U.S. v. Hamrick

• Decision Date: 06 January 1995
• Docket Number: No. 92-5107,92-5107
• Citation: 43 F.3d 877
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney Curtis HAMRICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 877

43 F.3d 877

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

No. 92-5107.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 7, 1993.

Decided Jan. 6, 1995.

ARGUED: John J. Pizzuti, Camilletti, Sacco & Pizzuti, Wheeling, WV, for appellant. David Jonathan Horne, Sp. Asst. U.S. Atty., Wheeling, WV, for appellee. ON BRIEF: William D. Wilmoth, U.S. Atty., Wheeling, WV, for appellee.

Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges, and BUTZNER and PHILLIPS, Senior Circuit Judges.

Affirmed by published opinion. Judge LUTTIG announced the judgment of the court and wrote an opinion, in which Judges RUSSELL, WIDENER, WILKINSON, WILKINS, NIEMEYER, and WILLIAMS joined. Judge LUTTIG wrote a concurring opinion. Judge HAMILTON wrote an opinion concurring in the judgment. Chief Judge ERVIN wrote a dissent, in which Judges HALL, MURNAGHAN, and MICHAEL, and Senior Judges BUTZNER and PHILLIPS joined.

OPINION

LUTTIG, Circuit Judge:

We sua sponte granted rehearing en banc to consider Rodney Curtis Hamrick's appeal from convictions resulting from his attempt to assassinate a United States Attorney with a letter bomb. A panel of our court reversed most of Hamrick's convictions on the grounds that the bomb was neither a "dangerous weapon" under 18 U.S.C. Sec. 111(b) nor a "destructive device" under 18 U.S.C Sec. 924(c)(1) and 26 U.S.C. Sec. 5861(d)-(f). For the reasons that follow, we affirm Hamrick's convictions and his sentences.

I.

In 1987, from state prison, appellant mailed letters threatening to murder then-President Ronald Reagan. He was charged with and later pleaded guilty to threatening the life of the President of the United States in violation of 18 U.S.C. Sec. 871(a). For this offense, he was sentenced in July 1988 to five years imprisonment by United States District Judge William M. Kidd. See United States v. Hamrick, No. 88-40 (N.D. W. Va. July 22, 1988) (unreported).

While serving this sentence at the Federal Correctional Institute at Petersburg, Virginia, Hamrick built five improvised bombs. The first was determined to have been an inoperable test bomb after it was disarmed by an Army Explosive Ordinance Detail. The next four exploded, one of them seriously injuring a fellow inmate. In connection with these latter incidents, a jury convicted Hamrick of four counts each of the unlawful manufacture of an incendiary device, 26 U.S.C. Sec. 5861(f), possession of an unregistered firearm, id. Sec. 5861(d), and possession of contraband in prison, 18 U.S.C. Sec. 1791(a)(2). He was also convicted for making a bomb threat, 18 U.S.C. Sec. 875(c), in which he threatened to blow up the United States District Courthouse in Washington, D.C., if he were not released. In November 1990, United States District Judge Robert R. Merhige, Jr., sentenced him to ten years imprisonment. See United States v. Hamrick, No. 90-12 (E.D. Va. Nov. 27, 1990) (unreported).

During the time that he was in federal prison, Hamrick also committed numerous disciplinary infractions that did not result in criminal charges. ¹ The most significant of these were four incidents in which he constructed improvised guns. He fired one of these guns at a fellow inmate and threatened a guard with another. He also was disciplined for making four bomb threats, threatening at various times to blow up the courthouse in Elkins, West Virginia, a United Airlines flight, and the NAACP headquarters in Washington (twice), if he were not released from prison. Hamrick was also caught in possession of a letter containing a "smoke bomb," which he had addressed to then-President George Bush but had not mailed.

In April 1990, while still in federal prison for threatening the life of the President, Hamrick mailed a letter to Judge Kidd on behalf of "the Nazi Socialist Republican Party" in which he threatened to kill the judge and his family. After he was interviewed about the letter by the Federal Bureau of Investigation, Hamrick sent a second letter to Judge Kidd, in which he stated his resentment that the judge had reported his first letter to the FBI, and again threatened Judge Kidd's life. On the basis of these letters, a jury found Hamrick guilty in March 1991 of threatening to assault and murder a federal judge. See 18 U.S.C.A. Sec. 115(a)(1)(B). Hamrick was sentenced to 51 months imprisonment for this offense, and a year later, we affirmed both his conviction and sentence. United States v. Hamrick, 960 F.2d 147 (4th Cir.1992) (unpublished).

