United States v. Lockwood

• Decision Date: 16 June 2015
• Docket Number: No. 14–1809.,14–1809.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Lloyd B. LOCKWOOD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

789 F.3d 773

UNITED STATES of America, Plaintiff–Appellee

v.Lloyd B. LOCKWOOD, Defendant–Appellant.

No. 14–1809.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2015.

Decided June 16, 2015.

Jason M. Bohm, Attorney, Office of the United States Attorney, Urbana, IL, Meredith Decarlo, Attorney, Office of the United States Attorney, Rock Island, IL, Greggory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff–Appellee.

Vikas Kumar Didwania, Attorney, Kirkland & Ellis LLP, Chicago, IL, for Defendant–Appellant.

Before BAUER, POSNER, and MANION, Circuit Judges.

Opinion

MANION, Circuit Judge.

Lloyd Lockwood was charged with possession of a destructive device and with being a felon in possession of a firearm—in this case, a pipe bomb. Before trial, he stipulated to the fact that the object he was charged with delivering into the victims' family mailbox was a destructive device as defined by federal law. At trial, his theory was that he did not know that the package he delivered contained a destructive device, so he lacked the mens rea to be convicted of these crimes. The jury disagreed, and convicted him. Lockwood's sentencing range was 33 to 41 months' imprisonment on each count. However, the district court sentenced him to concurrent terms of 120 months' imprisonment.

On appeal, Lockwood argues that the object he stipulated to possessing was not a “destructive device” because it lacked a power supply and thus could not actually explode. Additionally, Lockwood challenges the federal jurisdiction for this prosecution by arguing that the object's end caps lack a sufficient nexus to interstate commerce. Finally, Lockwood challenges the procedural and substantive reasonableness of his sentence. We affirm Lockwood's convictions, but vacate his sentence and remand for resentencing.

I. Background

In the late 1980s, Lloyd Lockwood was convicted of a number of felonies.¹ After Lockwood served his time, he found success through his ownership and operation of an automotive repair and towing business that employed fourteen people. All signs suggested that he had abandoned the reckless criminal lifestyle that plagued his youth. Or so it seemed.

On March 29, 2011, Lockwood's problems returned when an old friend, Susie Curtis, approached him upset that her brother had initiated charges against her for ripping off their elderly parents to the tune of $160,000. Curtis surmised that she could avoid having to go to court on March 31 to face the music if her brother were also in trouble, so she asked Lockwood to place a package inside her brother's truck and then to call 911 and report that the package contained a bomb. Lockwood agreed and on March 30, 2011, he drove the package to Decatur, Illinois, and placed it in the brother's mailbox instead of his truck because he did not see the truck. Lockwood then called 911. This exchange followed:

OPERATOR:

“Decatur and Macon County 911, where's your emergency?”

LOCKWOOD:

“At 1836 Ferris Drive. The guy's name is Bobby, he drive a black truck. The motherfucker talking about blowing up his job up today. And he got the bomb.”

When the authorities arrived at the brother's home, they did not find a bomb. However, the next morning the brother's wife found an object that appeared to be a pipe bomb in the family mailbox. The authorities were called again, and the bomb squad arrived with a robot. The bomb squad used the robot to knock off one of the pipe bomb-shaped object's end caps. Then the robot picked up what remained of the pipe bomb-shaped object, poured its black powder into an evidence can, and then knocked off the other end cap. A photograph of the pipe bomb-shaped object (absent the removed end caps) is reproduced below:

The deconstructed pipe bomb-shaped object consisted of an initiator, black wires, and black tape, and was surrounded by insulation and a plastic bag.

A. The federal investigation of Lockwood

Several months later, federal agents became interested in Lockwood after examining Curtis's cell phone records and, in November 2011, two federal agents interviewed him. Lockwood initially denied that he knew anything about the incident or the 911 call, but after one of the agents played a recording of the call, Lockwood admitted that he made it. Lockwood then described the package he delivered, but denied knowing what was in it. When one of the agents asked why he told the 911 operator that “Bobby had a bomb” if he did not know what was in the package, Lockwood said he told the operator that there was a bomb because that was what Curtis told him to say. Lockwood then agreed to call Curtis while the agents listened in. During two phone calls to Curtis (which the agents recorded) Lockwood repeatedly asked her if the bomb was real. Curtis did not answer the questions and said that they should not text and should speak on different phones.

