1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-23-1998

United States v. Urban

Precedential or Non-Precedential:

Docket 97-7107

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Recommended Citation

"United States v. Urban" (1998). 1998 Decisions. Paper 56.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/56
Filed March 20, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-7107 

UNITED STATES OF AMERICA 

v. 

FREDERICK URBAN, 

 Appellant 

Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Crim. No. 95-00108) 

Argued October 21, 1997 

BEFORE: MANSMANN and GREENBERG and 

ALARCON,* Circuit Judges 

(Filed March 20, 1998) 

 John C. Gurganus, Jr. (argued) 

 Office of United States Attorney 

 309 Federal Building 

 Scranton, PA 18501 

 Attorney for Appellee 

_________________________________________________________________ 

* Honorable Arthur L. Alarcon, United States Senior Circuit Judge for the 

Ninth Circuit, sitting by designation. 
 Daniel I. Siegel (argued) 

 Office of Federal Public 

 Defender 

 100 Chestnut Street 

 Harrisburg, PA 17101 

 Attorney for Appellant 

OPINION OF THE COURT 

ALARCON, Circuit Judge. 

Frederick Urban appeals from the judgment of conviction 

for possession of an unregistered destructive device in 

violation of 26 U.S.C. SS 5841, 5861(d), and 5971. He 

contends that the district court committed prejudicial error 

in refusing to instruct the jury that the intent to use the 

components as a weapon is an element of the crime 

charged in the indictment. Urban also argues that the 

district court erred as a matter of law in applying the 

special skill enhancement under United States Sentencing 

Guideline S 3B1.3 ("S 3B1.3"). We affirm the judgment of 

conviction because we conclude that the district court 

properly instructed the jury. We also determine that the 

district court properly applied a two-level sentence 

enhancement for the use of a special skill in a manner that 

significantly aided the commission of the crime. 

I 

In late 1994, Frederick Urban ("Urban") began to frequent 

a local gun store owned by Patrick Moreton. Urban gave 

Moreton a number of pamphlets entitled "1-2-3-4 Easy 

Made C-4" to sell on a consignment basis. Urban claimed to 

have written the pamphlet, which set forth directions on 

how to manufacture triacetonetriperoxide ("TATP"), an 

extremely volatile explosive. Urban continued to visit the 

store, and to discuss his ideas about manufacturing

explosives. In early April, Urban met with Moreton's father, 

John, to discuss the possibility of building an aluminum 

"grenade-type launcher." Urban told the elder Moreton that 

he had a cache of TATP buried in his backyard. 

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Unbeknownst to Urban, John Moreton was an informant

for the Alcohol, Tobacco and Firearms Division of the 

Department of the Treasury ("ATF"). John Moreton informed 

Kevin Simpson, an ATF agent, of Urban's activities, and the 

ATF set up a sting operation. 

In his discussions with John Moreton, Urban stated that 

TATP could breach a three-inch steel plate. The two

arranged to meet and test the explosive power of TATP. On 

April 11, 1995, Urban and Moreton met in the parking lot 

of a highway rest stop. ATF agents arrested Urban when he 

removed a large ammunition box from his van and placed 

it in the trunk of Moreton's car. The ammunition box 

contained two large canisters, a homemade metal 

detonator, two large bags of an explosive later designated as 

TATP, two carbon dioxide cartridges, a coil of pyrotechnic 

fuse, and a steel pipe. 

During a search of Urban's residence, ATF agents seized 

books and pamphlets on how to manufacture various 

weapons and explosives, a polyvinyl chloride ("PVC") 

container, a five-inch length of 3/32 fuse, an illegal firearm 

silencer, a partially filled container of smokeless gun 

powder, a homemade detonator, and three fuse assemblies. 

Urban was arrested and charged with the possession of an 

unregistered destructive device in violation of 

26 U.S.C. S 5861(d). On April 18, 1995, Urban was indicted 

on one count of possession of an unregistered destructive 

device. 

Urban was found guilty after a trial by jury. He has 

timely appealed from the judgment of conviction and the 

court's sentencing decision. 

II 

Urban argues that we must reverse because the district 

court erred in failing to instruct the jury on an essential 

element of the crime of possession of the components of an 

unregistered destructive device. He contends that the trial 

court was required to instruct the jury that the Government 

had the burden of producing evidence that he intended to 

use the components of an unregistered destructive device 

as a weapon. This court conducts a plenary review of a 

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challenge to a district court's instruction to the jury 

regarding the applicable law. United States v. Zehrbach, 47 

F.3d 1252, 1260 (3rd Cir.), cert. denied, 514 U.S. 1067 

(1995). 

