2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-2006

USA v. Hull

Precedential or Non-Precedential: Precedential

Docket No. 05-2028

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*

Honorable Harold A. Ackerman, Senior United States

District Judge for the District of New Jersey, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-2028

 

UNITED STATES OF AMERICA

v.

DAVID WAYNE HULL,

Appellant

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 03-cr-00096-1)

District Judge: Honorable Gary L. Lancaster

 

Argued May 18, 2006

Before: RENDELL and VAN ANTWERPEN, Circuit Judges,

and ACKERMAN, District Judge*
2

(Filed: July 28, 2006)

Lisa B. Freeland

Karen S. Gerlach (Argued)

Federal Public Defender Office

1450 Liberty Center

1001 Liberty Avenue

Pittsburgh, PA 15222

Counsel for Appellant

Mary Beth Buchanan

Laura S. Irwin (Argued)

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for the Government

____

OPINION OF THE COURT

 

VAN ANTWERPEN, Circuit Judge.

David Wayne Hull appeals from the judgment of

conviction entered by the District Court after he was found

guilty by a jury on 7 of 10 counts related to explosives, firearms,

and witness tampering. We will vacate Hull’s conviction as to

Count 7, and affirm the judgment of conviction as to all

remaining counts.
3

I.

David Wayne Hull, the admitted Imperial Wizard of the

splinter group White Knights of the Ku Klux Klan, was arrested

on February 13, 2003. A search warrant was executed by law

enforcement on his home. Agents found loaded handguns, a

rocket tube, military-style weapons, ammunition, a silencer and

accompanying instructions for manufacture, diagrams and

instructions for making pipe bombs and booby-traps, explosives

components, and, outside the home, cars damaged by explosions

but still containing parts of pipe bombs. Hull did not have

licenses or registrations for any of the weapons or explosives, or

the silencer.

The FBI had had Hull under surveillance and

investigation for several years, utilizing a government informant

to infiltrate and observe the KKK. This informant met Hull and

other members of the KKK at various gatherings and privately

at Hull’s house. The informant watched and participated in the

detonation of several pipe bombs and other explosives, and the

testing of silencers. The informant also discussed the making of

pipe bombs with Hull, and repeatedly requested that Hull

construct pipe bombs for him. At some point, Hull apparently

deduced the informant was just that, and allegedly took steps to

provide him with only bomb components (minus the fuse)

instead of a completed pipe bomb. The informant also

cooperated with the FBI to record conversations with Hull,

beginning in September 2002.

A District Judge from the Eastern District of

Pennsylvania approved a wiretap interception order on January
4

13, 2003, for various suspects’ phones, including Hull’s home

and cell phones. In the supporting wiretap affidavit, agents

promised to “minimize” the interceptions by screening out: calls

under two minutes; calls not involving Hull or any other named

interceptee; and conversations “non-criminal in nature.” The

agents reserved the right to “spot-check” any of these calls to

“ensure that the conversations have not turned to criminal

matters.” In practice, this procedure involved initial monitoring

for identity and subject verification; one minute without

monitoring if the call fell into an above category; then two

minutes of active monitoring for “spot-checking”; and so forth

until the call was completed. Several of the resulting intercepts

were later used in Hull’s trial.

Hull was eventually indicted by a federal grand jury,

which indictment was followed by a ten-count superseding

indictment. The superseding indictment charged Hull with:

Counts 1, 2, 3, and 4, possession of unregistered firearms (pipe

bombs and a silencer) on various dates; Count 5, transfer of a

firearm (pipe bomb); Count 6, manufacture of a firearm (pipe

bomb); Counts 7 and 8, teaching or demonstrating, and

distributing information regarding, the making and use of a pipe

bomb with the intent that the teaching or information be used for

a “Federal crime of violence” (“unlawful possession of a pipe

bomb”) on two dates; Count 9, possession of a firearm in

interstate commerce by a felon; and Count 10, attempting to

influence the testimony of a witness. 

Hull pleaded not guilty and moved to have the wiretap

interceptions suppressed. The District Court denied the motion

on May 7, 2004, and the case was tried to a jury in the Western
5

District of Pennsylvania. Over the course of several weeks, the

jury heard testimony from various FBI and law enforcement

agents, technical experts, and several informants and

cooperating witnesses. One of Hull’s girlfriends, Deborah

Rusch, testified that she had helped Hull by using her legal

secretary position and skills to format articles for publication in

a KKK newspaper. The articles dealt with topics including the

manufacture of propane tank explosives and pipe bombs; several

were attributed to an author identified as the “Unknown

Terrorist.” Rusch had also had conversations with Hull about

explosives. Rusch later received several letters from Hull while

he was in prison, and turned these letters over to the FBI. The

letters asked her to “remember” several conversations; to say

that they were merely “casually dat[ing]” instead of calling

herself his girlfriend; reminded her of things she “knew”; listed

things she “must tell . . . to the jury”; and, most critically, to tell

the jury that she did not believe Hull wrote the “Unknown

Terrorist” articles. She was then instructed to burn one of the

letters. On the stand, Rusch testified instead that she did not

recall ever speaking with a specific FBI agent, as alleged in the

letters, and that she did believe Hull to be the Unknown

Terrorist, as most, but not all, of the articles matched his writing

style.

Hull took the stand in his own defense, and testified that

neither he nor the White Knights had ever espoused violence, or

had intended to hurt anyone. He denied being the “Unknown

Terrorist,” or that he had ever demonstrated how to make a pipe

bomb to anyone or participated in detonating any pipe bombs.

All the firearms and explosives components, he alleged, were

for legitimate purposes. He claimed that he knew all along that
1

The District Court had jurisdiction pursuant to 18 U.S.C. §

3231; we have jurisdiction pursuant to 18 U.S.C. § 1291.

6

the informant was helping law enforcement, and therefore

purposefully refused to give him an assembled bomb.

At the close of the trial, the District Court instructed the

jury. In particular, the District Court refused to include a

proposed instruction from Hull that in order to be found guilty

of “transferr[ing]” a firearm, he had to know and intend that the

bomb, unassembled and without a fuse, constitute a firearm.

The District Court did instruct the jury that mere possession of

a bomb could qualify as a “Federal crime of violence,” after

expressing deep doubts over the issue and noting that the court

had not “made up my mind on this.”

