United States v. Introcaso

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

10-25-2007

USA v. Introcaso

Precedential or Non-Precedential: Precedential

Docket No. 05-4088

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-4088

UNITED STATES OF AMERICA

v.

ALEXANDER M. INTROCASO,

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 04-cr-00274)

District Judge: Honorable James K. Gardner

Argued April 24, 2007

Before: McKEE and AMBRO, Circuit Judges

ACKERMAN,* District Judge

*

Honorable Harold A. Ackerman, United States District

Judge for the District of New Jersey, sitting by designation.

(Opinion filed: October 25, 2007)

William T. Lawson, III, Esquire (Argued)

1420 Walnut Street

Philadelphia, PA 19102

Counsel for Appellant

Patrick L. Meehan

United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Chief of Appeals

Seth Weber (Argued)

Assistant United States Attorney

Office of the United States Attorney

504 West Hamilton Street

Allentown, PA 17901

Counsel for Appellee

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

2

“antique firearm” not subject to the general registration

requirement of the National Firearms Act, 26 U.S.C.

§§ 5801–72. A jury convicted Alexander M. Introcaso in the

United States District Court for the Eastern District of

Pennsylvania on two counts of violating the Firearms Act by

possessing an unregistered firearm (the shotgun) and

unregistered destructive devices (hand grenades). In addition to

Introcaso’s contention that the shotgun was an antique firearm,

he argues that the evidence presented at trial was insufficient to

prove that he was in possession of the hand grenades and that

the sentence imposed was unreasonable because the

Government failed to establish guilt on either count.

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).

3

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 26 U.S.C. § 5861(d). See

1

The Pennsylvania Protection from Abuse Act, 23 Pa. Cons.

Stat. Ann. §§ 6101–22, allows a plaintiff to obtain a PFA order

upon, inter alia, proof of abuse by a preponderance of the

evidence at a hearing. See 23 Pa. Cons. Stat. Ann. §§ 6107,

6108. A PFA order usually prohibits communication between

the plaintiff and the defendant, 23 Pa. Cons. Stat. Ann. §

6108(a)(6), and may, as here, entail other requirements.

4

also id. § 5845(a) (defining “firearm”), id. § 5871 (specifying

penalty).

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 submachine gun, an

M-14 rifle with a scope, a nine-millimeter pistol, two handguns,

and another rifle), plus several military-style ammunition boxes,

containing three live hand grenades and related components for

explosive devices (black gun powder and fuse wire). The latter

items were found inside a locked cabinet, for which the keys

that Mrs. Introcaso had given the police did not work, forcing

them to break open the lock (again with her consent). These

items form the basis for Count 2 of the indictment: possession

of unregistered destructive devices, also in violation of 26

U.S.C. § 5861(d). See also id. § 5845(f) (defining “destructive

device”), id. § 5871 (specifying penalty).

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

5

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

2

The District Court had subject matter jurisdiction over this

case under 18 U.S.C. § 3231. We have jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).

We review de novo a district court’s denial of a judgment

of acquittal pursuant to Rule 29. United States v. Flores, 454

F.3d 149, 154 (3d Cir. 2006). We must sustain the verdict if,

viewing the evidence in the light most favorable to the

Government, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Flores, 454

F.3d at 154; United States v. Jannotti, 673 F.2d 578, 598 (3d

Cir. 1982) (en banc).

6

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. If the language is unclear, we

attempt to discern Congress’ intent using the canons of statutory

construction.” United States v. Jones, 471 F.3d 478, 480 (3d

Cir. 2006) (citations, quotation marks, and brackets omitted).

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.

We review a district court’s refusal to grant a new trial

pursuant to Rule 33 for abuse of discretion. United States v.

Jasin, 280 F.3d 355, 360 (3d Cir. 2002). “Unlike an

insufficiency of the evidence claim, when a district court

evaluates a Rule 33 motion it does not view the evidence

favorably to the Government, but instead exercises its own

judgment in assessing the Government’s case.” United States v.

Johnson, 302 F.3d 139, 150 (3d Cir. 2002).

