.1999), interpreting [recklessly “This element endangering 924(c), 18 U.S.C. “crime of defines another], face, property on its violence” in the language same as involves a substantial of causing risk Jennings court held that possession injury property to the of another. But a pipe satisfied definition in it does not involve substantial risk of possession context of the a firearm using property of an- force First, relation to a crime violence. Jen- other. The substantial risk involved in nings way binding is in no on this Court. Pennsylvania statute the risk that Second, disagree analysis we with the the fire started the offender will Jennings court because it conflates spread damage property of an- “possession,” “use” with which conflation other. risk This cannot be said to in- Supreme opportunity Court took the force, volve the intentional use explicitly opinion forbid in its later Leo- required by [, [United v.] Parson See, e.g., cal. Jennings, 195 F.3d at 798 (3d Cir.1992) 955 F.2d 858 ]. The statute (“We hold that unregis- does not contemplate a risk that nature, very tered its cre- reckless-burning will step offender ates risk substantial of violence.... and commit an act of intentional vio- ” fact, we cannot conceive of non-violent lence .... bomb.”) lawful uses for a (emphas- Id. at (emphasis original). 472-73 Simi- added). es here, larly a pipe holds no risk of the intentional use of discussed, As inquiry relevant is not if, force. Even as the Government posited likely whether it more makes argument, unexpected- bomb can committed, that a violent will be (and ly explode possessor has this instead whether there is risk that knowledge) during even most passive committing possession, the offense of possessions, constructive such an explosion Lane, will be used. See 907. would not any have been the result of intentional of remainder of the Possessing use force. Government’s analogies necessarily similarly inapposite.3 does not are include a substantial possessor might suggests risk that the Government that we look to cases step in intentionally detonate the de- interpreting § 4B1.2 for guid- U.S.S.G. argument 3. At oral possession the Government aban- offense constitutes 'crime of vio ” Act, analogy lence,’ doned its to the Bail Reform Br. the United States at 63. See Bowers, § joined we Bowers, four (reaffirming Royce 432 F.3d at 521 v. rejecting other Circuits in the Government’s Hahn, (3d .1998)). 151 F.3d 116 Cir argument purposes, that for bail a "felon-in- by charged that the of troubled the Gov- dictment federal crime anee. Here we are the or any of intended was detona- lack of candor. Unlike violence ernment’s tion of a we have no of “crime of vio- would previous the definitions Government, difficulty validity jury § of by upholding 4B lence” quoted Instead, however, 1.2(a) (which instruction. explicitly the Government indict- reference) Hull charged a ment with the intent quote or defines does not teaching his lead to posses- one that: the mere crime of violence as bomb. The District sion “(1) use, attempt- has an element as holding that such its erred on use, physical ed or threatened use legally own constituted a federal another, or person by or 842(p), violence under 18 U.S.C. arson, burglary dwelling, § 16. Accordingly, extension 18 U.S.C. extortion, explosives, or involves use of judgment of conviction on Count will that presents involves conduct otherwise be vacated. injury physical risk of potential a serious added) (emphasis to another.” IV. inapposite to this 4B1.2 Guidelines challenges sufficiency Hull next First, Leo- case for at least two reasons. evidence on Count witness tam rejected § 4B1.2 to explicitly using cal plenary, review defer pering. Our but (and extension, § 16