Pending prosecution on this charge, from December 18, 1990, until February 14, 1991, Hamrick was incarcerated in the Ohio County Correctional Facility in Wheeling, West Virginia. While there, Hamrick constructed an incendiary bomb from items available to him inside the jail. The bomb comprised a nine-volt battery as a power source, steel wires, three butane cigarette lighters as the explosive, and an unidentified pink substance speculated to be lip balm, which was to serve as the detonator. The plastic case of one of the lighters was filed thin; the pink substance, in which the flints from the lighters had been placed, was positioned over the thin spot; and the wires, leading to the battery and an improvised switch, were run through the pink substance. Hamrick wrapped the bomb in aluminum foil and placed it in a manila envelope between a legal pad and a piece of cardboard. The bomb was designed to detonate when the legal pad was removed from the envelope and the wires of the improvised switch touched. The resulting electrical current was supposed to heat the wire and ignite the detonator, which then would melt the plastic casings of the lighters, free the butane, and ignite it. If fully effective, the bomb could have produced a 1000-degree fireball up to three feet in diameter. This fireball would have burned the skin and eyes of anyone exposed to it. If those exposed were inhaling when the bomb detonated, the fireball could have seared their lungs, possibly resulting in death.

Hamrick addressed the envelope containing the bomb to William A. Kolibash, United States Attorney for the Northern District of West Virginia, whose office was responsible for Hamrick's prosecution, wrote his own return address on the envelope and mailed it. On January 2, 1991, Kolibash received and opened the envelope at his office. The bomb scorched the packaging in which it had been mailed, but did not detonate.

Kolibash, realizing that the envelope contained a homemade bomb, fled his office. The United States Marshals, as well as agents from the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco, and Firearms were called to the scene. They immediately piled sandbags around the desk and secured the office. An Army bomb disposal expert and his commanding officer were flown to Wheeling from Chambersburg, Pennsylvania. Upon arriving, the expert ordered the evacuation of the entire wing of the building in which the United States Attorney was officed. While wearing a full-body kevlar bomb suit and a kevlar helmet with an inch-thick Plexiglas shield, he X-rayed and examined the bomb. After covering it with a bomb blanket, he finally dismantled it by attaching a hook-and-line set to the bomb and, from thirty feet away and down a flight of stairs, pulling the bomb's components apart.

Immediately after Kolibash had received the bomb, and before it had been dismantled, two FBI agents, after advising Hamrick of his Miranda rights and receiving from him a signed written waiver of those rights, interviewed Hamrick at the Ohio County Jail to determine whether the bomb would explode. Hamrick admitted to the agents that he intended the bomb to detonate within minutes of the envelope being opened. He also stated that he mailed the bomb to Kolibash in retaliation for the pending prosecution. Hamrick then signed a written statement, prepared by one of the agents, in which he admitted constructing and mailing the bomb. He later sent to the United States Marshal a copy of a letter he had written to the West Virginia American Civil Liberties Union in which he again admitted involvement in sending the bomb to Kolibash.

Hamrick was charged with the unlawful making of a destructive device, 26 U.S.C. Sec. 5861(f) (Count I); unregistered possession of a destructive device, id. Sec. 5861(d) (Count II); unlawful transfer of a destructive device, id. Sec. 5861(e) (Count III); mailing of a nonmailable article, 18 U.S.C. Sec. 1716 (Count IV); attempted murder of a federal officer, id. Sec. 1114 (Count V); use of a destructive device during and in relation to the attempted murder of a federal officer, id. Sec. 924(c)(1) (Count VI); assault of a federal officer with a dangerous or deadly weapon, id. Sec. 111(b) (Count VII); and use of a destructive device during and in relation to the assault of a federal officer, id. Sec. 924(c)(1) (Count VIII). ²

A jury found Hamrick guilty on all counts and the district court sentenced Hamrick to 210 months imprisonment on the convictions for attempted murder and mailing of a nonmailable article, and to concurrent 120-month sentences for assault with a deadly or dangerous weapon and for the unlawful manufacture, transfer, and possession of a destructive device. The district court also imposed the mandatory sentence of thirty years imprisonment for the section 924(c) violations, to run consecutively to Hamrick's other sentences.

A panel of this court reversed Hamrick's conviction on count VII on the ground that the dysfunctional bomb was not a deadly or dangerous weapon. It reversed his convictions on counts I-III, VI, and VIII on the grounds that, as constructed, the bomb was dysfunctional and therefore not a destructive device. See United States v. Hamrick, 995 F.2d 1267 (4th Cir.1993) ("Hamrick I "). The United States, at the direction of the Solicitor General,...