On May 28, 2004, the jury returned verdicts of not guilty

on 3 of the 10 counts (possession of a pipe bomb on 2 of 3

relevant dates, and distribution of information related to a pipe

bomb on one date). The jury found Hull guilty of the remaining

7 counts. On March 21, 2005, the District Court sentenced Hull

to 144 months imprisonment for the distribution of information

related to a pipe bomb (Count 7), to run concurrently with

sentences of 120 months imprisonment for each of the

remaining six counts of conviction. Hull now appeals his

conviction on myriad grounds.1

II.

Hull raises five challenges to his conviction, one of

which we find meritorious and thus will address first in detail.
7

Hull alleges that: (1) mere “possession” of a pipe bomb, as

charged in the indictment, does not qualify as a “Federal crime

of violence” under 18 U.S.C. § 842(p)(2)(A); (2) the evidence

was insufficient to prove the witness tampering change; (3) the

wiretaps should have been suppressed due to the Government’s

failure to properly “minimize” interceptions; (4) for the purpose

of making, possessing, or transferring a firearm, Hull could not

be convicted because he did not intend that a pipe bomb,

unassembled, be assembled into a firearm; and (5) 18 U.S.C. §

922(g)(1), felon in possession of a firearm, is unconstitutional.

We have rejected this last contention outright, and will not give

it further consideration here. United States v. Singletary, 268

F.3d 196 (3d Cir. 2001).

III.

Hull’s first argument presents a matter of first impression

in this Court, and to our knowledge, in any court of appeals.

Hull was convicted, at Count 7, of violating 18 U.S.C. §

842(p)(2)(A):

“(p) Distribution of information relating to explosives,

destructive devices, and weapons of mass destruction.

(1) Definitions. In this subsection--

(A) the term ‘destructive device’ has the same

meaning as in section 921(a)(4);

(B) the term ‘explosive’ has the same meaning as

in section 844(j); and

(C) the term ‘weapon of mass destruction’ has the

same meaning as in section 2332a(c)(2).
2

Count 8 charged Hull with the identical crime, but

committed in or around May 2002. Hull was found not guilty of

Count 8, however, and therefore does not challenge the

construction of 18 U.S.C. § 842(p)(2)(A) as to Count 8.

8

(2) Prohibition. It shall be unlawful for any person--

(A) to teach or demonstrate the making or use of

an explosive, a destructive device, or a weapon of

mass destruction, or to distribute by any means

information pertaining to, in whole or in part, the

manufacture or use of an explosive, destructive

device, or weapon of mass destruction, with the

intent that the teaching, demonstration, or

information be used for, or in furtherance of, an

activity that constitutes a Federal crime of

violence;” (emphasis added)

The superseding indictment charged that the “Federal crime of

violence” at issue was solely the “unlawful possession of a pipe

bomb,” on or about November 19, 2002.2

 As we will set out

below, “crime of violence” is not defined in the statute. 

The District Court instructed the jury that:

“[P]ossession of an unregistered pipe bomb is a federal

crime of violence. . . . The government does not have to

prove defendant intended the recipient of the information

to blow up someplace or blow up somebody. They need

only prove that the defendant intended the recipient of

this information to make and thereafter possess the pipe

bomb.”
9

Hull alleges that simple possession of a pipe bomb, as opposed

to the use or detonation of a pipe bomb, cannot qualify as a

“Federal crime of violence” under § 842(p)(2)(A), and that his

conviction at Count 7 must be vacated. We exercise plenary

review over questions of law, such as whether a crime is a crime

of violence, United States v. Luster, 305 F.3d 199, 200 (3d Cir.

2002). We will vacate the conviction for Count 7.

We note first the regrettable fact that we do not have the

benefit of any analysis or ruling by the District Court on this

issue. The District Court initially expressed its “concern” to the

parties during trial that “if the mere possession satisfied the

crime of violence element, why even put that element into it?

Transferring it implies the other person is going to possess it. .

. . [that is,] [t]he teaching charge, not the transfer, the teaching

charge.” App. vol. IV.1109. Both Hull and the Government

submitted memoranda on the point, and while later in the trial,

the District Court returned to the issue again, expressing doubt

on the Government’s theory of the charge, it did not analyze the

issue on the record:

“I read your briefs about this, whether or not mere

possession alone constitutes a crime of violence. I think

it is a very close question. I haven’t made up my mind

on this. Probably what I will do, though, is I might

submit it to the jury as proferred by the government, and

then in post-verdict motions, if they find the guy not

guilty, then it’s moot. If they find him guilty, then as a

matter of law, I can rule whether or not to take out the

verdict. And then if it goes to the Court of Appeals, at

least we’ll have a verdict. If I’m wrong, we’ll have to do
10

it again.” App. vol. IV.1348.

The District Court then gave the requested jury instruction we

have set forth above, without further discussion.

With regard to 18 U.S.C. § 842(p)(2)(A), we are treading

on fairly undisturbed ground. Section 842(p) was added to the

criminal code in 1999, see P.L. 106-54 § 2(a), 113 Stat. 398

(Aug. 17, 1999), and as yet has been applied only sparingly

across the country. 

Unfortunately, as we noted above § 842(p) does not

define “Federal crime of violence.” Accordingly, the Supreme

Court recently instructed courts to look at 18 U.S.C. § 16’s

definition of “crime of violence” for the purposes of 18 U.S.C.

§ 842(p). Leocal v. Ashcroft, 543 U.S. 1, 7 n.4 (2004) (“a

number of statutes criminalize conduct that has as an element

the commission of a crime of violence under § 16. See, e.g., 18

U.S.C. § 842(p)”). Leocal, which examined in detail § 16’s

usage of the term, therefore controls our analysis under § 842.

18 U.S.C. § 16 defines “crime of violence” as follows:

“(a) an offense that has as an element the use, attempted

use, or threatened use of physical force against the

person or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or property of another may be used in

the course of committing the offense.” (emphases added)
11

The Supreme Court in Leocal considered whether a

conviction for a state DUI offense that did not require proof of

a mental state nonetheless qualified as a crime of violence under

§ 16. The Court concluded that it did not fit either § 16(a) or

(b). Under § 16(a), the Court held that “use” requires the

“active employment” of force, and therefore a degree of intent

higher than negligence. Leocal, 543 U.S. at 9. Nor did the DUI

conviction qualify under § 16(b), which “covers offenses that

naturally involve a person acting in disregard of the risk that

physical force might be used against another in committing the

offense.” Leocal, 543 U.S. at 10 (emphasis added). “Thus, §

16(b) plainly does not encompass all offenses which create a

‘substantial risk’ that injury will result from a person’s conduct.

