UNITED STATES of America v. Alexander M. INTROCASO, Appellant.
No. 05-4088.
United States Court of Appeals, Third Circuit.
Opinion filed: Oct. 25, 2007.
Argued April 24, 2007.
The record demonstrates that probable cause indeed existed before Livingstone‘s search went beyond the bounds of Terry. Livingstone testified that, when he felt Yamba‘s pocket, he could feel a plastic bag containing a “soft[,] spongy-like substance.” Though it is true, as Yamba‘s counsel noted in cross-examination, “grass5 or oregano” might feel similarly soft or spongy, people do not normally go around with those substances in their pockets. Moreover, Officer Livingstone also felt “small buds and seeds” along with the contents of the plastic bag. This detail is more consistent with marijuana than lawn grass or oregano. Based on Livingstone‘s experience, he reasonably suspected that Yamba had marijuana in his pocket. His belief was reached quickly and upon minimal manipulation of Yamba‘s pocket from the outside, consistent with a routine frisk allowed by Terry. And though Livingstone admitted to manipulating the object even after forming the belief that it was not a weapon, he only did so to “mak[e] sure it was what [he] knew it to be.” In other words, by that point Officer Livingstone already had probable cause to conduct a more intrusive search than that authorized by Terry alone.
While one may reasonably question the veracity of Officer Livingstone‘s testimony, it was credited by the District Court. Were we the fact-finder, we may not have done the same; but we cannot say that the Court‘s finding was clearly erroneous. Nevertheless, consistent with the legal standard set out above, we purposely do not rely on the precision of Officer Livingstone‘s testimony that he reached his conclusion within “a half second.” However long it took Livingstone to form that belief, the record indicates that he did so within the bounds of Terry, as there is nothing to suggest that he conducted anything beyond a routine frisk until after there was probable cause to search more intrusively.
* * * * *
For these reasons, the Terry search that revealed marijuana in Yamba‘s coat pocket was conducted within the bounds set by the Supreme Court. We therefore affirm the District Court‘s denial of Yamba‘s motion to suppress the later-discovered slips of paper and, consequently, his convictions for wire fraud.
William T. Lawson, III, Esquire (Argued), Philadelphia, PA, for Appellant.
Before: McKEE and AMBRO, Circuit
OPINION OF THE COURT
AMBRO, Circuit Judge.
We decide principally whether a 19th-Century shotgun hanging on a defendant‘s living room wall qualifies as an “antique firearm” not subject to the general registration requirement of the National Firearms Act,
We disagree with Introcaso‘s possession argument as to the hand grenades, and thus affirm on that count. But after examining the statutory text and its history as to whether the Firearms Act required Introcaso to register the gun in question, we conclude that the statute is ambiguous. In the face of this ambiguity, we apply the rule of lenity (which instructs that statutory ambiguities should be resolved in favor of the defendant), and conclude that there has been no violation of the Firearms Act on the firearm count. Accordingly, we reverse the conviction and vacate the sentence on that count. As we shall see, these actions have no effect on Introcaso‘s sentence (save the minimal special assessment).
I. Factual Background
On February 2, 2004, the Lehigh County Sheriff‘s Office in Pennsylvania responded to a Protection from Abuse (PFA) order,1 which required Introcaso to “immediately relinquish” all weapons to law enforcement, barred him from the marital residence shared with his wife, Samia Introcaso, and prohibited him from having any communication with her. Pursuant to the PFA order, and at the direction of Introcaso‘s wife, police officers searched the house and found 28 firearms (including handguns and rifles), a machete, 21 knives, seven swords, and hundreds of pounds of ammunition. The police seized the weapons, but physically were unable to take the ammunition, which they left to retrieve later. One week later, Mrs. Introcaso again called the sheriff‘s office to inform them that she had found still more firearms belonging to her husband that she wanted removed from the house. One of the firearms was a 19th-Century shotgun that was displayed on a wall and not registered; it forms the basis for Count 1 of the indictment against Introcaso: knowing possession of a short-barreled rifle (“sawed-off shotgun“) in violation of
Again, pursuant to the initial PFA order as well as Mrs. Introcaso‘s signed written consent to the search, the police retrieved six more firearms (a Thompson subma-
In May 2004, a federal grand jury returned an indictment charging Introcaso with illegal possession of an unregistered firearm and possession of unregistered destructive devices. At the conclusion of trial in January 2005, the Judge declared a mistrial because the jury was deadlocked. At the end of a second trial in May 2005, a jury returned a guilty verdict on both counts of the indictment. Soon after, Introcaso filed post-trial motions for acquittal, arrest of judgment, and for a new trial. At a sentencing hearing in August 2005, the District Court denied all of Introcaso‘s post-trial motions and sentenced him to six months’ imprisonment and six months’ supervised release on count one; 46 months’ imprisonment and three years’ supervised release on count two; a fine of $2,000; and a special assessment of $200. The imprisonment terms were to run concurrently.
