                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2003

USA v. Jackman
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2027




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                                                  NOT PRECEDENTIAL


                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 02-2027
                          ________________________________

                            UNITED STATES OF AMERICA

                                             v.

                              DONALD G. JACKMAN, JR.

                                           Appellant

                    _______________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                                 (D.C. No. 00-cr-00072)
                    District Judge: Honorable Maurice B. Cohill, Jr.
                   _________________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                July 10, 2003

              Before: NYGAARD, SMITH, Circuit Judges, and IRENAS,
                                District Judge*

                                 (Filed : July 30, 2003)

                           __________________________

                             OPINION OF THE COURT
                          _____________________________



      * Honorable Joseph E. Irenas, Senior United States District Judge for the District
of New Jersey, sitting by designation.
SMITH, Circuit Judge.

I.     Introduction

       On April 12, 2000, a grand jury sitting for the Western District of Pennsylvania

returned a two count indictment against defendant Donald G. Jackman, Jr. Count one

charged Jackman as a felon in possession of twenty firearms in violation of 18 U.S.C. §§

922(g)(1) and 924(e)(1). Count two charged Jackman with violating 26 U.S.C. §§

5861(d) and 5871 by knowingly possessing a destructive device which was not registered

to him in the National Firearms Registration and Transfer Record as required under 26

U.S.C. § 5841. Jackman challenges his conviction as to count two, contending that the

prosecution failed to establish that he had the requisite intent. Count two, Jackman also

asserts, should have been dismissed because the government failed to preserve

exculpatory evidence and because there was prosecutorial misconduct. In addition,

Jackman submits that the District Court erred in several respects in sentencing him. We

do not agree and will affirm the District Court’s judgment.

II.    Facts and Procedural History

       According to count two of the indictment, the destructive device consisted of “a

cardboard tube approximately 6 inches in length containing explosive powder, encased in

metal roller bearings, with an ignition fuse[.]” It is undisputed that the device, referred to

as an improvised explosive device (“IED”), was made from a pest control device (“PCD”)

sold on the commercial market to deter geese and other wildlife by making a loud noise



                                              2
when its fuse is ignited. The PCD had been altered by adding an explosive powder

Pyrodex into an empty chamber and by gluing roller bearings to the outside of the PCD.

       The IED was seized, pursuant to a warrant, from the basement of Jackman’s

girlfriend’s home and placed in a “frag” bag for safekeeping after law enforcement

authorities detected the presence of a “powder line” inside the device.1 At the request of

the Bureau of Alcohol, Tobacco & Firearms (“BATF”), Officer Wessel with the

Allegheny County Police Department removed the powder in the IED to render the device

safe and so that it could be sent to a laboratory for analysis. The powder was removed by

drilling into the end of the device opposite from the fuse. The components were sent to

the BATF for analysis. Thereafter, the BATF returned the disassembled device, as well

as the residue from the chamber to which the Pyrodex had been added. Photographs were

taken of the device and its various components at different stages during its disassembly.

The powder, subsequently identified as the explosive Pyrodex, however, was never

weighed.

       Numerous pretrial matters, including a motion by the defense to determine

Jackman’s competency, caused trial to be delayed. The District Court ordered a

psychiatrist, Dr. Bernstein, to conduct an examination and evaluation of Jackman.

Pursuant to a request by separate counsel appointed to represent Jackman during the

pendency of this motion, a second psychiatrist, Dr. Wettstein, was also directed to


  1
   A suspected explosive device is placed in a “frag” bag so that it will contain any
fragmentation in the event the device explodes.
                                             3
examine and evaluate Jackman. After a hearing on the motion to determine competency,

the District Court found Jackman competent, granted the Public Defender’s motion to

withdraw and appointed defense counsel to represent Jackman.

       The District Court ordered that trial be bifurcated, because a single trial on both

counts one and two would have resulted in the jury being aware of Jackman’s past

criminal record. The court elected to first proceed to trial on count two. Before voir dire,

defense counsel had moved to dismiss count two of the indictment, contending that the

government’s failure to preserve certain evidence warranted dismissal. Photographs,

counsel acknowledged, had been provided of the destructive device before it was

disassembled, but the prosecution had neither preserved nor quantified the contents of the

alleged explosive device. Counsel argued that the IED had been destroyed in bad faith

because the government disassembled it before law enforcement authorities were even

sure that the IED violated the law.

       The prosecution denied that it had recklessly spoiled the evidence. It pointed out

that the IED had been disassembled to render it safe. While the Pyrodex had been

removed from the IED, the prosecution pointed out that defendant had access to

photographs of the device in various stage of its disassembly, copies of the laboratory

analyses, the remnants of the IED, as well as other components of the device for analysis.