interpret inasmuch ... ential as “we must consider Leocal, at 10 n. 842(p)). U.S. light the evidence most favorable Second, § specifically 4B1.2 sets S.Ct. 377. and ask the verdict whether reasonable explosives” “use from other apart jury could have found that contested presents potential a serious “conduct that proven beyond a reasonable elements were injury to another.” This risk of Cohen, doubt.” United States v. 301 F.3d “possession” explosive of an implies that Cir.2002). (3d heavy This is a 156-57 a crime of un qualify cannot violence meet, burden for United States 1.2; did, if § 4B we would be re der Dent, Cir.1998), explosives” out of to read “use of quired appeal. he has done so provision. See the Guideline Cir.2004) Fish, 1200, 1204 18 U.S.C. was convicted under ... catchall (“Interpreting phrase 1512(b)(1), penalizes “Whoever ‘pipe bomb’ would cover intimidation, threatens or knowingly uses specific inclusion of provision’s render or at- corruptly persuades person, another explosives’ in the same section sur- ‘use so, misleading tempts engages to do (“To plusage.”); also id. at 1205 ‘use’ see in- person, toward another conduct necessarily explosive, an one must first (1) influence, delay prevent the tent to— it.”). reason, none of the ‘possess’ For official testimony pro- cited numerous cases Government Specifically, the Government ceeding.” firearm, finding attempting corruptly Hull of accused device, explosive a crime of not an that testify Rusch to she persuade Debbie 1.2, § 4B is applicable. violence under Ter- believe he was Unknown did not fact, testified, rorist, we, later when as she Ultimately like the District Court Ter- believe he was Unknown charge are she did jury, and the limited rorist; that he knew the falsehood the in- and superseding indictment. Had testimony.4 his desired view the District findings Court’s factual in suppression hearing is for clear error. Hull’s knowledge, As to there Naranjo, United States v. 426 F.3d evidence from which the ample jury was (3d Cir.2005). Our legal review of knowingly that Hull could conclude at rulings questions and mixed law Rusch, tempted corruptly persuade with to 2518(5) plenary. fact is Id. 18 U.S.C. change testimony. her the intent See requires as follows: Farrell, United States (3d Cir.1997) (holding “corrupt per that “Every order and extension thereof shall “attempting suasion” includes to persuade provision contain a that the authoriza- provide false information someone to intercept tion shall be executed as investigators”). “[T]he federal defendant practicable, soon as shall be conducted must that his know conduct has the natu such way as to minimize inter- probable interfering ral and effect of with ception of communications not otherwise communication, whether witness’s subject to interception chap- under this Davis, not it succeeds.” ter, United States v. and must terminate upon attainment (3d Cir.1999). his objective, authorized or in telling testify letter Rusch to on the stand thirty event in days.” that “I [the sent Unknown Terrorist arti The interception application and order in it,” ya you cle] to don’t think I wrote this case a plan did include to minimize immediately Hull Rusch to told burn the interceptions, as Hull acknowledges. Thus, beyond letter. the letter went sim Nonetheless, because some the inter- ply Rusch encouraging not to aid federal cepted conversations were Hull between investigators, encouragement alone and his girlfriends various or Hull and 1512(b)’s excepted purview we from un businesses, commercial and because the der the circumstances Farrell. We note subject discussions, matter included sexual that, contrary to Hull’s ap assertions on alleges Hull prac- failure to minimize peal, jury or not the whether had difficulty note, however, tice. We that none of the charge certain elements is ulti calls Hull “non-pertinent” labels as were mately “proof’ that the conviction does played jury. for the evidence, not rest on substantial nor does Hull’s explanation that Rusch a poor had inquiry Our is on the “reason memory of refreshing in need somehow efforts, ableness” of minimization justify suggestion testify his that she in a totality of the circumstances. Scott v. way affirmatively she knew to States, be untrue. 128, 140, 436 U.S. jury’s verdict Count 10 sup (1978); 56 L.Ed.2d 168 see also ported by substantial evidence. Armocida, United States v. 515 F.2d 49 (3d Cir.1975). agree We with the District

V. when investigating wide-rang attempt next renews his ing conspiracy parties between known suppress wiretap interceptions penchant their for secrecy, inter broader ground agents failed to ceptions “minimize” may be warranted. See United interceptions monitoring. Adams, Our re- superseding 4. While the indictment included Hull refused to deal with the confidential in- allegations formant, attempted corruptly charged jury District Court persuade topics, including Rusch on various allega- based on the Unknown Terrorist cap someone else drilled end tion. 140, Scott, Hull convicted under 26 U.S.C. Cir.1985); at 98 S.Ct. 436 U.S. 5861(d)-(f), §§ which state as follows: uninterrupted intercep- (upholding case). The mere drug conspiracy any person— for tions shall be unlawful “It intercepted, non-pertinent, (d) number possess to receive or [Count 4] Adams, 759 F.2d dispositive. is not calls him in registered firearm which to 1115; also can (“Appellant also id. at see Registration Firearms and the National pattern interception Record; to the no demonstrate Transfer the va- Because of non-pertinent calls. (e) a firearm in [Count to transfer 5] involved, transactions of voices and riety the of this provisions chap- violation of minimizing government’s ter; efforts accept- conversations was non-pertinent (f) make firearm vio- [Count 6] able.”). statute does not forbid “The chapter;”6 provisions lation of the all nonrelevant conversa- interception of jury Specifically, alleges Hull Scott, 140, 98 S.Ct. 436 U.S. at tions.” only should told that he could have been Given, the nature of example, for 1717. (1) be if he that an unas- convicted knew circumstances known the case and a “firearm” under the sembled bomb was interceptions, we discern agents during statutes; and he applicable intended refusal to no error the District Court’s to be an recipient, that the whom he knew interceptions on the wiretap suppress informant, assemble or use the bomb. minimize. ground of failure to refusal to instruct the The District Court’s elements, alleges, Hull

