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. e du/thir dc ir c uit_1998/56Filed 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 convic tion for possession of an unregistered destructive devic e in violation of 26 U.S.C. SS 5841, 5861(d), and 5971. He contends that the district court committed prejudic ial 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 t he district court erred as a matter of law in applying the special skill enhancement under United States Sente ncing Guideline S 3B1.3 ("S 3B1.3"). We affirm the judgme nt of

conviction because we conclude that the district co urt properly instructed the jury. We also determine tha t the district court properly applied a two-level sentenc e enhancement for the use of a special skill in a man ner that significantly aided the commission of the crime.

I

In late 1994, Frederick Urban ("Urban") began to fr equent a local gun store owned by Patrick Moreton. Urban g ave Moreton a number of pamphlets entitled "1-2-3-4 Eas y Made C-4" to sell on a consignment basis. Urban cla imed to have written the pamphlet, which set forth directio ns on how to manufacture triacetonetriperoxide ("TATP"), an extremely volatile explosive. Urban continued to vi sit 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 alu minum "grenade-type launcher." Urban told the elder Moret on that he had a cache of TATP buried in his backyard.

2Unbeknownst to Urban, John Moreton was an informant

for the Alcohol, Tobacco and Firearms Division of t he Department of the Treasury ("ATF"). John Moreton in formed 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 TA TP. On April 11, 1995, Urban and Moreton met in the parkin g lot of a highway rest stop. ATF agents arrested Urban w hen he removed a large ammunition box from his van and pla ced

it in the trunk of Moreton's car. The ammunition bo x contained two large canisters, a homemade metal detonator, two large bags of an explosive later des ignated as TATP, two carbon dioxide cartridges, a coil of pyro technic fuse, and a steel pipe.

During a search of Urban's residence, ATF agents se ized 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 ille gal firearm silencer, a partially filled container of smokeless gun powder, a homemade detonator, and three fuse assemb lies. 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 i ndicted on one count of possession of an unregistered destr uctive

device.

Urban was found guilty after a trial by jury. He ha s timely appealed from the judgment of conviction and the court's sentencing decision.

II

Urban argues that we must reverse because the distr ict court erred in failing to instruct the jury on an e ssential element of the crime of possession of the component s of an unregistered destructive device. He contends that t he trial court was required to instruct the jury that the Go vernment had the burden of producing evidence that he intend ed to use the components of an unregistered destructive d evice as a weapon. This court conducts a plenary review o f a

3challenge to a district court's instruction to the jury

regarding the applicable law. United States v. Zehr bach, 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 circu it.

We begin our analysis by examining the language use d by Congress in creating the offense of possession o f an unregistered firearm. Section 5861(d) of the Nation al Firearms Act provides in pertinent part that "[i]t shall be unlawful for any person . . . to . . . possess afir earm 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 al ia, as a

"destructive device." A destructive device is defin ed 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-quarte r ounce, (E) mine, or (F) similar device;

(2) any type of weapon by whatever name know n 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 h ave a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds i s generally recognized as particularly suitable for spor ting purposes; and

(3) any combination of parts either designed or intended for use in converting any device into a dest ructive device as defined in subparagraphs (1) and ( 2) and from which a destructive device may be readi ly

assembled. The term "destructive device" sha ll not

4include 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 t erms connected by a disjunctive be given separate meanin gs unless the context dictates otherwise." United Stat es v. 6109 Grubb Road, 886 F.2d 618, 626 (3d Cir. 1989) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 33 9 (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. Ob a, 448 F.2d 892, 894 (9th Cir. 1971), cert. denied, 405 U.S. 93 5 (1972) (citation omitted). Thus, looking solely at the pla in meaning of the words used by Congress, a person may be foun d guilty of a violation of S 5861(d) if he or she is in possession of a combination of parts designed for use in conve rting any device into a destructive device, or if he or she i s in possession of a combination of parts intended for u se in converting any device into a destructive device.

Urban asks that we construe the language of the sta tute 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 instructe d that the Government has the burden of persuading it that the defendant intended to use the components as a weapo n. 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 detonat or fuses, and two commercial igniters in a search of t he

defendant's home. Id. at 837-38. Fredman was indict ed for possession of an unregistered firearm. Id. at 838.

The Ninth Circuit reversed the judgment of convicti on. The court held in Fredman that, "mere components of commercial explosives, absent proof of intent to us e such

5components as a weapon, fail to qualify as a `destr uctive

device' within the meaning of 26 U.S.C. S 5845. Int ent is a necessary element absent proof of original design o r 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 establ ishes 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 a s a

weapon.

