U.S. v. Greer

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation588 F.2d 1151
Docket NumberNo. 78-5041,78-5041
PartiesThe UNITED STATES of America, Plaintiff-Appellee, v. Steven Lee GREER, Defendant-Appellant.
Decision Date15 December 1978

Kenneth M. Weidaw, III, Grand Rapids, Mich. (Court-appointed), for defendant-appellant.

James S. Brady, U. S. Atty., J. Terrance Dillon, Grand Rapids, Mich., for plaintiff-appellee.

Before CELEBREZZE and ENGEL, Circuit Judges, and LAWRENCE, District Judge. *

LAWRENCE, Senior District Judge.

Appellant was convicted in 1975 by a jury on the charge of conspiracy to possess an unregistered "destructive device" in violation of the National Firearms Act. 1 He was sentenced to an indefinite term as a Young Adult Offender. His motion for new trial was overruled. 2

Greer pleaded guilty to a bail jumping charge and received a similar sentence running concurrently with his conviction for conspiracy.

Three issues are involved in this appeal, namely:

(1) Whether the concurrent sentence doctrine should be applied with the result that the question of statutory interpretation would not be reached.

(2) Whether the explosive parts involved in this case were not as a matter of law, under a proper construction of the statute, an explosive device (as Greer contends) or whether under the National Firearms Act, as amended, they constituted (as the Government urges) a combination of parts intended for use by converting same into an explosive device.

(3) Whether the trial court's failure to give a requested instruction in respect to the effect of the defendant not taking the stand was plain error and reversible despite the lack of an adequate objection by counsel.

I Factual Background

David Edward Haley was indicted as a co-conspirator as to the conspiracy charge. In exchange for a recommendation by the Government of probation, he pleaded guilty to misprision of a felony and testified against Greer at the trial.

Haley was the principal witness for the prosecution. He testified that he first met Greer in Detroit in July, 1974. They talked about making money through "guns and explosives and some other stuff." A lengthy conversation on that subject took place at Greer's home in that city. Haley's impression of their discussion about explosives and about the plant at which defendant had once been employed was "that there was going to be one less factory." 3

It appears that Haley periodically purchased marijuana from Appellant which he carried to his home in Traverse City, Michigan. In January, 1975 Greer shipped marijuana to him via United Parcel Service. Haley acquired the explosives in February, 1975 to exchange for the marijuana. He was instructed by Greer to ship the parts to him via U.P.S. because it "had a low security check, or something like that." Haley then shipped thirty-five pounds of explosives to Appellant at 8933 Stahlin Street, Detroit. This was a nonexistent address and the package was returned to the United Parcel Service office in Livonia, Michigan. Some of its contents were spilling out. A Loss Prevention Manager who observed same believed that the items were explosives. He communicated with the Federal Bureau of Investigation and, on examination, the package was found to contain 104 primers and 50 electrostatic master blasting caps.

An explosives specialist for the Bureau of Alcohol, Tobacco, and Firearms testified that the primers would be the equivalent of about sixty-seven pounds of dynamite. His testimony was that the package contained "all the explosive components you need" and that the blasting caps could be detonated by electric current or by impact.

II The Concurrent Sentence Doctrine

Greer has appealed the conspiracy conviction but not his sentence on the plea of guilty to bail jumping. The Government urges this Court to apply the concurrent sentence doctrine and to decline to reach the merits as to statutory interpretation. See United States v. Grunsfeld, 558 F.2d 1231 (6th Cir.), Cert. den. sub nom. Flowers v. United States, 434 U.S. 872, 98 S.Ct. 219, 54 L.Ed.2d 152 (1977); United States v. Burkhart, 529 F.2d 168 (6th Cir. 1976). 4

Application of the concurrent sentence rule is discretionary. Ethridge v. United States, 494 F.2d 351 (6th Cir.) Cert. den. 419 U.S. 1025, 95 S.Ct. 504, 42 L.Ed.2d 300 (1974).

This appeal presents a significant question of statutory construction as to which there is a diversity of view in other Circuits. Under the circumstances, we decline to apply the rule relative to review of a concurrent sentence imposed in another and related case which was not appealed by the defendant.