Exemplars of the PCD that was altered, the prosecution noted, were also available

commercially for the defense to examine. The District Court denied the motion, citing



                                              4
the government’s need to render the device safe and to determine whether the device was

unlawful.

       At trial, BATF Explosives Enforcement Officer Lund, inter alia, testified that the

underlying commercial PCD was not illegal. The IED seized from Jackman’s residence

was illegal because it was designed to fragment upon explosion and such fragmentation

had the potential to cause injury. However, at the close of the evidence, Jackman again

moved to dismiss the indictment as to count two based on spoliation of the evidence, and

made several other objections. The District Court denied these motions.

       The jury returned a verdict of guilty as to count two. Thereafter, Jackman pled

guilty to the firearms offense charged in count one. At sentencing, Jackman objected to

the presentence report and sought several downward adjustments and departures. The

District Court denied Jackman’s motion and sentenced him to a term of imprisonment of

262 months at count one, to run concurrent with 120 months at count two.

       Jackman filed a timely appeal. The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. We exercise jurisdiction under 28 U.S.C. § 1291 and we review

Jackman’s sentence pursuant to 18 U.S.C. § 3742(a).

III.   Sufficiency of the Evidence as to Possession of a Unregistered Destructive Device

       Jackman alleges that the prosecutors failed to demonstrate that Jackman’s device

was not made for a legitimate use, i.e., to scare geese. Having thus failed, the

prosecution could not show that it had been redesigned for use as a weapon. With respect



                                             5
to Jackman’s sufficiency of the evidence challenge, our review is “highly deferential.”

United States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000). “We determine whether

there is substantial evidence that, when viewed in the light most favorable to the

government would allow a rational trier of fact to convict.” Government of the Virgin

Islands v. Charles, 72 F.3d 401, 410 (3d Cir. 1995).

       We have held that intent is not a required element for proving the existence of a

“destructive device” under 26 U.S.C. § 5845. See United States v. Urban, 140 F.3d 229,

234 (3d Cir. 1998). Rather, “the question of the possessor’s intent is relevant only when

the objective characteristics of the device demonstrate that it may not be a weapon.”

United States v. Johnson, 152 F.3d 618, 627 (7th Cir. 1998). Here the objective evidence

before the jury indicated that the device found was a weapon, even if it was not intended

as such. Expert testimony established the presence of explosive mixtures and explosives

in the device, some of which were added to the commercially available device. Roller

bearings were affixed by epoxy to the outside of the device and evenly spaced to provide

for uniform fragmentation. This had the potential to cause injury or death.

       Nonetheless, the prosecution did introduce circumstantial evidence of intent,

negating Jackman’s purported reason for fashioning the device. Jackman’s girlfriend,

with whom he was then living, testified that Jackman often fed cracked corn to geese at

the pond, that the geese did not give off the odor that purportedly motivated him to build

the device, and that Jackman had even told her that he could not hurt an animal. We



                                             6
believe this evidence, especially when considered in light of the substantial discretion

afforded to the juries who actually see and hear the testimony of the parties and witnesses

and can thereby more properly judge their credibility, is sufficient to support Jackman’s

conviction.

IV.    Spoliation of the Evidence

       Jackman challenges the prosecution’s “destruction” of the device in question. In

California v. Trombetta, 467 U.S. 479, 489 (1984), the Supreme Court held that the

government’s duty under the due process clause to preserve evidence is limited to

evidence that possesses both “an exculpatory value that was apparent before the evidence

was destroyed, and be of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.” Four years later, in Arizona

v. Youngblood, 488 U.S. 51, 58 (1988), the Supreme Court held that “unless a criminal

defendant can show bad faith on the part of the police, failure to preserve potentially

useful evidence does not constitute a denial of due process of law.” Thus, under

Youngblood and Trombetta, a defendant must show that the government “(1) acted in bad

faith when it destroyed the evidence, which (2) possessed an apparent exculpatory value

and, which (3) is to some extent irreplaceable.” United States v. Femia, 9 F.3d 990, 993-

94 (1st Cir. 1993).

       Accordingly, the “presence or absence of good or bad faith by the government will

be dispositive.” Id. at 994. Bad faith, as Youngblood instructed, “turn[s] on the police’s



                                             7
knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”

488 U.S. at 56 n.1; see Trombetta, 467 U.S. at 488 (observing that the record did not

contain any allegations of official animus toward the defendant or a conscious effort by

the police to suppress the exculpatory evidence).

       Here, Jackman contends that the government’s destruction of the cardboard tube

by drilling into it and the failure to weigh the contents of the Pyrodex deprived him of the

opportunity to test the evidence to determine that it was, in fact, a destructive device in

violation of the law. The government’s bad faith, according to Jackman, was evident

from the fact that it “destroyed the potentially exculpatory evidence at a time when it did

not even know whether the IED violated federal law.”

