U.S.A. v. Van Horn, 00-2275

• Citation: 277 F.3d 48
• Decision Date: 13 September 2001
• Docket Number: No. 00-2275,00-2275
• Parties: (1st Cir. 2002) UNITED STATES OF AMERICA, Appellee, v. KENNETH VAN HORN, Defendant, Appellant. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 48

277 F.3d 48 (1st Cir. 2002)

UNITED STATES OF AMERICA, Appellee, v. KENNETH VAN HORN, Defendant, Appellant.

No. 00-2275

United States Court of Appeals For the First Circuit

Heard Sept. 13, 2001

Decided January 14, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Paul J. Barbadaro, U.S. District Judge

[Copyrighted Material Omitted] Bjorn Lange, Assistant Federal Public Defender, for appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief, for appellee.

Before Torruella and Lipez, Circuit Judges, and Zobel,^* District Judge.

LIPEZ, Circuit Judge.

Kenneth Van Horn was convicted of being a felon in possession of explosives, in violation of 18 U.S.C. § 842(i)(1). On appeal, Van Horn challenges his conviction on two grounds. First, Van Horn argues that the evidence presented at trial fails to demonstrate his knowing possession of explosives as required under § 842(i)(1) and is thus insufficient to support his conviction. Second, he asserts that the trial judge erroneously admitted evidence of details of Van Horn's prior uncharged misconduct relating to his involvement in a burglary of an explosives depot in 1993. Rejecting these arguments, we affirm.

I.

A. Factual Background

We recite the evidence in the light most favorable to the verdict. See United States v. Escobar de Jesus, 187 F.3d 148, 157 (1st Cir. 1999). As part of a cooperation agreement with the police department of Manchester, New Hampshire, Richard Moore began assisting law enforcement officers in September 1998 in a number of criminal investigations involving the illegal distribution of crack cocaine, firearms and explosives. The Manchester Crime Line paid Moore for information on various criminal transactions and individuals, including Van Horn. Moore advised Manchester Police Detective Kevin Barry that he had reason to believe that Van Horn would commit a burglary at an explosives storage depot in Bow, New Hampshire.

Consequently, under Detective Barry's supervision, Moore met with Van Horn and recorded several conversations with him as part of a "sting" operation to sell explosive devices to Van Horn. In the course of these taped conversations, Van Horn explained to Moore that he wanted to obtain explosives from the Bow explosives depot to blow up the vehicles and apartments of two of his ex-girlfriends. On September 21, 1998, Detective Barry learned from Moore that Van Horn was planning to burglarize the Bow depot on the following night. Van Horn subsequently postponed the planned burglary to September 23.

In the meantime, upon surveying the depot, Detective Barry and Special Agent Ernie Yerrington had safety concerns that prompted them to present Van Horn with the option of purchasing explosives in an effort to divert Van Horn from the Bow facility. Wearing a body wire, Moore met with Van Horn and told him that he wanted to introduce him to someone who could sell him explosives directly so he would not need to burglarize the Bow explosives depot. During this recorded conversation, Van Horn broached the subject of purchasing hand grenades by saying, "maybe [your supplier] can get grenades. . . . You know what I mean. Grenades, you know missile launchers, that kind of sh- so I can be like a hundred f-ing miles away. . . ." Van Horn explained that he could get explosives from his work sites, but that getting the cap, the detonator, was a problem "[c]ause that's legally considered a firearm." Van Horn further acknowledged other efforts he had made to obtain and create adequate explosives.

On September 24, Moore met Van Horn again, and Van Horn expressed interest in meeting Moore's "friend" (Detective Barry) who was selling explosives. Van Horn said he was interested in buying $100 worth of explosives. The next day, Moore wore a body wire during a conversation with Van Horn. Van Horn is recorded as saying specifically that he wanted to buy "pineapples," a certain type of grenade. Van Horn made it clear that he could get boxes of dynamite on his own from his job sites, and that the only reason he would meet with Moore's friend was to buy hand grenades or rocket launchers. Moore left the decision up to Van Horn as to whether to meet this individual.

On September 28, after Van Horn again expressed interest in meeting Moore's friend, Detective Barry (wearing a body wire) and Moore met Van Horn at his apartment. Detective Barry introduced himself to Van Horn as "Kevin" and expressed his concern about the risks of driving around with grenades and other explosives. Van Horn replied, "You're talking to, . . . an individual who has been in a certain business for 17 years, okay, and only got nailed once, you know."