jury on these an unconstitutional denial of amounted to VI. ability his to mount defense. challenges jury Finally, Hull required to The Government was 4, 5, 6, and which instructions on Counts of the features that prove that knew to an unassembled bomb referred making, possessing, he was made what made, knowingly possessed, and allegedly “firearm,” Staples v. Unit transferring, informant. to the confidential transferred States, 619, ed 511 U.S. generally jury review in “Although we (1994), indeed 128 L.Ed.2d 608 and discretion, our re structions for abuse jury ac instructed the District Court question plenary when view However, Hull claims that cordingly. mis court’s instructions whether district prove that he also had to Government Dobson, stated the law.” United States parts of the the unassembled intended for Cir.2005) (citations fully into assembled omitted). Hull dis quotation simply marks This is functioning pipe bomb. ultimately giv 5861. “Section jury instructions an of U.S.C. puted element Court,5 5861(d) to the intent of not file reference the District but did makes en unregis- his instructions. proposed own as defined object- 6. is a "firearm” for 5. contends that Hull A The Government Specifi- only jury §§ purposes instruction Count U.S.C. ed challenge 4 and 5845(a)(8) his to Counts therefore that cally, defines "fire- plain be reviewed error. as, alia, should device.” a "destructive arm" inter all the same and 6 relied on Counts 5845(f)(1) a "de- further defines 26 U.S.C. statute, however, the District Court con- "any explosive, incendi- structive device” the Govern- that statute cluded (A) poison gas ary, or bomb.” required prove intent. was not Hull's ment 144 Urban,

tered firearm.” United States v. I. (3d Cir.1997). 229, 232 140 F.3d I begin plain with the language concedes, Hull “an As unassembled 16(b) statute. Section of Title 18 ... qualify can as a bomb also destructive United States Code defines a crime of device,” 60, Appellant at Br. and there- “any violence to ... include offense that is “firearm,” purposes as a for the fore 26 that, nature, a felony its involves a §§ 5861. See 26 U.S.C. U.S.C. physical against substantial risk that force 5845(f)(3) “firearm,” (defining “any as may or property of another be parts designed combination either used in the course of committing the of in converting intended for use device Supreme explained fense.” As the [above, into a destructive device as defined 9, Ashcroft, 1, Leocal v. 543 U.S. including bomb] and from which a de- 377, 160 (2004), S.Ct. L.Ed.2d 271 the term may readily structive device assem- requires “use” negligent more than bled”). previous ignores our holding merely Indeed, accidental conduct. as the “ambiguity is no ... where there Gonzales, Third Circuit held Tran v. device,” to the nature assembled (3d Cir.2005), F.3d requires Urban, is intent irrelevant. 140 F.3d at “specific force, employ intent and not Accordingly, we discern error in no causing recklessness as to harm.” the District Court’s refusal to instruct the jury that prove the Government must “may” terms “substantial risk” and parts intended that the be converted into a make clear that the physical actual use of destructive device. required force not a element of of violence. See Dodge, United States v.

VII. (“Actu 181, 183(D.Conn.1994) 846 F.Supp. al physical against use force We conclude Hull’s conviction another is vacated, Count 7 an essential posses- must be as mere element ‘crime of ... sion of a violence’ qualify bomb does not as evidenced use of as a ”). “Federal crime of ‘may.’ violence” under conditional term A “substan § 842(p). We will tial judg- affirm the risk” exists when “strong there is a ment of all possibility” conviction on other Counts. of the use of force. United Jennings, States v. 195 F.3d ACKERMAN, Judge, Senior District Cir.1999); see also United States Dil Concurring in part and Dissenting part. lard, (2d Cir.2000) (“It material, sufficient that impor the risk be Today, the Court holds there no tant, significant.”). As other courts substantial that a person who unlaw- risl$ recognized, have fully degree probability possesses pipe may bomb intention- required for ally a risk to be “substantial” is another in undefined and quantify the course of difficult to committing the offense. Be- see, precision, Dillard, I e.g., cause believe has use, Congress supplied lawful and that where posses- unlawful has not statute, sion a pipe meaning to the poses words common substantial risk that possessor may ordinary sense and intentionally usage typically are resort, use physical force against court’s best see another Dimuzio v. Resolu course of possessing I tion Corp., re- Trust n. 5 spectfully Cir.1995); dissent from Part III of the see also Am. Co. Tobacco majority’s opinion. Patterson, 63, 68, 456 U.S. (“[W]e plain language ‘that flows from the stat- 748 assume L.Ed.2d

