United States v. Goff

• Decision Date: 11 February 2013
• Docket Number: No. 12-4136,12-4136
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES EDWARD GOFF, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.JAMES EDWARD GOFF, Defendant - Appellant.

No. 12-4136

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: December 7, 2012

Decided: February 11, 2013

UNPUBLISHED

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James C. Turk, Senior District Judge. (1:11-cr-00025-JCT-PMS-1)

Before NIEMEYER, KING, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Abingdon, Virginia, for Appellant. Albert Pilavin Mayer, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Roanoke, Virginia, Zachary T. Lee, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

On October 17, 2010, Appellant James Edward Goff, a convicted felon and resident of Tazewell County, Virginia, arrived at his mother's home in Richlands, Virginia. Goff unloaded three cardboard boxes from his vehicle and cautiously carried them into a shed at the back of his mother's property. The shed was a dilapidated, wooden structure with a tin roof and at least one broken window. The property abutted William Cole, Jr.'s property, and when Goff arrived, Cole was on his back porch grilling steaks. Cole observed Goff's transfer of the boxes and noticed that one of the boxes had wires the size of an "ink pen filler" stringing out of its top.

The next day, Cole, believing that the three boxes contained blasting caps, peered through the window of the shed, observed three boxes of Hercules brand static resistant blasting caps, and called 911. When officers arrived and entered the shed, they confirmed that the boxes did indeed contain blasting caps.

The government subsequently charged Goff with knowingly and intentionally possessing blasting cap explosives as a convicted felon, in violation of 18 U.S.C. § 842(i)(1), and knowingly storing blasting cap explosives in a manner not in conformity with regulations promulgated by the Attorney General pursuant to 18 U.S.C. § 847, in violation of 18 U.S.C. § 842(j). OnNovember 7, 2011, a jury convicted Goff of both counts. Post-trial, Goff filed a motion seeking judgment of acquittal on both counts or, in the alternative, a new trial on any remaining count. The district court denied the motion in its entirety. Goff now appeals this denial, and we affirm.

I.

We first address the district court's denial of Goff's motion for judgment of acquittal, reviewing such denial de novo. United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011). Three issues are before us: (1) whether the government presented sufficient evidence to convict Goff of both counts, (2) whether Goff's indictment on Count Two adequately informed him of the nature of the charge, and (3) whether the statutory regulations under which Goff was charged on Count Two are unconstitutionally vague.

A.

Goff alleges that the government failed to present sufficient evidence to convict him of his charges because it failed to prove "an essential element" of each count—namely, "that the items recovered from the shed met the definition of an explosive."

Count One of Goff's indictment charged him with violating 18 U.S.C. § 842(i)(1), which makes it unlawful for a felon "to receive or possess any explosive which has been shipped or transported in or affecting interstate or foreign commerce." Count Two charged him with violating 18 U.S.C. § 842(j), which makes it unlawful for "any person to store any explosive material in a manner not in conformity with regulations promulgated by the Attorney General."

Per 18 U.S.C. § 841(d), an "explosive" is "any chemical compound mixture, or device, the primary or common purpose of which is to function by explosion." 18 U.S.C. § 841(d). "[T]he term includes, but is not limited to, dynamite and other high explosives . . . [and] detonators . . . ." Id. Further, a "detonator" is "any device containing a detonating charge that is used for initiating detonation in an explosive." § 841(f). This term "includes, but is not limited to, electric blasting caps of instantaneous and delay types, blasting caps for use with safety fuses[,] and detonating-cord delay connectors." Id.

Goff contends that the government failed to prove either charged count because it did not present evidence that his blasting caps "contained a detonating charge." In effect, Goff maintains that the government proved only that he possessed blasting caps, not that the blasting caps would or could explode. And without such proof, Goff argues, the governmentfailed to demonstrate that the caps were detonators or explosives. We disagree.