Detective Barry then offered to sell Van Horn dynamite sticks, and Van Horn declined, expressing a preference for "baseballs," a type of hand grenade. Van Horn gave Detective Barry an unsolicited payment of forty (40) dollars toward the purchase of several hand grenades. They discussed other types of explosives called balloons or sausages and Van Horn said he could get those himself.

On September 30, Moore informed Detective Barry that Van Horn had asked when the grenades would be ready to pick up. In a recorded conversation, Detective Barry arranged with Van Horn to meet at Applebee's Restaurant in Manchester and told Van Horn that he could look at the explosives to see if they were what he wanted. Van Horn replied, "I don't have to look at nothing, you, it's kind of a trust thing. You burn me once and then, you know, we deal with it the . . . other way, you know what I'm saying."

Detective Barry and Moore drove to the restaurant, carrying a drywall bucket in the backseat which contained two hand grenades, known as a pineapple and a baseball (which were manufactured by the New Hampshire State Police Explosives Unit) and two dynamite sticks.² Van Horn parked his truck out of view, and walked over to the restaurant. Detective Barry drove alongside Van Horn and stopped for him to get in. As instructed, Moore pulled the front passenger seat on the two-door sedan forward, so that Van Horn would sit in the back seat. Detective Barry told Van Horn, "I got ya one baseball, one pineapple, and the guy was nice enough to throw in a . . . couple of sticks if you want to get some caps for 'em. Sound like a good deal?" Van Horn responded, "Deal." Van Horn handed Detective Barry the remaining sixty (60) dollars, and when Detective Barry invited Van Horn to take a look at the explosives, Van Horn said, "Don't worry about it . . . . I've been dealing with it for a long time." At that point, Van Horn and Moore were both arrested. The Manchester Police Department later released Moore once Van Horn was prosecuted.

During a subsequent search of Van Horn's bedroom, officers found a set of keys located in a chest of drawers. One of the officers was involved in an ongoing investigation of a burglary in 1993 of the Bow explosives depot and recognized the manufacturer's name on the keys, American Lock Company, as the type of padlock used by the depot on their explosives magazines. The depot site manager located padlocks still possessed by the Bow explosives depot which had key codes matching the keys seized from Van Horn's bedroom.

B. Jury Trial Proceedings

A federal grand jury returned a two-count indictment charging Van Horn with 1) unlawful receipt of explosives, in violation of 18 U.S.C. § 844(d), and 2) being a felon in possession of explosives, in violation of 18 U.S.C. § 842(i)(1).

At trial, Van Horn's counsel alerted the jury to the defense of entrapment in his opening statement: "If the judge instructs you on entrapment, then you must find that the government has proven that, one, Kenny Van Horn was predisposed into [sic] committing this crime, and two, Kenny Van Horn was not induced by government agents."

In the government's case, Moore testified that Van Horn told him he wanted to obtain explosives from the Bow explosives depot in order to blow up the vehicles and apartments of his ex-girlfriends. Moore testified that he and Van Horn previously went to that depot in 1993. At that point, Van Horn objected to any further testimony from Moore about what transpired at the Bow explosives depot during that time. The government informed the judge that Moore was going to testify that he and Van Horn burglarized the depot, stealing keys from the depot office and using them to steal explosives stored in containers at the depot. Noting defense counsel's reference to the entrapment defense in his opening statement, the district court informed Van Horn that, if he pursued an entrapment defense, the court would admit evidence of Van Horn's involvement in the 1993 Bow depot burglary as relevant to his predisposition to commit the crime. If, on the other hand, Van Horn chose not to pursue an entrapment defense, the district court stated that the evidence would be inadmissible under Fed. R. Evid. 404(b).³

Uncertain whether Van Horn's evidence would warrant an entrapment instruction, the court allowed Moore to testify on direct only as to 1) Van Horn's possession of the keys to the Bow explosives depot padlocks, and 2) the fact that Van Horn and Moore had visited the depot in 1993. The court instructed the prosecution to reserve for re-direct any reference to the 1993 Bow depot burglary itself, with the scope of its inquiry about that incident contingent upon the extent to which Van Horn's counsel raised entrapment during Moore's cross-examination. Consistent with the court's directive, Moore identified the keys to the depot seized by law enforcement from Van Horn's bedroom and testified that he saw Van Horn in possession of these keys in 1993 and again in the summer of 1998. Moore testified that, on September 21, 1998, Van Horn said that he was going to the depot to make sure the keys still fit.

On cross-examination, Moore testified that he...