The ‘substantial risk’ in § 16(b) relates to the use of force, not

to the possible effect of a person’s conduct.” Id. at 10 n.7. 

Here the Government does not allege that possession of

a pipe bomb involves the actual use of physical force, only that

it involves a substantial risk of use of physical force against

another. In light of this and Leocal’s holding, we therefore

confine our analysis to 18 U.S.C. § 16(b). 

Leocal dictates a “categorical” approach to determining

whether a crime is a crime of violence. Leocal, 543 U.S. at 8;

see also Oyebanji v. Gonzales, 418 F.3d 260, 262 (3d Cir.

2005). “This . . . requires us to look to the elements and nature

of the offense of conviction, rather than to the particular facts

relating to petitioner’s crime.” Leocal, 543 U.S. at 8. Our task,

then, is to determine whether simply “possessing” a pipe bomb

is an “offense[] that naturally involve[s] a person acting in

disregard of the risk that physical force might be used against
12

another in committing the offense.” Leocal, 543 U.S. at 10. We

hold that it is not.

The Government’s argument in favor of the District

Court’s charge is this: Because there are no “legitimate” uses for

a pipe bomb, and because they are such dangerous items, mere

possession of a pipe bomb involves the “substantial risk of

physical force.” Were that the complete test, we might agree.

However, the Government ignores the remainder of § 16(b):

“may be used in the course of committing the offense,”

(emphasis added). The Government’s argument fails to

acknowledge that the Supreme Court in Leocal repeatedly

emphasized the importance of the requirement that the force be

used in committing the offense, and here the offense is but one

of possession. “The risk that an accident may occur when an

individual drives while intoxicated is simply not the same thing

as the risk that the individual may ‘use’ physical force against

another in committing the DUI offense.” Leocal, 543 U.S. at 10

n.7. This element of § 16(b) is perhaps the most important. The

Leocal Court rejected, as dissimilar and insufficient, the

definition and interpretation of U.S.S.G. § 4B1.2(a)(2)’s

definition of “crime of violence,” which required only “conduct

which presents a serious potential risk of physical injury to

another.” Leocal, 543 U.S. at 10 n.7. This latter definition, by

contrast, might have covered the possession of a pipe bomb.

The danger from a pipe bomb comes not from the offense

of possession, but from the added factor of use of the pipe

bomb. See Leocal, 543 U.S. at 9 (“‘use’ requires active

employment”) (citing Bailey v. United States, 516 U.S. 137, 143

(1995) (substantive holding superseded by statute)); Bailey, 516
13

U.S. at 144 (“use . . . requires more than a showing of mere

possession”). To commit the offense of possession, Hull

merely had to exercise control or dominion over the pipe bomb.

There is no risk that physical force might be used against

another to commit the offense of possession, regardless of

whether pipe bombs have a legitimate purpose or not. Cf.

United States v. Bowers, 432 F.3d 518, 519 (3d Cir. 2005) (“[A]

felon in possession has committed a crime of violence only if

the nature of that offense is such that there is a ‘substantial risk’

that he will use ‘physical force’ against another ‘in the course

of’ his possession of the weapon.”) (emphasis added). In

contrast, had Hull been charged in the indictment with using a

pipe bomb, then commission of such an offense would

“involve[] a substantial risk that physical force against the

person or property of another may be used in the course of

committing” that offense. 18 U.S.C. § 16(b). Use of a pipe

bomb is the type of “violent, active crime[]” the Supreme Court

found constituted a crime of violence under § 16. Leocal, 543

U.S. at 11 (emphasis added). Possession is simply not such an

“active” crime; “A crime that increases the likelihood of a crime

of violence need not itself be a crime of violence.” United

States v. Lane, 252 F.3d 905, 907 (7th Cir. 2001), quoted with

approval in Bowers, 432 F.3d at 522.

The Government’s theory that a pipe bomb might “go

off’ at any moment and is therefore inherently, and

unredeemably, dangerous, is further foreclosed by our recent

decision in Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005). Tran

addressed whether “reckless burning or exploding” constituted

a crime of violence under § 16, and concluded that it did not.

We held that “§ 16(b) crimes are those raising a substantial risk
14

that the actor will intentionally use force in the furtherance of

the offense.” Id., 414 F.3d at 471 (emphasis in original). We

reasoned that:

“This element [recklessly endangering the property of

another], on its face, involves a substantial risk of

causing injury to the property of another. But it does not

involve a substantial risk of using force against the

property of another. The substantial risk involved in the

Pennsylvania statute is the risk that the fire started by the

offender will spread and damage the property of another.

This risk cannot be said to involve the intentional use of

force, as required by [United States v.] Parson [, 955

F.2d 858 (3d Cir. 1992)]. The statute does not

contemplate a risk that the reckless-burning offender will

step in and commit an intentional act of violence . . . .”

Id. at 472-73 (emphasis in original). Similarly here, mere

possession of a pipe bomb holds no risk of the intentional use of

force. Even if, as the Government posited at argument, a pipe

bomb can unexpectedly explode (and the possessor has this

knowledge) during even the most passive constructive

possessions, such an explosion would not have been the result

of any intentional use of force. Possessing a pipe bomb does not

necessarily include a substantial risk that the possessor might

step in and intentionally detonate the device, i.e., use force

within the meaning of § 16.

The Government points us to several other statutes under

which courts have found the mere possession of a “firearm” to

constitute a crime of violence. We do not find these statutes or
3

At oral argument the Government abandoned its analogy to

the Bail Reform Act, 18 U.S.C. § 3142. In Bowers, we joined four

other Circuits in rejecting the Government’s argument that for bail

purposes, a “felon-in-possession offense constitutes a ‘crime of

violence,’” Br. for the United States at 63. See Bowers, 432 F.3d

15

case law persuasive with respect to the case at hand. The

Government relies most heavily on a Fifth Circuit case, United

States v. Jennings, 195 F.3d 795 (5th Cir. 1999), interpreting 18

U.S.C. § 924(c), which defines “crime of violence” in the same

language as § 16. The Jennings court held that possession of a

pipe bomb satisfied that definition in the context of the

possession of a firearm in relation to a crime of violence. First,

Jennings is in no way binding on this Court. Second, we

disagree with the analysis of the Jennings court because it

conflates “use” with “possession,” which conflation the

Supreme Court took the opportunity to explicitly forbid in its

later opinion in Leocal. See, e.g., Jennings, 195 F.3d at 798

(“We hold that possession of an unregistered pipe bomb, by its

very nature, creates a substantial risk of violence. . . . In fact, we

cannot conceive of any non-violent or lawful uses for a pipe

bomb.”) (emphases added). 