3

We exercise plenary review over issues of statutory

interpretation and are limited to giving effect to congressional

intent. United States v. Whited, 311 F.3d 259, 263 (3d Cir.

2002).

7

26 U.S.C. § 5841. “Firearm” is defined as follows:

(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.

26 U.S.C. § 5845(a) (emphasis added).4 For purposes of the

4

Possession of any unregistered “firearm” is a criminal act,

punishable by up to ten years’ imprisonment or fines not to

8

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.

26 U.S.C. § 5845(g).

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 § 5845(a)(1)–(2), subjecting

exceed $10,000. 26 U.S.C. §§ 5861(d) & 5871.

9

this gun to a registration requirement unless it met the

specifications of the antique-firearm exception.5

Introcaso argues that he was exempt from a registration

requirement because the definition of “antique firearm”

encompasses all pre-1899 guns for which fixed ammunition

specifically designed for that gun is no longer made or readily

available.6 For support, he cites the expert testimony of an ATF

5

We note that the ATF agent testified that the gun may have

been modified from its original design because it appeared to

have a shortened stock and shortened barrel muzzles. See App.

366, 370–71, 394. He was unsure whether it was in fact

modified, when, or by whom. See App. 394–95. In any event,

we need not address any implications of redesign, as this issue

is not before us. The Government did not at trial, and does not

on appeal, contend that the gun fails to fit the definition of

antique because it was “redesigned.”

6

Introcaso does not contend that the shotgun is a “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.” 26 U.S.C. § 5841(a). Nor is there any

indication that the Secretary has made—or, indeed, given the

Government’s position in this case, is likely to make—the

determination that the shotgun is primarily a collector’s item and

not likely to be used as a weapon. Accordingly, we consider

only whether the shotgun fits the “antique firearm” prong of the

exception.

10

agent who determined that the gun was manufactured between

1877 and 1893. See App. 366–67, 390–91. In addition, the

18.2-millimeter shot made for guns of this type is no longer

manufactured or readily available. See App. 396–97.7

7

An exchange between defense counsel and one ATF agent

highlights the central issue here:

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?

11

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.

12

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

precise question presented here.8 As the parties suggest, “for”

Back then they were paper shells,

but, basically, it was the same type

of shell . . . [but] [n]ot the identical

shell.

App. 396–97.

8

There is no dispute that the shotgun here uses fixed

ammunition; thus the first part of the definition in subsection

13

in the phrase “for which ammunition is no longer

manufactured,” § 5845(g), can be read two ways: in the sense of

“specifically designed for” (design) or “able to be used in”

(usability). If we read “for” to refer to design, that sense applies

to both predicate phrases: guns are antique if manufacturers

have stopped issuing ammunition of a specific design and if the

market likewise no longer provides ammunition (here shells) of

that design. The other reading would require us to understand

“for” in two different senses: guns are antique if manufacturers

have ceased to produce shells of a particular design for use in a

range of guns of a certain period (design) and if the market no

(g), referencing “rim fire,” does not apply. There is also no

dispute that this is not a weapon that the Treasury Secretary

already has designated as an antique; thus, the definition in

subsection (a) does not apply. Finally, as the Second Circuit

Court of Appeals has observed, while the phrase “any firearm

using fixed ammunition manufactured in or before 1898” is

potentially ambiguous because “‘manufactured in or before

1898’ could linguistically refer either to the firearm or to the

ammunition,” any doubt as to the meaning is resolved by “the

context and history of the provision[, which] make it clear that

the date refers to the time of manufacture of the gun.” United

States v. Tribunella, 749 F.2d 104, 109 n.2 (2d Cir. 1984); see

also id. (“[T]he insertion of 1898 in the then-pending legislation

was explained with the grammatically unambiguous statement

that it was intended to exempt ‘certain firearms using fixed

ammunition which were manufactured in 1898 or earlier.’”

(quoting 114 Cong. Rec. 14793 (1968) (remarks of Senator

Tower))).

14

longer has shells that can be used in these guns (usability). Id.

Although the first seems to us to be a better or more likely

reading, it does not reveal definitively congressional intent on

this matter.

