Lead Opinion
RUSSELL, J., dеlivered the opinion of the court, in which DAUGHTREY, J., joined. CLAY, J. (pp. 533-34), delivered a separate concurring opinion.
OPINION
A jury convicted Defendant of manufacturing and possessing an unregistered pipe bomb under 26 U.S.C. §§ 5861(d)-(f). Defendant, Jason S. Mise, appeals from the district court’s refusal to grant his motion to dismiss and from the district court’s sentencing enhancements for obstruction of justiсe under USSG § 3C1.1 and for possession or transfer with knowledge, intent, or reason to believe that the pipe bomb would be used or possessed in connection with another felony under USSG § 2K2.1(b)(5). We AFFIRM the district court’s judgment of conviction and sentence.
BACKGROUND
In June 1997, Ralph Case visited Defendant Jason S. Mise. While visiting Mise, Case noticed explosives at the residence. Several wеeks later Case had an argument with Shane Legg. Case decided that he wanted to physically harm Legg. Case remembered that Mise produced explosives
Diana Case, the mother of Ralph and Norman Case, testified that Mise came to her home and told her that he had made a bomb for Ralph. Norman Case testified that he did not want Ralph to use the bomb, so he went to Mise’s home to get it. According to Norman Case, Mise told him that he had made the bomb specifically for Ralph so that he might retaliate against Legg, and that Mise knew Ralph would actually use the bomb.
Norman Case stored the bomb at his home for a few weeks before trying to sell it to an undercover agent of the Bureau of Alcohol, Tobacco and Firearms. A grand jury indicted Norman Case for possession of a pipe bomb. Case thereafter entered into a plea agreement with the government. As a part of this agreement, Norman Case tape recorded a conversation between himself and Mise where Mise explained how he had made the bomb and the powders he used. Although Mise initially agreed to make another bomb for Norman Case, he backed out, believing “somebody was out to get him.”
At trial Mise testified that he fabricated the story abоut making the bomb and agreed to make one for Norman Case only so Case would leave him alone. Mise testified that he was “[j]ust reciting things that [he had] read ... from various books and heard on the news,” and that he never intended to build a bomb for Norman Case, that he did not make the bomb and that he was never in possession of the pipe bomb.
On September 23, 1998, a grand jury indicted Mise in two counts of a three count indictment. The indictment charged Mise with unlawful manufacture of a firearm and possession and transfer of an unregistered pipe-bomb. The third count charged Norman Case with possession and transfer of an unregistered pipe bomb. Mise pleaded not guilty to both counts against him while Case pleaded guilty pursuant to a plеa agreement. On December 4, 1998, Mise filed a Motion to Dismiss Indictment. After a hearing the district court denied that motion.
On December 10, 1998, a jury found Mise guilty of manufacturing and possessing unregistered pipe bomb. On May 4, 1999, the district court sentenced Mise to 70 months of incarceration. Mise timely filed a notice of appeal in accordance with the provisions of Fed.R.App.P. 4(a).
DISCUSSION
I. Motion to Dismiss
Mise first argues that the district court erred in denying his motion to dismiss because the government failed to prove the essential elements of the crimes. This Court reviews de novo a district court’s ruling on a motion to dismiss. Patmon v. Mich. Supreme Court,
A jury convicted Mise of manufacturing and possessing an unregistered pipe bomb under 26 U.S.C. § 5861(d)-(f). Failure to register is an element of those crimes. Under 26 U.S.C. § 5812(a), an application to transfer and register “shall be denied if the transfer, receipt, or possession of the [bomb] would place the transferee in violation of the law.” Noting that the statute does not distinguish between state and federal law, Mise contends that he could not have registered the pipe bomb because Ohio law prohibits the possession оf a “dangerous ordnance,” such as
Mise argues that United States v. Dalton, dictates a dismissal of the indictment in this case.
This case does not present an analogue to Dalton. In Dalton, testimony revealed that it was indeed a statutory impossibility to register a machine gun. Registration of a pipe bomb in the instant case is not clearly a legal impossibility and Dalton does not apply. See United States v. Dodge,
This case presents a situation similar to that before the Southern District of Ohio in United States v. Gambill,
BATF maintains a separаte procedure for identifying destructive devices. See § 26 U.S.C. 5842. Section 5842(a) provides that anyone making a firearm shall identify each firearm, other than a destructive device, by serial number. A destructive device, however, shall be identified “as the Secretary may by regulations prescribe.” Title 27 of the Code of Federal Regulations section 179 has extensive provisions for the identification of firearms including destructive devices.