As discussed, the relevant inquiry is not whether

possession makes it more likely that a violent crime will be

committed, but instead whether there is a risk that in committing

the offense of possession, force will be used. See Lane, 252

F.3d at 907. 

The remainder of the Government’s analogies are

similarly inapposite.3

 The Government suggests that we look to
at 521 (reaffirming Royce v. Hahn, 151 F.3d 116 (3d Cir. 1998)).

16

cases interpreting U.S.S.G. § 4B1.2 for guidance. Here we are

troubled by the Government’s lack of candor. Unlike any of the

previous definitions of “crime of violence” quoted by the

Government, § 4B1.2(a) (which the Government explicitly does

not quote or reference) defines a crime of violence as one that:

“(1) has as an element the use, attempted use, or

threatened use of physical force against the person of

another, or

(2) is burglary of a dwelling, arson, or extortion, involves

use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to

another.” (emphasis added)

Guidelines § 4B1.2 is inapposite to this case for at least two

reasons. First, Leocal explicitly rejected using § 4B1.2 to

interpret § 16 (and by extension, § 842(p)). Leocal, 543 U.S. at

10 n.7. Second, § 4B1.2 specifically sets apart “use of

explosives” from any other “conduct that presents a serious

potential risk of physical injury to another.” This implies that

“possession” of an explosive cannot qualify as a crime of

violence under § 4B1.2; if it did, we would be required to read

“use of explosives” out of the Guideline provision. See United

States v. Fish, 368 F.3d 1200, 1204 (9th Cir. 2004)

(“Interpreting the catchall phrase . . . to cover possession of a

‘pipe bomb’ would render the provision’s specific inclusion of

‘use of explosives’ in the same section surplusage.”); see also id.

at 1205 (“To ‘use’ an explosive, one must first necessarily

‘possess’ it.”). For this reason, none of the numerous cases cited
17

by the Government finding mere possession of a firearm, but not

an explosive device, to be a crime of violence under § 4B1.2, is

applicable. 

Ultimately we, like the District Court and the jury, are

limited by the charge in the superseding indictment. Had the

indictment charged that the federal crime of violence intended

was the use or detonation of a pipe bomb, we would have no

difficulty upholding the validity of the jury instruction. Instead,

however, the indictment charged Hull with only the intent that

his teaching lead to the mere possession of a pipe bomb. The

District Court erred in holding that such possession on its own

legally constituted a federal crime of violence under 18 U.S.C.

§ 842(p), or by extension 18 U.S.C. § 16. Accordingly, the

judgment of conviction on Count 7 will be vacated.

IV.

Hull next challenges the sufficiency of the evidence on

Count 10, witness tampering. Our review is plenary, but

deferential inasmuch as “we must . . . consider the evidence in

the light most favorable to the verdict and ask whether a

reasonable jury could have found that the contested elements

were proven beyond a reasonable doubt.” United States v.

Cohen, 301 F.3d 152, 156-57 (3d Cir. 2002). This is a heavy

burden for Hull to meet, United States v. Dent, 149 F.3d 180,

187 (3d Cir. 1998), and he has not done so on appeal.

Hull was convicted under 18 U.S.C. § 1512(b)(1), which

penalizes “Whoever knowingly uses intimidation, threatens or

corruptly persuades another person, or attempts to do so, or
4

While the superseding indictment included allegations that

Hull attempted to corruptly persuade Rusch on various topics,

including that someone else drilled an end cap and that Hull

refused to deal with the confidential informant, the District Court

charged the jury based only on the Unknown Terrorist allegation.

18

engages in misleading conduct toward another person, with

intent to– (1) influence, delay or prevent the testimony of any

person in an official proceeding.” Specifically, the Government

accused Hull of attempting to corruptly persuade Debbie Rusch

to testify that she did not believe he was the Unknown Terrorist,

when in fact, as she later testified, she did believe he was the

Unknown Terrorist; and that he knew the falsehood of his

desired testimony.4

As to Hull’s knowledge, there was ample evidence from

which the jury could conclude that Hull knowingly attempted to

corruptly persuade Rusch, with the intent to change her

testimony. See United States v. Farrell, 126 F.3d 484, 488 (3d

Cir. 1997) (holding that “corrupt persuasion” includes

“attempting to persuade someone to provide false information

to federal investigators”). “[T]he defendant must know that his

conduct has the natural and probable effect of interfering with

the witness’s communication, whether or not it succeeds.”

United States v. Davis, 183 F.3d 231, 248 (3d Cir. 1999). In his

letter telling Rusch to testify on the stand that “I sent [the

Unknown Terrorist article] to ya but you don’t think I wrote it,”

Hull told Rusch to immediately burn the letter. Thus, the letter

went beyond simply encouraging Rusch not to aid federal

investigators, which encouragement alone we excepted from §

1512(b)’s purview under the circumstances of Farrell. We note
19

that, contrary to Hull’s assertions on appeal, whether or not the

jury had difficulty with certain elements of the charge is

ultimately not “proof” that the conviction does not rest on

substantial evidence, nor does Hull’s explanation that Rusch had

a poor memory in need of refreshing somehow justify his

suggestion that she testify in a way she affirmatively knew to be

untrue. The jury’s verdict in Count 10 was supported by

substantial evidence.

V.

Hull next renews his attempt to suppress the wiretap

interceptions on the ground that agents failed to “minimize” the

interceptions and monitoring. Our review of the District Court’s

factual findings in a suppression hearing is for clear error.

United States v. Naranjo, 426 F.3d 221, 226 (3d Cir. 2005). Our

review of legal rulings and mixed questions of law and fact is

plenary. Id. 18 U.S.C. § 2518(5) requires as follows:

“Every order and extension thereof shall contain a

provision that the authorization to intercept shall be

executed as soon as practicable, shall be conducted in

such a way as to minimize the interception of

communications not otherwise subject to interception

under this chapter, and must terminate upon attainment

of the authorized objective, or in any event in thirty

days.”

The interception application and order in this case did include a

plan to minimize interceptions, as Hull acknowledges.

Nonetheless, because some of the intercepted conversations
20

were between Hull and his various girlfriends or Hull and

commercial businesses, and because the subject matter included

sexual discussions, Hull alleges a failure to minimize in practice.