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

15

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 guns to control violence and (2) avoiding placing

undue burdens on museums and gun collectors.9 The facts here

may be read to meet the concerns of both—the former from the

perspective of the Government viewing Introcaso as a violence-

prone gun owner, and the latter from the perspective of

Introcaso as a gun collector.

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,

9

For a detailed recitation of the Firearm Act’s legislative

history, see Thompson/Center, 504 U.S. at 516–17 (arguing that

the congressional purpose was to regulate weapons useful for

criminal purposes, but applied only to “such modern and lethal

weapons . . . as could be used readily and efficiently by

criminals or gangsters”) (quoting H.R. Rep. No. 90-1337, at

A395 (1954)).

16

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,

10

This Court is the only other Circuit Court to address our

issue in a precedential opinion. The Seventh Circuit Court has

addressed it in two non-precedential decisions on similar

facts—one of them relying on Tribunella. See United States v.

Turnbough, Nos. 96-2531, 96-2677, 114 F.3d 1992 (Table),

1997 WL 264475, at *3 (7th Cir. May 14, 1997) (non-published

order) (citing Tribunella, 749 F.2d at 108–11); United States v.

Hope, No. 93-2868, 56 F.3d 67 (Table), 1995 WL 309629, at *1

(7th Cir. May 18, 1995) (non-published order) (“The district

court expressly found at the sentencing hearing that the shotgun

was tested ‘using commercially available federal 10-gauge shot

shell[s],’ and that the test firing disclosed that the firearm was

‘capable of expelling a projectile by the action of an

explosive.’”).

17

“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 “[i]t is

more likely that Congress meant the word ‘for’ to have different

connotations in accordance with its context than that it used the

absolute word ‘not’ to denote the less absolute concept of ‘no

longer.’” Id. (emphasis added). Moreover, it acknowledged the

dual purposes behind the statute, id. at 110–11 (detailing the

statutory and legislative history), but determined that decreasing

18

gun violence was the “overriding concern.” Id. at 110. “If

ammunition made for other weapons is readily available in

commercial channels and is usable in a pre-1899 firearm,” it

reasoned, “it cannot safely be inferred that the pre-1899 firearm

is never likely to be used as a weapon.” Id. at 111. Therefore,

the Court concluded, the firearm exception “exclud[es] from the

definition of antique any firearm for which any usable

ammunition is readily available in ordinary channels of

commerce.” Id. at 109 (emphasis added).

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

19

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”).

20

As noted, the statutory text, history and legislative

purpose do not provide clarity, because they recognize opposing

interests in regulating guns that may be used for violence and in

avoiding placing burdens on gun collectors. With these

competing concerns, the question for us is what conduct

Congress intended to, and did, criminalize. “[B]ecause of the

seriousness of criminal penalties, and because criminal

punishment usually represents the moral condemnation of the

community, legislatures and not courts should define criminal

activity.” United States v. Bass, 404 U.S. 336, 348 (1971).

Thus, to criminalize possession of purported antique firearms

that may fit the technical definition of “firearm,” Congress must

have “‘spoken in language that is clear and definite.’” Jones v.

United States, 529 U.S. 848, 858 (2000) (quoting United States

v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221–22 (1952)).

Here, where we are left with “no more than a guess,” Ladner v.

United States, 358 U.S. 169, 178 (1958), as to what it was more

likely that Congress intended, we should resolve the case in

Introcaso’s favor. Because Congress did not declare clearly an

intent to impose a registration requirement on pre-1899 firearms

in which any modern ammunition is usable (in addition to or

instead of guns for which ammunition is specifically designed),

we apply the rule of lenity to conclude that Introcaso is not

liable for failing to register the firearm in question.11 We will

11

Moreover, we note that it was apparently impossible for

Introcaso to register this gun. According to the ATF agent, this

gun—like other 19th-Century guns—did not have a serial

21

therefore reverse his conviction and vacate his sentence on the

first count of the indictment.

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

number, and without one it could not be registered. See App.

400. Apparently in 1934 and in 1968 there was an amnesty

period during which Introcaso (or whoever was alive and in

possession of the gun at that time) would not have been

prosecuted had he brought in the gun for registration. Id. at

400–01. But “at this point in time, there’s no provision to

register a firearm that’s already manufactured, and governed by

the [Firearms Act].” Id. at 401 (ATF agent’s testimony).

