                                                                                                                           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Precedential or Non-Precedential: Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Introcaso" (2007). 2007 Decisions. Paper 283.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/283


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                           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
