U.S. v. Graham
| Decision Date | 10 July 2002 |
| Docket Number | No. 01-1157.,01-1157. |
| Citation | 305 F.3d 1094 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Paul Giovanni GRAHAM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Paul Grant, Englewood, CO, for Appellant.
Gregory Goldberg, Assistant United States Attorney (John W. Suthers, United States Attorney, Sean Connelly and Joseph Mackey, Assistant United States Attorneys, on the brief), Denver, CO, for Plaintiff-Appellee.
Before LUCERO and ANDERSON, Circuit Judges, and BROWN,* District Judge.
Appellant's petition for rehearing is denied.
The suggestion for rehearing en banc was transmitted to all of the judges of the court who are in regular active service as required by Fed. R.App. P. 35. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the suggestion is also denied.
Appellee's motion to publish the order and judgment is granted. The order and judgment filed on July 10, 2002, shall be published. The published opinion is attached to this order.
Defendant Paul Giovanni Graham ("Graham") appeals from his conviction on three counts of "engag[ing] in the business of... dealing in explosive materials without a licence," in violation of 18 U.S.C. § 842(a)(1). We reverse in part and affirm in part.
The evidence at trial, viewed in the light most favorable to the government, established the following facts:
In June 1999 Detective Kirk McIntosh ("Mack") was involved in an undercover investigation of a militia-type organization ("Organization"). On or about June 19, 1999, Mack attended Organization training exercises held in Park County, Colorado. Graham participated in these exercises. Mack observed Graham explode devices similar to M280 firecrackers, which Graham referred to as "quarter stickers." Tr. of Trial Proceedings at 32, R. Vol. 4. According to Mack, Graham made a comment to the effect "that he had a source for [the M280 devices] and he could get more of them." Id. Based on this comment, Mack decided to approach Graham about whether he would sell him some of the devices.
On or about June 30, 1999, Mack went to Front Range Surplus Store ("Store"), a business owned and operated by Graham. While at the Store, Mack asked Graham if "he was able to get any more of the quarter stickers that we had seen on the exercise in Park County." Id. at 33. Graham indicated that he had nineteen of the devices left and that he would sell them to Mack for $7 a piece. Mack purchased ten of the devices, giving Graham $70 cash which Graham placed in his pocket.
During this transaction Mack inquired into whether or not the devices were waterproof and could be used for fishing purposes. According to Mack, Graham responded that they were not, but indicated that "his manufacturer" could custom make the devices if necessary and that Graham himself was having "some custom ones made." Id. at 37. Mack testified that although he did not make a specific request for any future devices, Graham "left it open that [Mack] could pretty much make any request and that his supplier would probably grant it." Id. at 49.
Thereafter John Kronfeld, a cooperating witness for the FBI, was enlisted to assist with the investigation and conduct additional controlled buys from Graham. Kronfeld first approached Graham at a survival show on or about January 28, 2000. He introduced himself as Mack's associate, and inquired into whether they could get more of the devices. Graham responded positively, indicating his willingness to deal with Kronfeld.
Kronfeld met with Graham at the Store on or about February 22, 2000, at which time the two agreed that Kronfeld would purchase fifty of the devices at a cost of $11.50 a piece. The sale was completed on February 25, 2000, when Kronfeld returned to the Store to pick up the devices. During this meeting Graham referred to the devices as "extension cords" and told Kronfeld to pick them up in the back of the Store because he did not want them going out of the Store itself. Kronfeld paid Graham $575 cash for the devices, which Graham again placed in his pocket. Kronfeld then proceeded out to the back of the Store where he found the devices in a box labeled "extension cords."
The next transaction occurred on or about March 20, 2000. Graham agreed to sell Kronfeld fifty more devices for $11.50 a piece. The procedure was essentially the same. When Kronfeld arrived at the Store he paid Graham $575 cash which Graham again placed in his pocket. Graham again referred to the devices as "extension cords," and Kronfeld again found the devices in a box out behind the back of the Store.