       The legal conclusions underlying the District Court’s denial of Jackman’s motion

to dismiss count two of the indictment based on the destruction of evidence are subject to

plenary review. We review the factual findings for clear error. United States v. Driscoll,

852 F.2d 84, 85 (3d Cir. 1988); see also United States v. Wright, 260 F.3d 568, 570 (6th

Cir. 2001) (review of motion to dismiss for failure to preserve exculpatory evidence

subject to de novo review).

       Jackman’s argument is not persuasive. Under Youngblood, Jackman had to

demonstrate bad faith, i.e., knowledge by the police “of the exculpatory value of the

evidence at the time it was . . . destroyed.” 488 U.S. at 56 n.1. No such showing has

been made. Instead, Jackman simply relies on the sequence of events surrounding the



                                              8
IED’s seizure and incapacitation to establish bad faith. This sequence of events, without

more, fails to demonstrate bad faith, an official animus towards Jackman or even a

conscious effort to frustrate Jackman’s defense. Accordingly, the District Court

appropriately denied Jackman’s motion to dismiss count two of the indictment.

       Because the prosecution met its burden of proof by introducing evidence regarding

the design of the destructive device and because it was not required to prove intent, see

supra, § III (citing Urban, 1440 F.3d at 234), Jackman cannot demonstrate that the

evidence possessed an apparent exculpatory value. Moreover, Jackman fails to recognize

that while the IED’s intact cardboard tube and the weight of the Pyrodex were no longer

available, there was ample evidence at his disposal for analysis. Such evidence included

not only similar commercially available PCDs constructed of cardboard tubes, but also

the remains of the IED after it was disassembled, the photographs of the IED and its

components taken during various stages of its disassembly, and the commercially

available PCDs, Pyrodex, epoxy and roller bearings. Because the PCD was commercially

available, similar PCDs could have been analyzed to determine the strength of the

cardboard tube, the dimensions of the empty chamber in the PCD, the volume of the

empty chamber in the PCD, and the quantity of powder required to fill the empty

chamber. As a result, Jackman cannot satisfy the third prong of the Trombetta

Youngblood test, that is, that he was unable to obtain comparable evidence by other

reasonably available means. Trombetta, 467 U.S. at 489.



                                             9
V.     Prosecutorial Misconduct

       In her opening statement, the prosecutor stated that “the [it]ems themselves about

which you will hear testimony . . . are explosives or chemicals used to make explosives

devices. Those are the types of things, I’m sure you’ll understand, you may not

necessarily get to see in the courtroom . . . .” Jackman alleges that this statement was

prejudicial because it purportedly suggested to the jury that the Judge had already decided

an element of the crime, specifically that these materials were explosives, to Jackman’s

detriment.

       Viewing the prosecutor’s comment in the “context” of the overall trial, United

States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995), we believe that Jackman was not

“unfairly prejudiced” by these remarks. United States v. Young, 470 U.S. 1, 11-12

(1985). First, the inference that Jackman would have us believe the jury drew from the

prosecutor’s isolated statement is tenuous at best. One wonders whether such a thought

even crossed a juror’s mind. Nonetheless, Jackman’s counsel had the opportunity to

explain “that the Court’s policies are that we, [sic] whenever there is an allegation of

something that is dangerous, whether it is or not, it can’t be brought into the courtroom.”

Furthermore, Jackman’s counsel himself referred to the powder in question as “explosive

powder” during the trial. In fact, Jackman essentially conceded the powders had

“explosive” qualities, but asserted that the powder was not present in sufficient quantities

to actually create a harmful explosion. As noted supra, there is no question that the



                                             10
prosecution produced sufficient evidence to prove the IED was a destructive device under

§ 5845(f). There was no prosecutorial misconduct.

VI.    The District Court’s Sentencing Decisions

       Finally, Jackman challenges certain aspects of the sentence imposed by the District

Court. First, Jackman argues that the District Court erred in denying him several

downward departures from the sentence called for by the Guidelines. He asserts he was

entitled to a departure on account of his diminished mental capacity under U.S.

Sentencing Guidelines Manual § 5K2.13. Furthermore, he asserts that the Guidelines

calculation significantly over-represented his criminal history, entitling him to the

departure available under Guidelines § 4A1.3.