We note, however, that none of the calls Hull labels as “nonpertinent” were played for the jury.

Our inquiry is on the “reasonableness” of minimization

efforts, under the totality of the circumstances. United States v.

Scott, 436 U.S. 128, 140 (1978); see also United States v.

Armocida, 515 F.2d 49 (3d Cir. 1975). We agree with the

District Court that when investigating a wide-ranging conspiracy

between parties known for their penchant for secrecy, broader

interceptions may be warranted. See United States v. Adams,

759 F.2d 1099, 1115 (3d Cir. 1985); Scott, 436 U.S. at 140

(upholding uninterrupted interceptions in drug conspiracy case).

The mere number of intercepted, but non-pertinent, calls is not

dispositive. Adams, 759 F.2d at 1115; see also id. (“Appellant

also can demonstrate no pattern to the interception of nonpertinent calls. Because of the variety of voices and transactions

involved, the government’s efforts at minimizing non-pertinent

conversations was acceptable.”). “The statute does not forbid

the interception of all nonrelevant conversations.” Scott, 436

U.S. at 140. Given, for example, the nature of the case and

circumstances known to the agents during the interceptions, we

discern no error in the District Court’s refusal to suppress the

wiretap interceptions on the ground of failure to minimize.

VI.

Finally, Hull challenges the jury instructions on Counts

4, 5, and 6, which referred to an unassembled bomb Hull
5

The Government contends that Hull objected only to the

jury instruction at Count 5, and therefore that his challenge to

Counts 4 and 6 should be reviewed only for plain error. Counts 4,

5, and 6 all relied on the same statute, however, and the District

Court concluded under that statute that the Government was not

required to prove Hull’s intent.

21

allegedly knowingly made, possessed, and transferred to the

confidential informant. “Although we generally review jury

instructions for abuse of discretion, our review is plenary when

the question is whether a district court’s instructions misstated

the law.” United States v. Dobson, 419 F.3d 231, 236 (3d Cir.

2005) (citations and quotation marks omitted). Hull disputed

the jury instructions ultimately given by the District Court,5

 but

did not file his own proposed instructions. 

Hull was convicted under 26 U.S.C. §§ 5861(d)-(f),

which state as follows:

“It shall be unlawful for any person–

[Count 4] (d) to receive or possess a firearm which is not

registered to him in the National Firearms Registration

and Transfer Record; or

[Count 5] (e) to transfer a firearm in violation of the

provisions of this chapter; or

[Count 6] (f) to make a firearm in violation of the
6

A pipe bomb is a “firearm” as defined for the purposes of

26 U.S.C. §§ 5861. Specifically, 26 U.S.C. § 5845(a)(8) defines a

“firearm” as, inter alia, a “destructive device.” 26 U.S.C. §

5845(f)(1) further defines a “destructive device” as “any explosive,

incendiary, or poison gas (A) bomb.” 

22

provisions of this chapter;”6

Specifically, Hull alleges that the jury should have been told that

he could only be convicted if (1) he knew that an unassembled

bomb was a “firearm” under the applicable statutes; and (2) he

intended that the recipient, whom he knew to be an informant,

assemble or use the bomb. The District Court’s refusal to

instruct the jury on these elements, Hull alleges, amounted to an

unconstitutional denial of his ability to mount a defense.

The Government was required to prove that Hull knew of

the features that made what he was making, possessing, or

transferring, a “firearm,” Staples v. United States, 511 U.S. 600,

619 (1994), and indeed the District Court instructed the jury

accordingly. However, Hull claims that the Government also

had to prove that he intended for the unassembled parts of the

pipe bomb to be assembled into a fully functioning pipe bomb.

This is simply not an element of 26 U.S.C. § 5861. “Section

5861(d) makes no reference to the intent of the person in

possession of an unregistered firearm.” United States v. Urban,

140 F.3d 229, 232 (3d Cir. 1991). 

As Hull concedes, “an unassembled bomb can also

qualify . . . as a destructive device,” Br. for Appellant at 60, and

therefore as a “firearm,” for the purposes of 26 U.S.C. §§ 5861.
23

See 26 U.S.C. § 5845(f)(3) (defining as a “firearm,” “any

combination of parts either designed or intended for use in

converting any device into a destructive device as defined

[above, including a bomb] and from which a destructive device

may be readily assembled”). Hull ignores our previous holding

that where there is no “ambiguity . . . as to the nature of the

assembled device,” intent is irrelevant. Urban, 140 F.3d at 233.

Accordingly, we discern no error in the District Court’s refusal

to instruct the jury that the Government must prove Hull

intended that the parts be converted into a destructive device.

VII.

We conclude that Hull’s conviction at Count 7 must be

vacated, as mere possession of a pipe bomb does not qualify as

a “Federal crime of violence” under 18 U.S.C. § 842(p). We

will affirm the judgment of conviction on all other Counts.

ACKERMAN, Senior District Judge, CONCURRING in part

and DISSENTING in part. 

Today, the Court holds that there is no substantial risk
24

that a person who unlawfully possesses a pipe bomb may

intentionally use physical force against another in the course of

committing the offense. Because I believe that a pipe bomb has

no lawful use, and that any unlawful possession of a pipe bomb

poses a substantial risk that the possessor may intentionally use

physical force against another in the course of possessing the

pipe bomb, I respectfully dissent from Part III of the majority’s

opinion.

I.

I begin with the plain language of the statute. Section

16(b) of Title 18 of the United States Code defines a crime of

violence to include “any . . . offense that is a felony and that,

by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the

course of committing the offense.” As the Supreme Court

explained in Leocal v. Ashcroft, 543 U.S. 1, 9 (2004), the term

“use” requires more than negligent or merely accidental

conduct. Indeed, as the Third Circuit held in Tran v.

Gonzales, 414 F.3d 464, 470 (3d Cir. 2005), it requires

“specific intent to employ force, and not mere recklessness as

to causing harm.” 

The terms “substantial risk” and “may” make clear that

the actual use of physical force is not a required element of a

crime of violence. See United States v. Dodge, 846 F. Supp.

181, 183 (D. Conn. 1994) (“Actual use of physical force

against another is not an essential element of a ‘crime of

violence’ . . . as evidenced by the use of the conditional term

‘may.’”). A “substantial risk” exists when there is a “strong
25

possibility” of the use of force. United States v. Jennings, 195

F.3d 795, 798 (5th Cir. 1999); see also United States v.

