United States v. Urban

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

3-23-1998

United States v. Urban

Precedential or Non-Precedential:

Docket 97-7107

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Filed March 20, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-7107

UNITED STATES OF AMERICA

v.

FREDERICK URBAN,

Appellant

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Crim. No. 95-00108)

Argued October 21, 1997

BEFORE: MANSMANN and GREENBERG and

ALARCON,* Circuit Judges

(Filed March 20, 1998)

John C. Gurganus, Jr. (argued)

Office of United States Attorney

309 Federal Building

Scranton, PA 18501

Attorney for Appellee

_________________________________________________________________

* Honorable Arthur L. Alarcon, United States Senior Circuit Judge for the

Ninth Circuit, sitting by designation.

Daniel I. Siegel (argued)

Office of Federal Public

Defender

100 Chestnut Street

Harrisburg, PA 17101

Attorney for Appellant

OPINION OF THE COURT

ALARCON, Circuit Judge.

Frederick Urban appeals from the judgment of conviction

for possession of an unregistered destructive device in

violation of 26 U.S.C. SS 5841, 5861(d), and 5971. He

contends that the district court committed prejudicial error

in refusing to instruct the jury that the intent to use the

components as a weapon is an element of the crime

charged in the indictment. Urban also argues that the

district court erred as a matter of law in applying the

special skill enhancement under United States Sentencing

Guideline S 3B1.3 ("S 3B1.3"). We affirm the judgment of

conviction because we conclude that the district court

properly instructed the jury. We also determine that the

district court properly applied a two-level sentence

enhancement for the use of a special skill in a manner that

significantly aided the commission of the crime.

I

In late 1994, Frederick Urban ("Urban") began to frequent

a local gun store owned by Patrick Moreton. Urban gave

Moreton a number of pamphlets entitled "1-2-3-4 Easy

Made C-4" to sell on a consignment basis. Urban claimed to

have written the pamphlet, which set forth directions on

how to manufacture triacetonetriperoxide ("TATP"), an

extremely volatile explosive. Urban continued to visit the

store, and to discuss his ideas about manufacturing

explosives. In early April, Urban met with Moreton's father,

John, to discuss the possibility of building an aluminum

"grenade-type launcher." Urban told the elder Moreton that

he had a cache of TATP buried in his backyard.

2

Unbeknownst to Urban, John Moreton was an informant

for the Alcohol, Tobacco and Firearms Division of the

Department of the Treasury ("ATF"). John Moreton informed

Kevin Simpson, an ATF agent, of Urban's activities, and the

ATF set up a sting operation.

In his discussions with John Moreton, Urban stated that

TATP could breach a three-inch steel plate. The two

arranged to meet and test the explosive power of TATP. On

April 11, 1995, Urban and Moreton met in the parking lot

of a highway rest stop. ATF agents arrested Urban when he

removed a large ammunition box from his van and placed

it in the trunk of Moreton's car. The ammunition box

contained two large canisters, a homemade metal

detonator, two large bags of an explosive later designated as

TATP, two carbon dioxide cartridges, a coil of pyrotechnic

fuse, and a steel pipe.

During a search of Urban's residence, ATF agents seized

books and pamphlets on how to manufacture various

weapons and explosives, a polyvinyl chloride ("PVC")

container, a five-inch length of 3/32 fuse, an illegal firearm

silencer, a partially filled container of smokeless gun

powder, a homemade detonator, and three fuse assemblies.

Urban was arrested and charged with the possession of an

unregistered destructive device in violation of

26 U.S.C. S 5861(d). On April 18, 1995, Urban was indicted

on one count of possession of an unregistered destructive

device.

Urban was found guilty after a trial by jury. He has

timely appealed from the judgment of conviction and the

court's sentencing decision.

II

Urban argues that we must reverse because the district

court erred in failing to instruct the jury on an essential

element of the crime of possession of the components of an

unregistered destructive device. He contends that the trial

court was required to instruct the jury that the Government

had the burden of producing evidence that he intended to

use the components of an unregistered destructive device

as a weapon. This court conducts a plenary review of a

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challenge to a district court's instruction to the jury

regarding the applicable law. United States v. Zehrbach, 47

F.3d 1252, 1260 (3rd Cir.), cert. denied, 514 U.S. 1067

(1995).