In United States v. Markey, 393 F.3d 1132 (10th Cir. 2004), the Tenth Circuit addressed an issue similar to the one that Goff raises here. In Markey, the government charged the defendant with unlawful possession of dynamite, and the defendant argued that because he reasonably believed the dynamite in his possession was incapable of exploding, he did not knowingly possess explosives as required for a conviction pursuant to 18 U.S.C. § 842(i)(1). Markey, 393 F.3d at 1136. The Tenth Circuit rejected the defendant's argument, however, reasoning that because the definition of "explosive" includes the words "primary or common purpose," § 841(d), the operative inquiry regarding proof involves "a device's intended and usual use—not its actual capability," Id. Thus, it held that the government "need not show that a device is actually able to explode to prove that a defendant knowingly possesses an explosive under § 842(i)(1)." Id. Rather, "it need only prove that the defendant knew he possessed dynamite or other chemical compound, mixture, or device that was primarily designed to function by explosion." Id.

Here, the district court relied on Markey to deny Goff's motion for judgment of acquittal, but Goff contends that his case is distinguishable from Markey because in Markey thegeneral definition of "explosive" applied, and here, the more specific definition of "detonator" applies. He notes that the definition of "detonator" requires a device to "contain[] a detonating charge."

Goff is correct that the definition of "detonator" includes the phrase "containing a detonating charge," but the application of the statute that Goff presses is incompatible with the statute as a whole. Detonators are a type of explosive, see § 841(d), and explosives are devices that "function by explosion," not just devices that contain explosive capabilities, see Markey 393 F.3d at 1136. We decline to single out one type of explosive (i.e., detonators) by holding that they can be classified as such only when retaining an ability to detonate. Such a ruling would be absurd and contrary to Congress's apparent intent. Griffin v. Oceanic Contractors, Inc. , 458 U.S. 564, 575 (1982) ("[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.").

We cannot believe that Congress set out to police a myriad of dangerous explosives regardless of their explosive power but considered the policing of detonators necessary only when they actually possess an ability to detonate. Nor are we ready to require that the government discharge stashes of recoveredblasting caps so that they can effectively prosecute felons who store these caps. Such a ruling would be ridiculous indeed. Thus, because we cannot countenance the statutory construction that Goff proposes, we affirm the district court's decision to deny his motion for judgment of acquittal on that basis.

B.

Goff next contends that Count Two of his indictment lacked sufficient specificity. As noted above, Count Two charged Goff with violating 18 U.S.C. § 842(j), which states, "It shall be unlawful for any person to store any explosive material in a manner not in conformity with regulations promulgated by the Attorney General." Goff's indictment for Count Two reads,

1. On or about October 18, 2010, in the Western District of Virginia and elsewhere, JAMES EDWARD GOFF knowingly stored explosives in a manner not in conformity with regulations promulgated by the Attorney General pursuant to Title 18, United States Code, Section 847, namely, 3 boxes of Hercules Superdet static-resistant delay electric blasting caps.

2. All in violation of Title 18, United States Code, Section 842(j).

Goff avers that his indictment's "bare allegation of regulatory non-compliance without either a reference to a particular regulation, or a factual recitation of the alleged violation conduct, was inadequate under the Fifth and Sixth Amendments" and Federal Rule of Criminal Procedure 7(c).

The Fifth and Sixth Amendments form the basis of our insistence that the government include a level of specificity in its indictments. The Fifth Amendment prohibits the government from prosecuting a defendant for an infamous crime (i.e., crimes punishable by imprisonment for more than one year, see Green v. United States, 356 U.S. 165, 183 (1958), overruled on other grounds by Bloom v. Illinois, 391 U.S. 194 (1968)), except "on a presentment or indictment of a Grand Jury," U.S. Const. amend. V. The Sixth Amendment provides a defendant the right "to be informed of the nature and cause of the accusation" against him, U.S. Const. amend. VI; see also Fed. R. Crim. P. 7(c) ("The indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . . For each count, the indictment . . . must give the official or customary citation of the statute . . . or other provision of law that the defendant is alleged to have violated."). In short, to ensure constitutional guarantees are...