U.S. v. Copus, 95-1385

Decision Date08 August 1996
Docket NumberNo. 95-1385,95-1385
Citation93 F.3d 269
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Larry J. COPUS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Larry Wszalek (submitted), Office of the U.S. Atty., Madison, WI, for Plaintiff-Appellee.

Reesa Evans, Madison, WI, for Defendant-Appellant.

Before ESCHBACH, COFFEY and EVANS, Circuit Judges.

COFFEY, Circuit Judge.

While investigating a domestic dispute, law enforcement authorities discovered an assortment of guns, grenades, and detonators in Larry Copus' residence. Copus was charged in a three-count indictment with various weapons violations. Count I charged Copus with unlawfully possessing a machine gun, in violation of 18 U.S.C. § 922(o)(1). Count II charged Copus with unlawfully possessing a silencer, in violation of 26 U.S.C. § 5861(d). Count III charged him with unlawfully manufacturing a firearm, in violation of 26 U.S.C. § 5861(f). A jury convicted Copus on all three counts, and the district court sentenced him to 97 months' imprisonment to be followed by a three-year term of supervised release. In this appeal, Copus challenges: the sufficiency of the evidence to convict him under Count III, the district court's decision to add six points to his base offense level for manufacturing fifty or more "destructive devices," and the constitutionality of the statutes under which he was prosecuted. We affirm.

I. BACKGROUND

Defendant Larry J. Copus resided with his wife and children in Edgerton, Wisconsin. On March 13, 1994, several police officers were dispatched to Copus' residence in response to a call from Copus that his wife had held a gun on him and threatened him. By the time the officers arrived, Copus had taken the handgun from his wife and she had fled the house. Copus' daughter informed the officers that another handgun was involved in the dispute.

In the process of searching the house for the other handgun, one of the officers discovered a rifle with a silencer in a gun case that had been converted into a machine gun. The officers also found a toolbox that contained twenty-seven shell casings. These shell casings had been converted into improvised detonators. The shell casings had been filled with explosive powder and then epoxied shut. Each detonator had a fuse attached to the shell casing. The toolbox also contained three hand grenade bodies, various hand grenade parts and explosive mixtures.

Not surprisingly, these discoveries led to further investigation of Copus. The Bureau of Alcohol, Tobacco, and Firearms searched Copus' residence and found explosive powder, U.S. military manuals detailing the manufacture of explosive devices and incendiary charges, and an improvised incendiary device. Still further investigation led authorities to a storage locker rented by Copus. In the storage locker, they found two pipe bombs made from 1/2-inch by 8-inch steel pipe in addition to four assembled hand grenades with pyrotechnic fuse protruding from the detonator assembly. Each of the four hand grenades and two pipe bombs were fitted with an improvised detonator similar to those recovered from Copus' residence. Also found in the storage locker were an additional twenty-three improvised detonators. Copus told authorities that he used the various devices found in his possession for blowing up stumps.

II. ISSUES

On appeal, Copus raises three issues. First, Copus challenges the sufficiency of the evidence to support the jury's verdict that he unlawfully manufactured "destructive devices," as that term is defined in the National Firearms Act, ch. 757, 48 Stat. 1236 (1934) (codified as amended at 26 U.S.C. §§ 5801 et seq.). Second, Copus argues that the district judge erred by increasing his offense level pursuant to U.S.S.G. § 2K2.1(b) based on a finding that Copus' offense involved fifty or more "destructive devices." Third, Copus challenges the constitutionality of the statutes under which he was prosecuted. He claims that the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), renders invalid his conviction under 18 U.S.C. § 922(o) for the possession of a machine gun. He also claims that the provisions of the National Firearms Act under which he was convicted cannot be justified on the basis of either the Commerce Clause or Congress' taxing power.

III. DISCUSSION
A. Sufficiency of the Evidence

Count III of the indictment charged Copus with unlawfully making a "destructive device," in violation of 26 U.S.C. § 5861(f). 1 Copus maintains that there was insufficient evidence to support a verdict that his home-made detonators constituted "destructive devices" as that term is defined in the National Firearms Act. The National Firearms Act defines a "destructive device" as:

(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device;

. . . . .

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

26 U.S.C. § 5845(f). Congress specifically excluded from the above definition "any device which is neither designed nor redesigned for use as a weapon." Id.

