                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4136


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAMES EDWARD GOFF,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James C. Turk, Senior
District Judge. (1:11-cr-00025-JCT-PMS-1)


Argued:   December 7, 2012                 Decided:   February 11, 2013


Before NIEMEYER, KING, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:    Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Abingdon, Virginia, for Appellant.      Albert Pilavin
Mayer, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia,
for Appellee.     ON BRIEF: Larry W. Shelton, Federal Public
Defender, Roanoke, Virginia, for Appellant.   Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia, Zachary T. Lee,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        On    October       17,     2010,    Appellant         James     Edward    Goff,   a

convicted          felon    and    resident     of       Tazewell      County,     Virginia,

arrived       at    his    mother’s      home   in       Richlands,      Virginia.      Goff

unloaded three cardboard boxes from his vehicle and cautiously

carried them into a shed at the back of his mother’s property.

The shed was a dilapidated, wooden structure with a tin roof and

at least one broken window.                  The property abutted William Cole,

Jr.’s property, and when Goff arrived, Cole was on his back

porch grilling steaks.                  Cole observed Goff’s transfer of the

boxes and noticed that one of the boxes had wires the size of an

“ink pen filler” stringing out of its top.

      The         next     day,    Cole,     believing         that    the    three   boxes

contained blasting caps, peered through the window of the shed,

observed three boxes of Hercules brand static resistant blasting

caps, and called 911.                   When officers arrived and entered the

shed, they confirmed that the boxes did indeed contain blasting

caps.

      The government subsequently charged Goff with knowingly and

intentionally possessing blasting cap explosives as a convicted

felon,       in    violation       of   18   U.S.C.      § 842(i)(1),        and   knowingly

storing blasting cap explosives in a manner not in conformity

with regulations promulgated by the Attorney General pursuant to

18   U.S.C.        § 847,     in    violation       of    18    U.S.C.    § 842(j).        On

                                                2
November 7, 2011, a jury convicted Goff of both counts.                  Post-

trial, Goff filed a motion seeking judgment of acquittal on both

counts or, in the alternative, a new trial on any remaining

count.    The district court denied the motion in its entirety.

Goff now appeals this denial, and we affirm.



                                        I.

     We   first   address   the    district    court’s   denial    of   Goff’s

motion for judgment of acquittal, reviewing such denial de novo.

United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011).

Three issues are before us: (1) whether the government presented

sufficient evidence to convict Goff of both counts, (2) whether

Goff’s indictment on Count Two adequately informed him of the

nature of the charge, and (3) whether the statutory regulations

under which Goff was charged on Count Two are unconstitutionally

vague.



                                        A.

     Goff     alleges   that      the    government   failed      to    present

sufficient evidence to convict him of his charges because it

failed to prove “an essential element” of each count—namely,

“that the items recovered from the shed met the definition of an

explosive.”



                                        3
     Count One of Goff’s indictment charged him with violating

18 U.S.C. § 842(i)(1), which makes it unlawful for a felon “to

receive    or     possess      any    explosive       which    has    been       shipped    or

transported       in   or     affecting     interstate        or   foreign        commerce.”

Count Two charged him with violating 18 U.S.C. § 842(j), which

makes   it      unlawful      for    “any      person    to    store       any    explosive

material     in    a     manner      not       in   conformity       with        regulations

promulgated by the Attorney General.”

     Per 18 U.S.C. § 841(d), an “explosive” is “any chemical

compound mixture, or device, the primary or common purpose of

which is to function by explosion.”                   18 U.S.C. § 841(d).              “[T]he

term includes, but is not limited to, dynamite and other high

explosives . . . [and]            detonators . . . .”                Id.     Further,           a

“detonator” is “any device containing a detonating charge that

is used for initiating detonation in an explosive.”                                § 841(f).

This term “includes, but is not limited to, electric blasting

caps of instantaneous and delay types, blasting caps for use

with safety fuses[,] and detonating-cord delay connectors.”                               Id.

     Goff contends that the government failed to prove either

charged    count       because      it   did    not   present      evidence        that    his

blasting caps “contained a detonating charge.”                         In effect, Goff

maintains    that      the     government       proved   only      that     he     possessed

blasting     caps,      not    that      the    blasting      caps     would      or    could

explode.        And without such proof, Goff argues, the government

                                               4
failed      to    demonstrate         that    the        caps     were   detonators       or

explosives.        We disagree.