The question whether the Government has the burden of

producing evidence and persuading the jury that the

accused possessed the components of an unregistered

destructive device with the intent to use them as a weapon

presents an issue of first impression in this circuit.

We begin our analysis by examining the language used

by Congress in creating the offense of possession of an

unregistered firearm. Section 5861(d) of the National

Firearms Act provides in pertinent part that "[i]t shall be

unlawful for any person . . . to . . . possess afirearm which

is not registered to him in the National Firearms

Registration and Transfer Record." 26 U.S.C. S 5861(d).

Section 5861(d) makes no reference to the intent of the

person in possession of an unregistered firearm.

Section 5845(f) defines the term "firearm" inter alia, as a

"destructive device." A destructive device is defined in

S 5845(f) as follows:

(1) any explosive, incendiary, or poison gas (A) bomb,

(B) grenade, (C) rocket having a propellant charge of

more than four ounces, (D) missile having an explosive

or incendiary charge of more than one-quarter ounce,

(E) mine, or (F) similar device;

(2) any type of weapon by whatever name known which

will, or which may be readily converted to, expel a

projectile by the action of an explosive or other

propellant, the barrel or barrels of which have a bore of

more than one-half inch in diameter, except a shotgun

or shotgun shell which the Secretary finds is generally

recognized as particularly suitable for sporting

purposes; and

(3) any combination of parts either designed or intended

for use in converting any device into a destructive

device as defined in subparagraphs (1) and (2) and

from which a destructive device may be readily

assembled. The term "destructive device" shall not

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include any device which is neither designed nor

redesigned for use as a weapon . . ..

26 U.S.C. S 5845(f) (emphasis added).

The terms "designed" and "intended" as used in

S 5845(f)(3) are separated by the disjunctive word "or."

"[C]anons of construction ordinarily suggest that terms

connected by a disjunctive be given separate meanings

unless the context dictates otherwise." United States v.

6109 Grubb Road, 886 F.2d 618, 626 (3d Cir. 1989)

(quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339

(1979)). "Simply stated, a device may be `converted' into a

destructive device as defined in Subparagraphs (1) and (2)

by way of `design or intent.' " United States v. Oba, 448 F.2d

892, 894 (9th Cir. 1971), cert. denied, 405 U.S. 935 (1972)

(citation omitted). Thus, looking solely at the plain meaning

of the words used by Congress, a person may be found

guilty of a violation of S 5861(d) if he or she is in possession

of a combination of parts designed for use in converting any

device into a destructive device, or if he or she is in

possession of a combination of parts intended for use in

converting any device into a destructive device.

Urban asks that we construe the language of the statute

as requiring, in all cases where the prosecution is based on

the possession of the components of an unregistered

destructive device, that the jury must be instructed that the

Government has the burden of persuading it that the

defendant intended to use the components as a weapon.

His reliance on United States v. Fredman, 833 F.2d 837

(9th Cir. 1987), United States v. Morningstar, 456 F.2d 278

(4th Cir.), cert. denied, 409 U.S. 896 (1972), and United

States v. Curtis, 520 F.2d 1300 (1st Cir. 1971) for this

sweeping proposition is misplaced.

In Fredman, police officers seized two bundles of

commercial detonator cord, three commercial detonator

fuses, and two commercial igniters in a search of the

defendant's home. Id. at 837-38. Fredman was indicted for

possession of an unregistered firearm. Id. at 838.

The Ninth Circuit reversed the judgment of conviction.

The court held in Fredman that, "mere components of

commercial explosives, absent proof of intent to use such

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components as a weapon, fail to qualify as a `destructive

device' within the meaning of 26 U.S.C. S 5845. Intent is a

necessary element absent proof of original design or

redesign for use as a weapon." Id. at 839 (emphasis added).1

The court concluded that the components were not

designed for use as a weapon "since it is admitted that the

seized explosive components are designed for use as

commercial blasting components." Id. Fredman establishes

that intent to use the components as a weapon is a

required element when the components are commercial in

nature and are not designed or redesigned for use as a

weapon.

In United States v. Morningstar, 456 F.2d 278 (4th Cir.