71 meaning the by the ute and honors common of its expressed is purpose legislative the ” Moreover, I because find ambi- meaning of words used.’ terms. ordinary the 16(b), States, in I 369 the terms of find no guity v. United (quoting Richards 585, lenity. 9, 492 to resort to the rule of 7 L.Ed.2d occasion U.S. Cf. Leocal, (1962))). 543 U.S. at 11 n. 125 S.Ct. 377. felony Hull’s committing today of The Court affirms “in the course phrase 16(b) of possession unregis- §of conviction for an is final element the offense” the However, majority the Congress’s tered bomb. requiring interpretation. “[tjhere physical no risk that “committing” opines con that is participle the present of against another to might Am. force be used continuing action. See cludes the initial of exercise dominion or (“[Possession by continuing is nature a control, the moment dominion or control is offense.”); Meyerhofer, William Statutory relinquished, and all times between. At Weapons Restrictions Possession: continuum, any given time within this it is Right Must the Fall Vic Self-Defense person “committing obvious that the is tim?, 219, 1996 N.Y.U. Ann. Am. L. Surv. possession. of offense” (“Because possession 233 continuing is a Nothing in Leocal dissuades me from offense, there ordinarily single act Leocal, this conclusion. In late Chief which can be used to establish defen posed example burglary Justice as a is, rather, guilt. dant’s There contin crime for which there was a substantial uum of time during the defendant risk would used (footnotes possessed the weapon.” omit property another. 543 U.S. ted)). Indeed, “Congress intended the 10, law, 125 At S.Ct. 377. common crime refer to a course of of burglary breaking, which, element conduct rather than individual acts of do definition, required the force. Jones, minion.” United States v. 403 F.3d Blackstone, 4 William Commentaries *225. (8th Cir.2005) 604, 606 (holding that “the Although courts as differ to whether bur- continuous of the same firearm glary continuing offense,7 ais the “sub- offense”). single constitutes a “Possession 16(b) is, stantial risk” element of at all conduct, act; is a course of not an pro events, upon satisfied the initial act of hibiting possession Congress intended to Therefore, breaking. a court need look no punish one as offense all of the acts of do further than the initial breaking to con- minion which demonstrate a continuing burglary clude is a federal crime of possessory interest in a firearm.” United why violence. This is Congress and the Jones, (6th 1387, States v. 1391 Court in Leocal identified burglary as the Cir.1976). To example” possession, effectuate it “classic crime of violence 16(b). true, 10, need However, U.S. at one not use 543 125 force. S.Ct. 377; 98-225, S.Rep. see also No. simply at 307 because force was not initially used (1984), reprinted in 1984 U.S.C.C.A.N. in obtaining possession does not excuse a 3182, 3487. court obligation from its to consider the full “course” of continuing offense.

Possession, hand, on the other is almost Medina-Anicacio, See v. United States universally recognized to be a continuing (5th 638, Cir.2003) See, J., 325 (Garza, F.3d 650 e.g., Zidell, offense. v. (“The (6th Cir.2003) dissenting) unlawful possession (noting “possession dangerous weapon with intent to an ongoing distribute a course of Thus, controlled is a continuing substance of- conduct. an individual continues to 7. Compare People Stearns, Shipley, (same), Mich.App. App.1993) with State v. 662 N.W.2d (holding (Fla. 1994) (holding So.2d burglary offense), continuing is not a offense). burglary continuing armed is a Brown, (La.Ct. State v. So.2d considering long he holds courts from the entire course as as the offense commit (citations omitted)). continuing determining offense weapon.” when onto the whether that offense constitutes a cir from our sister decisions Pre-Leoeai violence, ren- I do not believe that Leocal ac understanding and a clear cuits reflect cases, logic, these and their obsolete. dered judicial responsibility of the ceptance continuing the full course of the consider Numerous courts of possession.

