U.S. v. Javino

• Decision Date: 06 April 1992
• Docket Number: D,No. 773,773
• Citation: 960 F.2d 1137
• Parties: UNITED STATES of America, Appellee, v. Dale R. JAVINO, Defendant-Appellant. ocket 91-1490.
• Court: U.S. Court of Appeals — Second Circuit

Page 1137

960 F.2d 1137

UNITED STATES of America, Appellee, v. Dale R. JAVINO, Defendant-Appellant.

No. 773, Docket 91-1490.

United States Court of Appeals Second Circuit.

Argued Jan. 22, 1992.

Decided April 6, 1992.

Barbara D. Cottrell, Asst. U.S. Atty., Albany, N.Y. (Frederick J. Scullin, Jr., U.S. Atty. for the Northern District of New York, Bernard J. Malone, Jr., Asst. U.S. Atty., on the brief), for appellee.

Adrian L. DiLuzio, Mineola, N.Y. (Laurie S. Hershey, on the brief), for defendant-appellant.

Before: NEWMAN and KEARSE, Circuit Judges, and CEDARBAUM, District Judge ^*.

KEARSE, Circuit Judge:

Defendant Dale R. Javino appeals from a final judgment of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, convicting him on three counts of possession of a destructive device, to wit, an incendiary bomb, in violation of various provisions of chapter 53 of Title 26 of the United States Code, 26 U.S.C. §§ 5801-5872 (1988). He was convicted of knowing receipt and possession of a destructive device made in violation of chapter 53, in violation of 26 U.S.C. §§ 5822, 5861(c), and 5871 (count 1); knowing receipt and possession of a destructive device that was unregistered, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (count 2); and knowing receipt and possession of a destructive device not identified by a serial number, in violation of 26 U.S.C. §§ 5861(i) and 5871 (count 3). He was sentenced principally to serve three concurrent 21-month terms of imprisonment. On appeal, Javino challenges the sufficiency of the evidence, the instructions to the jury, and the performance of his trial counsel. For the reasons below, we conclude that Javino's conviction on count 1 must be reversed for lack of evidence as to one element of the offense charged in that count; we affirm the convictions on counts 2 and 3.

I. BACKGROUND

Taken in the light most favorable to the government, the evidence at trial showed the following. In August 1990, Javino had been involved in a dispute with Michael Constantino and Lynn Fitzgerald, residents of Amsterdam, New York, and had threatened to kill them. Just after midnight on August 3, Constantino and/or Fitzgerald observed Javino in an automobile lurking near their home, at times driving slowly by, and for a time parked nearby with its lights off. Fitzgerald reported to Amsterdam police that as the car drove by she had seen a gun sticking out of the window. Shortly thereafter, the police stopped the car, which was owned and driven by Milton Block and in which Javino was a passenger.

In plain view on the back seat of the car was an incendiary bomb consisting, in part, of a 40-ounce Dole glass juice bottle nearly filled with clear liquid; attached to the bottle with electrical tape was a large explosive and detonation device with a wick. Javino and Block were arrested for possession of the bomb. Block testified at trial that he had not known the bomb was in his car until after the arresting officers seized it. In a postarrest interview, Javino stated that the bomb belonged to him and that he had planned to use it to burn brush on property located in another town. He declined to reveal the name of the person who had made the bomb, stating that he did not want to get that person in trouble.

Laboratory analysis at the federal Bureau of Alcohol, Tobacco and Firearms ("BATF") revealed that the bottle contained a highly inflammable mixture. The detonation device contained 239.2 grains of an explosive powder, more than 100 times the amount that would be used in the largest firecracker permissible under BATF regulations. Detonation of the incendiary bomb would have had a "blast effect," spraying glass and generating heat in the range of 4,500 degrees Fahrenheit.

A search of BATF files revealed that neither Javino nor Block had registered the bomb. Indeed, no one had ever obtained a permit or license from BATF to manufacture such a device.

Chapter 53 of 26 U.S.C., also known as the National Firearms Act (the "Act"), governs, inter alia, the making, importation, registration, and possession of "firearms," a term that is defined to include "destructive device[s]," including devices in the nature of explosive or incendiary bombs, see 26 U.S.C. §§ 5845(a), (f). Javino was indicted on three counts relating to the bomb found in the car: knowingly receiving and possessing a device that (1) was made in violation of the Act, in violation of 26 U.S.C. §§ 5822, 5861(c), and 5871 (count 1); (2) was unregistered, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (count 2); and (3) was not identified by a serial number, in violation of 26 U.S.C. §§ 5861(i) and 5871 (count 3).

