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United States v. David Wayne Hull
Citations: 456 F.3d 133; 2006 U.S. App. LEXIS 18949; 2006 WL 2088383Docket: 05-2028
Court: Court of Appeals for the Third Circuit; July 28, 2006; Federal Appellate Court
David Wayne Hull was convicted on seven of ten counts related to explosives, firearms, and witness tampering, with the Third Circuit vacating his conviction for Count 7 but affirming the remaining counts. Hull, identified as the Imperial Wizard of a KKK splinter group, was arrested on February 13, 2003, following a search of his home that uncovered numerous illegal weapons and explosive materials, including loaded firearms, a rocket tube, a silencer, and instructions for creating explosives. Hull lacked the necessary licenses or registrations for these items. The FBI had conducted a prolonged investigation into Hull, utilizing a government informant who infiltrated the KKK. The informant engaged with Hull at various gatherings and recorded conversations, during which Hull was observed discussing and testing explosive devices. After suspecting the informant's true role, Hull allegedly altered his behavior, providing only incomplete bomb components. A wiretap order approved by a District Judge allowed the FBI to intercept Hull's communications, with safeguards intended to limit monitoring of non-criminal calls. However, several recorded conversations were later used against Hull in his trial. The grand jury subsequently indicted Hull on ten counts, including possession and manufacture of unregistered firearms, the transfer of a pipe bomb, and witness tampering. Hull pleaded not guilty and sought to suppress wiretap evidence, but the District Court denied this motion on May 7, 2004. The trial in the Western District of Pennsylvania involved testimony from FBI agents, technical experts, and informants. Hull's girlfriend, Deborah Rusch, testified about her involvement in formatting articles for a KKK newspaper concerning explosives, some attributed to the "Unknown Terrorist." She received letters from Hull in prison, which instructed her to downplay their relationship and to assert he did not write the articles, including a directive to destroy one letter. On the stand, Rusch contradicted Hull's letters, asserting she believed him to be the "Unknown Terrorist." Hull testified in his defense, denying any violent intent or connection to the "Unknown Terrorist" and claimed that the explosives were for legitimate purposes. He suggested he was aware of the informant's cooperation with law enforcement and intentionally avoided providing him with an assembled bomb. The District Court instructed the jury but refused Hull's proposed instruction that required proof of his knowledge and intent regarding the bomb's classification as a firearm. The court did state that mere possession of a bomb could be considered a "Federal crime of violence," despite expressing doubts about this. On May 28, 2004, the jury found Hull not guilty on three of ten charges but convicted him on seven counts. He was sentenced on March 21, 2005, to 144 months for distributing information related to a pipe bomb, concurrent with 120 months for each remaining count. Hull appeals his conviction on five grounds, including the argument that mere possession of a pipe bomb does not constitute a "Federal crime of violence," insufficient evidence for the witness tampering charge, and challenges regarding the wiretap evidence and intent related to firearms. The appeal also includes a claim that the felon in possession statute is unconstitutional, which has been rejected by precedent. Hull's argument presents a novel legal question regarding the interpretation of 18 U.S.C. § 842(p)(2)(A), concerning the distribution of information on explosives and related items. He was convicted for violating this statute, which prohibits teaching or distributing information about explosives, destructive devices, or weapons of mass destruction with the intent to further a federal crime of violence. The indictment specified that the relevant federal crime of violence was the unlawful possession of a pipe bomb. The jury was instructed that mere possession of an unregistered pipe bomb constitutes a federal crime of violence, and the government only needed to prove that Hull intended for the recipient to make and possess the pipe bomb. Hull contends that simple possession should not be classified as a "Federal crime of violence" under the statute, and thus his conviction should be vacated. The court noted that it would review this legal question de novo. It expressed regret that the District Court had not provided a thorough analysis on this issue during the trial, despite indicating concerns over whether mere possession could satisfy the crime of violence element. The District Court had opted to submit the matter to the jury without a definitive ruling, leading to the current appeal. The court highlighted that § 842(p) is relatively untested in the legal landscape since its addition to the criminal code in 1999. § 842(p) lacks a definition for "Federal crime of violence," prompting reliance on the definition provided in 18 U.S.C. § 16, as clarified by the Supreme Court in Leocal v. Ashcroft. The Court defined a "crime of violence" under § 16(a) as an offense involving the use or threatened use of physical force, or under § 16(b) as a felony that inherently poses a substantial risk of such force being used. In Leocal, the Court ruled that a state DUI conviction did not qualify as a crime of violence because it did not require intent and did not involve active employment of force, underlining that "substantial risk" in § 16(b) pertains to the use of force, not merely the potential consequences of a person's actions. The Government’s argument regarding the possession of a pipe bomb, which suggests it entails a substantial risk of physical force, led to an analysis aligned with § 16(b). However, following the categorical approach mandated by Leocal, which focuses on the offense's elements rather than specific facts, it was determined that mere possession of a pipe bomb does not constitute an offense that naturally involves acting with disregard of the risk of physical force against others. The Government argues that the mere possession of a pipe bomb constitutes a "substantial risk of physical force" due to its inherently dangerous nature. However, this interpretation overlooks the requirement in § 16(b) that force must be used in the commission of the offense. The Supreme Court's ruling in Leocal emphasizes that the risk associated with possession differs from the risk of actively using physical force against another. The Court rejected broad definitions of "crime of violence" that do not require active employment of force, such as the one found in U.S.S.G. § 4B1.2(a)(2). The danger posed by a pipe bomb arises not from possession but from its use; thus, possession alone does not entail a risk of using physical force. In contrast, had Hull been charged with using a pipe bomb, that offense would indeed present a substantial risk of violence. The distinction is critical: possession is a passive act, while the use of a pipe bomb qualifies as a "violent, active crime," aligning with the definition of a crime of violence under § 16. Consequently, a crime that merely increases the likelihood of violence does not inherently qualify as a crime of violence itself. The Government's argument that possession of a pipe bomb is inherently dangerous and constitutes a crime of violence is contradicted by the Third Circuit's ruling in Tran v. Gonzales. In Tran, the court determined that "reckless burning or exploding" did not qualify as a crime of violence under § 16, as it does not involve a substantial risk of intentionally using force. The court explained that while reckless endangerment carries a risk of property damage, it does not imply an intention to use force against property. In this context, mere possession of a pipe bomb also does not entail a substantial risk of intentional force, even if an explosion could occur unexpectedly. The Government's reliance on other statutes and cases, particularly the Fifth Circuit's United States v. Jennings, which equated possession of a pipe bomb with a crime of violence, is deemed unpersuasive. The Jennings case is not binding on the Third Circuit, and its reasoning is criticized for conflating "use" with "possession," a distinction emphasized by the Supreme Court in Leocal. The court asserts that while possession of an unregistered pipe bomb inherently poses a substantial risk of violence, the key question is whether the act of possession itself involves the risk of force being used. Furthermore, the court expresses concern over the Government's failure to accurately represent definitions of "crime of violence," particularly under U.S.S.G. § 4B1.2, which requires elements of physical force or specific violent conduct. The definitions referenced by the Government lack the necessary components to align with the case at hand. Guidelines § 4B1.2 does not apply to this case for two main reasons. First, the Supreme Court's decision in Leocal prohibits using § 4B1.2 for interpreting § 16, which extends to § 842(p). Second, § 4B1.2 distinguishes "use of explosives" from other conduct posing a serious risk of injury, indicating that mere possession of an explosive does not constitute a crime of violence under this guideline. If possession were to count, it would negate the specific mention of "use of explosives" in the provision, rendering it redundant. The cases cited by the Government, which involve firearms, are not relevant here, as the indictment specifically charged Hull only with intent related to possession of a pipe bomb, not its use or detonation. Therefore, the District Court incorrectly determined that such possession constituted a federal crime of violence under 18 U.S.C. § 842(p) or § 16, leading to the vacating of the conviction on Count 7. Regarding Count 10, witness tampering, Hull's challenge to the sufficiency of evidence does not meet the heavy burden required for appeal. He was convicted under 18 U.S.C. § 1512(b)(1) for attempting to corruptly persuade a witness, Debbie Rusch, to testify falsely about his identity as the Unknown Terrorist. The evidence was viewed favorably to the verdict, and Hull has not successfully contested the elements necessary to overturn the conviction. Evidence supported the jury's conclusion that Hull knowingly attempted to corruptly persuade Rusch to change her testimony, as established in United States v. Farrell, where "corrupt persuasion" encompasses efforts to convince someone to provide false information to federal investigators. The intent to