When considering a challenge on direct appeal to the sufficiency of the evidence to sustain a conviction, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). "[O]nly when the record is devoid of any evidence, regardless of how it is weighed, from which a jury could find guilt beyond a reasonable doubt" may a conviction be reversed. United States v. Johnson, 26 F.3d 669, 684 (7th Cir.), cert. denied, 513 U.S. 940, 115 S.Ct. 344, 130 L.Ed.2d 300 (1994). In this case, Copus failed to move for a judgment of acquittal either at the close of the evidence or within the seven-day period following the verdict, Fed.R.Crim.P. 29. This failure results in the waiver of any challenge on appeal to the sufficiency of the evidence absent a manifest miscarriage of justice. United States v. Archambault, 62 F.3d 995, 998 (7th Cir.1995); United States v. Baker, 40 F.3d 154, 160 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1383, 131 L.Ed.2d 237 (1995).

We believe that no manifest miscarriage of justice results from sustaining the verdict on Count III. Under § 5845(f)(1), a destructive device includes "any explosive ... bomb ... or ... similar device." The government presented evidence that the home-made detonators were fully assembled devices, each consisting of (1) a metal casing containing explosive powder that was epoxied shut and (2) a fuse. This type of assembly comports with the definition of the word "bomb" offered by Copus himself: "a container filled with explosive ... material to be set off by impact or by a timing device." (Reply Br. 9). Moreover, the government presented evidence that each detonator was capable of exploding and causing property damage and bodily injury. Thus, there was ample evidence to support a finding that the detonators were "bombs" or "similar devices."

Copus attempts to overcome the straightforward analysis outlined above by relying on the statutory exception to the definition of a "destructive device." The statutory exception states that the definition of a destructive device "shall not include any device which is neither designed nor redesigned for use as a weapon." 26 U.S.C. § 5845(f). Copus argues that there was no proof beyond a reasonable doubt that his home-made detonators were intended to be used as weapons. He contends that, without evidence that he intended to use the detonators as weapons, there was insufficient evidence for the jury to conclude that the detonators were "destructive devices" within the meaning of 26 U.S.C. § 5845(f).

In support of his view that the government had to prove that he intended to use the detonators as weapons, Copus relies on United States v. Worstine, 808 F.Supp. 663 (N.D.Ind.1992). In Worstine, the defendant was charged with unlawfully manufacturing, possessing, and transferring unregistered firearms, in violation of the National Firearms Act. The government charged that the devices in question qualified as "destructive devices": one was a galvanized metal pipe bomb and the others were explosive devices consisting of 3- to 4-inch plastic PVC tubing containing gun powder and enclosed with PVC end caps.

The district court found that, despite the defendant's claim that he was merely attempting to create a "firecracker" and not any sort of weapon, the galvanized metal pipe qualified as a "destructive device" under § 5845(f). With respect to the PVC devices, however, the court found that they were not clearly designed as weapons and that it appeared that the defendant's subjective intent was indeed to create firecrackers. Based on the totality of the circumstances, including the objective design of the PVC devices and the defendant's alleged subjective intent to create firecrackers, the court concluded that the PVC devices fell within the statutory exception to the definition of a "destructive device." Id. at 669.

It is undisputed that, in this circuit, the defendant's subjective intent is relevant to determining whether a "combination of parts" qualifies as a "destructive device" under § 5845(f)(3). Burchfield v. United States, 544 F.2d 922, 924 (7th Cir.1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977); United States v. Tankersley, 492 F.2d 962, 966 (7th Cir.1974). However, Copus' home-made detonators were fully...

To continue reading

Request your trial
16 cases
  • U.S. v. Uzenski
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 13, 2006
    ...originally have a "legitimate social purpose," but have been converted by the intent to use the device as a weapon); United States v. Copus, 93 F.3d 269, 272 (7th Cir.1996) (stating that "the defendant's subjective intent is relevant to determining whether a `combination of parts' qualifies......
  • United States v. Teston
    • United States
    • U.S. District Court — District of New Mexico
    • May 5, 2023
    ...device rendered it harmless,” Motion in Limine at 4, although it is non-binding, the Court finds the Seventh Circuit's reasoning in United States v. Copus persuasive, not for the principle for which the United States invokes it. See 93 F.3d at 273. Specifically, the Court finds persuasive t......
  • U.S. v. Fleischli
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 12, 2002
    ...any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Copus, 93 F.3d 269, 271 (7th Cir.1996). We may reverse a conviction only when the record is devoid of any evidence, regardless of how it is weighed, from which a jury ......
  • U.S. v. Graziano
    • United States
    • U.S. District Court — Eastern District of New York
    • September 10, 2008
    ...clearly falls within the ambit of the statute. 9. Although other circuits have reached a different conclusion, see United States v. Copus, 93 F.3d 269, 272-74 (2d Cir.1996) (discussing split among the circuits), Posnjak's holding regarding commercial dynamite is binding precedent in this Ci......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT