U.S. v. Gresham

• Decision Date: 16 July 1997
• Docket Number: No. 96-11121,96-11121
• Parties: 48 Fed. R. Evid. Serv. 110 UNITED STATES of America, Plaintiff-Appellee, v. Roger Eugene GRESHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 258

118 F.3d 258

48 Fed. R. Evid. Serv. 110

UNITED STATES of America, Plaintiff-Appellee, v. Roger Eugene GRESHAM, Defendant-Appellant.

No. 96-11121.

United States Court of Appeals, Fifth Circuit.

July 16, 1997.

Joe C. Lockhart, Dallas, TX, for Plaintiff-Appellee.

Lawrence Brown, Fort Worth, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Roger Gresham challenges his convictions of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). Finding no error, we affirm.

I.

Gresham and Cheryl Taylor lived together for many years, but their relationship ended in 1995. Following their separation, Gresham resolved to build a bomb and take revenge on Taylor. He carelessly discussed his plans, however, leaving an incriminating trail. At trial, witnesses recounted the evolution of Gresham's plot in damning detail.

A.

Gresham and Taylor were living together in Kensett, Arkansas, prior to their separation. As their relationship began to erode, Gresham regularly complained to the Kensett police chief, Ralph Jordan, that Taylor was stealing his property while Gresham, a truck driver, was absent on his routes. In one conversation, Jordan testified that Gresham threatened to kill Taylor. Finally, in September 1995, Taylor left Gresham and moved into a mobile home behind her parents' home, an apartment above an old gas station in Alvord, Texas.

In October 1995, Gresham offered a ride to a hitchhiker, Jimmy Saville, and offered to hire him to torch a mobile home in Alvord. Saville described the location of the mobile home, which was located behind an old store with an upstairs residence. This description precisely matched the address of Taylor's home. Saville declined the offer and reported the suspicious situation to the Wise County sheriff's department.

During the course of the next month, Gresham spoke often with Anthony Odell, an employee of the Alvord Citgo Truck Stop. Gresham claimed he was heartbroken over his separation from Taylor and inquired whether Odell would burn down a residence in Alvord. Odell identified the residence as Taylor's parents' home. Furthermore, Gresham offered Odell $250 to deliver a package to the mobile home located behind the residence. In response to a query from Odell, Gresham explained that the package contained a bomb. Odell declined the offer.

During this same period, Gresham was living in Odessa, Texas, with his aunt, Dorothy Underwood, who testified that Gresham had expressed his desire to take revenge on Taylor for leaving him. Furthermore, Underwood testified that in November 1995, Gresham built a pipe bomb in her home using gunpowder and component parts purchased at Wal-Mart. When she confronted Gresham about the bomb, he explained that he intended to bomb Taylor's parents' home. Underwood protested this plan, and Gresham moved out of her house. On December 31, 1995, Gresham called Underwood and warned her not to discuss his activities while living with her, explaining that he was about to take his revenge on Taylor.

On the same day Gresham was building the pipe bomb in Odessa, the post office in Seminole, Texas, received a change of address order for "Cheryl Presley," redirecting her mail from an address in Seminole to an address in Odessa. "Cheryl Presley" was a pseudonym occasionally used by Cheryl Taylor, and the address in Seminole belonged to her mother. Subsequently, Gresham confessed to Underwood that he had redirected Taylor's mail from an address in Seminole to a vacant house in Odessa, verifying his claim by showing Underwood a letter addressed to Cheryl Taylor.

Later that month, Gresham's son, Roger, learned that his father had built a pipe bomb, and observed its detonation. Roger subsequently guided investigators to the site of the blast, where they discovered the charred remnants of an explosive device. Based on their observations and an analysis of the component parts, investigators concluded that a pipe bomb had exploded in the area.

On December 8, 1995, Gresham attempted to hire a mechanic, Robert Markle, to deliver a package to his ex-girlfriend's house. Gresham bragged to Markle about his experience in such matters, stating that he had "done this before." Markle declined the offer.

Finally, by January 1996, Gresham's plot had reached fruition. While attending an orientation for Southern Refrigerated Transport, his new employer, Gresham confided in another driver, Michael Long. Gresham stated that he and his girlfriend had recently separated, and expressed his desire to take revenge against her. Furthermore, Gresham recounted his plan to Long in excruciating detail.