       In United States v. Markey, 393 F.3d 1132 (10th Cir. 2004),

the Tenth Circuit addressed an issue similar to the one that

Goff   raises       here.        In    Markey,      the        government     charged    the

defendant        with     unlawful        possession        of     dynamite,     and     the

defendant        argued     that      because       he     reasonably       believed     the

dynamite in his possession was incapable of exploding, he did

not knowingly possess explosives as required for a conviction

pursuant to 18 U.S.C. § 842(i)(1).                        Markey, 393 F.3d at 1136.

The Tenth Circuit rejected the defendant’s argument, however,

reasoning that because the definition of “explosive” includes

the words “primary or common purpose,” § 841(d), the operative

inquiry regarding proof involves “a device’s intended and usual

use—not its actual capability,” Id.                         Thus, it held that the

government “need not show that a device is actually able to

explode     to     prove    that      a    defendant        knowingly       possesses    an

explosive under § 842(i)(1).”                 Id.        Rather, “it need only prove

that the defendant knew he possessed dynamite or other chemical

compound,        mixture,   or     device     that       was    primarily     designed    to

function by explosion.”            Id.

       Here, the district court relied on Markey to deny Goff’s

motion for judgment of acquittal, but Goff contends that his

case   is    distinguishable           from     Markey         because   in    Markey    the

                                              5
general definition of “explosive” applied, and here, the more

specific definition of “detonator” applies.                            He notes that the

definition     of    “detonator”         requires    a     device       to    “contain[]    a

detonating charge.”

      Goff is correct that the definition of “detonator” includes

the phrase “containing a detonating charge,” but the application

of   the    statute       that    Goff     presses    is    incompatible           with   the

statute as a whole.               Detonators are a type of explosive, see

§ 841(d),      and        explosives       are     devices        that        “function    by

explosion,”         not        just      devices      that         contain         explosive

capabilities, see Markey 393 F.3d at 1136.                        We decline to single

out one type of explosive (i.e., detonators) by holding that

they can be classified as such only when retaining an ability to

detonate.          Such    a    ruling     would    be   absurd         and    contrary    to

Congress’s     apparent         intent.      Griffin       v.    Oceanic       Contractors,

Inc., 458 U.S. 564, 575 (1982) (“[I]nterpretations of a statute

which      would    produce       absurd     results       are     to    be     avoided    if

alternative        interpretations          consistent          with    the     legislative

purpose are available.”).

      We cannot believe that Congress set out to police a myriad

of dangerous explosives regardless of their explosive power but

considered the policing of detonators necessary only when they

actually possess an ability to detonate.                         Nor are we ready to

require     that     the       government    discharge          stashes       of   recovered

                                             6
blasting caps so that they can effectively prosecute felons who

store these caps.     Such a ruling would be ridiculous indeed.

Thus, because we cannot countenance the statutory construction

that Goff proposes, we affirm the district court’s decision to

deny his motion for judgment of acquittal on that basis.



                                    B.

     Goff next contends that Count Two of his indictment lacked

sufficient specificity.    As noted above, Count Two charged Goff

with violating 18 U.S.C. § 842(j), which states, “It shall be

unlawful for any person to store any explosive material in a

manner not in conformity with regulations promulgated by the

Attorney General.”   Goff’s indictment for Count Two reads,

     1.    On or about October 18, 2010, in the Western
     District of Virginia and elsewhere, JAMES EDWARD GOFF
     knowingly stored explosives in a manner not in
     conformity   with   regulations  promulgated  by  the
     Attorney General pursuant to Title 18, United States
     Code, Section 847, namely, 3 boxes of Hercules
     Superdet   static-resistant  delay  electric blasting
     caps.

     2.   All in violation of Title 18, United States Code,
     Section 842(j).

Goff avers that his indictment’s “bare allegation of regulatory

non-compliance   without   either       a   reference   to   a   particular

regulation, or a factual recitation of the alleged violation

conduct, was inadequate under the Fifth and Sixth Amendments”

and Federal Rule of Criminal Procedure 7(c).

                                    7
     The    Fifth    and    Sixth    Amendments       form    the   basis    of   our

insistence that the government include a level of specificity in

its indictments.          The Fifth Amendment prohibits the government

from prosecuting a defendant for an infamous crime (i.e., crimes

punishable by imprisonment for more than one year, see Green v.