Id. at 291. As such, the registration of a pipe bomb is not a legal impossibility. Id.
Mise has not presented evidence that he made an application to register his pipe bomb or evidence that registration is a legal impossibility. Accordingly, Mise’s argument that he could not have registered the pipe bomb fails.
II. Obstruction of Justice
The defendant argues that the district court failed to make proper findings of fact to support the determination that Mise committed perjury in his trial testimony, leading to a two-level sentence enhancement for obstruction of justice under USSG § 3C1.1. This Court reviews the district court’s factual findings under a clearly erroneous standard. United States v. McDonald,
An adjustment for obstruction of justice applies to a defendant “committing, suborning or attempting to suborn perjury.” USSG § 3C1.1 comment, (n. 4(b)). A witness perjures himself if he “gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of сonfusion, mistake, or faulty memory.” United States v. Dunnigan,
The district court made the following statements during the sentencing hearing:
In order for this Court to determine whether or not two levels should be added for obstruction of justice under 3C1.1 of the guidelines for perjury, the Court must consider three things:
One, the Court must make a specific finding that the statements were perju-rious; two, the statements must be given to mislead the fact finder; and three, the statements must be material and/or nontrivial to the investigation.
Defendant’s testimony does conflict with, first of all, the testimony of his codefendant, Norman Case, who also testified at trial that the defendant gave him the pipe bomb.
Case, Norman Case, who attempted to sell the pipe bomb to an undercovеr agent agreed to cooperate with the investigation and recorded several conversations with the defendant in January of '98. During a recorded conversation between Norman Case and the defendant, defendant admitted making the pipe bomb.
The question then that the defendant committed perjury on the witness stand, he denied making the pipe bоmb, so there is no question in this Court’s mind that the statement was given, of course, to mislead the jury in this case.
And obviously the statement was material because it went to the heart of the charges in the indictment. They were nontrivial.
So the Court will add two levels pursuant to Section 3C1.1 of the guidelines.
Mise argues that the district court “merely found the Defendant-Appellant committed perjury because he was found guilty of the charged offenses” and that the “trial court made no bases of a factual finding that the testimony created a willful impediment to justice.” The record does not reflect such a conclusory result. The district court made specific findings for each element of perjury and met its burden under Dunnigan and Sassanelli. The record reflects the court’s reliance on the conflict between the defendant’s tape-recorded comments where he admitted making the bomb and his trial testimony where he denied making the bomb. Although Mise attempted to explain away the conflicting statements at trial, this Court neither heard nor observed the witness at trial. This Court does not typically review a district court’s determinаtions regarding credibility as those seeing and hearing witnesses sit in the best position to make that judgment. United States v. Gesso,
III. Possession or Transfer in Connection with Another Felony
Mise’s final argument is that the district court erred in applying a four-level
USSG § 2K2.1(b)(5) provides for a four level enhancement “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” The district court made the following statements during its sentencing hearing:
Well, I think that in this instance, the Court must look to what was in the mind of the defendant when he manufactured the pipe bomb. It’s clear from the evidence that there was a feud between Ralph Case and another individual named Legg, and he discussed that feud with the defendant, and they had a discussion about how Ralph сould retaliate by — I think there was some language to the effect that Ralph was — Ralph was at Jason’s house, that there was materials [sic] to make pipe bombs and there were firecrackers, M-50’s — I might be misquoting the evidence — and there was a statement to the effect that it would have to be a bigger one.
And there is no question that Ralph’s involvement brоke off because he ended up in the hospital. But along comes Norman Case, and the defendant gives him the pipe bomb.
Now, there are inferences that have to be drawn, but I think the Court can make an inference that the defendant manufactured the bomb for the purposes of — let me back up — manufactured the bomb to give to Ralph for the purpose of injuring his former friend whose last name was Legg.