Dillard, 214 F.3d 88, 95 (2d Cir. 2000) (“It is sufficient that

the risk be material, important, or significant.”). As other

courts have recognized, the degree of probability required for

a risk to be “substantial” is undefined and difficult to quantify

with precision, see, e.g., Dillard, 214 F.3d at 94, but where

Congress has not supplied meaning to the words of a statute,

common sense and ordinary usage are typically a court’s best

resort, see Dimuzio v. Resolution Trust Corp., 68 F.3d 777,

783 n.5 (3d Cir. 1995); see also Am. Tobacco Co. v.

Patterson, 456 U.S. 63, 68 (1982) (“[W]e assume ‘that the

legislative purpose is expressed by the ordinary meaning of

the words used.’” (quoting Richards v. United States, 369

U.S. 1, 9 (1962))).

The phrase “in the course of committing the offense” is

the final element of § 16(b) requiring interpretation. 

Congress’s use of the present participle “committing”

connotes present, continuing action. See Am. Gas & Elec. Co.

v. Sec. & Exch. Comm’n, 134 F.2d 633, 648 (D.C. Cir. 1943)

(Stephens, J., dissenting); Fawn Mining Corp. v. Hudson, 878

F. Supp. 240, 243 (D.D.C. 1995). This usage accords with the

prepositional phrase “in the course,” which suggests not

merely a passing instant, but a continuum of time during

which a state or condition exists. See Webster’s Third New

International Dictionary 522 (1993) (defining “course” to

mean “progress or progression through a series . . . or through

a development or a period,” or “an ordered continuing

process, succession, sequence, or series”); see also Dillard,

214 F.3d at 93 (equating “in the course” with “during”). 
26

Finally, the statute speaks plainly of “the offense,” meaning

the whole offense, and not merely a portion or an aspect of a

given offense. Thus, common sense and ordinary rules of

usage dictate that “in the course of committing the offense”

should encompass nothing less than all conduct comprising a

given offense. This, in turn, requires a court to consider the

entire period during which it can be said the offense is being

committed. 

Against this interpretive backdrop, I read “crime of

violence” under § 16(b) to mean any offense that is a felony

and that, by its nature, involves a strong possibility that

intentional physical force against the person or property of

another may be used in the period of time during which the

offense is being committed. This reading flows from the plain

language of the statute and honors the common meaning of its

terms. Moreover, because I find no ambiguity in the terms of

§ 16(b), I find no occasion to resort to the rule of lenity. Cf.

Leocal, 543 U.S. at 11 n.8.

The Court today affirms Hull’s felony conviction for

possession of an unregistered pipe bomb. However, the

majority opines that “[t]here is no risk that physical force

might be used against another to commit the offense of

possession, regardless of whether pipe bombs have a

legitimate purpose or not.” Maj. Op. at 13 (emphasis

omitted). This interpretation distorts the language of § 16(b)

and significantly narrows its scope. By substituting “to

commit the offense” in place of “in the course of committing

the offense,” the majority adopts an interpretation under

which, once possession is initially obtained, a court need not
27

concern itself with whether there is any substantial risk that

the pipe bomb may be used thereafter. The majority considers

only the risk incident to effectuating the offense, and not the

risk that may exist during the continuing offense. For

instance, the majority opines that “[t]o commit the offense of

possession, Hull merely had to exercise control or dominion

over the pipe bomb.” Id. This interpretation ignores the

ongoing substantial risk that may exist throughout the course

of possession. I believe that the literal language of the statute

calls for a broader reading that takes into account any

substantial risk that may arise in the course of the continuing

offense. Under such a broad reading, if a substantial risk that

physical force may be used against another arises at any time

in the course of possessing a pipe bomb, the crime constitutes

a crime of violence. 

The broad reading of § 16(b) that I propose enjoys a

logical consistency lacking in the majority’s interpretation. It

defies contradiction that a person who obtains possession of a

pipe bomb on Monday is still “committing the offense” of

possession on Friday if he or she exercised continuous

dominion or control. Thus, the “course of committing the

offense” of possession includes the initial exercise of

dominion or control, the moment dominion or control is

relinquished, and all times in between. At any given time

within this continuum, it is obvious that the person is

“committing the offense” of possession.

Nothing in Leocal dissuades me from this conclusion. 

In Leocal, the late Chief Justice posed the example of

burglary as a crime for which there was a substantial risk that
7

 Compare People v. Shipley, 662 N.W.2d 856, 863 (Mich. Ct.

App. 2003) (holding that burglary is not a continuing offense), and State

v. Brown, 626 So. 2d 851, 854 (La. Ct. App. 1993) (same), with State v.

Stearns, 645 So. 2d 417, 418 (Fla. 1999) (holding that armed burglary

is a continuing offense).

28

force would be used against the person or property of another. 

543 U.S. at 10. At common law, an element of burglary was

breaking, which, by definition, required the use of force. 

William Blackstone, 4 Commentaries *225. Although courts

differ as to whether burglary is a continuing offense,7

 the

“substantial risk” element of § 16(b) is, at all events, satisfied

upon the initial act of breaking. Therefore, a court need look

no further than the initial breaking to conclude that burglary is

a federal crime of violence. This is why Congress and the

Court in Leocal identified burglary as the “classic example”

of a crime of violence under § 16(b). 543 U.S. at 10; see also

S. Rep. No. 98-225, at 307 (1984), reprinted in 1984

U.S.C.C.A.N. 3182, 3487. 

Possession, on the other hand, is almost universally

recognized to be a continuing offense. See, e.g., United States

v. Zidell, 323 F.3d 412, 422 (6th Cir. 2003) (noting that

“possession with intent to distribute a controlled substance is

a continuing offense,” and collecting cases); United States v.

Fleischli, 305 F.3d 643, 658 (7th Cir. 2002) (“Possession of a

firearm is a continuing offense which ceases only when the

possession stops.”); United States v. Blizzard, 27 F.3d 100,

102 (4th Cir. 1994) (“[P]ossession is by nature a continuing

offense.”); William Meyerhofer, Statutory Restrictions on
29

Weapons Possession: Must the Right to Self-Defense Fall

Victim?, 1996 N.Y.U. Ann. Surv. Am. L. 219, 233 (“Because

possession is a continuing offense, there is ordinarily no

single act which can be used to establish the defendant’s guilt. 

There is, rather, a continuum of time during which the

defendant possessed the weapon.” (footnotes omitted)). 

Indeed, “Congress intended the crime of possession to refer to

a course of conduct rather than individual acts of dominion.” 