1972), the Fourth Circuit reversed the district court's

dismissal of an indictment charging the defendant with

possession of a destructive device. The device in

Morningstar consisted of four sticks of commercial black

powder pellet taped together and several unattached

blasting caps. Id. at 279-280. In reversing the district

court's ruling that commercial explosives are not covered

under S 5861(d), the Morningstar court held that

"explosives, such as commercial black powder or dynamite,

are subject to the Omnibus Crime Control and Safe Streets

Act and the National Firearms Act depending on their

intended use." Id. at 281. The court also opined that

"explosive and incendiary devices which have no business

_________________________________________________________________

1. Urban suggests that we adopt the principle set forth in the Ninth

Circuit's Jury Instruction 9.05B which provides in pertinent part that

"[i]n order for the defendant to be found guilty . . . the government must

prove . . . the defendant intended to use the components as a weapon."

9th CIR. CRIM. JURY INSTR. 9.05B (1995). In the comment to Jury

Instruction 9.05B the jury instruction committee cited United States v.

Fredman for the proposition that "[f]or unassembled components to

qualify as a `firearm' there must be proof beyond a reasonable doubt that

the components were intended for use as a weapon." This commentary

ignores the fact that in the Fredman case the components were designed

to be used for commercial blasting and not as a weapon. The rule set

forth in Instruction 9.05B does not accurately reflect the Ninth Circuit's

construction of S 5845(f)(3) in Fredman. We are also mindful of the

principle that pattern jury instructions from other circuits are not

binding authority. See United States v. Agnes, 753 F.2d 293, 299 (3d Cir.

1985).

6

or industrial utility . . . are covered regardless of their

intended use." Id. at 280. Morningstar, like Fredman, reads

S 5845(f) to include commercial explosive components when

the prosecution is able to prove the defendant's intent to

use the assembled device as a weapon, rather than for its

legitimate, commercial purpose.

In United States v. Curtis, 520 F.2d 1300 (1st Cir. 1975),

the defendants were prosecuted in separate counts for

possessing two destructive devices. One device consisted of

five sticks of dynamite bound together with a fuse attached.

The other device consisted of eight to ten sticks of dynamite

bound together and attached to a black box and a timer. Id.

at 1301. As was the case in Morningstar, the defendants in

Curtis argued that commercial explosives are not a

destructive device within the meaning of S 5845(f). Id. at

1302.

The First Circuit held that "the government's evidence

with regard to the smaller device was not sufficient to

support a conclusion that the object was anything more

than `the familiar industrial blasting charge.' " Id. at 1303

(citation omitted). In so ruling, the court recognized "the

line of cases holding that a dynamite charge may become a

destructive device if intended for use as a bomb." Id.

What distinguishes the cases cited by Urban from the

instant case is the lack of ambiguity here as to the nature

of the assembled device. In Fredman, Morningstar, and

Curtis, the courts were determining whether a device

utilizing commercial explosives constituted a destructive

device as defined in subparagraphs (1) and (2) of S 5845(f).

These cases concluded that such devices may fall within

the statutory definition of a destructive device when the

prosecution demonstrates the defendant's intent to use the

assembled device as a weapon. By contrast, there is no

doubt that the components possessed by Urban were

designed to create a canister grenade -- a device clearly

regulated as a destructive device under S 5845(f)(1).

A pamphlet seized at Urban's home described the process

of converting an ordinary carbon dioxide ("CO2") cartridge

into a fragmenting canister grenade. The pamphlet included

detailed instructions and drawings on how to construct

7

such a grenade. The process involves the widening of the

cartridge opening to allow the introduction of a pyrotechnic

fuse and the scoring of the cartridge body to maximize

fragmentation. CO2 cartridges are generally designed for

use in BB guns, toy racing cars, and seltzer water

dispensers. The cartridges found in Urban's possession had

been redesigned with serrated walls and widened openings

inconsistent with a CO2 cartridge's legitimate uses.

The pamphlet recommends the use of a high powered

explosive in canister grenades for greater damage, rather

than commercially used explosives such as black powder.

One of the cartridges found in the ammunition box seized

from Urban's vehicle contained TATP. The ammunition box

also contained two large bags of TATP. A Government

expert testified that because TATP is "so unstable" and

"stores poorly," it has "never found any commercial use at

all."