Introcaso now appeals to us, asserting three claims: (1) that the Government failed to prove all the elements sufficient to support a conviction for possession of an unregistered firearm, as the gun at issue fell within an “antique” exception to the firearm registration requirement; (2) that the Government failed to prove all the elements to support a conviction for possession of destructive devices, as he was not in sole possession of the devices; and (3) that the sentence was unreasonable. On the basis of these claims, Introcaso also challenges the Court‘s denial of his post-trial motions for acquittal, arrest of judgment, and for a new trial.2
II. Statutory Analysis3
A. Statutory Text
The plain language of the statute is the “starting place in our inquiry.” Staples v. United States, 511 U.S. 600, 605 (1994). “If the language of a statute is clear[,] the text of the statute is the end of the matter.
The Firearms Act generally requires firearms to be registered in the National Firearms Registration and Transfer Record, which is maintained by the Secretary of the Treasury.
(a) Firearm.—The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector‘s item and is not likely to be used as a weapon.
For purposes of the antique-firearm exception, “antique firearm” is defined as follows:
(g) Antique firearm.—The term “antique firearm” means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.
Neither party contests that Introcaso owned a pre-1899 shotgun that was not registered. The gun was double-barreled, with an overall length measuring 18 5/8 inches, and a barrel-length of 10 3/4 inches each. App. 371, 373 (Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agent‘s testimony). These measurements meet the statutory requirements for “firearm” under
Introcaso argues that he was exempt from a registration requirement be-
The Government contends that a gun is not antique, even if manufactured before 1899, if it fits the definition for firearm and if any fixed ammunition can be found in a commercial market that can be used to fire the gun. Although 18.2-millimeter shells are no longer available, an ATF agent testified that the gun can fire fixed ammunition that is currently commercially manufactured in the United States, namely 12-gauge shotgun shells. See App. 364-69, 396-97. In fact, an ATF agent testified that he had test-fired the gun successfully with 12-gauge shotgun shells. See App. 368-70, 379-81. Thus, we must decide whether the antique firearm exception applies to pre-1899 guns for which the ammunition initially designed for them is no longer available. If it does not, we will uphold Introcaso‘s conviction on count one, but if it does, we will reverse it.
The plain text of the statute clearly exempts, inter alia, antique firearms, but provides little guidance concerning the
B. Statutory Purpose
We next look to statutory purpose to the extent we can discern it. See, e.g., Nugent v. Ashcroft, 367 F.3d 162, 170 (3d Cir. 2004) (“[To resolve ambiguous terms,] courts should look to the reading that ‘best accords with the overall purposes of the statute’ ....“) (quoting Moskal v. United States, 498 U.S. 103, 116-17 (1990)). It is evident “from the face of the Act that the [Firearms Act]‘s object was to regulate certain weapons likely to be used for criminal purposes.” United States v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992); see also S.Rep. No. 90-1097, at 2-3 (1968), as reprinted in 1968 U.S.C.C.A.N. 2113, 2113-14 (noting concerns that firearms be kept away from those not legally entitled to possess them because of age, criminal background, or incompetency in order to decrease gun-violence); H.R.Rep. No. 90-1577, at 7-8 (1968), as reprinted in 1968 U.S.C.C.A.N. 4410, 4413 (listing statistics of those killed by unlawful guns). At the same time, by adding the antique-firearm exception in 1968, Congress also “intended to preclude coverage of antique guns held by collectors ‘in pursuance of the clearly indicated congressional intent to cover under the National Firearms Act only such modern and lethal weapons, except pistols and revolvers, as could be used readily and efficiently by criminals or gangsters.‘” Thompson/Center, 504 U.S. at 517 (citing H.R.Rep. No. 83-1337, at A395 (1954)); see also H.R.Rep. No. 90-1577, at 9, as reprinted in 1968 U.S.C.C.A.N. 4410, 4415; 114 Cong. Rec. 26863 (1968) (remarks of Senator Long).
