U.S. v. Johnson, 83-5032

• Decision Date: 16 February 1984
• Docket Number: No. 83-5032,83-5032
• Citation: 726 F.2d 1018
• Parties: UNITED STATES of America, Appellee, v. Harry J. JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1018

726 F.2d 1018

UNITED STATES of America, Appellee, v. Harry J. JOHNSON, Appellant.

No. 83-5032.

United States Court of Appeals Fourth Circuit.

Argued Nov. 1, 1983.

Decided Feb. 16, 1984.

Paul W. Spence, Asst. Federal Public Defender, Baltimore, Md. (Fred Warren Bennett, Federal Public Defender, Baltimore, Md., on brief), for appellant.

Larry A. Ceppos, Asst. U.S. Atty., Baltimore, Md. (J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, and PHILLIPS and ERVIN, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

Harry Johnson was convicted of making false statements for the purpose of obtaining explosives, in violation of 18 U.S.C Sec. 842(a)(2), and of knowing and unlawful possession of unregistered explosive devices, in violation of 26 U.S.C. Secs. 5861(d), 5871. Johnson appeals both convictions. He assigns reversible error in his conviction of making false statements for the purpose of obtaining explosives arguing that he lacked the requisite specific intent for the offense. His conviction for unlawful possession of explosives should be reversed, he argues, because evidence used to convict him was seized on the basis of a warrant for which no probable cause existed. Finding no merit in either contention, we affirm.

I.

Johnson's arrest and trial resulted from a federal investigation of arson and bombing incidents involving the automobile and residences of Christopher Poole. The connection between Poole and Johnson was a woman named Catherine Council. Poole and Council had been friends for some seven years. Johnson and Council had been dating for approximately two years between March of 1980 and April of 1982. There is some suggestion in the record that Johnson may have been jealous of Poole's friendship with Council.

Poole's residence and automobile were vandalized twice over a one-year period. On August 28, 1981, Poole was living with his sister in an apartment on Lakebrook Circle in Baltimore. At approximately 4:25 a.m. on that date, Poole was awakened by the sound of an explosion which destroyed the front windows of his home. Thereafter, Poole found his automobile in flames. Subsequent investigation produced evidence of arson. The remains of an aluminum butane refill canister and scattered pieces of duct tape were found around the windows. Examination of the automobile revealed that the fuel tank had been removed and fixed with a homemade fuse attached to an M-80 explosive device. Beneath the front of the car, investigators found a plastic milk jug containing a liquid that smelled like gasoline. The jug also had pieces of duct tape attached.

The second set of attacks on Poole occurred during March and April of 1982. On March 6, Poole was living with his parents on McDowell Lane in Baltimore. He was awakened at 5:00 a.m. and discovered that his automobile was in flames. Eventually the fire, which consumed the car, was found to have resulted from two pipe bombs attached to the front and rear of the vehicle. Investigators also found that blue paint had been poured over the windshield and front of the car. Less than one month later, on April 9, Poole's McDowell Lane residence was fire-bombed. The fire department was able to extinguish the blaze, preventing extensive damage.

A week later, on April 16, 1982, Poole received a telephone call at his place of employment. The unidentified caller threatened: "Chris Poole, the next one is for you." Poole testified that a second call was made to him on April 22, 1982 by the same person. On this occasion, the caller identified himself as the "little firebug" and directed Poole to be at a certain bar at 10:00 p.m. that evening. Poole was warned that his failure to appear would result in "another trip out to [Poole's] house." Poole advised federal investigators of both communications.

By arrangement with agents from the Bureau of Alcohol, Tobacco and Firearms, Poole went to the specified club at the appointed time. Undercover surveillance of the area was maintained throughout Poole's visit. One of the investigators noticed a white Toyota occupied by a single white male wearing a "camouflage hat" and an army fatigue jacket. The occupant, eventually identified as Harry Johnson, would periodically look through a pair of binoculars in the direction of the bar. Soon thereafter, investigators approached Johnson who was startled and tried to hide the binoculars. Johnson was subsequently taken into custody and interrogated. During the questioning, Johnson admitted that he knew Poole, that there was some animosity between them, and that he had been dating Ms. Council for two years.

Further inquiries exposed a number of inculpatory facts. First, there was evidence that Johnson had purchased explosive black powder. Two separate transactions were involved. The first, the subject of Johnson's first conviction, was an incomplete or attempted purchase at a local gun shop. The proprietress identified a partially completed form for one pound of powder in the name of Howard Johnston, 600 Cooks Lane, dated August 20, 1981. The name (Johnston) was not defendant's real name (Johnson), and the address was that of a school that he once attended. This transaction was not consummated and the sale was voided because the customer did not produce a driver's license. A handwriting expert identified the signature on the voided form as being written by the defendant Harry Johnson. On the same day, August 20, Johnson succeeded in purchasing black powder from another dealer. For this transaction, Johnson used his real name and address. At trial Johnson admitted purchasing the powder but said that it was used for testing an old flintlock weapon and eventually discarded.

Second, it became apparent that Johnson had access to various items used in the attacks against Poole. A hardware store owner reported that Johnson had purchased galvanized threaded pipe fittings from his store in the early spring of 1982. Those fittings were of a type appropriate for constructing pipebombs. Further, it was revealed that Johnson had access, through Ms. Council, to a can of blue paint of the same variety and brand as that poured over Mr. Poole's automobile in March of 1982.

On the basis of the foregoing facts, a search warrant was issued on May 10, 1982 authorizing a search of Johnson's Toyota for black powder residue. The warrant was executed the next day. No traces of powder were found but several pieces of duct tape, later determined to be "indistinguishable" from that used in the arson, were seized.

II.

Believing that Johnson used a fictitious name and address during his first attempt to purchase black powder, a jury found Johnson guilty of violating 18 U.S.C. Sec. 842(a)(2). That statute provides that it shall be unlawful for any person:

... knowingly to withhold information or to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive for the purpose of obtaining explosive materials, or a license, permit, exemption, or relief from disability under the provisions of this chapter;

18 U.S.C. Sec. 842(a)(2) (emphasis supplied).

Johnson's argument that he was improperly convicted is straightforward. He contends that he did not give false statements for the purpose of purchasing explosives. He could have purchased, and eventually did purchase, explosives without making any false statements. If he did make false statements, Johnson asserts they were for some purpose other than to obtain explosives; presumably to reduce the likelihood of apprehension. The statute by its plain meaning,...