United   States,     356   U.S.   165,     183     (1958),    overruled     on   other

grounds by Bloom v. Illinois, 391 U.S. 194 (1968)), except “on a

presentment or indictment of a Grand Jury,” U.S. Const. amend.

V.   The Sixth Amendment provides a defendant the right “to be

informed of the nature and cause of the accusation” against him,

U.S. Const. amend. VI; see also Fed. R. Crim. P. 7(c) (“The

indictment . . . must be a plain, concise, and definite written

statement    of     the    essential       facts    constituting     the     offense

charged . . . .       For each count, the indictment . . . must give

the official or customary citation of the statute . . . or other

provision    of     law    that     the    defendant     is    alleged      to    have

violated.”).      In short, to ensure constitutional guarantees are

met, “[a]n indictment must contain the elements of the offense

charged, fairly inform a defendant of the charge, and enable the

defendant to plead double jeopardy as a defense in a future

prosecution for the same offense.”                  United States v. Daniels,

973 F.2d 272, 274 (4th Cir. 1992).

      Goff’s        indictment       was       sufficient      to    afford       him

constitutional protection.           The indictment included the elements

                                           8
of    his    offense—namely,        “knowingly         stor[ing]    explosives          in   a

manner not in conformity with regulations promulgated by the

Attorney General,” and notified him of his charge—violating 18

U.S.C. § 847—such that he could prepare an adequate defense and

sufficiently plead double jeopardy if prosecuted a second time

for    the    same      crime.       We    recognize       that     the    government’s

indictment        fails    to    include     much      detail.      Nevertheless,            we

decline to adopt Goff’s view that “the allegation of regulatory

non-compliance          was     completely    unclear.”          Our   review      of    the

Attorney      General’s        regulations       indicates     that    the      provisions

addressing the storage of explosives are few and certainly not

so extensive as to deny Goff the ability to craft an adequate

defense      to   his     charge.     Thus,       we   again     affirm   the     district

court’s denial of Goff’s motion for judgment of acquittal as to

this issue.



                                             C.

       Next, Goff maintains that the Attorney General’s storage

regulations        are        unconstitutionally         vague.           The     Attorney

General’s regulations regarding the storage of explosives are

found in 27 C.F.R. § 555.202–203.                      Section 555.202 delineates

the classes of explosives and reads:

            For      purposes of this part, there are three
       classes       of  explosive materials. These classes,


                                             9
     together with the description of explosive materials
     comprising each class, are as follows:

          (a) High explosives. Explosive materials which
     can be caused to detonate by means of a blasting cap
     when   unconfined,   (for  example,   dynamite,    flash
     powders, and bulk salutes). See also § 555.201(e).

          (b) Low explosives. Explosive materials which can
     be caused to deflagrate when confined (for example,
     black powder, safety fuses, igniters, igniter cords,
     fuse lighters, and “display fireworks” classified as
     UN0333, UN0334, or UN0335 by the U.S. Department of
     Transportation regulations at 49 CFR 172.101, except
     for bulk salutes).

          (c) Blasting agents. (For example, ammonium
     nitrate-fuel oil and certain water-gels (see also
     § 555.11)).

27 C.F.R. § 555.202.     In turn, § 555.203 outlines the method of

storage for each explosive class:

     For purposes of this part, there are five types of
     magazines. These types, together with the classes of
     explosive materials, as defined in § 555.202, which
     will be stored in them, are as follows:

     (a) Type     1 magazines. Permanent magazines for the
     storage of    high explosives, subject to the limitations
     prescribed   by §§ 555.206 and 555.213. Other classes of
     explosive    materials may also be stored in type 1
     magazines.

     (b) Type 2 magazines. Mobile and portable indoor and
     outdoor magazines for the storage of high explosives,
     subject to the limitations prescribed by §§ 555.206,
     555.208(b), and 555.213. Other classes of explosive
     materials may also be stored in type 2 magazines.

     (c) Type 3 magazines. Portable outdoor magazines for
     the   temporary  storage   of high explosives  while
     attended (for example, a “day-box”), subject to the
     limitations prescribed by §§ 555.206 and 555.213.
     Other classes of explosive materials may also be
     stored in type 3 magazines.

                                 10
       (d) Type 4 magazines. Magazines for the storage of low
       explosives, subject to the limitations prescribed by
       §§ 555.206(b), 555.210(b), and 555.213. Blasting
       agents may be stored in type 4 magazines, subject to
       the   limitations    prescribed    by  §§    555.206(c),
       555.211(b), and 555.213. Detonators that will not mass
       detonate may also be stored in type 4 magazines,
       subject    to    the     limitations    prescribed    by
       §§ 555.206(a), 555.210(b), and 555.213.

