                                                                                                                           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Precedential or Non-Precedential: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

                               3
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

                               4
       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

                               5
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