22

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.”

Id. (quoting United States v. Iafelice, 978 F.2d 92, 96 (3d Cir.

1992) (citations omitted)). “Such dominion and control need

not be exclusive but may be shared with others.” United States

v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972). Mere proximity

is not enough to demonstrate constructive possession. United

States v. Jenkins, 90 F.3d 814, 818 (3d Cir. 1996) .

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

23

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

12

Introcaso also argues that proof of constructive possession

requires an affirmative act linking the accused to the contraband

24

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

item. In support of his argument, he cites United States v. Moye,

422 F.3d 207, 212–13 (4th Cir. 2005), erroneously stating that

it is a Third Circuit opinion following and elaborating upon

Brown. Appellant’s Br. at 14. Moye was a Fourth Circuit

opinion, and it was vacated by an en banc panel last year. 454

F.3d 390 (4th Cir. 2006) (en banc). The en banc opinion stated

no such “affirmative act” element of constructive possession,

and instead reiterated a standard similar to the one we

articulated in Ianelli: “Constructive possession is established if

it is shown ‘that the defendant exercised, or had the power to

exercise, dominion and control over the item.” Id. at 395

(citations omitted). The Court concluded that the circumstantial

evidence in that case sufficed to allow a jury to conclude that the

defendant, who never was seen with the gun on his person, was

nevertheless in constructive possession of it. Id. Moye thus

provides no support for Introcaso’s claims.

13

We review sentences for reasonableness. United States v.

Booker, 543 U.S. 220, 261 (2005); see also United States v.

Grier, 475 F.3d 556, 561 (3d Cir. 2007) (en banc).

Reasonableness review “merely asks whether the trial court

abused its discretion” in imposing a sentence. Rita v. United

States, 551 U.S. __, 127 S. Ct. 2456, 2465 (2007).

25

$2,000, and a special assessment of $200 (reflecting a

mandatory assessment of $100 on each count). The sentences

were to run concurrently. Though we reverse Introcaso’s

conviction and vacate his six-month sentence on the first count,

we affirm his conviction on the second count. Thus, it is

necessary for the Court to determine whether the sentencing

court’s imposition of a 46-month sentence on the second count

was reasonable.

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

14

We have interpreted Booker to require the following three

steps in the sentencing process:

26

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

(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 [18 U.S.C.]

§ 3553(a) factors in setting the sentence they

impose regardless whether it varies from the

sentence calculated under the Guidelines.

Gunter, 462 F.3d at 247 (internal citations, brackets, and

quotation marks omitted).

27

Count I do not affect his sentence under Count II.15 Our

15

The District Court assessed the base offense level to be 18

pursuant to U.S.S.G. § 2K2.1(a)(5) for violation of, inter alia,

§ 5845(a) of the Firearms Act. It added two points pursuant to

§ 2K2.1(b)(1)(A), for an offense involving three to seven

firearms, on the ground that Introcaso possessed one

unregistered shotgun and three hand grenades. The Court then

added another two points for possession of the three hand

grenades pursuant to § 2K2.1(b)(3)(B), resulting in a total

adjusted offense level of 22. This offense level—combined with

a criminal history category of I—corresponds to an

imprisonment range of 41 to 51 months, a supervised release

range of two to three years, and a fine range of $7,500 to

$75,000.

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.

28

decision to reverse Introcaso’s conviction and vacate his

sentence on the first count materially changes his sentence in

only one way: he was initially sentenced to a $200 mandatory

special assessment, reflecting an assessment of $100 on each

count. Because we are vacating the sentence on count one, the

mandatory special assessment should be $100, reflecting an

assessment on the second count only.

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.

29

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

30

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 §

5845(g) as “excluding from the definition of antique any firearm

for which any usable ammunition is readily available in ordinary

channels of commerce,” id. at 109, comports with the statute’s

plain text and congressional intent. Therefore, I must

respectfully dissent from the majority’s opinion regarding

Introcaso’s conviction for possession of an unregistered firearm.

31