Javino's defense at trial was principally that, as the bomb had been found in a car owned and driven by Block, Javino had not possessed the bomb. In support of that contention, Javino relied on the testimony of Block (a) that Javino did not put the bomb in the car and (b) that prior to trial, Block had told Javino's attorney that Block had constructed the bomb. Javino also presented evidence as to an innocent explanation for his being in the neighborhood of the Constantino-Fitzgerald home. The jury convicted Javino on all counts, and he was sentenced as indicated above.

Following the imposition of sentence, Javino moved in the district court for bail pending appeal, contending that there were several grounds for reversal of his convictions. He argued principally that as to each count the government had failed to prove an essential element of the offense, and that he had been denied the effective assistance of counsel by reason of, inter alia, his attorney's failure to request that the jury be instructed that it was required to acquit if it found those elements unproven. As to count 1 of the indictment, Javino argued that a destructive device made outside of the United States would not have been made in violation of chapter 53, and that the government had not proven that the bomb he possessed was made in the United States.

In a Memorandum-Opinion and Order dated November 20, 1991 ("Decision"), the district court denied Javino's motion. The court rejected Javino's claim of ineffective assistance of counsel on the ground that counsel's performance fell within the range of reasonable professional assistance. With respect to the sufficiency challenge on count 1, the court found that there was no requirement that the government prove that the incendiary bomb had been made in the United States. Noting that § 5801(a) imposes a tax on "every importer, manufacturer, and dealer in firearms," and that § 5802 "addresses 'registration of importers, manufacturers, and dealers,' " Decision at 8 (emphasis therein), the court concluded that the Act governed any making of a device defined in the Act, wherever the making occurred:

Section 5845(m) defines "manufacturer" as "any person engaged in the business of manufacturing firearms." 26 U.S.C. § 5845(m). Congress has not limited any of these sections to only products made in the United States nor is such an intent apparent from a fair reading of the statute.

Further, the purpose of the chapter (which was enacted as part of Congress' omnibus crime bill) was to strengthen firearm provisions and to curb the transfer of converted military and homemade weapons. U.S. [v.] Greer, 588 F.2d 1151 (6th Cir.1978) cert. denied 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244. It is only logical that the provisions thereof would apply to both foreign and domestically produced weapons. Without such an application, foreign weapons would be less controlled than domestic and the purpose of the chapter would be frustrated.

Decision at 8-9 (emphasis therein).

II. DISCUSSION

On appeal, Javino pursues his challenges to the sufficiency of the evidence and the adequacy of the trial court's instructions to the jury, and he contends that in various respects he received ineffective assistance of counsel. For the reasons below, we find merit only in his challenge to his conviction on count 1.

A. Essential Elements of the Offenses

Javino contends that the government failed to prove an essential element of the offense in each count. As to count 1, he claims that the government was required to prove that the incendiary bomb he possessed had been made in the United States. As to count 2, he claims that the government was required to prove he knew (a) that registration of the device was required, and (b) that there had been no registration. As to count 3, he claims that the government was required to prove that the bomb failed to comply with a regulation concerning identification of such devices. Javino argues that none of these elements was proven and that the court failed to instruct the jury that it should find him innocent in the absence of their proof. Though he concedes that he did not seek such instructions at trial, he contends that the failure to instruct on the missing elements was plain error.

It is axiomatic that in a criminal prosecution, the government bears the burden of proving beyond a reasonable doubt every fact necessary to constitute the crime with which the defendant is charged. Davis v. United States, 160 U.S. 469, 487, 16 S.Ct. 353, 358, 40 L.Ed. 499 (1895) (burden of proof "is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime"); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); United States v. Gjurashaj, 706 F.2d 395, 398 (2d Cir.1983). The failure to instruct on an essential element of the offense generally constitutes plain error, permitting appellate review even if the defendant has failed to object to the instruction at trial. See, e.g., United States v. Mazzei, 700 F.2d 85, 87-88 (2d Cir.), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983); United States v. De Marco, 488 F.2d 828, 832 (2d Cir.1973). If there was such a...