The question whether the Government has the burden of 

producing evidence and persuading the jury that the

accused possessed the components of an unregistered

destructive device with the intent to use them as a weapon 

presents an issue of first impression in this circuit. 

We begin our analysis by examining the language used 

by Congress in creating the offense of possession of an 

unregistered firearm. Section 5861(d) of the National 

Firearms Act provides in pertinent part that "[i]t shall be 

unlawful for any person . . . to . . . possess afirearm which 

is not registered to him in the National Firearms 

Registration and Transfer Record." 26 U.S.C. S 5861(d). 

Section 5861(d) makes no reference to the intent of the 

person in possession of an unregistered firearm. 

Section 5845(f) defines the term "firearm" inter alia, as a 

"destructive device." A destructive device is defined in 

S 5845(f) as follows: 

 (1) any explosive, incendiary, or poison gas (A) bomb, 

 (B) grenade, (C) rocket having a propellant charge of 

 more than four ounces, (D) missile having an explosive 

 or incendiary charge of more than one-quarter ounce, 

 (E) mine, or (F) similar device; 

 (2) any type of weapon by whatever name known which 

 will, or which may be readily converted to, expel a 

 projectile by the action of an explosive or other 

 propellant, the barrel or barrels of which have a bore of 

 more than one-half inch in diameter, except a shotgun 

 or shotgun shell which the Secretary finds is generally 

 recognized as particularly suitable for sporting 

 purposes; and 

 (3) any combination of parts either designed or intended 

 for use in converting any device into a destructive 

 device as defined in subparagraphs (1) and (2) and 

 from which a destructive device may be readily 

 assembled. The term "destructive device" shall not 

 4 
 include any device which is neither designed nor 

 redesigned for use as a weapon . . .. 

26 U.S.C. S 5845(f) (emphasis added). 

The terms "designed" and "intended" as used in 

S 5845(f)(3) are separated by the disjunctive word "or." 

"[C]anons of construction ordinarily suggest that terms 

connected by a disjunctive be given separate meanings 

unless the context dictates otherwise." United States v. 

6109 Grubb Road, 886 F.2d 618, 626 (3d Cir. 1989) 

(quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339 

(1979)). "Simply stated, a device may be `converted' into a 

destructive device as defined in Subparagraphs (1) and (2) 

by way of `design or intent.' " United States v. Oba, 448 F.2d 

892, 894 (9th Cir. 1971), cert. denied, 405 U.S. 935 (1972) 

(citation omitted). Thus, looking solely at the plain meaning 

of the words used by Congress, a person may be found 

guilty of a violation of S 5861(d) if he or she is in possession 

of a combination of parts designed for use in converting any 

device into a destructive device, or if he or she is in 

possession of a combination of parts intended for use in 

converting any device into a destructive device. 

Urban asks that we construe the language of the statute 

as requiring, in all cases where the prosecution is based on 

the possession of the components of an unregistered

destructive device, that the jury must be instructed that the 

Government has the burden of persuading it that the

defendant intended to use the components as a weapon. 

His reliance on United States v. Fredman, 833 F.2d 837 

(9th Cir. 1987), United States v. Morningstar, 456 F.2d 278 

(4th Cir.), cert. denied, 409 U.S. 896 (1972), and United 

States v. Curtis, 520 F.2d 1300 (1st Cir. 1971) for this 

sweeping proposition is misplaced. 

In Fredman, police officers seized two bundles of 

commercial detonator cord, three commercial detonator 

fuses, and two commercial igniters in a search of the 

defendant's home. Id. at 837-38. Fredman was indicted for 

possession of an unregistered firearm. Id. at 838. 

The Ninth Circuit reversed the judgment of conviction. 

The court held in Fredman that, "mere components of

commercial explosives, absent proof of intent to use such 

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components as a weapon, fail to qualify as a `destructive 

device' within the meaning of 26 U.S.C. S 5845. Intent is a 

necessary element absent proof of original design or 

redesign for use as a weapon." Id. at 839 (emphasis added).1 

The court concluded that the components were not 

designed for use as a weapon "since it is admitted that the 

seized explosive components are designed for use as

commercial blasting components." Id. Fredman establishes 

that intent to use the components as a weapon is a 

required element when the components are commercial in 

nature and are not designed or redesigned for use as a 

weapon. 

In United States v. Morningstar, 456 F.2d 278 (4th Cir. 

1972), the Fourth Circuit reversed the district court's 

dismissal of an indictment charging the defendant with 

possession of a destructive device. The device in 

Morningstar consisted of four sticks of commercial black 

powder pellet taped together and several unattached

blasting caps. Id. at 279-280. In reversing the district 

court's ruling that commercial explosives are not covered 

under S 5861(d), the Morningstar court held that 

"explosives, such as commercial black powder or dynamite, 

are subject to the Omnibus Crime Control and Safe Streets 

Act and the National Firearms Act depending on their 

intended use." Id. at 281. The court also opined that 

"explosive and incendiary devices which have no business 

_________________________________________________________________ 

1. Urban suggests that we adopt the principle set forth in the Ninth 

Circuit's Jury Instruction 9.05B which provides in pertinent part that 

"[i]n order for the defendant to be found guilty . . . the government must 

prove . . . the defendant intended to use the components as a weapon." 

9th CIR. CRIM. JURY INSTR. 9.05B (1995). In the comment to Jury 

Instruction 9.05B the jury instruction committee cited United States v. 

Fredman for the proposition that "[f]or unassembled components to 

qualify as a `firearm' there must be proof beyond a reasonable doubt that 

the components were intended for use as a weapon." This commentary 

ignores the fact that in the Fredman case the components were designed 

to be used for commercial blasting and not as a weapon. The rule set 

forth in Instruction 9.05B does not accurately reflect the Ninth Circuit's 

construction of S 5845(f)(3) in Fredman. We are also mindful of the 

principle that pattern jury instructions from other circuits are not 

binding authority. See United States v. Agnes, 753 F.2d 293, 299 (3d Cir. 

1985). 

 6 
or industrial utility . . . are covered regardless of their 

intended use." Id. at 280. Morningstar, like Fredman, reads 

S 5845(f) to include commercial explosive components when 

the prosecution is able to prove the defendant's intent to 

use the assembled device as a weapon, rather than for its 

legitimate, commercial purpose. 

In United States v. Curtis, 520 F.2d 1300 (1st Cir. 1975), 

the defendants were prosecuted in separate counts for 

possessing two destructive devices. One device consisted of 

five sticks of dynamite bound together with a fuse attached. 

The other device consisted of eight to ten sticks of dynamite 

bound together and attached to a black box and a timer. Id. 

at 1301. As was the case in Morningstar, the defendants in 

Curtis argued that commercial explosives are not a 

destructive device within the meaning of S 5845(f). Id. at 

1302. 

The First Circuit held that "the government's evidence 

with regard to the smaller device was not sufficient to 

support a conclusion that the object was anything more 

than `the familiar industrial blasting charge.' " Id. at 1303 

(citation omitted). In so ruling, the court recognized "the 

line of cases holding that a dynamite charge may become a 

destructive device if intended for use as a bomb." Id. 

What distinguishes the cases cited by Urban from the 

instant case is the lack of ambiguity here as to the nature 

of the assembled device. In Fredman, Morningstar, and 

Curtis, the courts were determining whether a device 

utilizing commercial explosives constituted a destructive 

device as defined in subparagraphs (1) and (2) of S 5845(f). 

These cases concluded that such devices may fall within 

the statutory definition of a destructive device when the 

prosecution demonstrates the defendant's intent to use the 

assembled device as a weapon. By contrast, there is no 

doubt that the components possessed by Urban were 

designed to create a canister grenade -- a device clearly 

regulated as a destructive device under S 5845(f)(1). 

A pamphlet seized at Urban's home described the process 

of converting an ordinary carbon dioxide ("CO2") cartridge 

into a fragmenting canister grenade. The pamphlet included 

detailed instructions and drawings on how to construct 

 7 
such a grenade. The process involves the widening of the 

cartridge opening to allow the introduction of a pyrotechnic 

fuse and the scoring of the cartridge body to maximize 

fragmentation. CO2 cartridges are generally designed for 

use in BB guns, toy racing cars, and seltzer water 

dispensers. The cartridges found in Urban's possession had 

been redesigned with serrated walls and widened openings 

inconsistent with a CO2 cartridge's legitimate uses. 

The pamphlet recommends the use of a high powered 

explosive in canister grenades for greater damage, rather 

than commercially used explosives such as black powder. 

One of the cartridges found in the ammunition box seized 

from Urban's vehicle contained TATP. The ammunition box 

also contained two large bags of TATP. A Government

expert testified that because TATP is "so unstable" and 

"stores poorly," it has "never found any commercial use at 

all." 