       (e) Type 5 magazines. Magazines for the storage of
       blasting agents, subject to the limitations prescribed
       by §§ 555.206(c), 555.211(b), and 555.213.

§ 555.203.       Finally,       §§ 555.207–211       outline       the       construction

guidelines for each type of magazine.

       “A statute is impermissibly vague if it either (1) ‘fails

to     provide      people    of    ordinary       intelligence          a     reasonable

opportunity      to   understand        what    conduct    it     prohibits’        or    (2)

‘authorizes      or    even     encourages       arbitrary      and   discriminatory

enforcement.’”        United States v. Shrader, 675 F.3d 300, 310 (4th

Cir. 2012) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)).

Notably, in applying these standards, we have never required

that     a   statute     speak     with        “perfect    clarity           and    precise

guidance.”       Ward    v.     Rock    Against    Racism,      491   U.S.         781,   794

(1989).      Instead, we ask simply whether a statute’s provisions

are articulated “in terms that the ordinary person exercising

ordinary     common     sense    can    sufficiently       understand         and    comply

with.”       U.S.     Civil     Serv.    Comm’n    v.     Nat’l    Ass’n       of    Letter

Carriers, 413 U.S. 548, 579 (1973).


                                           11
       We   cannot    deny     that    under    certain       circumstances,    the

Attorney General’s regulations might cause an ordinary person

exercising ordinary common sense some confusion.                    Nevertheless,

in this case, we need not engage in a lengthy discussion of

whether the guidelines were sufficiently clear.                  Goff stored his

blasting caps in cardboard boxes inside a dilapidated shed on

his mother’s property.           As explained below, a cursory read of

the Attorney General’s regulations would have informed Goff that

storing blasting caps in this manner was woefully inadequate.

       Assuming,     without   deciding,       that   under    § 555.202,   Goff’s

blasting    caps     qualified    as   “low     explosives”      (the   type   that

requires the least stringent storage), he should have stored

them in a type 4 magazine.             And we need not delve deeply into

the parameters of type 4 magazines to determine that Goff did

not comply.        Section 555.210 describes both indoor and outdoor

type    4   magazines    as    “fire-resistant”        and     “theft-resistant.”

Needless to say, Goff’s mother’s shed, a “board structure” with

a tin roof and at least one broken window, does not qualify as a

type 4 magazine.        Accordingly, without further analysis, we can

affirm the district court’s denial of Goff’s motion for judgment

of acquittal on this basis as well.




                                        12
                                         II.

     Next,    we    address     the    district      court’s     denial   of    Goff’s

motion for a new trial.            We review the denial of such motions

for abuse of discretion.           United States v. Smith, 451 F.3d 209,

216 (4th Cir. 2006).            Goff founded his request for a new trial

on the district court’s failure to give jury instructions that

he requested.       Specifically, he avowed that the court failed to

properly   instruct       the   jury    on   the     statutory    elements      of    his

charges.     “[W]e conduct a de novo review of any claim that jury

instructions       incorrectly     stated      the    law.”      United   States       v.

Mouzone, 687 F.3d 207, 217 (4th Cir. 2012).



                                          A.

     With respect to Count One, the district court instructed

the jury that “[t]o find the defendant guilty of this charge,

the government must prove . . . that the defendant knowingly and

intentionally       possessed         explosives,      as     described        in     the

indictment.”        The   court    further      instructed       that   “[t]he       word

‘knowingly,’ as used in [C]ount [O]ne of the indictment, means

that the defendant acted intentionally and voluntarily and not

by accident, mistake, or carelessness.”                  Goff contends here, as

he did in his motion, that the court should have instructed that

the government had to prove he knew he possessed items that

qualified as explosives or detonators under the statute.                            Thus,

                                          13
the crux of Goff’s concern is the mental state required for a

violation of 18 U.S.C. § 842(i)(1).

     We determine the mental state required for the commission

of a federal crime by examining the construction of the relevant

statute and Congress’s intent in enacting the statute.                             United

States v. Balint, 258 U.S. 250, 252–53 (1922).                       Where, as here,

a statute is silent as to a required mental state, we must

determine    whether    to    “construe        the    statute      in    light    of   the

background rules of the common law, in which the requirement of

some mens rea for a crime is firmly embedded” or to categorize

the regulated conduct as a public welfare offense.                             Staples v.

