U.S. v. Jennings

• Decision Date: 10 November 1999
• Docket Number: No. 98-20437,98-20437
• Citation: 195 F.3d 795
• Parties: (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID JENNINGS, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 795

195 F.3d 795 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID JENNINGS, Defendant-Appellant.

No. 98-20437

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

November 10, 1999

Rehearing and Rehearing En Banc

Denied Dec.16, 1999

Kathlyn Giannaula Snyder (argued), Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II Federal Public Defender, Margaret Christina Ling, Renata Ann Gowie (argued), Asst. Federal Public Defender, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas

Before DUHE, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

David Jennings appeals two convictions: (1) possession of a firearm (a .38 revolver) in relation to a "crime of violence" (possession of an unregistered pipe bomb); and (2) attempted interference with interstate commerce in violation of the Hobbs Act. We affirm.

I.

David Jennings planned to extort money from workers and customers of day care centers and medical offices by threatening them with homemade bombs. Jennings described his plans in detail to police informant Jesus "Chuy" Herrera. After telling Chuy that he owned a gun and that he knew how to make a bomb with a remote starter, Jennings asked him to find help to execute the plan.

Chuy then brought several law enforcement officials to meet with Jennings, introducing the agents as his cousins. Jennings discussed with these officials his plan to extort money from the dental office of Orie Gardner, D.D.S., in Baytown, Texas. Jennings planned to remove Dr. Gardner, her assistants, and her patients from the office, take them to a remote location, and hold them for ransom. In a recorded conversation with undercover ATF officer Ismael Rodarte, Jennings expressed his hope that children were at the office when he struck, as he believed their parents would pay substantially for their return. Jennings believed that profits from this plan would fund larger schemes in the future.

Agent Rodarte asked Jennings to bring all of his equipment to a meeting at the Republic of Texas Park in Baytown. At the meeting, Jennings showed Rodarte his .38 revolver, several pipe bombs, knives, gloves, and rope. After Rodarte convinced Jennings to leave the tools in his car, the Baytown police and bomb squad appeared, and Jennings was arrested. After the arrest, police found four functional pipe bombs and a .38 revolver inside a briefcase in Jennings's car. A search of Jennings's home revealed four other pipe bombs and assorted electronic equipment used to construct them.

Jennings was indicted on five counts: possession of an unregistered pipe bomb in violation of 26 U.S.C. 5861(d) (count 1), solicitation to interfere with commerce by extortion in violation of the Hobbs Act, 18 U.S.C. 1951 (count 2), carrying a firearm (a .38 caliber revolver) during a crime of violence (both possession of the unregistered pipe bomb and solicitation to interfere with commerce by extortion) in violation of 18 U.S.C. 924(c) (count 3), attempted interference with commerce by extortion in violation of the Hobbs Act, 18 U.S.C. 1951 (count 4), and carrying a pipe bomb during the interference with commerce by extortion, in violation of 18 U.S.C. 924(c) (count 5).

At trial, Jennings moved to dismiss count 3, arguing that neither possession of a pipe bomb nor solicitation to commit a Hobbs Act violation were "crimes of violence." The district court granted the motion with respect to solicitation, but denied it with respect to possession of a pipe bomb. Instead, finding that possession of an unregistered pipe bomb qualifies as a "crime of violence" as defined by statute, the district court instructed the jury that possession of a pipe bomb was a "crime of violence" as a matter of law.

Jennings also objected to the jury instructions on count 4, arguing that he could only constitutionally be convicted of that offense if his conduct had a "substantial effect" on interstate commerce. The district court overruled the objection, instructing the jury that the conduct only had to have an "effect" on interstate commerce.

The jury convicted Jennings on all five counts of the indictment and the district court sentenced him to 226 months of confinement, three years of supervised release, a $2,000 fine, and a $500 special assessment. Jennings appeals his convictions for possession of a firearm in relation to a crime of violence and attempted interference with interstate commerce by extortion.

II.

Jennings first contends that the indictment count for carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c), failed to charge an offense because the predicate act of possessing an unregistered pipe bomb does not constitute a "crime of violence." We review the sufficiency of an indictment de novo. See United States v. Cabrera-Teran, 168 F. 3d 141, 143 (5th Cir. 1999). Since the issue of whether a crime constitutes a "crime of violence" is a matter of statutory interpretation, we review this decision de novo as well. See United States v. Credit, 95 F.3d 362, 364 (5th Cir. 1996).