Section 5845(f)(3) limits its application to "any 

combination of parts designed or intended for use in 

converting any device into a constructive device as defined 

in subparagraphs (1) and (2)." The definition of a 

destructive device in subparagraph (1) includes a grenade. 

Here, the evidence is uncontradicted that Urban was in 

possession of a combination of parts expressly designed to 

create a canister grenade. Intent to use the components as 

a weapon (to assemble them into a device to be used as a 

weapon) is irrelevant when the parts are clearly designed to 

be used in constructing a device which is specifically 

regulated by S 5845(f)(1) or (2). We agree with the Second 

Circuit's construction of S 5845(f)(3) in United States v. 

Posnjak, 457 F.2d 1110 (2nd Cir. 1972). "When it is clear 

that the assembled device created by combining the 

components falls within (1) or (2), intent is irrelevant, for 

the parts are clearly `designed' to convert the device into a 

destructive device." Id. at 1119. We hold, therefore, that the 

district court did not err in ruling that it is not necessary 

to instruct the jury that the defendant intended to use the 

components as a weapon when, as here, it is undisputed 

that the parts were clearly designed to create a grenade. 

 8 
III 

Urban also challenges the district court's sentencing 

decision. He contends that the district court erred as a 

matter of law in concluding that a two-level enhancement 

pursuant to S 3B1.3 of the United States Sentencing

Guidelines was justified based upon Urban's use of a 

special skill that significantly facilitated the commission of 

the crime of possession of an unregistered destructive device.2 

Urban contends that S 3B1.3 is inapplicable unless there is 

evidence that the defendant received special training or 

education. This court reviews de novo a district court's legal 

interpretation of the Sentencing Guidelines. United States v. 

Maurello, 76 F.3d 1304, 1308 (3d Cir. 1996). Because we 

must review the meaning of the term "special skills," and 

"special training and education," we will not defer to the 

district court in construing these words. 

The district court explained the basis for its finding that 

Urban possessed and used a special skill in committing a 

violation of S 5861(d) in the following words: 

 [W]e find that based on the authorities that have been 

 cited by the probation officer3 in his resolution, that 

 this Defendant had sufficient sophistication to place 

 him in a category of having a special skill.

 By reason of his mechanical background and training, 

 the fact that he authored manuals specifically outlining 

 the manner in which destructive devices could be 

 prepared, and offered these manuals for sale as well as 

 the Defendant's particular interest in the utilization of 

 such devices in the event they were necessary because 

_________________________________________________________________ 

2. Sentencing Guideline S 3B1.3 provides in pertinent part as follows: 

 If the defendant abused a position of public or private trust, or 

used 

 a special skill in a manner that significantly facilitated the 

 commission or concealment of the offense, increase by 2 levels. 

3. In the presentence report, the probation officer cited United States v. 

Spencer, 4 F.3d 115 (2d Cir. 1993) and United States v. Malgoza, 2 F.3d 

1107 (11th Cir. 1993) for the proposition that "[t]hough the defendant 

did not receive formal training in manufacturing the explosives, several 

circuits have held that the `special skill' does not have to be obtained 

through formal education or training." 

 9 
 of some emergency that might exist even in his own 

 mind or those sympathetic with the Defendant's view 

 about this country. 

Thus, the district court concluded that Urban's mechanical 

background and training when considered in light of his 

own research and experimentation were sufficient to

demonstrate that he possessed a special skill capable of 

facilitating the commission of the crime of possessing an 

unregistered destructive device. 

We must determine whether the acquisition of a special 

skill in the construction of a destructive device, such as a 

canister grenade, can be self-taught. Urban maintains that 

an enhancement is appropriate only if the evidence shows 

that the defendant received "substantial education,

training, or licensing."4 Urban correctly notes that 

Sentencing Guideline S 5H1.2 recognizes that educational 

and vocational skills are ordinarily not relevant in 

calculating the applicable guideline range unless"a

defendant has misused special training or education to 

facilitate criminal activity." United States Sentencing 

Guideline S 5H1.2. He argues that S 3B1.3 should not be 

applied in fixing his punishment because he never received 

special training or education in the design of canister 

grenades or destructive devices. No evidence was presented 

that Urban received special demolition or explosives 

training from the military or any source. 

Urban maintains that this court's decision in United 

States v. Hickman, 991 F.2d 1110 (3rd Cir. 1993) supports 

his contention that he did not misuse special training or 

education. We disagree. 