This legislative history does not determine our issue because that history reveals two competing purposes: (1) regulation of
C. Analysis of the Second Circuit Court of Appeals
In its review of a similar case, the Second Circuit Court of Appeals offered a different interpretation of the antique firearm exception. United States v. Tribunella, 749 F.2d 104, 109 (2d Cir. 1984).10 In that case, Tribunella was convicted for possession of an unregistered double-barreled sawed-off shotgun that police found concealed in an area above the ceiling tile of his basement bedroom. Id. at 106. A firearms expert from the local police department examined the gun and testified that its measurements fit the statutory ones for “firearm,” and that he successfully test-fired it using standard 12-gauge shotgun shells that were commercially available. Id. at 107. A dealer and consultant in antique firearms gave his expert opinion that the shotgun had been manufactured before 1899 “and was designed to fire a type of fixed ammunition made before 1899 that is no longer commercially available in the United States.” Id. Furthermore, he testified that while the gun—like many other antiques—could fire ammunition not designed for it, “modern ammunition would eventually make the gun explode: ‘it could happen on the next shot, [or] it could be a hundred shots down the line....‘” Id.
Construing the antique-firearm exception‘s two conditions (that ammunition for the gun “is no longer manufactured” and that ammunition for the gun “is not readily available“), the Court opined that “[a]lthough the first condition appears to focus on ammunition designed specifically for the pre-1899 gun, no such focus is spelled out in the second condition.” Id. at 109. It rejected Tribunella‘s interpretation of the second condition “as requiring only that specifically designed ammunition be unavailable,” though it acknowledged that his view was “not definitely refuted by the language of the condition.” Id. Instead, it adopted the Government‘s interpretation that “the second condition applies to any ammunition and not to just specially designed ammunition [if one] attributes to the word ‘for’ different connotations in the two conditions: in the first, ‘for’ means ‘designed for use in‘; in the second, ‘for’ means ‘able to be used in.‘” Id. Though this reading “requires some interpolation,” the Court concluded that it was “truer to the language Congress actually used,” as
D. Design versus Usability
Though its reasoning is plausible, we do not agree with the Second Circuit Court of Appeals’ analysis. The Court acknowledged that the statutory language was ambiguous and the statutory purposes varied. Id. (acknowledging that Tribunella‘s interpretation was “not definitely refuted by the language of the condition,” that the Government‘s reading “require[d] some interpolation,” but that “[i]t is more likely that Congress meant the word ‘for’ to have different connotations” in support of the Government‘s view) (emphasis added).
When a criminal statute‘s language is unclear, we cannot satisfy ourselves with what we think Congress “more likely” intended without some clear indication of what it actually intended. See United States v. Gradwell, 243 U.S. 476, 485 (1917) (“[B]efore a man can be punished as a criminal under the Federal law his case must be plainly and unmistakably within the provisions of some statute.“) (citation and quotation marks omitted); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (“The rule that penal laws are to be construed strictly ... is perhaps not much less old than construction itself.“); Thompson/Center, 504 U.S. at 517-18 (applying the rule of lenity to the Firearms Act to conclude that an arms manufacturer had no tax liability for “[m]aking” a firearm because of ambiguity in the ambit of the statute and because significant penal sanctions attached to violations of the payment requirement). The rule is designed to ensure that legislatures and not courts exact penal laws as well as to ensure that individuals have fair notice of what the law requires so as to avoid arbitrary enforcement. McBoyle v. United States, 283 U.S. 25, 27 (1931) (“Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world[,] in language that the common world will understand, of what the law intends to do if a certain line is passed.“); Wiltberger, 18 U.S. (5 Wheat.) at 95 (“[T]he power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.“); Smith v. United States, 360 U.S. 1, 9 (1959) (applying the “the traditional canon of construction which calls for the strict interpretation of criminal statutes and rules in favor of defendants where substantial rights are involved,” in part to avoid “oppressive and arbitrary proceedings“).