United States, 511 U.S. 600, 605–06 (1994) (emphasis omitted)

(citation omitted).         Public welfare offenses require no mens rea

and are a means by which Congress “impose[s] a form of strict

criminal    liability       through   statutes        that    do    not    require     the

defendant to know the facts that make his conduct illegal.”                            Id.

at 606.

     There is wisdom in limiting the catalogue of public welfare

offenses.      See    id.     at   607.        Thus,    the     Supreme        Court   has

generally    confined       such   offenses      to    statutes         that    “regulate

potentially harmful or injurious items.”                     Id.    Indeed, imputing

strict    liability    to    defendants        who    possess      dangerous      objects

makes good sense:



                                          14
        [A]s long as a defendant knows that he is dealing with
        a dangerous device of a character that places him “in
        responsible relation to a public danger,” he should be
        alerted to the probability of strict regulation,
        and . . . [should        bear]        the        burden
        [of] . . . “ascertain[ing] at his peril whether [his
        conduct] comes within the inhibition of the statute.”

Id. (fifth alteration in original) (citation omitted) (quoting

United States v. Dotterweich, 320 U.S. 277, 281 (1943); Balint,

258 U.S. at 254).

       Here, Goff primarily relies on the Supreme Court’s decision

in Staples v. United States, where it declined to categorize a

violation of 26 U.S.C. § 5861(d), which prohibits the possession

of an unregistered firearm (as defined in § 5845), as a public

welfare offense.      See 511 U.S. at 619.        The Court held that the

government could not simply prove that the defendant knowingly

possessed a dangerous weapon.           Id.     Instead, it had to prove

that    the   defendant   knew   his   weapon   fit   within   the   statutory

definition of a firearm such that it had to be registered.                Id.

Goff contends that the statute he violated is similar to the

statute in Staples and that the government needed to prove that

he knew his blasting caps qualified as explosives or detonators

as defined by 26 U.S.C. § 842.         We disagree.

       The reasoning that supported the Court’s treatment of the

statute in Staples does not neatly apply to the statute at issue

here.     In Staples, the statute at issue regulated private gun

ownership, an activity that is “widespread” and that has been

                                       15
long-recognized as lawful.          Id. at 610.            Such is not the case

with explosives and detonators.                Moreover, whereas “[g]uns in

general are not ‘deleterious devices or products or obnoxious

waste materials’ that put their owners on notice that they stand

‘in responsible relation to a public danger,’” Staples, 511 U.S.

at 610–11 (citation omitted) (quoting United States v. Int’l

Minerals & Chem. Corp., 402 U.S. 558, 565 (1971); Dotterweich,

320 U.S. at 281), the same cannot be said for blasting caps.

Thus,   we    conclude     that   Goff   had    sufficient      notice   of     “the

probability of strict regulation,” Staples, 511 U.S. at 607, and

that he was responsible for “ascertain[ing] at his peril whether

[his conduct was] within the inhibition of the statute,” Balint,

258 U.S. at 254.          Accordingly, we hold that the district court

did not err in instructing the jury that the government needed

to prove only that Goff knew he possessed blasting caps.



                                         B.

     Similar to his argument regarding the mens rea requirement

for Count One, Goff argues that on Count Two, the district court

erred in failing to instruct the jury that the government had to

prove Goff knew the manner in which he stored the blasting caps

was illegal and unauthorized.            Again, Goff seeks to use Staples

to   his     advantage,    and,   again,       we   hold    that   the   case     is

inapposite.      By possessing dangerous objects such as blasting

                                         16
caps, Goff had ample notice that his conduct was regulated, and,

therefore, the burden of ascertaining and complying with the

Attorney General’s storage regulations was his to bear.               Thus,

the district court properly declined to instruct the jury that

the government did not need to prove that Goff knew the manner

in which he stored the blasting caps was illegal.

     In   sum,    we   conclude   that    the   district   court   properly

instructed the jury on both counts and did not err in denying

Goff’s motion for a new trial based on faulty jury instructions.



                                   III.

     We have reviewed Goff’s contentions that the district court

improperly denied his motion for judgment of acquittal or, in

the alternative, for a new trial, and we find his arguments

lacking in merit.        Therefore, we affirm the judgment of the

district court.

                                                                   AFFIRMED




                                    17
