U.S. v. Johnson
| Decision Date | 31 July 1998 |
| Docket Number | No. 97-2599,97-2599 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David JOHNSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Laura A. Przybylinski (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
T. Christopher Kelly (argued), Thomas, Kelly, Habermehl & Wood, Madison, WI, for Defendant-Appellant.
Before CUMMINGS, CUDAHY and RIPPLE, Circuit Judges.
David Johnson was charged in an indictment with possession of two unregistered firearms in violation of 26 U.S.C. § 5861(d) and with unlawfully manufacturing two firearms in violation of 26 U.S.C. §§ 5822 and 5861(f). The jury returned a verdict of guilty on the possession charge but was unable to reach a verdict with respect to the manufacturing charge. A judgment of conviction on the possession charge was entered by the district court on April 17, 1997, and Mr. Johnson was sentenced to thirty months in prison. He now appeals. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
In the summer of 1996, David Johnson was employed as a maintenance person at a Shopko store in Hallie, Wisconsin. On the morning of August 4, 1996, Mr. Johnson summoned Lynn Hinkens-Johnson, an assistant store manager, to the toy department. He said that there was something he wanted to show her. Mr. Johnson directed Hinkens-Johnson's attention to an object on one of the shelves; she observed a red fuse protruding from a Shopko bag. Unsure what might be in the bag, Hinkens-Johnson left Mr. Johnson to stand guard over the object and called the police.
When the police arrived, an officer used a razor blade to slice open the Shopko bag in order to observe its contents. That incision revealed that the fuse went into a plastic pipe device. The officer then told Hinkens-Johnson to evacuate the store. Following the evacuation, the police contacted Staff Sergeant Gary Lee Brohard, an explosives ordnance disposal specialist with the United States Army. Staff Sergeant Brohard's primary duties pertain to the recovery, neutralization and disposal of military ordnance, and he is also trained to deal with improvised explosive devices, a category which includes homemade bombs. Learning that there was a "possible pipe bomb" in the department store, Staff Sergeant Brohard agreed to respond to the police request for assistance.
Once on the scene, Brohard and another staff sergeant sent a video camera-equipped robot into the store to pick up the device and to carry it outside to an area that had been partially enclosed with sandbags. Although an attempt to x-ray the device was made, it was unsuccessful because there was a problem with the film. Because the military experts deemed it inadvisable to spend additional time attempting to x-ray the device (not knowing whether it contained a timer), it was then rendered safe with a .50 caliber de-armer. The de-armer is a short-barreled cannon that fires a cartridge into the device. This de-arming process largely destroyed the device. 1
Prior to de-arming the device, Staff Sergeant Brohard had noted that the message "Where's the other one?" was written on it. This message prompted a search of the Shopko store. That search produced an additional similar device. This second device Special Agent Bradford Hays of the Bureau of Alcohol, Tobacco and Firearms ("ATF") and Police Chief Haas interviewed Mr. Johnson two days later at his home, where he lived with an aunt. In the course of that interview, Mr. Johnson consented to a search of the house. Agent Hays discovered, in the basement, various components of the devices found at the Shopko, including an assortment of nails, plastic tubing, candles and a hacksaw with plastic fragments on the blade. He then confronted Mr. Johnson about constructing the devices. Although Mr. Johnson initially denied any wrongdoing, he ultimately admitted constructing the devices and explained that the plastic pipe he had used for the devices came from Shopko. He had cut the pipe with the hacksaw to make the two different devices and had sealed them by jamming candles into each end. Mr. Johnson also admitted putting nails into the devices. He further explained that he had cut open fireworks and had emptied the contents into the devices. Moreover, Mr. Johnson acknowledged that he had put fuses in each device. The officers escorted Mr. Johnson back to the police station and obtained a written statement from him consistent with his admission.
also was removed by the robot, and the effort to x-ray this second device was successful. The x-ray revealed that the fuse reached into the interior of the device and that the device contained nails and a darker mass which Brohard believed was perhaps an incendiary powder pellet material. In de-arming this second device, Staff Sergeant Brohard aimed at a different portion of the object in order to try to preserve more of the device as evidence. This effort was successful; after the de-armer was fired, one end of the device was knocked off and its contents were strewn about the sandbagged area. The police collected samples of the nails and the black and silver powder contained in the device and also noted that the intact end of the device was sealed with a wax candle.
Mr. Johnson was indicted for possession and construction of the destructive devices. Count I of the indictment charged Mr. Johnson with "knowingly and unlawfully possess[ing] two firearms, as defined in Title 26, United States Code, Section 5845(a) and (f), specifically, destructive devices consisting of plastic pipe, wax end caps, flash (firecracker) powder and cannon/hobby fuse, and containing an assortment of nails, which firearms were not registered to the defendant in the National Firearms Registration and Transfer Record." Count II of the indictment charged Mr. Johnson with knowingly and unlawfully manufacturing those two destructive devices. He pleaded not guilty to the charges, and the matter went to trial.
Prior to trial, the government moved in limine to exclude evidence regarding Mr. Johnson's subjective intent in constructing the devices. Mr. Johnson asserted that he did not design the devices for use as weapons and was prepared to offer expert testimony to the effect that the devices he planted in the store were "hoaxes." His alleged motivation for planting these devices was to obtain attention and to enable him to play the hero in discovering the bomb-like devices and in pointing them out to his supervisors. The district court granted the government's motion and excluded this evidence regarding Mr. Johnson's subjective intent on the ground that the devices at issue had objective characteristics that brought them within the statutory definition of "destructive device." See 26 U.S.C. § 5845(f). Consequently, the court determined that evidence regarding Mr. Johnson's subjective intent was not relevant.
Because the court thus limited the evidence at trial regarding the devices primarily to their objective characteristics, the expert testimony provided by the parties focused on the design and workability of the devices. Mr. Johnson's experts indicated that the devices as constructed were unlikely, for a variety of reasons, to produce an explosion and therefore were not designed as weapons. The testimony expressed doubt whether the fuses actually reached the incendiary firework powder and consequent doubt that the devices could have been ignited. Moreover, Mr. Johnson's experts testified that it was unlikely the firework powder in the devices would have burned rapidly enough to cause In contrast, the government's experts indicated that the powder samples obtained from the devices included potassium nitrate, sulfur and aluminum and that such a compound will deflagrate and burn violently in the open and could produce an explosion given proper containment. In addition, the government provided testimony that the devices were designed to function by explosion and to project shrapnel and therefore that they were similar to a bomb.
any explosion or that the powder was of a kind that would produce an explosive, rather than incendiary, effect. The evidence proffered by Mr. Johnson also indicated that, even if the powder were ignited, the candle ends were inadequate to the task of sealing the device. Consequently, according to Mr. Johnson's experts, sufficient pressure was unlikely to build up in the devices to cause an explosion; instead, the candles first would have been forced out of the ends and the powder simply would have burned away.
At the close of the evidence, the jury was instructed regarding the elements of the offenses that the government had to prove beyond a reasonable doubt in order to prevail in its case. The instructions also included a definition of "destructive device" which provided:
When the term "destructive device" is used in these instructions, it means any explosive bomb or any combination of parts either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled. It does not include any device that is neither designed nor redesigned for use as a weapon or any device designed originally for use as a weapon that is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device.
R.129. Mr. Johnson objected to this definition of destructive device both before trial and in posttrial motions on the ground that the "combination of parts" portion of it impermissibly broadened the scope of the indictment by allowing a basis for conviction that was not presented in the indictment. The district court rejected this argument on the ground that the indictment did not specify the definition of destructive device under § 5845(f) that was being used and that...
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