As noted, the statutory text, history and legislative purpose do not provide clarity, because they recognize opposing interests
III. Unregistered Destructive Devices
Introcaso argues that he was not in direct possession of the hand grenades and other destructive devices that the police seized because he had been barred from going to the house pursuant to the PFA order, and that the Government did not otherwise prove that he was in possession of the devices. The Government counters that there was sufficient evidence at trial for a jury to conclude beyond a reasonable doubt that Introcaso was in constructive possession of the devices. As this is a sufficiency-of-the-evidence issue, we ask “whether there was substantial evidence, viewed in the light most favorable to the government, to support defendant[‘s] conviction.” United States v. Castro, 776 F.2d 1118, 1123 (3d Cir. 1985).
In order to convict for possession of unregistered destructive devices, the Government must present sufficient evidence to demonstrate that Introcaso was in possession of the devices. This demonstration may be actual or constructive. United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993). To demonstrate constructive possession, the Government must submit sufficient evidence to support an inference that the individual “knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Constructive possession necessarily requires both ‘dominion and control’ over an object and knowledge of that object‘s existence.”
In Brown, the Court concluded that the evidence sufficed to support a finding of constructive possession where the defendant possessed a key to the house, came to the house during the search, admitted that non-contraband items found in the same room as the contraband items belonged to her, established that she owned the house, and a Government witness testified that the house was used to store and prepare drugs for distribution. Brown, 3 F.3d at 680-81. Similarly here, the Government established that Introcaso was the lessee of record on the house and had occupied the house along with his wife up until a week before the explosive devices were removed, he was seen in the vicinity of the house when police returned for the second search, his wife‘s keys did not work to open the locked cabinet in which the explosives were found, he likely knew about the devices, as two former employees testified that they had seen him store similar or identical hand grenades in a similar or identical military ammunition box in his office and an ammunition-filled box was in his basement during the search. See App. 152-53, 161-63, 182-86, 193-94, 248-50, 298-303, 342-44, 465-66.
Viewing the evidence in the light most favorable to the Government, we have no doubt that it presented evidence sufficient to allow a jury to conclude that Introcaso was in constructive possession of the explosive devices, and there is no indication that its conclusion rested on mere proximity. Cf. Jackson v. Byrd, 105 F.3d 145, 148-50 (3d Cir. 1997) (apartment lessee who exercised control over parts of it was in constructive possession of its contents); United States v. Wahl, 290 F.3d 370, 376-77 (D.C. Cir. 2002) (jury may infer that a person exercises constructive possession over items found in his or her home).12
IV. Sentence: Reasonableness13
Introcaso received a sentence of six months’ imprisonment and six months’ supervised release on the firearm count (Count I), 46 months’ imprisonment and three years’ supervised release on the grenades count (Count II), a fine of $2,000,
Introcaso‘s argument that 46 months’ imprisonment is an unreasonable sentence is no more than a rehashing of his challenge to the conviction. In challenging the sentence, he merely reiterates that he was not in possession of the destructive devices “secured” in the basement, and that no one intended to “utilize any item in this case for a destructive or otherwise illegal purpose.” Appellant‘s Br. at 17. He argues that these facts “combine to render the sentence imposed unreasonable under the circumstances and therefore same should be reversed.” Id.
A review of the sentencing hearing reveals that the District Court complied with the three-step sentencing procedure we set out in United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).14 It performed the initial Guidelines calculation based on the Pre-Sentencing Report, it ruled on Introcaso‘s downward departure motion, and it exercised discretion in imposing a sentence in the middle of the Guidelines range. See Supp.App. 70-85. We discern no abuses of discretion, and thus have no reason to hold the sentence unreasonable.
Finally, though we reverse Introcaso‘s conviction on Count I and vacate his sentence thereupon, a remand for resentencing is unnecessary because our actions with respect to Count I do not affect his sentence under Count II.15 Our decision to
V. Conclusion
Concluding that the statute was ambiguous as to whether the antique firearm exception applied to the gun in question, we apply the rule of lenity to reverse Introcaso‘s conviction on that count. But because the Government‘s evidence was sufficient to establish that he was in possession of the hand grenades, we affirm the conviction on the second count. While we vacate the portion of Introcaso‘s sentence relating to count one and affirm the conviction and sentence for count two, there is no need to remand for resentencing because (but for our eliminating a $100 special assessment) his sentence remains the same.