The final transaction occurred on or about May 30, 2000. As with the previous transactions, Kronfeld agreed to purchase fifty devices for $11.50 a piece. When Kronfeld arrived at the Store he paid Graham $575 cash which Graham again placed in his pocket. Graham then informed Kronfeld that he only had twenty-seven or twenty-eight of the devices on hand, but that the manufacturer was making more to be picked up in a few days. Kronfeld left with the twenty-seven or twenty-eight devices which Graham again referred to as "extension cords," and which Kronfeld again found in a box behind the Store.
After this final transaction, Kronfeld discussed with Graham, via e-mail and telephone, the possibility of ordering 1000 more devices in five increments of 200. During these conversations Graham indicated his continued willingness to engage in future transactions, but told Kronfeld that the price might be higher because he had a new manufacturer.1
On or about June 14, 2000, federal officers executed a search warrant at the Store. During the search, officers found approximately twenty-five devices which were apparently intended to fulfill the balance owed Kronfeld on the May 2000 transaction.
It is undisputed that Graham obtained all of the devices he sold to Mack and Kronfeld from the same manufacturer, and that he paid the manufacturer approximately $6.50 a piece for the devices. It is also undisputed that Graham made approximately $755 on the four transactions (approximately $5 on the initial transaction with Mack and approximately $250 on each of the transactions with Kronfeld). The profits were apparently donated to the Organization.2
Graham was indicted on four counts, each alleging that he "knowingly and unlawfully engaged in the business of ... dealing in explosive materials ... in violation of Title 18, United States Code, Section 842(a)(1)." Indictment at 1-2, R. Vol. I, Doc. 1. Each count was based entirely on one of the four separate transactions described above.
Prior to trial, Graham unsuccessfully moved to dismiss the indictment, asserting that section 842(a)(1) violated his constitutional rights under the Second, Fifth, Ninth and Tenth Amendments. At trial, Graham unsuccessfully moved for a judgment of acquittal pursuant to Fed. R.Crim.P. 29(a), asserting that the government failed to present evidence sufficient to prove its case beyond a reasonable doubt.3 Graham's motion in this regard was based entirely on his assertion that the term "engage[] in the business" in section 842(a)(1) requires proof that the defendant engaged in the sale of explosives as his primary business, or for profit as a means of sustaining his livelihood.
At the conclusion of the trial, the jury found Graham guilty with respect to the three counts involving the transactions with Kronfeld, but found him not guilty with respect to the one count involving the initial transaction with Mack. Graham thereafter filed a post-trial motion for a judgment of acquittal, reasserting his argument that the evidence presented at trial was insufficient to sustain the conviction, and arguing for the first time that the three separate convictions were multiplicitous because "the government charged each isolated transaction as a separate offense." Def.'s Post-Trial Mot. for J. of Acquittal at 7, R. Vol. I, Doc. 97. The district court denied the motion, without any discussion of Graham's multiplicity claims. The district court thereafter sentenced Graham to three concurrent eight-month terms of imprisonment, followed by three concurrent three-year terms of supervised release, and ordered Graham to pay three separate $100 special assessments.
On appeal, Graham contends that there was insufficient evidence to sustain his convictions, and that section 842(a)(1) is unconstitutional because it is void for vagueness and violates his rights under the Second, Fifth, Ninth and Tenth Amendments. We address each of his contentions in turn.
Graham's sufficiency of the evidence argument actually consists of two separate contentions. First, he asserts that the government improperly charged him with a separate count for each of the four separate transactions, rendering his convictions multiplicitous. Second, he asserts that a conviction under section 842(a)(1) requires proof that the defendant sold explosives as a primary business or for the sole purpose of making a profit to sustain his livelihood, and that the evidence presented at trial does not establish this required element. For the reasons discussed below, we agree that the convictions were multiplicitous and that Graham can be convicted on only one count but reject his argument that the evidence was insufficient to support a conviction on that single count.
"Multiplicitous counts—those which are based on the same criminal behavior —are improper because they allow multiple punishments for a single criminal offense." United States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir.1997). We ordinarily review claims of multiplicity de novo, id., but where a defendant fails to raise the issue in a pre-trial...
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