offense II. recognized that certain appeals have If the full this Court were consider may qualify as crimes crimes continuing posses- offense of course See, e.g., United States of violence. bomb, I would be sion believe Rivas-Palacios, 397-98 conclude, many so other compelled Cir.2001) (sawed-off shotgun); Sutherland already, that when a courts have done 1164, 229 F.3d 2000 WL Flemming, v. * possesses pipe person unlawfully (“Posses (10th Cir.2000) 1174566, at 1 person is risk that that there a substantial nature, very gun, by its sion of machine may intentionally use force anoth- risk of violence involves substantial types many er. Unlike other of “fire- Dillard, ”); 214 at 97 n. 9 F.3d & force.... arms,” legitimate pipe bomb has no so- felon); of firearm convicted (possession the Fifth Circuit purpose. cial As has bomb); (pipe F.3d at 797-99 Jennings, 195 recognized, 987, F.3d Drapeau, States v. 188 United Cir.1999) (8th (bomb); United States 990 [ujnlike handgun, it is considered Newman, 863, 125 1997 WL v. F.3d prac- engage target to hunt or sport (10th Cir.1997) bomb); 603740, (pipe at *1 Moreover, pipe tice with bomb. 730, n. 12 117 738 & Impounded, F.3d quite protect difficult to one- would be Cir.1997) in (holding possession that with family pipe or one’s bomb. self dangerous deadly weapon tent to use fact, any non- we cannot conceive violence”); v. United States a “crime of a pipe violent or uses for bomb. lawful (9th Cir.1995) 1222, 68 1226 F.3d Amparo, (footnotes at omit- Jennings, 195 F.3d 798 holdings” that (referring to “uniform ted). has that The Ninth Circuit added fire unregistered of an “mere legitimate purpose no pipe bombs “have violence”); arm a crime of United States to kill potential have the indis- and ... (9th Dunn, 615, F.2d Cir. v. 946 620-21 warning, with less criminately, without and (sawed-off 1991) also shotgun); see United will be perpetrator that chance (1st Fortes, 1, 7-8 Cir. v. States 922 Loveday, caught.” States v. United 1998) (holding sawed-off (9th Cir.1991); 1411, see also 1416 F.2d felony”); United shotgun a “violent * 831, F.2d Dempsey, 957 States v. United 744410, at 1-2 2004 Jay, v. WL Cir.1992) (11th Loveday). A (quoting 834 2004) bomb); (M.D.Fla. Apr.8, (pipe Unit similarly con- Circuit of the Tenth panel Powers, F.Supp.2d ed States ‘inherently are “[p]ipe bombs cluded (W.D.Va.2004) cases); (collecting peaceful for which no dangerous weapons Butler, 71- F.R.D. United States re- seriously suggested, 1996) (felon can be (N.D.Ohio purpose weapons actually of whether the gardless bomb); Dodge, F.Supp. rifle and ” Newman, bomb). (silencer are used.’ and Un- at 183-84 * Dodge, 846 (quoting at 16(b), WL majority’s reading of these der the 184). involving In a fire- F.Supp. at case I longer law. Because good cases are no bombs, Eighth agreed with Circuit prohibited do that Leocal not believe prevalence finding court’s “lack consider the bombs in Newman purpose for a bomb and the fact nonviolent ap activities domestic terrorists to nature, that, its is a very there substan- preciate verity of this statement. See used tial would be risk Smith, generally Brent L. Terrorism in property of another.” against the Pipe America: Pipe Bombs and Dreams panel at A Drapeau, 188 F.3d (1994) (describing the activities of terrorist conclusion Sixth reached same Circuit groups operating in the United States decision, finding in a curiam per 1990s). through from 1960s inherently dangerous “[p]ipe bombs are presented provides Evidence trial purpose.” and serve useful support even further for the conclusion Cole, State v. 1994 WL lack legal purpose. bombs Cir.1994). judicial at *3 The authori- expert, Government’s officer with legion ties are unanimous: a Alcohol, Tobacco, the Bureau of Firearms legitimate, serves no non-criminal Explosives, purpose. testified that bombs like those discovered Hull’s possession judicial regard assessment not have “would social or cultural val- Congress mirrors the views of law 1258.) (App. ue.” He testified that Congress regis- enforcement. enacted a “[tjhere legitimate purpose is no for these requirement tration for certain firearms it devices,” and that our perspective “[f]rom “inherently dangerous gener- deemed and any from ally usefulness, person’s perspec- or reasonable lacking except for violent tive, Dunn, they and criminal a purposes.” simply weapon can be used as 621; Fields, 1258-59.) at (Id. see also United States v. and more.” nothing at The (3d at *4 Apr.21, WL Cir. expert these pipe elaborated that bombs 2006). history “The legislative of the Fire- “produce fragmentation they and are not arms Act requires regis- indicates that it for good any kind of useful work other devices, tration of objectively destructive than, course, creating weapon and inherently prone devices to abuse and (Id. 1261.) injuring killing or at. people.” which there no legitimate are industrial examination, cross rejected any On he no- Cruz, uses.” United v. States tion that a could bomb be used for (2d Cir.1974); see also United farming purposes, removing such as v. States Golding, F.3d rocks, stumps power gener- or because the Cir.2003). Federal law au- enforcement by an exploding pipe ated “is insuffi- acknowledged thorities have specific cient to do kind of useful work on a bombs, posed threat by pipe be- testifying otherwise,” farm or enough but “is to blow Congress fore “pipe bombs and fire- (Id. up fragments.” pipe, throw at traditionally arms” have regarded been 1263.) At no during time trial did Hull weapons “the favorite of the terrorist.” refute this evidence. Patrick J. Daly, Assistant in Special Agent reasons, For all of these can be there no Division, FBI, Charge, Chicago Testimony dispute serious that a pipe bomb lacks before the House Committee on Govern- nonviolent lawful purpose. It flows in- Reform, mental Subcommittee on Govern- exorably from this conclusion ment that when a Efficiency, Management, Financial person unlawfully bomb, Intergovernmental possesses a pipe Relations: Coun- 2, 2002), terterrorism there is a substantial risk that he or (July she available may http://www.fbi.gov/congress/con- put bomb to the use for gress02/daly07022002.htm. only One need which it was to perpetrate phys- intended: bomb, however, person making focuses on the property against ical force of, dangerousness inherent and lack of a another. for, legitimate purpose the bomb itself.” III. (citations omitted)). majority Bailey ma- The also authorities cited in the cites United

