US v. James Goff, No. 12-4136 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4136 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES EDWARD GOFF, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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, felon and resident convicted arrived at his mother s Appellant James of in home Tazewell Edward County, Richlands, Goff, a Virginia, 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 2 of 18 U.S.C. § 842(j). On 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 transported in or any explosive affecting which interstate has or been shipped foreign or commerce. Count Two charged him with violating 18 U.S.C. § 842(j), which makes it material unlawful in a for manner any not person in to store conformity any with explosive 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 blasting caps contained a detonating charge. maintains that the blasting caps, not explode. government that the proved only blasting his In effect, Goff that caps that he would possessed or could And without such proof, Goff argues, the government 4 failed to demonstrate explosives. that the caps were detonators or 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. defendant with defendant argued In Markey, unlawful that the possession because government of he charged dynamite, the the believed reasonably and 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 explosive under § 842(i)(1). Id. knowingly possesses an Rather, it need only prove that the defendant knew he possessed dynamite or other chemical compound, mixture, or function by explosion. device that was primarily designed to 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 5 because in Markey the general definition of explosive applied, and here, the more specific definition of detonator applies. definition of detonator requires a He notes that the 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 statute as a whole. § 841(d), and explosion, Goff presses incompatible with the Detonators are a type of explosive, see explosives not is just are devices devices that that function contain capabilities, see Markey 393 F.3d at 1136. by explosive 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 Congress s a ruling apparent would intent. be absurd Griffin v. and Oceanic contrary to Contractors, Inc., 458 U.S. 564, 575 (1982) ( [I]nterpretations of a statute which would alternative produce absurd interpretations results are consistent to with be the avoided if 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. require that the government discharge 6 Nor are we ready to stashes of recovered 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 charged . . . . essential facts constituting the offense For each count, the indictment . . . must give the official or customary citation of the statute . . . or other provision of violated. ). law that the defendant is alleged to have 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 constitutional protection. was sufficient to afford him 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 indictment crime. fails to We recognize include much that detail. the government s Nevertheless, we decline to adopt Goff s view that the allegation of regulatory non-compliance Attorney was General s completely unclear. regulations indicates Our that review the of 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 classes purposes of this part, there are three 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 storage of prescribed explosive magazines. 1 magazines. Permanent magazines for the high explosives, subject to the limitations by §§ 555.206 and 555.213. Other classes of materials may also be stored in type 1 (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 opportunity to understand authorizes or even enforcement. what intelligence conduct encourages it arbitrary a reasonable prohibits and or (2) discriminatory 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 guidance. (1989). Ward speak v. with Rock perfect Against clarity Racism, 491 and U.S. precise 781, 794 Instead, we ask simply whether a statute s provisions are articulated in terms that the ordinary person exercising ordinary common with. U.S. sense Civil can Serv. sufficiently Comm n Carriers, 413 U.S. 548, 579 (1973). 11 v. understand Nat l Ass n and comply of Letter 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, blasting caps without deciding, qualified as low that under § 555.202, explosives (the Goff s 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. type 4 Section 555.210 describes both indoor and outdoor 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. properly charges. Specifically, he avowed that the court failed to instruct the jury on the statutory elements of his [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, indictment. The further court as described instructed that in the [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. 13 Thus, 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. States v. Balint, 258 U.S. 250, 252 53 (1922). United 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. generally confined at such 607. Thus, offenses to the statutes potentially harmful or injurious items. strict liability to defendants makes good sense: 14 who Supreme Id. possess that Court has regulate Indeed, imputing dangerous objects [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. that the defendant knew his Id. weapon Instead, it had to prove 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. with explosives and detonators. Such is not the case 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. to his advantage, inapposite. and, Again, Goff seeks to use Staples again, we hold that the case is 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

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