       Where a district court is aware that the Guidelines grant it the authority to depart

downward under the circumstances, but exercises its discretion and chooses not to, “we

have no jurisdiction to review its decision.” United States v. Powell, 269 F.3d 175, 179

(3d Cir. 2001). The record reflects that the District Court was aware that Jackman had

some mental issues,“suggest[ing] that he be placed where he can receive mental health

counseling” in his sentencing order. Nonetheless, at sentencing, and in denying the

departure available under § 5K2.13, the District Court specifically stated Jackman had not

“successfully borne the burden of establishing a significantly reduced mental capacity by

a preponderance of the evidence.” In response to Jackman’s counsel’s assertion that the

Guidelines overstated Jackman’s criminal history, the District Court stated:



                                             11
              Well, with respect to the criminal history, there were some
              minor offenses in there, but I counted, in the presentence
              report, seven convictions and twelve other – so-called other
              arrests as they are called in the presentence report, and five of
              those he was found guilty, some were dismissed, but certainly
              he’s got a lengthy and numerous criminal history.

Because the record demonstrates that both of these decisions were based on the District

Court’s view of the evidence before it that Jackman did not deserve these departures, we

lack jurisdiction to consider the merits of Jackman’s arguments.

       Jackman also asserts that his case “fall[s] outside the heartland of cases” which

have adequately been taken into consideration by the Sentencing Commission in

formulating the guidelines. Koon v. United States, 518 U.S. 81, 98 (1996). Responding

to the Supreme Court’s decision in Koon, the Sentencing Commission adopted § 5K2.0,

now explicitly recognizing this basis for departure. See U.S. Sentencing Guidelines

Manual § 5K2.0, cmt. (2001). Unlike his other arguments, which are based on an

assertion that the District Court erred in failing to grant a departure for which the

Guidelines specifically provide, Jackman argues that the District Court erred in failing to

recognize that the specific facts of his case are so “atypical” that the Guidelines as a

whole do not cover the particulars of his case. Koon, 518 U.S. at 99-100. Jackman

argues that his “objectively reasonable” belief that his actions were legal, caused by the

combination of his purportedly diminished mental capacity and his receipt of a certificate

from North Carolina supposedly restoring his rights of gun ownership, makes this an

“unusual” case calling for a departure from the applicable Guideline. Id. The Supreme

                                             12
Court has stated that, generally, “[t]hese considerations are factual matters.” Id. at 100.

       Although the District Court did not specifically discuss its ability to depart

downward pursuant to Guidelines § 5K2.0 in its sentencing colloquy, the District Court

plainly rejected the suggestion that there was anything “atypical” about Jackman’s case,

precluding its ability to depart downward under the Guideline. See id. at 100. As noted,

the District Court did not believe that Jackman had “a significantly reduced mental

capacity.” Furthermore, the District Court did not believe that the purported restoration

of Jackman’s rights was significant because, on its face, the certificate did not apply to an

individual in Jackman’s circumstances. To emphasize this point, the District Court

specifically took time at the end of the sentencing hearing to read into the record the

certificate from the State of North Carolina purportedly restoring Jackman’s right to own

firearms. This certificate contained a specific “exception of the right to own, possess,

receive, buy or otherwise acquire firearms” placing felons on notice that such rights may

continue to be precluded for a period of five years. Jackman’s arrest occurred just over

three years after the date on this certificate.

       Because the District Court rejected the “particular factor[s]” that Jackman

contends “make the case atypical,” Koon, 518 U.S. at 100, the record reflects the District

Court’s belief that there was nothing unusual about Jackman’s case. Therefore,

Jackman’s case could not permit the application of the “heartland” exception to

downward depart. Because these predicate findings are not clearly erroneous, the District



                                                  13
Court’s refusal to grant this departure will be affirmed.

       Finally, Jackman argues that although his case went to trial on count two, after the

jury convicted him, he accepted responsibility for and pled guilty to count one. Jackman

contends the District Court erred in denying him the corresponding two-level reduction in

his base offense level. We review the denial of a downward adjustment for acceptance of

responsibility for clear error. United States v. Muhammad, 146 F.3d 161, 167 (3d Cir.

1998). “In practice, the ‘clearly erroneous’ standard requires the appellate court to uphold

any district court determination that falls within a broad range of permissible

conclusions.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400 (1990).

       After the jury convicted Jackman on count two, he pled guilty to count one.

Nonetheless, the record indicates that Jackman pled guilty to count one not because of the

sudden onset of a feeling of responsibility, but merely because he felt he could not win.

In his final statement to the District Court, Jackman never accepted any responsibility for

his conduct. He claimed that things had been “twisted” against him and attributed his

illegal possession of the firearms to the government’s failure to inform him “if a purchase

I made puts me in violation of the law.” The record indicates that the District Court’s

denial of that reduction was entirely appropriate.

VII.   Conclusion

       The judgment of the District Court will be affirmed.




                                             14
TO THE CLERK:

      Please file the foregoing Opinion.

                                 BY THE COURT:

                                 /s/ D. Brooks Smith
                                 Circuit Judge

Date: July 30, 2003




                                           15
