434 F.3d 690 (4th Cir. 2006), 04-4136, United States v. Uzenski

Docket Nº:04-4136.
Citation:434 F.3d 690
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward UZENSKI, Defendant-Appellant.
Case Date:January 13, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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434 F.3d 690 (4th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Edward UZENSKI, Defendant-Appellant.

No. 04-4136.

United States Court of Appeals, Fourth Circuit.

January 13, 2006

Argued: Dec. 2, 2005.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Malcolm J. Howard, District Judge. (CR-02-26)

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COUNSEL

ARGUED:

James M. Ayers, II, New Bern, North Carolina, for Appellant .

Christine Witcover Dean, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

ON BRIEF: Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

OPINION

GREGORY, Circuit Judge:

Thomas Edward Uzenski was convicted by a jury of four counts related to manufacturing

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and possessing an unregistered firearm, in violation of several provisions of the National Firearms Act (the "NFA"), 26 U.S.C. § 5801 et seq., and a fifth count related to obstructing justice, in violation of 18 U.S.C. § 1503. Uzenski raises several purported errors on appeal, asserting, inter alia, that the district court improperly (1) denied his motion for acquittal based on the insufficiency of the evidence underlying his firearms convictions;1 (2) denied his motion to suppress; (3) allowed one of the Government's expert witnesses to testify; and (4) admitted evidence of prior bad acts. Finding no merit in any of these contentions, we affirm his convictions. Uzenski also challenges his sentence, which included two separate sentencing enhancements for the abuse of a position of trust and use of a destructive device under the United States Sentencing Guidelines ("Guidelines"). Because we find that Uzenski's sentence violated the Sixth Amendment according to United States v. Booker, 125 S.Ct. 738 (2005), we vacate his sentence and remand for resentencing.

I.

At the time of the charged offenses, Uzenski was serving as a detective for the Winterville Police Department ("Winterville PD") in North Carolina. On March 25, 2002 at 10:30 a.m., Sergeant Bobby Braxton received a radio call from Uzenski who asked him to meet him at North Carolina Highway 11 ("Highway 11"), reciting the code "1018" for "urgent." Sergeant Braxton arrived at the scene and saw Uzenski squatting and holding what appeared to be a pipe bomb. The object was a silver pipe with two end caps, black tape, an attached battery, and some mercury. Winterville PD Chief Billy Wilkes, who had overheard the radio call and rushed to the area, approached the officers as Uzenski was still squatting with the pipe bomb in his hands on the grassy shoulder of the highway. Chief Wilkes advised Uzenski to lay the bomb down gently.

After closing down both sides of the highway, Chief Wilkes, Sergeant Braxton, and eight other officers thoroughly searched the immediate area. That afternoon, a bomb squad from the North Carolina State Bureau of Investigation ("SBI") arrived to disarm the device. Special Agent Stuart Campbell confirmed that the device was a pipe bomb. Agent Campbell used the robot to move the pipe bomb approximately ten to fifteen feet from the shoulder of the road to the center lane of the highway. He then donned a protective suit, loaded a special gun, set sandbags around the device, and shot at the device twice at close range with special ammunition rounds. With the first shot, Agent Campbell was able to remove the battery; with the second, he successfully removed one of the end caps.

Agent Campbell then used the robot to inspect the device, which appeared to emanate a grayish black powder with red or pink dots. After the device had been declared safe, SBI Crime Scene Investigator

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Misty Ellington collected the disarmed device, which consisted of a pipe wrapped in black electrical tape, a glass tube containing mercury that was attached to the pipe, green wires, and a pile of powder. She put the remaining powder in a can and handed all of the items to Uzenski, who was the local case officer on the matter. Meanwhile, Agent Campbell, along with other officers, began investigating the immediate area. They recovered pieces of the battery and wires that appeared to be an electric match.

On March 26, 2002, Special Agent Michael Anderson and Special Agent Ken Andrews of the United States Bureau of Alcohol, Tobacco, and Firearms ("ATF") met with Uzenski and Chief Wilkes. At this time, Uzenski was not a suspect. Uzenski told the agents that he had discovered the device while performing a routine, on-foot canvassing survey of major highways in the area. Uzenski, Chief Wilkes, Agent Anderson, and Agent Andrews then drove to the site where the device had been discovered. Nearly three yards away from this point, Agent Andrews discovered a second device constructed with a galvanized pipe, which had been threaded on both ends; an end cap with a drilled hole in the middle; and a second, intact end cap. Highway 11 was again shut down, and Agent Andrews contacted Agent Campbell to disarm the device.