18 U.S.C. 924(c)(3) provides that: the term "crime of violence" means an offense that is a felony and --

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. 924(c)(3). The government concedes that the first definition does not apply here, so our only inquiry is whether the possession of an unregistered pipe bomb is an offense that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Id.

In conducting this inquiry, we do not consider any facts specific to Jennings's case. Using a categorical approach, we ask whether the inherent nature of the offense, possession of an unregistered pipe bomb, is a "crime of violence." See, e.g. United States v. Delgado-Enriquez, No. 98-51003, 188 F.3d 592, 594-95 (5th Cir. Sept. 10, 1999) ("[T]he phrase 'by its nature' requires courts to determine whether an offense constitutes a crime of violence without examining the underlying facts surrounding the conviction."); United States v. Velazquez-Overa, 100 F.3d 418, 420-21 (5th Cir. 1996) ("[E]ither a crime is violent 'by its nature' or it is not.").

Contrary to appellant's argument, however, to qualify as a "crime of violence" an offense need not actually involve violence. Rather, "the statute requires merely that the predicate crime create a substantial risk of the possible use of force." United States v. Greer, 939 F.2d 1076, 1099 (5th Cir. 1991) (holding that conspiracy to violate another's civil rights is a crime of violence); see also United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.) (per curiam) (holding that the unauthorized use of a vehicle was a "crime of violence"), cert. denied __ U.S. __, 120 S.Ct. 100, __ L.Ed.2d __, (1999); United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995) ("A substantial risk that an event may occur does not mean that it must occur in every instance; rather, a substantial risk requires only a strong probability that the event, in this case the application of physical force during the commission of the crime, will occur.") Therefore, if a felony involves a strong possibility of violence or property damage, regardless of whether it is an inchoate or completed crime, it is a "crime of violence" for purposes of 18 U.S.C. 924(a).

We hold that possession of an unregistered pipe bomb, by its very nature, creates a substantial risk of violence. Unlike a handgun, it is not considered sport to hunt or engage in target practice with a pipe bomb.¹ Moreover, it would be quite difficult to protect oneself or one's family with a pipe bomb. In fact, we cannot conceive of any non-violent or lawful uses for a pipe bomb.² See United States v. Dodge, 846 F. Supp. 181, 184 (D. Conn. 1994) ("Pipe bombs are inherently dangerous weapons for which no peaceful purpose can be considered, regardless of whether the weapons are actually used."); see also United States v. Dempsey, 957 F.2d 831, 834 (11th Cir. 1992) ("[U]nlike firearms which may be used for sports, recreation or for collection, pipe bombs have no legitimate purpose and have the potential to kill indiscriminately, without warning, and with less chance that the perpetrator will be caught.") (citing United States v. Loveday, 922 F.2d 1411 (9th Cir. 1991)); United States v. Newman, No. 97-1 294, 1997 WL 603740, at *1, *1 (10th Cir. Oct.1, 1997) (unpublished) (holding possession of pipe bombs to be a "crime of violence") (citing Dodge); United States v. Cole, No. 93-1344, 1994 WL 64697, at *1, *3 (6th Cir. 1994) (unpublished) ("Pipe bombs are inherently dangerous and serve no useful purpose."). Accordingly, there is a "substantial risk" that possession of this inherently dangerous weapon would produce violence or property damage. See Cole, 1994 WL 64697, at *5 (discussing "the unique dangers of pipe bombs--they are homemade, unstable, capable of damaging numerous people, have no legitimate purpose, and may be employed in a manner that avoids apprehension"); cf. United States v. Drapeau, 188 F.3d 987, 990 & n.4 (8th Cir. 1999) ("The offense of unlawfully making a bomb, however, focuses on the inherent dangerousness of, and lack of a legitimate purpose for, the bomb itself.").

We are guided to this conclusion by the language of the statute prohibiting the possession of an unregistered pipe bomb. See Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990) (looking to the statutory definition of a crime to determine whether it is a ...