In United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972), the Fourth Circuit reversed the district cou rt's dismissal of an indictment charging the defendant w ith 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 dis trict court's ruling that commercial explosives are not c overed under S 5861(d), the Morningstar court held that "explosives, such as commercial black powder or dyn amite, are subject to the Omnibus Crime Control and Safe S treets Act and the National Firearms Act depending on thei r intended use." Id. at 281. The court also opined th at "explosive and incendiary devices which have no bus iness

___________________________________________________ ______________

1. Urban suggests that we adopt the principle set f orth 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 compo nents as a weapon." 9th CIR. CRIM. JURY INSTR. 9.05B (1995). In the com ment to Jury Instruction 9.05B the jury instruction committee ci ted 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 compo nents were designed to be used for commercial blasting and not as a wea pon. The rule set forth in Instruction 9.05B does not accurately refl ect the Ninth Circuit's construction of S 5845(f)(3) in Fredman. We are als o 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).

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

intended use." Id. at 280. Morningstar, like Fredma n, reads S 5845(f) to include commercial explosive component s when the prosecution is able to prove the defendant's in tent to use the assembled device as a weapon, rather than f or its legitimate, commercial purpose.

In United States v. Curtis, 520 F.2d 1300 (1st Cir. 1975), the defendants were prosecuted in separate counts f or possessing two destructive devices. One device cons isted of five sticks of dynamite bound together with a fuse attached. The other device consisted of eight to ten sticks o f dynamite bound together and attached to a black box and a ti mer. Id. at 1301. As was the case in Morningstar, the defend ants 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 evide nce with regard to the smaller device was not sufficien t to support a conclusion that the object was anything m ore than `the familiar industrial blasting charge.' " I d. at 1303 (citation omitted). In so ruling, the court recogni zed "the line of cases holding that a dynamite charge may be come a destructive device if intended for use as a bomb." Id.

What distinguishes the cases cited by Urban from th e instant case is the lack of ambiguity here as to th e nature of the assembled device. In Fredman, Morningstar, a nd Curtis, the courts were determining whether a devic e utilizing commercial explosives constituted a destr uctive device as defined in subparagraphs (1) and (2) of S 5845(f). These cases concluded that such devices may fall wi thin the statutory definition of a destructive device wh en 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 c learly regulated as a destructive device under S 5845(f)(1 ).

A pamphlet seized at Urban's home described the pro cess of converting an ordinary carbon dioxide ("CO2") ca rtridge into a fragmenting canister grenade. The pamphlet i ncluded detailed instructions and drawings on how to constr uct

7such a grenade. The process involves the widening o f the

cartridge opening to allow the introduction of a py rotechnic fuse and the scoring of the cartridge body to maxim ize fragmentation. CO2 cartridges are generally designe d for use in BB guns, toy racing cars, and seltzer water dispensers. The cartridges found in Urban's possess ion had been redesigned with serrated walls and widened ope nings 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 pow der. One of the cartridges found in the ammunition box s eized

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 i n 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 g renade. Here, the evidence is uncontradicted that Urban was in possession of a combination of parts expressly desi gned to create a canister grenade. Intent to use the compon ents as a weapon (to assemble them into a device to be used as a weapon) is irrelevant when the parts are clearly de signed to be used in constructing a device which is specifica lly regulated by S 5845(f)(1) or (2). We agree with the Second Circuit's construction of S 5845(f)(3) in United St ates 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 irrel evant, for the parts are clearly `designed' to convert the dev ice into a destructive device." Id. at 1119. We hold, therefor e, 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 undispu ted that the parts were clearly designed to create a gr enade.

8III

Urban also challenges the district court's sentenci ng decision. He contends that the district court erred as a matter of law in concluding that a two-level enhanc ement 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 co mmission of the crime of possession of an unregistered destruct ive device.2 Urban contends that S 3B1.3 is inapplicable unless there is evidence that the defendant received special traini ng or education. This court reviews de novo a district co urt's legal interpretation of the Sentencing Guidelines. United States v. Maurello, 76 F.3d 1304, 1308 (3d Cir. 1996). Becaus e 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 find ing that Urban possessed and used a special skill in committ ing 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 resol ution, that this Defendant had sufficient sophistication to place him in a category of having a special skill.

By reason of his mechanical background and t raining, the fact that he authored manuals specifical ly outlining

the manner in which destructive devices coul d be prepared, and offered these manuals for sale as well as the Defendant's particular interest in the u tilization of such devices in the event they were necessar y because

___________________________________________________ ______________

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

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

used a special skill in a manner that significant ly facilitated the commission or concealment of the offense, in crease 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 State s v. Malgoza, 2 F.3d 1107 (11th Cir. 1993) for the proposition that "[t] hough the defendant did not receive formal training in manufacturing th e explosives, several circuits have held that the `special skill' does no t have to be obtained through formal education or training."