United States v. Jones, 403 F.3d 604, 606 (8th Cir. 2005)

(holding that “the continuous possession of the same firearm

constitutes a single offense”). “Possession is a course of

conduct, not an act; by prohibiting possession Congress

intended to punish as one offense all of the acts of dominion

which demonstrate a continuing possessory interest in a

firearm.” United States v. Jones, 533 F.2d 1387, 1391 (6th

Cir. 1976). To effectuate possession, it is true, one need not

use force. However, simply because force was not used

initially in obtaining possession does not excuse a court from

its obligation to consider the full “course” of the continuing

offense. See United States v. Medina-Anicacio, 325 F.3d 638,

650 (5th Cir. 2003) (Garza, J., dissenting) (“The unlawful

possession of a dangerous weapon is an ongoing course of

conduct. Thus, an individual continues to commit the offense

as long as he holds onto the weapon.” (citations omitted)).

Pre-Leocal decisions from our sister circuits reflect a

clear understanding and acceptance of the judicial

responsibility to consider the full course of the continuing

offense of possession. Numerous courts of appeals have

recognized that certain crimes of possession may qualify as

crimes of violence. See, e.g., United States v. Rivas-Palacios,
30

244 F.3d 396, 397-98 (5th Cir. 2001) (sawed-off shotgun);

Sutherland v. Flemming, 229 F.3d 1164 (Table), 2000 WL

1174566, at *1 (10th Cir. 2000) (“Possession of a machine

gun, by its very nature, involves a substantial risk of violence

or force . . . .”); Dillard, 214 F.3d at 97 & n.9 (possession of

firearm by convicted felon); Jennings, 195 F.3d at 797-99

(pipe bomb); United States v. Drapeau, 188 F.3d 987, 990

(8th Cir. 1999) (bomb); United States v. Newman, 125 F.3d

863 (Table), 1997 WL 603740, at *1 (10th Cir. 1997) (pipe

bomb); Impounded, 117 F.3d 730, 738 & n.12 (3d Cir. 1997)

(holding that possession with intent to use dangerous or

deadly weapon is a “crime of violence”); United States v.

Amparo, 68 F.3d 1222, 1226 (9th Cir. 1995) (referring to

“uniform holdings” that “mere possession of an unregistered

firearm is a crime of violence”); United States v. Dunn, 946

F.2d 615, 620-21 (9th Cir. 1991) (sawed-off shotgun); see

also United States v. Fortes, 141 F.3d 1, 7-8 (1st Cir. 1998)

(holding that possession of sawed-off shotgun is a “violent

felony”); United States v. Jay, Nos. 03-M-3114-01,

03-M-3114-02, 2004 WL 744410, at *1-2 (M.D. Fla. Apr. 8,

2004) (pipe bomb); United States v. Powers, 318 F. Supp. 2d

339, 342 (W.D. Va. 2004) (collecting cases); United States v.

Butler, 165 F.R.D. 68, 71-72 (N.D. Ohio 1996) (felon in

possession of rifle and pipe bomb); Dodge, 846 F. Supp. at

183-84 (silencer and pipe bomb). Under the majority’s

reading of § 16(b), these cases are no longer good law. 

Because I do not believe that Leocal prohibited courts from

considering the entire course of a continuing offense when

determining whether that offense constitutes a crime of

violence, I do not believe that Leocal rendered these cases,

and their logic, obsolete.
31

II.

If this Court were to consider the full course of the

continuing offense of possession of a pipe bomb, I believe it

would be compelled to conclude, as so many other courts

have done already, that when a person unlawfully possesses a

pipe bomb, there is a substantial risk that that person may

intentionally use force against another. Unlike many other

types of “firearms,” a pipe bomb has no legitimate social

purpose. As the Fifth Circuit has recognized, 

[u]nlike a handgun, it is not considered sport to

hunt or engage in target practice with a pipe

bomb. Moreover, it would be quite difficult to

protect oneself or one’s family with a pipe bomb.

In fact, we cannot conceive of any non-violent or

lawful uses for a pipe bomb.

Jennings, 195 F.3d at 798 (footnotes omitted). The Ninth

Circuit has added that pipe bombs “have no legitimate

purpose and . . . have the potential to kill indiscriminately,

without warning, and with less chance that the perpetrator will

be caught.” United States v. Loveday, 922 F.2d 1411, 1416

(9th Cir. 1991); see also United States v. Dempsey, 957 F.2d

831, 834 (11th Cir. 1992) (quoting Loveday). A panel of the

Tenth Circuit similarly concluded that “[p]ipe bombs are

‘inherently dangerous weapons for which no peaceful purpose

can be seriously suggested, regardless of whether the weapons

actually are used.’” Newman, 1997 WL 603740, at *1

(quoting Dodge, 846 F. Supp. at 184). In a case involving

firebombs, the Eighth Circuit agreed with the Newman court’s
32

finding of a “lack of a nonviolent purpose for a bomb and the

fact that, by its very nature, there is a substantial risk that the

bomb would be used against the person or property of

another.” Drapeau, 188 F.3d at 990. A panel of the Sixth

Circuit reached the same conclusion in a per curiam decision,

finding that “[p]ipe bombs are inherently dangerous and serve

no useful purpose.” United State v. Cole, 19 F.3d 19 (Table),

1994 WL 64697, at *3 (6th Cir. 1994). The judicial

authorities are legion and unanimous: a pipe bomb serves no

legitimate, non-criminal purpose.

The judicial assessment in this regard mirrors the

views of Congress and law enforcement. Congress enacted a

registration requirement for certain firearms it deemed

“inherently dangerous and generally lacking usefulness,

except for violent and criminal purposes.” Dunn, 946 F.2d at

621; see also United States v. Fields, No. 05-1318, 2006 WL

1049654, at *4 (3d Cir. Apr. 21, 2006). “The legislative

history of the Firearms Act indicates that it requires

registration of objectively destructive devices, devices

inherently prone to abuse and for which there are no

legitimate industrial uses.” United States v. Cruz, 492 F.2d

217, 219 (2d Cir. 1974); see also United States v. Goldring,

332 F.3d 838, 843 (5th Cir. 2003). Federal law enforcement

authorities have acknowledged the specific threat posed by

pipe bombs, testifying before Congress that “pipe bombs and

firearms” have traditionally been regarded as “the favorite

weapons of the terrorist.” Patrick J. Daly, Assistant Special

Agent in Charge, Chicago Division, FBI, Testimony before

the House Committee on Governmental Reform,

Subcommittee on Government Efficiency, Financial
33

Management, and Intergovernmental Relations:

Counterterrorism (July 2, 2002), available at

http://www.fbi.gov/congress/congress02/daly07022002.htm. 