ACKERMAN, District Judge, concurring in part and dissenting in part:
I join the majority‘s opinion insofar as it affirms Introcaso‘s conviction on count two, for possession of unregistered destructive devices. I also concur with the majority‘s conclusion that the sentence imposed on Introcaso was not unreasonable. However, I must respectfully dissent from the majority‘s decision to reverse Introcaso‘s conviction as to count one, possession of an unregistered sawed-off shotgun. For the reasons stated by the Second Circuit in United States v. Tribunella, 749 F.2d 104 (2d Cir. 1984), I would conclude that the antique-firearm exception does not apply in this case and would affirm Introcaso‘s conviction on this count.
As the majority suggests, in enacting the National Firearms Act, Congress had several purposes, including not placing undue burdens on museums and gun collectors and decreasing the violent use of guns. Tribunella, 749 F.2d at 109-11. However, the mere fact that Congress had multiple and perhaps competing purposes does not automatically render the statute ambiguous. As the court in Tribunella reasoned, the Act‘s restrictive definition of antique “in terms of the type of ammunition the weapon could use reveals that Congress‘s overriding concern was for decreasing the violent use of guns.” Id. at 110. Thus, Congress intended “to exclude from regulation only those weapons that are unlikely to be usable for violent acts.” Id. Accordingly, there is no need to resort to the rule of lenity: The Second Circuit‘s reasonable construction of
Notes
ATF Agent: Underneath the barrels, and this was common for Belgium made shotguns in that period, there would be a number. In this case [it was] 18.2, which is in millimeters, which designates the—the caliber or the bore, which in this case would be 12-gauge.
Counsel: [18.2] millimeters ... transfers to 12-gauge?
ATF Agent: Roughly, yes.... Well, it wouldn‘t be exactly 12-gauge. It‘s an equivalent to 12-gauge, but we would [not] designate 12-gauge.
...
Counsel: I understand that [a 12-gauge shotgun shell] may work in the gun, but as far as what it was designed to do?
ATF Agent: [T]he cartridge fits neatly in the chamber. It‘s not loose or too tight.
Counsel: Okay. Well, you‘ll agree with me that, for example, a[.]38[-]caliber casing would fit inside a gun that was designated to fire a[.]357 type ammunition?
ATF Agent: That‘s correct.
Counsel: So, I guess what I‘m wondering is, is there any designation on this gun that says it‘s a 12-gauge shotgun?
ATF Agent: Other than the marking 18.2 [millimeters], no
Counsel: [The] 12-gauge ammunition ... you fired in the gun ... would not have been available in the form in which you used [it] when the gun was manufactured in Belgium between 1877 and 1893, correct?
ATF Agent: As far as the gauge size, it would have been available. The type of shell that I used had a plastic hole. Back then they were paper shells, but, basically, it was the same type of shell ... [but][n]ot the identical shell.
App. 396-97.
(1) Courts must continue to calculate a defendant‘s Guidelines sentence precisely as they would have before Booker.
(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit‘s pre-Booker case law, which continues to have advisory force.
(3) Finally, they are required to exercise their discretion by considering the relevant
Gunter, 462 F.3d at 247 (internal citations, brackets, and quotation marks omitted).
Removing the shotgun count from the sentencing calculation yields the same advisory Guidelines range. The two-point addition under § 2K2.1(b)(1)(A) remains unchanged because the hand grenade count is sufficient to meet the requirements of the Guidelines’ provision. Within the Guidelines range of 41 to 51 months, the District Court determined that a term of imprisonment of 46 months was a proper penalty to address the severity of Introcaso‘s conviction on the grenades count. See Supp.App. 82 (“A lesser sentence than 46 months in my view would not adequately promote respect for the law under [sic] grenade offense, and would depreciate the seriousness of the offense[,] and ... would not be sufficiently just punishment.“). Finally, the Court imposed a below-Guidelines-range fine of $2,000 because of Introcaso‘s inability to pay, and the fine remains unaffected by our reversal on the shotgun count.