Although he didn’t complete the act, it, was what the defendant believed that counts, not whether or not the felony was actually committed as it states under 2K2.1(b)(5), and I am quoting: “If the defendant used or possessed any firearm or ammunition in connection •with another felony offense, or” — and this is the applicable language — “possessed or transferred any firearm or ammunition with knowledge, intent or reason to- believe that it would be used or possessed in connection with another felony offense.”
I think there is ample evidence for this Court to infer that there was reason to believe in the mind of the defendant that it was — he made the bomb and it was going to be used for the purpose of injuring another person.
So the Court will add four more levels under 2K2.1(b)(5).
Mise argues that only the pipe bomb possessed by Norman Case is at issue in this trial, and that there is no evidence to suggest that Norman Case intended to use it in the commission of a felony. Mise claims that any knowledge he had regarding Ralph Case’s plan to harm Legg became irrelevant when Ralph Case abandoned his clаim. Mise’s argument fails for a number of reasons. First, the evidence does not support a conclusion that Mise knew that Ralph Case had abandoned his plan. Indeed, Diane Case testified that Mise came to her home and said, “I have a pipe bomb that I went ahead and made for Ralph,” thus indicating that Mise made the bomb for Ralph rather than for Norman. Mise also testified that “a pipe bomb is a destructive device used to hurt people.” Although this is not conclusive alone, combined with the other evidence, it demonstrates Mise’s knowledge or intent to produce the pipe bomb with intent to harm
The district court made findings of fact and described the evidence that was elicited at trial in order to impose the enhancement. The district court did not err in increasing defendant’s offense level pursuant to Sentencing Guideline section 2K2.1(b)(5).
CONCLUSION
This Court _ AFFIRMS/ the district court’s judgment of conviction and sentence. The district court properly denied Mise’s motion to dismiss after correctly holding that Mise had not presented evidence that he made an application to register his pipe bomb or evidence that registration is a legal impossibility; the district court did not err in giving a two-level sentence enhancement for obstruction of justice under USSG § 8C1.1 as the district court identified the perjurious portions of Mise’s testimony and properly made specific findings for each element of perjury, thus meeting its burden under Dunnigcm and Sassanelli; and the district court did not err in increasing Mise’s offense level pursuant to USSG § 2K2.1(b)(5) as the district court made proper findings of fact and described the evidence that wаs elicited at trial when imposing the enhancement.
Concurrence Opinion
concurring.
I concur in the majority’s opinion affirming Defendant’s conviction and sentence. I write separately to expressly state that United States v. Dalton,
Several circuit courts have rejected Dalton in favor of the Fourth Circuit’s reasoning in United States v. Jones,
In addition, the Eastern District of Michigan has recently rejected Dalton on several occasions. In United States v. Djelaj, the district court criticized Dalton as follows:
The court finds the analysis in [United States v. Jones,976 F.2d 176 (4th Cir.1992)] and [United States v. Ross,9 F.3d 1182 (7th Cir.1993)] clearly superior to that of Dalton. Just as the defendant in Jones could have complied with both the NFA and § 922(o) by not dealing in newly-made machine guns, so, too, Defendants in this case could have complied with NFA § 5861(d) and Michigan’s ban on Molotov cocktails by not possessing those destructive devices in the first place. Dalton’s impossibility analysis is therefore flawed, and this Court believes that there is nothing fundamentally unfair with holding Defendants to answer for their breach of federal law regardless of what state law may say. If this were not the case, fed*534 eral criminal statutes could be enforced only in states which agreed with and accepted them. This is a preposterous contention.
Defendants’ arguments to dismiss the indictment, then, when boiled down to their essence, collapse under simple cоmmon sense.
A few years later, in United States v. Wolfe,
[T]his Court has previously rejected the reasoning in Dalton, and sees no reason to reach a -different conclusion here. Simply stated, the dilemma confronted by Defendant was of his own making, and could have been avoided if he had refrained from possessing outlawed machine guns in the first instance. Thus, the Court finds that the Government’s refusal to permit Defendant to register machine guns does not operate to bar Defendant’s prosecution for possessing unregistered machine guns.
Based upon the above cited authority, I believe that this circuit should reject Dalton’s reasoning in favor the Fourth Circuit’s reasoning in Jones. Applying Jones to the case at hand, Defendant’s claim fails where he could have avoided prosecution simply by refusing to manufacture and possess the pipe bomb.