One need only consider the prevalence of pipe bombs in the

activities of domestic terrorists to appreciate the verity of this

statement. See generally Brent L. Smith, Terrorism in

America: Pipe Bombs and Pipe Dreams (1994) (describing

the activities of terrorist groups operating in the United States

from the 1960s through the 1990s). 

Evidence presented at trial provides even further

support for the conclusion that pipe bombs lack any legal

purpose. The Government’s expert, an officer with the

Bureau of Alcohol, Tobacco, Firearms and Explosives,

testified that pipe bombs like those discovered in Hull’s

possession “would not have any social or cultural value.” 

(App. at 1258.) He testified that “[t]here is no legitimate

purpose for these devices,” and that “[f]rom our perspective

or from any reasonable person’s perspective, they can simply

be used as a weapon and nothing more.” (Id. at 1258-59.) 

The expert elaborated that these pipe bombs “produce

fragmentation and they are not good for any kind of useful

work other than, of course, creating a weapon and injuring or

killing people.” (Id. at. 1261.) On cross examination, he

rejected any notion that a pipe bomb could be used for

farming purposes, such as removing stumps or rocks, because

the power generated by an exploding pipe bomb “is

insufficient to do any kind of useful work on a farm or

otherwise,” but “is enough to blow up the pipe, to throw

fragments.” (Id. at 1263.) At no time during trial did Hull

refute this evidence. 
34

For all of these reasons, there can be no serious dispute

that a pipe bomb lacks any nonviolent or lawful purpose. It

flows inexorably from this conclusion that when a person

unlawfully possesses a pipe bomb, there is a substantial risk

that he or she may put that pipe bomb to the use for which it

was intended: to perpetrate physical force against the person

or property of another. 

III.

None of the authorities cited in the majority’s opinion

compels a result contrary to the one I propose today. The

majority discusses our recent decision in Tran v. Gonzalez. In

Tran, a case which did not involve a pipe bomb, this Court

held only that § 16(b) requires that the “use” of “physical

force” be intentional, rather than merely reckless. 414 F.3d at

470. Intentional use of force is precisely the “substantial risk”

that I believe arises when one unlawfully possesses a pipe

bomb. Therefore, I find that Tran is fully consistent with the

interpretation I propose today.

The majority also discusses United States v. Bowers,

432 F.3d 518 (3d Cir. 2005), another case that did not involve

pipe bombs. In Bowers, we considered whether the crime of

being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1), was a crime of violence within the

meaning of 18 U.S.C. § 3142(g) and (f)(1)(A). We concluded

that it was not. We found that “many, perhaps most” of the

reasons why a felon might possess a firearm “do not involve

likely accompanying violence.” 432 F.3d at 521 (internal

quotation marks omitted) (citing United States v. Lane, 252
35

F.3d 905, 906 (7th Cir. 2001), for the proposition that felons

may use firearms for “self-defense, hunting, gun collecting,

and target practice”). That reasoning simply does not apply

here, where the possession of an unregistered pipe bomb has

no lawful purpose. See Drapeau, 188 F.3d at 990 n.4 (“The

offense of being a felon-in-possession of a firearm focuses on

society’s determination that certain individuals—felons—are

unqualified to possess firearms, even for lawful purposes. 

The offense of unlawfully making a bomb, however, focuses

on the inherent dangerousness of, and lack of a legitimate

purpose for, the bomb itself.” (citations omitted)). 

The majority also cites Bailey v. United States, 516

U.S. 137 (1995), to suggest that “[t]he danger from a pipe

bomb comes not from the offense of possession, but from the

added factor of use of the pipe bomb.” Maj. Op. at 12-13. In

Bailey, the Supreme Court considered the meaning of the term

“use” in 18 U.S.C. § 924(c)(1), a statute which specifies

penalties for the “use” of a firearm during and in relation to a

crime of violence. There, the Court held that “use” requires

“active employment,” rather than mere possession, of a

firearm. Id. at. 143. Although § 924(c)(1) and § 16(b) both

employ variations of the word “use,” the similarity stops

there. The Court in Bailey had no occasion to consider what

sort of conduct involves a substantial risk that physical force

may be used against the person or property of another. 

Moreover, because I regard the possession of an unregistered

pipe bomb to involve a substantial risk that physical force

against another may be “actively employed” in the course of

committing the offense of possession, I find Bailey entirely

consistent with my proposed construction.
36

Finally, the majority draws support from United States

v. Lane, in which the Seventh Circuit held that being a felon

in possession of a firearm was not a crime of violence within

the meaning of 18 U.S.C. § 3156(a)(4)(B). Aside from the

obvious fact that decisions of the Seventh Circuit do not bind

the Third Circuit, Lane did not involve a pipe bomb or other

weapon lacking any significant lawful use—a fact expressly

noted in the court’s opinion. See 252 F.3d at 907 (“Some

firearms, it is true—for example sawed-off shotguns— have

no significant lawful use, and so their possession by felons

may well constitute a crime of violence, as held in reference

to the sentencing guidelines . . . . Our defendant is not accused

of possessing such a weapon, however . . . .”). Therefore,

Lane is distinguishable and non-binding.

In short, the majority’s opinion makes new law. With

today’s holding, the Court steers a new course into largely

uncharted waters. If the “mere” possession of a pipe bomb is

not a crime of violence, then neither, it would seem, is the

“mere” possession of an even more destructive implement. I

do not believe that any of the precedents cited in the

majority’s opinion compel or warrant this result. 

IV.

Today, the Court holds that the “mere” possession of a

pipe bomb is not a federal crime of violence. As I read this

holding, the “mere” possession of a car bomb, or a landmine,

or an explosive vest, or a “dirty bomb,” or even a nuclear

bomb, would also not constitute a crime of violence, because

there would be no substantial risk that the possessor may use
37

physical force against another in the course of committing the

offense of possession. I cannot condone such a crabbed

interpretation of § 16(b). The “course” of committing the

crime of possession includes the time that possession is

obtained, the time that possession is relinquished, and all

times in between. In the course of possessing a pipe bomb,

there is always a substantial risk that the possessor may

intentionally (not accidentally) use physical force against the

person or property of another. The plain language of § 16(b),

no less than common sense, dictates this result.