III Destructive Devices under the National Firearms Act

The definition of firearm in 26 U.S.C. § 5845(a) includes a "destructive device." The term is dealt with or defined in three different subsections. Under subsection (f)(1) such a device encompasses bombs, grenades, rockets, missiles, mines, and similar devices. Subsection (f)(2) deals with large-bore weapons other than sporting guns.

Subsection (f)(3) includes "any combination of parts . . . intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled." The subsection last referred to is the key to the principal issue, namely, whether a package containing primers and blasting caps is a destructive device intended for use by converting same into such a device. The Government contends, as earlier noted, that the primers and blasting caps sent to Greer represented a "combination of parts . . . intended for use in converting" same into an explosive bomb.

What has produced the dichotomy in other Circuits is whether intent is a relevant factor in determining if component parts constitute a destructive device under § 5845(f).

The trial court charged the jury that the use for which the materials are intended determines whether they constitute a destructive device. After defining such devices in terms of the statute, the district judge gave the following instruction:

"Thus, you, as jurors, must decide whether the 35 pounds of dynamite caps, fuses, which the Government charges Mr. Greer with having agreed to possess, was a destructive device.

With respect to the types of materials involved in this case, the statute has been interpreted to mean that it is the use for which these materials are intended which determines whether they fall within the meaning of the term destructive device.

Dynamite fuses and caps may be used for legitimate purposes. They may also be frequently used in criminal activities, as in an explosive bomb.

It is up to you as members of the jury to determine what was intended to be the use of the commercial dynamite within the box. If you find the defendant intended to use the 35 pounds of dynamite and 50 blasting caps and wires for a commercial or industrial purpose or other legal purpose, then I instruct you there is no destructive device within the cardboard box."

IV Legislative History

The legislative history of the section of the statute which is involved in the present appeal was outlined by the Second Circuit in United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1971). In reviewing the history of the legislation the Court said:

"The statutory provisions under which appellant was convicted were enacted in 1968, as part of a Congressional attempt to stem the traffic in dangerous weapons being used in an increasing number of crimes involving personal injury. In June of that year, Congress passed, as Title IV of the Omnibus Crime Control and Safe Streets Act, Pub.L.No.90-351, 82 Stat. 197, amendments to the criminal provisions on firearms, 18 U.S.C. § 921 Et seq., to regulate the transfer and sale of firearms by licensed dealers to persons thought likely to misuse them. These provisions were deemed unsatisfactory to accomplish their purpose, however, and later in 1968 the Gun Control Act was passed, Pub.L.No.90-618, 82 Stat. 1213, further amending Title 18 and revising the National Firearms Act, 26 U.S.C. § 5801 Et seq., which dealt with registration and taxation of certain highly dangerous weapons, such as machine guns. 'Destructive devices,' included in the definition of 'firearms' for the first time in the Crime Control Act, were somewhat redefined and were included in the provisions of both titles." See 457 F.2d at 1113.

The background of the statutory scheme is reviewed in an annotation on explosive devices in 25 ALR Fed 351-53. The expressed purpose of the National Firearms Act of 1968 was "to strengthen the firearms provisions which had been enacted as part of the omnibus crime bill." 1968 U. S. Code Congressional and Administrative News, p. 4412. Congress was well aware of the result of the use of converted military type weapons as well as the street varieties of homemade instruments. It intended to outlaw both types. See United States v. Peterson, 475 F.2d 806, 810 (9th Cir.) Cert. den. 414 U.S. 846, 94 S.Ct. 111, 38 L.Ed.2d 93 (1975).

The Omnibus Crime Control Act of 1968 and the amendment to the Firearms Act later that year regulate "destructive devices." 18 U.S.C. § 921(a)(4); 26 U.S.C. § 5845(f). "The term 'destructive device' is defined to mean dangerous bomb and incendiary-type weapons . . . ." 1968 U. S. Code Congressional and Administrative News, p. 4416. Each of the statutes exempts "certain devices from the definition of 'destructive device.' The devices excluded are those not designed or redesigned or used or intended for use as a weapon E. g. construction tools using explosives when used for such purposes . . . ." Id. 4418. "Simply stated, a device may be 'converted' into a destructive device as defined in Subparagraphs (1) and (2) by way of 'design or intent.' See S.Rep.No.1501, 90th Congress, 2d Sess., P. 47 (1968)." United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1971) Cert. den. 405 U.S. 935, 92 S.Ct. 979, 30 L.Ed.2d 811 (1972).

V The Conflict in the Circuits

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