None States, compels contrary a result opinion U.S. jority’s (1995), majority L.Ed.2d 472 today. suggest I propose “[t]he the one danger Tran v. from a comes not from our recent decision discusses Tran, possession, which the offense of but from the In a case did Gonzales. use Court held added factor of bomb.” involve 16(b) Maj. Bailey, Op. the “use” of at 139-140. In the Su- requires that intentional, preme meaning than Court considered the force” be rather “physical 924(c)(1), Inten- the term “use” merely reckless. specifies penalties for the precisely force is the “sub- statute tional during I when “use” of a firearm relation to believe arises stantial risk” There, a crime of violence. the Court held unlawfully possesses bomb. one Therefore, requires employment,” that “use” “active fully I find that Tran consis- possession, I to- rather than mere firearm. interpretation propose tent 924(c)(1) Although Id. at. 143. day. 16(b) employ both variations of the word also discusses majority “use,” similarity stops there. The Boivers, 432 F.3d 518 Cir. Bailey had occasion to consid- 2005), did involve another case that er what sort of conduct involves substan- Bowers, we considered pipe bombs. may tial risk that be used being felon whether property another. firearm, in violation of 18 possession of Moreover, possession I regard the because a crime of violence 922(g)(1),was of an involve a unregistered meaning 3142(g) the of U.S.C. within physical against risk that force substantial (f)(1)(A). concluded it was We may “actively employed” be another “many, most” perhaps not. We found that committing posses- the offense of course might why possess felon reasons sion, Bailey entirely I find consistent with likely accompany not involve firearm “do my proposed construction. (internal ing 432 F.3d at violence.” omitted) Finally, majority support draws (citing quotation marks Lane, Lane, which the from United States Cir.2001), being a Circuit held that felon proposition for the that felons Seventh “self-defense, firearm not a crime of possession hunt of a may use firearms meaning target practice”). violence within 18 U.S.C. ing, gun collecting, and here, 3156(a)(4)(B). Aside from obvious reasoning simply apply That does an fact that decisions the Seventh Circuit possession unregistered where Circuit, Third purpose. not bind the Lane did bomb has no lawful See do (“The lack- weapon n. 4 bomb or other Drapeau, F.3d at 990 of involve fact ex- use—a being felon-in-possession ing significant lawful fense opinion. in the court’s See society’s pressly determination noted firearm focuses (“Some firearms, it is un 252 F.3d at 907 certain individuals —felons—are firearms, shotguns— example law true —for sawed-off possess even for qualified to use, and so their unlawfully significant have no lawful purposes. ful The offense may well possession felons constitute a not violence, constitute a crime of because violence, crime of as held reference to there would substantial risk that the sentencing guidelines.... Our possessor defen- may physical use against force is not of possessing dant accused such a another in of committing the course however....”). weapon, Therefore, Lane possession. offense of I cannot condone distinguishable non-binding. 16(b). such a interpretation crabbed committing “course” of the crime of short, majority’s opinion In makes possession includes the time that posses- law. today’s holding, new With obtained, sion is possession time that into largely steers new course uncharted relinquished, all times between. If the waters. “mere” bomb, the course of possessing a violence, is not a crime of then nei- always there is a substantial risk ther, seem, it would posses- “mere” (not possessor may intentionally acciden- sion of an even imple- more destructive tally) I do that any ment. not believe or property of another. plain lan- precedents majority’s cited in the opinion 16(b), guage §of no less than common compel or warrant result. this sense, dictates this result. IV.