Section 5845(f)(3) limits its application to "any

combination of parts designed or intended for use in

converting any device into a constructive device as defined

in subparagraphs (1) and (2)." The definition of a

destructive device in subparagraph (1) includes a grenade.

Here, the evidence is uncontradicted that Urban was in

possession of a combination of parts expressly designed to

create a canister grenade. Intent to use the components as

a weapon (to assemble them into a device to be used as a

weapon) is irrelevant when the parts are clearly designed to

be used in constructing a device which is specifically

regulated by S 5845(f)(1) or (2). We agree with the Second

Circuit's construction of S 5845(f)(3) in United States v.

Posnjak, 457 F.2d 1110 (2nd Cir. 1972). "When it is clear

that the assembled device created by combining the

components falls within (1) or (2), intent is irrelevant, for

the parts are clearly `designed' to convert the device into a

destructive device." Id. at 1119. We hold, therefore, that the

district court did not err in ruling that it is not necessary

to instruct the jury that the defendant intended to use the

components as a weapon when, as here, it is undisputed

that the parts were clearly designed to create a grenade.

8

III

Urban also challenges the district court's sentencing

decision. He contends that the district court erred as a

matter of law in concluding that a two-level enhancement

pursuant to S 3B1.3 of the United States Sentencing

Guidelines was justified based upon Urban's use of a

special skill that significantly facilitated the commission of

the crime of possession of an unregistered destructive device.2

Urban contends that S 3B1.3 is inapplicable unless there is

evidence that the defendant received special training or

education. This court reviews de novo a district court's legal

interpretation of the Sentencing Guidelines. United States v.

Maurello, 76 F.3d 1304, 1308 (3d Cir. 1996). Because we

must review the meaning of the term "special skills," and

"special training and education," we will not defer to the

district court in construing these words.

The district court explained the basis for its finding that

Urban possessed and used a special skill in committing a

violation of S 5861(d) in the following words:

[W]e find that based on the authorities that have been

cited by the probation officer3 in his resolution, that

this Defendant had sufficient sophistication to place

him in a category of having a special skill.

By reason of his mechanical background and training,

the fact that he authored manuals specifically outlining

the manner in which destructive devices could be

prepared, and offered these manuals for sale as well as

the Defendant's particular interest in the utilization of

such devices in the event they were necessary because

_________________________________________________________________

2. Sentencing Guideline S 3B1.3 provides in pertinent part as follows:

If the defendant abused a position of public or private trust, or

used

a special skill in a manner that significantly facilitated the

commission or concealment of the offense, increase by 2 levels.

3. In the presentence report, the probation officer cited United States v.

Spencer, 4 F.3d 115 (2d Cir. 1993) and United States v. Malgoza, 2 F.3d

1107 (11th Cir. 1993) for the proposition that "[t]hough the defendant

did not receive formal training in manufacturing the explosives, several

circuits have held that the `special skill' does not have to be obtained

through formal education or training."

9

of some emergency that might exist even in his own

mind or those sympathetic with the Defendant's view

about this country.

Thus, the district court concluded that Urban's mechanical

background and training when considered in light of his

own research and experimentation were sufficient to

demonstrate that he possessed a special skill capable of

facilitating the commission of the crime of possessing an

unregistered destructive device.

We must determine whether the acquisition of a special

skill in the construction of a destructive device, such as a

canister grenade, can be self-taught. Urban maintains that

an enhancement is appropriate only if the evidence shows

that the defendant received "substantial education,

training, or licensing."4 Urban correctly notes that

Sentencing Guideline S 5H1.2 recognizes that educational

and vocational skills are ordinarily not relevant in

calculating the applicable guideline range unless"a

defendant has misused special training or education to

facilitate criminal activity." United States Sentencing

Guideline S 5H1.2. He argues that S 3B1.3 should not be

applied in fixing his punishment because he never received

special training or education in the design of canister

grenades or destructive devices. No evidence was presented

that Urban received special demolition or explosives

training from the military or any source.

Urban maintains that this court's decision in United

States v. Hickman, 991 F.2d 1110 (3rd Cir. 1993) supports

his contention that he did not misuse special training or

education. We disagree.