9of some emergency that might exist even in h is own

mind or those sympathetic with the Defendant 's view about this country.

Thus, the district court concluded that Urban's mec hanical background and training when considered in light of his own research and experimentation were sufficient to demonstrate that he possessed a special skill capab le of facilitating the commission of the crime of possess ing an unregistered destructive device.

We must determine whether the acquisition of a spec ial skill in the construction of a destructive device, such as a canister grenade, can be self-taught. Urban maintai ns that an enhancement is appropriate only if the evidence shows that the defendant received "substantial education, training, or licensing."4 Urban correctly notes tha t Sentencing Guideline S 5H1.2 recognizes that educat ional and vocational skills are ordinarily not relevant i n calculating the applicable guideline range unless"a defendant has misused special training or education to facilitate criminal activity." United States Senten cing Guideline S 5H1.2. He argues that S 3B1.3 should no t be applied in fixing his punishment because he never r eceived special training or education in the design of cani ster grenades or destructive devices. No evidence was pr esented that Urban received special demolition or explosive s training from the military or any source.

Urban maintains that this court's decision in Unite d States v. Hickman, 991 F.2d 1110 (3rd Cir. 1993) su pports his contention that he did not misuse special train ing or education. We disagree.

In Hickman, a general contractor was convicted of defrauding persons who paid him to construct a hous e that was never built. Id. at 1111. The district court ap plied

___________________________________________________ ______________

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 Se ntencing Guidelines S 3B1.3 (Application n. 2) (1995).

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

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

1112-13. This court reversed because it concluded t hat the fact that the defendant possessed a license did not

demonstrate the defendant's reliance on his trainin g as a contractor in perpetrating the fraud. Id. at 1112-1 3. Unlike the historical facts presented to this court in Hic kman, 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 mechanica l skills through courses in industrial electronics, refrigeration, and air-conditioning at a technical school. He applied these skills as the sole owner of a busines s in which he engaged in plumbing, heating, refrigeratio n, and automotive and general repairs. In addition, Urban taught himself how to design explosive devices such as can ister grenades.

During oral argument, Urban's counsel conceded that the

evidence was sufficient to show that Urban was a "s elftaught 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 w e limit the reach of S 3B1.3 to the types of skills expressly i dentified in Application Note 2, each of which requires "substan tial education, training, or licensing." Section 3B1.3 (Application n.2) (1995). This argument ignores the use of the words "usually requiring" that precede the lang uage "substantial education, training, or licensing." Th e use of the word "usually" by the Sentencing Commission demonstrates that it did not intend to preclude a t rial judge from finding, on a case-by-case basis, that a defen dant has obtained a special skill through life experience an d selfstudy.

In United States v. Spencer, 4 F.3d 115 (2d Cir. 19 93), the appellant argued that "he did not demonstrate a ny special skill in his manufacture of methamphetamine because he was a self-taught amateur." Id. at 120. In rejecting this argument, the Second Circuit reasone d as

follows:

11A special skill is one "usually requiring s ubstantial

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 for mal educations or professional skills. See Unite d States v. Hummer, 916 F.2d 186, 191 (4th Cir. 1990) (f inding that the use of the word "usually" in the no te to U.S.S.G. S 3B1.3 "implies that substantial t raining is not a mandatory prerequisite to making a spe cial skills adjustment"), cert. denied, 499 U.S. 970, 11 1 S. Ct. 1608, 113 L.Ed.2d 670 (1991). [The appellant ] presents

the unusual case where factors other than fo rmal education, training, or licensing persuade u s 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 ab ilities supported a special skills enhancement notwithstand ing the fact that he had not had "formal training in co mputers." Id. at 506. In United States v. Hubbard, 929 F.2d 3 07 (7th Cir. 1991), the Seventh Circuit upheld the applicat ion of S 3B1.3 based on the trial court's finding that the defendant, an inventor, "had `through life's experi ences obtained the special ability to tamper with consume r products.' " Id. at 191. We agree with our sister c ircuits that a S 3B1.3 sentence enhancement is not limited to pe rsons who have received substantial formal education, tra ining 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. Hu mmer, 916 F.2d 186, 191 (4th Cir. 1990).

The record shows that Urban used his mechanical ski lls, life experience, and self education to invent a met hod of molding the highly unstable TATP into "blocks of ex plosive material." Therefore, we hold that the district cou rt did not err as a matter of law in concluding that S 3B1.3 i s applicable to a person who has developed a special skill through self education and his or her work experien ce and

uses it to facilitate the commission of a crime.

12The judgment of conviction and sentence will be aff irmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

13