U.S. v. Hamrick

• Decision Date: 20 August 1993
• Docket Number: No. 92-5107,92-5107
• Citation: 995 F.2d 1267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney Curtis HAMRICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1267

995 F.2d 1267

UNITED STATES of America, Plaintiff-Appellee, v. Rodney Curtis HAMRICK, Defendant-Appellant.

No. 92-5107.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 2, 1992.

Decided June 15, 1993.

Rehearing In Banc Granted Aug. 20, 1993.

John J. Pizzuti, Camilletti, Sacco & Pizzuti, Wheeling, WV, argued, for defendant-appellant.

David Jonathan Horne, Special Asst. U.S. Atty., Wheeling, WV, argued (William A. Kolibash, U.S. Atty., on brief) for plaintiff-appellee.

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and BUTZNER, Senior Circuit Judge.

OPINION

ERVIN, Chief Judge:

Rodney Curtis Hamrick appeals his convictions by the United States District Court for the Northern District of West Virginia entered on January 28, 1992. Hamrick was convicted on the following eight counts: (1) the unlawful making of a destructive device in violation of 26 U.S.C. § 5861(f) ("count 1"); (2) possession of a destructive device in violation of 26 U.S.C. § 5861(d) ("count 2"); (3) unlawful transfer of a destructive device in violation of 26 U.S.C. § 5861(e) ("count 3"); (4) mailing of a nonmailable injurious article in violation of 18 U.S.C. § 1716 ("count 4"); (5) attempted murder of a United States Attorney in violation of 18 U.S.C. § 1114 ("count 5"); (6) the use of a destructive device in attempting to murder a United States Attorney in violation of 18 U.S.C. § 924(c) ("count 6"); (7) assault with a dangerous and deadly weapon in violation of 18 U.S.C. § 111 ("count 7"); and (8) use of a destructive device in connection with the assault on the United States Attorney in violation of 18 U.S.C. § 924(c) ("count 8"). The district court sentenced Hamrick to 210 months on counts 4 and 5. He was also sentenced to 120 months for counts 1, 2, 3, and 7 to run concurrently with each other. The concurrent 120 month sentences were also to run concurrently with the 210 month sentence for counts 4 and 5. Hamrick was sentenced to 360 months on counts 6 and 8, that sentence to run consecutively to all of the other sentences. He appeals his convictions and sentences.

Hamrick raises the following seven issues on appeal: (1) did the court err when it failed to instruct the jury as to the defense of legal impossibility; (2) did the United States prove beyond a reasonable doubt the element of intent as required under 18 U.S.C. §§ 111, 1114; (3) did the United States prove beyond a reasonable doubt the use of a "destructive device" in counts 1, 2, 3, 4, 5, and 8; (4) did the court err in allowing the government to impeach its expert witness; (5) did the court err in admitting a letter written by Hamrick admitting his culpability in sending the bomb; (6) did the district court err in admitting Hamrick's confession; and (7) did the court err in sentencing Hamrick to 360 months on counts 6 and 8. For the reasons set forth below, we affirm the decision in part and reverse it in part.

I

From December 18, 1990 until February 14, 1991, Rodney Hamrick was incarcerated in the Ohio County Correctional Facility pending prosecution by United States Attorney William Kolibash on federal charges. During his incarceration Hamrick built a bomb using a nine-volt battery as the power source, steel wire to conduct the electric current from the battery, three Bic butane lighters as the explosive, and a pink substance thought to be lip balm as the fuse. All of the necessary materials were readily available and acquired by Hamrick at the jail. Hamrick covered the improvised bomb with aluminum foil and placed it in a manila envelope between a legal pad and a piece of cardboard. The bomb was designed to explode when one opened the envelope and removed the pad.

Hamrick addressed the envelope to United States Attorney Kolibash and mailed it. On January 2, 1991, the United States Postal Service delivered the device to Kolibash at his office. Kolibash received the bomb and opened it. The bomb failed to detonate. The device slightly charred the legal pad; the charring, however, was invisible to the naked eye. Kolibash's staff called the bomb squad who defused the device without incident.