interfere with a witness's communication is sufficient, regardless of the success of such interference. Hull's directive to Rusch to misrepresent authorship of an article and to destroy his correspondence went beyond mere encouragement not to cooperate with investigators, falling within the prohibitions of § 1512(b). Hull's appeals regarding the jury's comprehension of the charges or Rusch's memory did not undermine the substantial evidence supporting the conviction on Count 10. Hull's challenge to the wiretap interceptions, claiming a failure to minimize, was reviewed for clear error regarding factual findings and plenary for legal rulings. Under 18 U.S.C. § 2518(5), interception must minimize non-relevant communications. Although Hull acknowledged the interception application included a minimization plan, he disputed its effectiveness due to the nature of some intercepted conversations. However, none of the calls he deemed non-pertinent were presented to the jury. The reasonableness of minimization efforts is assessed in light of the investigation's context. The District Court found broader interceptions justified given the secrecy associated with the conspiracy, aligning with precedents from Scott and Adams. The number of intercepted calls alone does not indicate minimization failure, and Hull did not demonstrate a pattern of excessive non-pertinent interceptions. The government’s minimization efforts were deemed satisfactory based on the circumstances, leading to the affirmation of the District Court's decision not to suppress the wiretap evidence. Hull contested the jury instructions related to Counts 4, 5, and 6, which involved an unassembled bomb he allegedly made, possessed, and transferred to a confidential informant. The review of jury instructions is typically for abuse of discretion, but a plenary review applies when assessing if the instructions misstate the law. Hull did not submit his own proposed jury instructions but argued that the jury should have been instructed that his conviction required a showing that he knew the unassembled bomb was a "firearm" and that he intended for the informant to assemble or use it. He was convicted under 26 U.S.C. § 5861(d) and (f), which criminalizes the possession and transfer of unregistered firearms. Hull claimed the prosecution needed to prove his knowledge of the bomb's characteristics as a firearm and his intent for it to be assembled. However, the court clarified that intent is not an element of § 5861(d), as it does not require proving the intent of possession. Hull acknowledged that an unassembled bomb could qualify as a "firearm," which includes parts designed for conversion into a destructive device. The court upheld that where there is no ambiguity regarding the device's nature, intent is irrelevant. Additionally, Hull's conviction on Count 7 was vacated because mere possession of a pipe bomb does not constitute a "Federal crime of violence" under 18 U.S.C. § 842(p). The court affirmed the judgment of conviction for the remaining counts. The District Court's jurisdiction was based on 18 U.S.C. § 3231, and the appellate jurisdiction was under 18 U.S.C. § 1291. Hull was acquitted of Count 8, which involved a similar charge from May 2002, and thus did not challenge its legal interpretation. The Government also withdrew its argument regarding the classification of felon-in-possession offenses as "crimes of violence" for bail purposes. The superseding indictment against Hull included charges of corrupt persuasion regarding various topics, but the jury was only instructed on the Unknown Terrorist allegation. The Government argued that Hull's objection was limited to Count 5, thus suggesting that Counts 4 and 6 should be assessed for plain error. However, all three counts were based on the same statute, which the District Court interpreted as not requiring proof of Hull's intent. A pipe bomb qualifies as a "firearm" under 26 U.S.C. § 5861, defined as a "destructive device," which includes bombs as per § 5845(a)(8) and § 5845(f)(1). Senior District Judge Ackerman concurred in part and dissented in part, asserting that unlawful possession of a pipe bomb inherently presents a substantial risk of intentional physical force against others. He referenced § 16(b) of Title 18, which defines a crime of violence as a felony that poses a substantial risk of physical force being used. The consensus is that the term "use" implies specific intent rather than mere recklessness. The terms "substantial risk" and "may" indicate that actual use of force is not necessary to classify an offense as a crime of violence, which can be established by a strong possibility of force being employed. Courts recognize that while the definition of "substantial risk" is imprecise, it necessitates a material or significant risk of force, and legislative intent should be interpreted through ordinary meaning. The phrase "in the course of committing the offense" in § 16(b) indicates ongoing action rather than a singular moment, suggesting that the statute pertains to the entire duration of the offense. This interpretation aligns with the definition of "course" as a continuous process. The statute refers to "the offense" as a whole, necessitating that all conduct related to the offense be included in the assessment of risk. A "crime of violence" under § 16(b) encompasses any felony where