B. Proceedings in the district court

On October 4, 2012, the grand jury returned an indictment against Lockwood, charging him with one count of violating 26 U.S.C. § 5861(d), which states that “[i]t shall be unlawful for any person to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record,” and one count of violating 18 U.S.C. § 922(g)(1), which states that “[i]t shall be unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” He pleaded not guilty and proceeded to trial by a jury.

1. Trial

The parties stipulated to all material facts except Lockwood's knowledge of the contents of the package. Of particular relevance to this appeal are two stipulations which read: “[t]he United States of America and the defendant, Lloyd B. Lockwood, stipulate and agree:

* * *

The Parties' Second Stipulation

A qualified explosives enforcement officer from the Bureau of Alcohol, Tobacco, Firearms, and Explosives examined the device, marked as government's group exhibit 2. The explosives enforcement officer determined that the device is consistent with an improvised explosive device, commonly known as a pipe bomb, and would be properly identified as an explosive bomb. Explosive bombs are destructive devices as that term is defined in 26 U.S.C. § 5845(f) and are required to be registered with the National Firearms Registration and Transfer Record under 26 U.S.C. § 5841(a). Government's group exhibit 2 is admitted into evidence.

* * *

The Parties' Fourth Stipulation

The end caps of the device, marked as government's exhibit 2, were made in China.

Lockwood's stipulations to these facts were consistent with his theory of defense at trial, which centered on one element common to each offense: knowing possession of the pipe bomb. In her opening statement, Lockwood's attorney told the jury:

It is a very simple and also a very difficult question for you to answer. It's simple because it's one thing: Did he or did he not know that it was a functional pipe bomb in that package before he dropped it off? That is the only issue in this case. Because nobody is disputing that it was a pipe bomb. I'm not going to get up here and argue that it wasn't what they say it was, or that he didn't put it in the mailbox, or that he didn't call 911, or anything that happened during the course of the investigation. Because all of that did happen.

In closing argument, Lockwood's attorney reiterated, “There is still just the one issue for you to decide, which is: Did he know before he placed the package into the [ ] mailbox—did he know what it was?” Lockwood's attorney then acknowledged that:

[The prosecutor] did a very pretty job of arranging all of the other elements for you and showing you that those elements have already been established; and as I told you in the very beginning when I first got up here, I am not arguing with any of that. We are not arguing with that. The device ended up being a pipe bomb. The device was not registered. All of those things are true.

“All of those things were stipulated to,” she further explained, because if the prosecutor “had brought in evidence and shown those things, dragged some ATF agent from Washington, D.C., to prove the pipe bomb was a pipe bomb, that would have been a waste of everybody's time. We're not going to fight the things that are just plainly true.”

The district court held a preliminary jury instruction conference at the close of the first day of trial. During the conference, the court asked defense counsel if there was any objection to Government Instruction No. 23, which read, in part:

This requirement [“in or affecting commerce” and “interstate or foreign commerce”] is satisfied if a component of the destructive device traveled in interstate or foreign commerce prior to the defendant's possession of it. A component has traveled in interstate or foreign commerce if it has traveled between one state and any other state or country, or across a state or national boundary line.

Lockwood's attorney answered, “No.” At the close of the government's case, Lockwood moved for a judgment of acquittal under Rule 29. The motion was denied. Then, at the conclusion of all the evidence, Lockwood renewed his Rule 29 motion for acquittal. Again, it was denied. At that point, the district court reiterated knowing possession as “the issue here” because the other elements were proven by the parties' stipulations. After a two-day trial, the jury returned a verdict of guilty on both counts. Lockwood filed post-trial motions, but they were dismissed as untimely filed. The presiding judge then retired, and a new judge was assigned to the case for sentencing.

2. Sentencing

On April 10, 2014, District Judge Baker held Lockwood's sentencing hearing. Due to the staleness of Lockwood's previous felony convictions, the government withdrew its initial...