Today, the Court holds that the “mere” bomb is not a federal crime of I violence. As read holding, bomb, the “mere” of a car or a landmine, vest, explosive “dirty or a

bomb,” or even a nuclear would also notes present, Comm’n, possession, regard- of Exch. commit the offense Elec. Co. v. Sec. & Gas & (D.C.Cir.1943) (Ste legiti- have a less of whether bombs 648 Maj. at J., Corp. purpose Op. mate or not.” 139 dissenting); Mining Fawn phens, omitted). (D.D.C. interpretation This Hudson, (emphasis F.Supp. 16(b) 1995). language signif- the prepo with the distorts usage This accords course,” sug icantly scope. By substituting its “in the which narrows phrase sitional instant, place a commit of “in the “to the offense” merely passing a gests offense,” the the ma- during committing a state or course continuum of time which interpretation jority adopts Third Neiv condition exists. See Webster’s (1993) (de which, obtained, initially Dictionary possession once International pro or a court need concern itself wheth- fining “progress “course” to mean any through through ... or a er there is substantial risk that gression a series may or “an be used thereafter. The period,” a or ordered development succession, majority only the incident to considers risk continuing process, sequence, offense, Dillard, series”); effectuating and not risk see also F.3d may during continuing of- “in the course” with “dur that exist (equating instance, majority opines fense. For ing”). Finally, speaks plainly the statute offense,” possession, of that commit the offense of meaning “[t]o the whole of “the had fense, merely an Hull to exercise control merely portion and not Thus, Id. This dominion over bomb.” aspect given offense. common interpretation ignores ongoing sub- ordinary usage rules dictate sense and committing may throughout exist the of stantial risk that “in the course I believe that encompass nothing possession. than course fense” should less of the statute calls for a language literal comprising given all offense. conduct This, turn, reading into account broader takes requires court consider in the any may substantial risk that arise period during can be the entire which continuing offense. Under being course of the said the offense is committed. if reading, a substantial risk such broad I interpretive backdrop, Against may used physical force 16(b) read “crime violence” under time the course another arises that, felony that is a mean offense crime consti- possessing nature, strong possibility by its involves a crime of violence. tutes against the intentional 16(b) pro- that I may reading property another be used broad person or logical consistency lacking enjoys during pose of time period It majority’s interpretation. defies reading This being committed. offense n fense,” cases); who obtains and collecting contradiction Monday bomb on Fleischli, States v. “committing the offense” of still (“Possession Cir.2002) of a firearm is a Friday if he or she exercised continuous continuing offense which ceases when Thus, or control. dominion the “course of stops.”); United States v. committing the of possession offense” in- Blizzard, (4th Cir.1994)

Case Details

Case Name: United States v. David Wayne Hull

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 28, 2006

Citation: 456 F.3d 133

Docket Number: 05-2028

Court Abbreviation: 3rd Cir.