Two Federal Bureau of Investigation agents interviewed Hamrick immediately after Kolibash received the bomb. The agents believed that Hamrick was involved in sending the bomb because his return address was on the outside of the envelope. After giving Hamrick his Miranda warnings, the agents questioned him as to whether he sent the bomb and how it was constructed. Hamrick signed a written confession drafted by one of the agents admitting that he constructed and mailed the bomb. Subsequently, Hamrick sent a letter to the West Virginia American Civil Liberties Union admitting his involvement in sending a letter bomb to the United States Attorney.

At trial Hamrick's expert witness, Patrick Kennedy, testified that the bomb could not have detonated. The defense contended at trial, and on appeal, that the bomb could not be a destructive device under either 18 U.S.C. § 921(a)(4)(C) or 26 U.S.C. § 5845(f) because it was dysfunctional. Kennedy stated that he had reconstructed and tested the device, and submitted video-taped demonstrations of the device failing to detonate. Kennedy proffered that Hamrick's bomb failed in two respects: first, the unidentified pink substance serving as the ignitor was not flammable; second, the nine-volt battery could not generate sufficient heat to reach the ignition temperatures of several readily available substances which could have been substituted for the unidentified pink substance. Kennedy testified extensively as to the ignition temperatures of certain flammable materials available to Hamrick at the jail.

The Government argued that regardless of whether the device would have exploded as constructed, because substitute component parts were readily available to make the device operable, it was a destructive device under the relevant statutes. The Government countered Hamrick's expert witness by presenting three of its own. The first witness offered no testimony on whether the improvised bomb was capable of exploding. The second witness testified that the device was not operable, but that with modifications it could be rendered operable. The final expert witness's testimony was not certain on whether the bomb as constructed could have detonated. He testified, however, that with the substitution of readily available materials, the bomb could have exploded.

Hamrick was convicted on all eight counts. This appeal arises from those convictions, its gravamen being that the device sent to the United States Attorney was not a destructive device within the meaning of the applicable statutes. First, we will determine whether the dysfunctional bomb delivered to the United States Attorney was in fact a destructive device within the meaning of 26 U.S.C. § 5845(f) and its counterpart. Second, we will determine whether there was sufficient evidence to support the assault with a deadly weapon conviction. The remaining issues are not dependent on whether the device was operable. Third, we will address sufficiency of the evidence to support the attempted murder charge. Fourth, we will address the sufficiency of the evidence to uphold the conviction on count four, the mailing of nonmailable materials. Fifth, we will determine whether the district court erred in admitting and excluding certain evidence. Finally, we will examine the appropriateness of Hamrick's sentence in light of our rulings on the other issues presented. The classification of the dysfunctional device is critical to reaching a conclusion as to those issues.

II

A

Hamrick's first assignment of error is that counts 1 through 5 and count 8 were not proven beyond a reasonable doubt. He argues that the evidence was insufficient to establish that the dysfunctional bomb was a destructive device within the meaning of the statute.

An element of counts 1 through 3, count 6, and count 8 of Hamrick's convictions is that the apparatus sent was in fact a destructive device. 26 U.S.C. § 5845(f) defines a destructive device as "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 readily be assembled." ¹ Subparagraph (1) includes "any explosive, incendiary, or poison gas (A) bomb ..." and any number of other similar devices. 26 U.S.C. § 5845(f)(1).

The Government contends that the language "a combination of parts ... from which a destructive device may readily be assembled" should be read broadly. Under its interpretation of the statute a combination of parts is a destructive device even in the absence of one of the component parts if that part is readily available. Therefore, an inoperable bomb would be a destructive device if the faulty or absent component could readily be obtained to make the bomb operable. The Government's interpretation puts a "readily available components" gloss on the statute's language. This definition of destructive device was used in the jury instructions proffered by the court without an objection from Hamrick. As we have previously noted the failure to properly raise an objection to a jury instruction is reviewed under a plain error standard. United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982).

Hamrick offers a narrower interpretation: a combination of parts would only be a destructive device if, in its present condition, it was capable of detonating. Therefore, if a part was missing, or unbeknownst to the builder, a component was inoperable, the device would fail to meet the legal definition of a destructive device. This reading is clear from the statutory language and our previous interpretation of it. See United States v. Morningstar, 456 F.2d 278, 281 (4th Cir.1972). Furthermore, another circuit has reached a similar conclusion. United States...