In Hickman, a general contractor was convicted of

defrauding persons who paid him to construct a house that

was never built. Id. at 1111. The district court applied

_________________________________________________________________

4. Application No. 2 to Sentencing GuidelineS 3B1.3 reads as follows:

"Special skills refers to a skill not possessed by members of the general

public and usually requiring substantial education, training, or

licensing. Examples would include pilots, lawyers, doctors, accountants,

chemists, and demolition experts." United States Sentencing Guidelines

S 3B1.3 (Application n. 2) (1995).

10

S 3B1.3 because it found that the defendant had used his

special skill as a contractor in committing fraud. Id. at

1112-13. This court reversed because it concluded that the

fact that the defendant possessed a license did not

demonstrate the defendant's reliance on his training as a

contractor in perpetrating the fraud. Id. at 1112-13. Unlike

the historical facts presented to this court in Hickman, it is

undisputed that Urban used his combined skills and self

education to design and assemble the components of a

canister grenade.

The record shows that Urban developed his mechanical

skills through courses in industrial electronics,

refrigeration, and air-conditioning at a technical school. He

applied these skills as the sole owner of a business in

which he engaged in plumbing, heating, refrigeration, and

automotive and general repairs. In addition, Urban taught

himself how to design explosive devices such as canister

grenades.

During oral argument, Urban's counsel conceded that the

evidence was sufficient to show that Urban was a "self-

taught bomb maker." Urban's counsel argued, however,

that the special skills enhancement contained in S 3B1.3

did not apply to self-taught skills. He asks that we limit the

reach of S 3B1.3 to the types of skills expressly identified in

Application Note 2, each of which requires "substantial

education, training, or licensing." Section 3B1.3

(Application n.2) (1995). This argument ignores the use of

the words "usually requiring" that precede the language

"substantial education, training, or licensing." The use of

the word "usually" by the Sentencing Commission

demonstrates that it did not intend to preclude a trial judge

from finding, on a case-by-case basis, that a defendant has

obtained a special skill through life experience and self-

study.

In United States v. Spencer, 4 F.3d 115 (2d Cir. 1993),

the appellant argued that "he did not demonstrate any

special skill in his manufacture of methamphetamine

because he was a self-taught amateur." Id. at 120. In

rejecting this argument, the Second Circuit reasoned as

follows:

11

A special skill is one "usually requiring substantial

education, training, or licensing." See U.S.S.G. S 3B1.3,

comment. (n.2) (emphasis added). Because the

comment adds the word "usually," we find no basis for

limiting the increase to only those with formal

educations or professional skills. See United States v.

Hummer, 916 F.2d 186, 191 (4th Cir. 1990) (finding

that the use of the word "usually" in the note to

U.S.S.G. S 3B1.3 "implies that substantial training is

not a mandatory prerequisite to making a special skills

adjustment"), cert. denied, 499 U.S. 970, 111 S. Ct.

1608, 113 L.Ed.2d 670 (1991). [The appellant] presents

the unusual case where factors other than formal

education, training, or licensing persuade us that he

had special skills in the area of chemistry.

Id.

In United States v. Petersen, 98 F.3d 502 (9th Cir. 1996),

the Ninth Circuit concluded that the district court did not

err in determining that the defendant's computer abilities

supported a special skills enhancement notwithstanding

the fact that he had not had "formal training in computers."

Id. at 506. In United States v. Hubbard, 929 F.2d 307 (7th

Cir. 1991), the Seventh Circuit upheld the application of

S 3B1.3 based on the trial court's finding that the

defendant, an inventor, "had `through life's experiences

obtained the special ability to tamper with consumer

products.' " Id. at 191. We agree with our sister circuits that

a S 3B1.3 sentence enhancement is not limited to persons

who have received substantial formal education, training

from experts, or who have been licensed to perform a

special skill. See also United States v. Malgoza , 2 F.3d

1107, 1110-11 (11th Cir. 1993); United States v. Hummer,

916 F.2d 186, 191 (4th Cir. 1990).

The record shows that Urban used his mechanical skills,

life experience, and self education to invent a method of

molding the highly unstable TATP into "blocks of explosive

material." Therefore, we hold that the district court did not

err as a matter of law in concluding that S 3B1.3 is

applicable to a person who has developed a special skill

through self education and his or her work experience and

uses it to facilitate the commission of a crime.

12

The judgment of conviction and sentence will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

13