there exists a strong possibility of intentional physical force being used against another during the offense's commission. The author disagrees with the majority's interpretation that narrows the application of § 16(b) by suggesting that once possession of an object, like a pipe bomb, is obtained, the risk of violence does not need to be considered thereafter. The author argues that the ongoing risk must be evaluated throughout the entire period of possession. The proposed broader interpretation maintains logical consistency, as possession is an ongoing offense that continues until control is relinquished. Additionally, the author finds no ambiguity in the statute that would necessitate applying the rule of lenity, and asserts that the interpretation provided is supported by the literal language of the statute. Burglary is identified as a crime with a substantial risk of force being used against persons or property, as established in *Leocal*, with the initial act of breaking satisfying the "substantial risk" requirement for classification as a federal crime of violence. This aligns with common law, where breaking was essential to burglary. Conversely, possession, recognized as a continuing offense, does not hinge on a single act of possession but rather on an ongoing course of conduct. Courts have consistently held that possession of items like firearms and controlled substances is a continuing offense, emphasizing that possession may not require force initially but still involves a continuous nature that must be considered in legal assessments. Pre-*Leocal* rulings confirm that various possession crimes can qualify as violent offenses, highlighting that certain weapons inherently pose a substantial risk of violence. Mere possession of an unregistered firearm is classified as a crime of violence, as established in United States v. Amparo and supported by various cases including United States v. Dunn, which identified possession of a sawed-off shotgun as a violent felony. The possession of a pipe bomb is similarly viewed; courts unanimously agree that it poses a substantial risk of intentional harm. Unlike handguns, pipe bombs have no legitimate social purpose, making them inherently dangerous. Judicial findings across multiple circuits—including the Ninth, Eleventh, and Tenth—emphasize that pipe bombs lack any non-violent or lawful uses, reinforcing their classification as weapons that can be used for criminal purposes. Legislative intent, as reflected in the Firearms Act, aligns with this viewpoint, requiring registration for devices deemed destructive and prone to misuse. The consensus among judicial authorities indicates that pipe bombs are inherently dangerous and serve no useful purpose, echoing both legal and law enforcement perspectives. Federal law enforcement has identified pipe bombs as favored weapons of terrorists, with testimony before Congress highlighting their significant threat. An expert from the Bureau of Alcohol, Tobacco, Firearms and Explosives testified that pipe bombs have no legal purpose and can only serve as weapons intended to cause harm. Evidence presented during trial indicated that these devices are ineffective for any constructive use, such as farming, as they are designed only to explode and cause injury. The expert stated that the inherent danger of possessing a pipe bomb presents a substantial risk of its use for violence against people or property. This conclusion is supported by the lack of refutation from the defendant, Hull, during the trial. The excerpt argues that prior case law, including Tran v. Gonzales and United States v. Bowers, does not contradict the position that unlawful possession of a pipe bomb creates a significant risk of intentional violence, as opposed to mere recklessness or nonviolent possession of firearms. Felons may legally possess firearms for self-defense and other lawful purposes, as established in United States v. Lane; however, this rationale does not apply to the possession of an unregistered pipe bomb, which lacks any lawful purpose. The distinction is made between the offense of being a felon in possession of a firearm, which addresses societal concerns about felons' qualifications to possess firearms, and the offense of unlawfully making a bomb, which focuses on the dangerousness and illegitimacy of the bomb itself. The majority references Bailey v. United States to argue that the danger of a pipe bomb lies in its use rather than mere possession. However, Bailey's interpretation of "use" in relation to firearms does not directly correlate with the possession of a bomb, which inherently poses a substantial risk of physical force being employed. The opinion also critiques the majority's reliance on Lane, highlighting that it did not involve weapons like pipe bombs that lack lawful uses. The author argues that if mere possession of a pipe bomb is not classified as a crime of violence, then more destructive explosives would similarly be exempt, leading to a problematic legal precedent. The opinion asserts that the act of possessing a pipe bomb does involve a substantial risk of intentional physical force against others, contrary to the majority's interpretation. The author concludes that the definition and understanding of possession under 16(b) clearly indicate the inherent dangers involved during the entire duration of possession.