Gresham told Long he was going to mail his girlfriend a bomb, using a United Parcel Service ("UPS") label that had been prepared by another individual. To persuade her to open the package, Gresham explained that he had redirected his girlfriend's mail and intercepted a Christmas card addressed to her from a friend, which he intended to package with the bomb like a Christmas present. Long did not observe the card, but he did see a white envelope addressed to Taylor. Finally, Gresham showed Long the bomb, a section of pipe with capped ends. Gresham recanted the next day, explaining that he had decided not to send the bomb, but he threatened to harm Long and his family if Long repeated their conversation.

Later in January, Gresham asked Roger to deliver a brown cardboard box to Taylor, along with a photograph that he had intercepted from Taylor's mail. Gresham explained his plan to package Taylor's mail with the box, to persuade her to open it. In addition, Gresham boasted that he could alter the entries in his log book to "cover up his tracks." Roger refused to deliver the package, and he attempted to dissuade his father from sending it to Taylor. Unfortunately, he failed.

B.

On January 11, 1996, two unidentified men shipped a package to Taylor from Sweetwater, Texas. Satellite tracking records obtained from Southern Refrigerated Transport, Gresham's employer, placed Gresham in Sweetwater on that afternoon, although his log book did not indicate a stop in Sweetwater. The return address on the shipping records identified the sender as Dana Meeks of Cedar Creek, Texas; Meeks had mailed a Christmas card to Taylor during the period when Taylor's mail had been diverted.

On January 12, U.P.S. delivered the package to Taylor. The package was a brown cardboard box attached to a Christmas card from Meeks and a photograph of the Meeks family. Taylor took the package into her home and opened it, whereupon it exploded. The ensuing investigation led authorities to Gresham.

C.

Gresham was arrested and charged, in a four-count indictment, with possession of an unregistered firearm, in violation of § 5861(d), and possession of a firearm by a convicted felon, in violation of § 922(g)(1). The government dismissed the other two counts. Gresham was convicted of both offenses.

II.

Gresham argues that the district court erred in denying his motion to dismiss count one of the indictment, possession of an unregistered destructive device, because the statute is unconstitutional. Alleging that the statute exceeds the taxation power of Congress, Gresham claims that his conviction violates the due process clause. We disagree.

A.

Gresham argues that § 5861(d) is unconstitutional because it exceeds the taxation power of Congress. The National Firearms Act ("NFA"), 26 U.S.C. § 5801 et seq., requires the payment of a tax on the transfer or production of certain weapons. See 26 U.S.C. §§ 5811, 5821. In order to facilitate enforcement, the act requires all firearms to be registered with the National Firearms Registration and Transfer Record. See 26 U.S.C. § 5841. In order to guarantee compliance with the registration requirement, the statute criminalizes the possession of unregistered firearms. See § 5861(d). ¹

Gresham charges that Congress has used the taxation power as a pretext to prohibit the possession of certain disfavored weapons, without any rational relationship to the revenue-raising purposes of the Internal Revenue Code. Therefore, Gresham claims that the NFA confers a police power on the United States, antithetical to the enumerated powers granted in the Constitution.

To the contrary, it is well-settled that § 5861(d) is constitutional because it is "part of the web of regulation aiding enforcement of the transfer tax provision in § 5811. Having required payment of a transfer tax and registration as an aid in collection of that tax, Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons." United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972). ²

Insofar as the statute is a valid exercise of the taxing power, the fact that it incidentally accomplishes goals other than raising revenue does not undermine its constitutionality. "[T]he motives that move Congress to impose a tax are no concern of the courts." Id. at 1146. The facial constitutionality of 26 U.S.C. § 5861(d) is firmly established, and we need not reconsider it.

B.

Notwithstanding the statute's facial constitutionality, Gresham claims that his conviction violates the due process clause and belies the constitutional foundation of § 5861(d), because it was legally impossible for him to register the pipe bomb and thus comply with the requirements of the NFA. We disagree.

The NFA forbids the manufacture or transfer of any firearm without the government's advance permission. Permission shall be denied if the making, transfer or possession of the firearm would place the transferee in violation of the law. See 26 U.S.C. §§ 5812, 5822. If permission is not obtained, the registration requirement cannot be satisfied. See 26 U.S.C. § 5841(c)....