In Hickman, a general contractor was convicted of 

defrauding persons who paid him to construct a house that 

was never built. Id. at 1111. The district court applied 

_________________________________________________________________ 

4. Application No. 2 to Sentencing GuidelineS 3B1.3 reads as follows: 

"Special skills refers to a skill not possessed by members of the general 

public and usually requiring substantial education, training, or 

licensing. Examples would include pilots, lawyers, doctors, accountants, 

chemists, and demolition experts." United States Sentencing Guidelines 

S 3B1.3 (Application n. 2) (1995). 

 10 
S 3B1.3 because it found that the defendant had used his 

special skill as a contractor in committing fraud. Id. at 

1112-13. This court reversed because it concluded that the 

fact that the defendant possessed a license did not

demonstrate the defendant's reliance on his training as a 

contractor in perpetrating the fraud. Id. at 1112-13. Unlike 

the historical facts presented to this court in Hickman, it is 

undisputed that Urban used his combined skills and self 

education to design and assemble the components of a 

canister grenade. 

The record shows that Urban developed his mechanical 

skills through courses in industrial electronics, 

refrigeration, and air-conditioning at a technical school. He 

applied these skills as the sole owner of a business in 

which he engaged in plumbing, heating, refrigeration, and 

automotive and general repairs. In addition, Urban taught 

himself how to design explosive devices such as canister 

grenades. 

During oral argument, Urban's counsel conceded that the 

evidence was sufficient to show that Urban was a "selftaught bomb maker." Urban's counsel argued, however, 

that the special skills enhancement contained in S 3B1.3 

did not apply to self-taught skills. He asks that we limit the 

reach of S 3B1.3 to the types of skills expressly identified in 

Application Note 2, each of which requires "substantial 

education, training, or licensing." Section 3B1.3 

(Application n.2) (1995). This argument ignores the use of 

the words "usually requiring" that precede the language 

"substantial education, training, or licensing." The use of 

the word "usually" by the Sentencing Commission 

demonstrates that it did not intend to preclude a trial judge 

from finding, on a case-by-case basis, that a defendant has 

obtained a special skill through life experience and selfstudy. 

In United States v. Spencer, 4 F.3d 115 (2d Cir. 1993), 

the appellant argued that "he did not demonstrate any 

special skill in his manufacture of methamphetamine

because he was a self-taught amateur." Id. at 120. In 

rejecting this argument, the Second Circuit reasoned as 

follows: 

 11 
 A special skill is one "usually requiring substantial 

 education, training, or licensing." See U.S.S.G. S 3B1.3, 

 comment. (n.2) (emphasis added). Because the

 comment adds the word "usually," we find no basis for 

 limiting the increase to only those with formal 

 educations or professional skills. See United States v. 

 Hummer, 916 F.2d 186, 191 (4th Cir. 1990) (finding 

 that the use of the word "usually" in the note to 

 U.S.S.G. S 3B1.3 "implies that substantial training is 

 not a mandatory prerequisite to making a special skills 

 adjustment"), cert. denied, 499 U.S. 970, 111 S. Ct. 

 1608, 113 L.Ed.2d 670 (1991). [The appellant] presents 

 the unusual case where factors other than formal 

 education, training, or licensing persuade us that he 

 had special skills in the area of chemistry.

Id. 

In United States v. Petersen, 98 F.3d 502 (9th Cir. 1996), 

the Ninth Circuit concluded that the district court did not 

err in determining that the defendant's computer abilities 

supported a special skills enhancement notwithstanding 

the fact that he had not had "formal training in computers." 

Id. at 506. In United States v. Hubbard, 929 F.2d 307 (7th 

Cir. 1991), the Seventh Circuit upheld the application of 

S 3B1.3 based on the trial court's finding that the

defendant, an inventor, "had `through life's experiences 

obtained the special ability to tamper with consumer 

products.' " Id. at 191. We agree with our sister circuits that 

a S 3B1.3 sentence enhancement is not limited to persons 

who have received substantial formal education, training 

from experts, or who have been licensed to perform a 

special skill. See also United States v. Malgoza , 2 F.3d 

1107, 1110-11 (11th Cir. 1993); United States v. Hummer, 

916 F.2d 186, 191 (4th Cir. 1990). 

The record shows that Urban used his mechanical skills, 

life experience, and self education to invent a method of 

molding the highly unstable TATP into "blocks of explosive 

material." Therefore, we hold that the district court did not 

err as a matter of law in concluding that S 3B1.3 is 

applicable to a person who has developed a special skill 

through self education and his or her work experience and 

uses it to facilitate the commission of a crime. 

 12 
The judgment of conviction and sentence will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 13