Shortly thereafter, Agent Campbell arrived with Special Agent Tim Luper, who proceeded to disarm the device by shooting off an end cap. The agents used the robot to pick up the device, an act which caused a substantial amount of dark powder to fall out. The powder blew down the highway because the winds were very strong that day. Investigator Ellington attempted to collect as much powder as she could, along with the remaining fragments of the device, an end cap, and granulated material. She then turned these materials over to Uzenski.

Following the discovery of the second device, Agent Anderson went to a Lowe's store ("Lowe's") to investigate purchases of galvanized pipes. He received a computer print-out indicating that an individual had recently purchased a one-and-a-half by five-inch galvanized pipe, a two by five-inch galvanized pipe, and end caps two days prior to the discovery of the pipe bombs. A surveillance videotape from Lowe's indicated that this individual had made the purchase on March 23, 2002 at 10:03 a.m. Agent Anderson immediately recognized the person on the videotape as Uzenski.

Agent Anderson spoke with a Pitt County Community Police Officer, who said that Uzenski told him he had built pipe bombs as a young man. On March 29, 2002, Uzenski also told Agent Anderson over lunch that he had built a pipe bomb as a teenager. Apparently, Uzenski had explained to Agent Anderson that:

He had a PVC pipe and he put two ends on it and cut open two or three shotgun shells and poured the powder in the pipe and used the shoe lace as a fuse and lit the shoe lace and it made a loud boom.

J.A. 70.2

On April 24, 2002, Agent Anderson asked Uzenski to discuss the pipe bomb investigation at the SBI Office at 9:30 a.m. the following morning. At that point, Agent Anderson did not tell Uzenski that he was a suspect in the matter. The same day, Agent Anderson submitted a search warrant application before the magistrate judge, seeking to search and seize items from Uzenski's apartment and car. The search warrant application specified two

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categories of items to be seized and searched: (1) items related to making home-made bombs; and (2) information or data capable of being read by a computer. Upon review of the application, the magistrate judge struck out the request to search and seize the following items:

Any and all electronic devices which are capable of analyzing, creating, displaying, converting, or transmitting electronic or magnetic computer impulses or data. These devices include computers, computer components, computer peripherals, word processing equipment, modems, monitors, printers, plotters, encryption circuit boards, optical scanners, external hard drives, and other computer-related electronic devices.

J.A. 182. The magistrate judge then signed the search warrant at 3:20 p.m. that day. J.A. 180.

On April 25, 2002 at 9:30 a.m., Uzenski appeared at the SBI Office with Chief Wilkes in response to Agent Anderson's request. SBI Special Agent Ken Basemore first asked Uzenski and Chief Wilkes to check their weapons at the desk or secure them in their vehicle. After so doing, Uzenski and Chief Wilkes returned to the SBI office, where Agent Basemore directed Uzenski to a twenty-one by sixteen-foot conference room with a thirteen-foot table running in the middle. One of the other agents present at the SBI Office intercepted Chief Wilkes to discuss the investigation.

Once alone, Agent Anderson asked Uzenski whether he wanted any refreshments such as coffee. Agent Anderson then "asked Mr. Uzenski to go ahead and view this video, don't say a word, don't say anything until after the video was completed ...." I A. 73. As the videotape played for six or seven minutes, Agents Anderson and Basemore watched as the veins inside Uzenski's neck expanded. They further observed that Uzenski appeared to be hyperventilating.

After the video concluded, Agent Anderson told Uzenski, "We know who, we know what, we know where, and we know when. The only thing we don't know and want to know is why." J.A. 74. Uzenski acknowledged that he had been at Lowe's on March 23, 2002, but claimed that he had only purchased light bulbs and bug spray. According to Agent Anderson, Uzenski admitted that he was the person identified on the videotape. At approximately 9:50 a.m., Agent Anderson left the conference room and telephoned Special Agent Michael Fanelly, who was conducting the search and seizure at the same time the interview with Uzenski was occurring....

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