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U.S. v. Urban

March 20, 1998

UNITED STATES OF AMERICA
v.
FREDERICK URBAN, APPELLANT



Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Crim. No. 95-00108) Argued October 21, 1997

Before: Mansmann and Greenberg and ALARCON,*fn1 Circuit Judges

The opinion of the court was delivered by: Alarcon, Circuit Judge.

OPINION OF THE COURT

Frederick Urban appeals from the judgment of conviction for possession of an unregistered destructive device in violation of 26 U.S.C. §§ 5841, 5861(d), and 5971. He contends that the district court committed prejudicial error in refusing to instruct the jury that the intent to use the components as a weapon is an element of the crime charged in the indictment. Urban also argues that the district court erred as a matter of law in applying the special skill enhancement under United States Sentencing Guideline § 3B1.3 ("§ 3B1.3"). We affirm the judgment of conviction because we conclude that the district court properly instructed the jury. We also determine that the district court properly applied a two-level sentence enhancement for the use of a special skill in a manner that significantly aided the commission of the crime.

I

In late 1994, Frederick Urban ("Urban") began to frequent a local gun store owned by Patrick Moreton. Urban gave Moreton a number of pamphlets entitled "1-2-3-4 Easy Made C-4" to sell on a consignment basis. Urban claimed to have written the pamphlet, which set forth directions on how to manufacture triacetonetriperoxide ("TATP"), an extremely volatile explosive. Urban continued to visit the store, and to discuss his ideas about manufacturing explosives. In early April, Urban met with Moreton's father, John, to discuss the possibility of building an aluminum "grenade-type launcher." Urban told the elder Moreton that he had a cache of TATP buried in his backyard.

Unbeknownst to Urban, John Moreton was an informant for the Alcohol, Tobacco and Firearms Division of the Department of the Treasury ("ATF"). John Moreton informed Kevin Simpson, an ATF agent, of Urban's activities, and the ATF set up a sting operation.

In his Discussions with John Moreton, Urban stated that TATP could breach a three-inch steel plate. The two arranged to meet and test the explosive power of TATP. On April 11, 1995, Urban and Moreton met in the parking lot of a highway rest stop. ATF agents arrested Urban when he removed a large ammunition box from his van and placed it in the trunk of Moreton's car. The ammunition box contained two large canisters, a homemade metal detonator, two large bags of an explosive later designated as TATP, two carbon dioxide cartridges, a coil of pyrotechnic fuse, and a steel pipe.

During a search of Urban's residence, ATF agents seized books and pamphlets on how to manufacture various weapons and explosives, a polyvinyl chloride ("PVC") container, a five-inch length of 3/32 fuse, an illegal firearm silencer, a partially filled container of smokeless gun powder, a homemade detonator, and three fuse assemblies. Urban was arrested and charged with the possession of an unregistered destructive device in violation of 26 U.S.C. § 5861(d). On April 18, 1995, Urban was indicted on one count of possession of an unregistered destructive device.

Urban was found guilty after a trial by jury. He has timely appealed from the judgment of conviction and the court's sentencing decision.

II

Urban argues that we must reverse because the district court erred in failing to instruct the jury on an essential element of the crime of possession of the components of an unregistered destructive device. He contends that the trial court was required to instruct the jury that the Government had the burden of producing evidence that he intended to use the components of an unregistered destructive device as a weapon. This court conducts a plenary review of a challenge to a district court's instruction to the jury regarding the applicable law. United States v. Zehrbach, 47 F.3d 1252, 1260 (3rd Cir.), cert. denied, 514 U.S. 1067 (1995).

The question whether the Government has the burden of producing evidence and persuading the jury that the accused possessed the components of an unregistered destructive device with the intent to use them as a weapon presents an issue of first impression in this circuit.

We begin our analysis by examining the language used by Congress in creating the offense of possession of an unregistered firearm. Section 5861(d) of the National Firearms Act provides in pertinent part that "t shall be unlawful for any person . . . to . . . possess afirearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U.S.C. § 5861(d). Section 5861(d) makes no reference to the intent of the person in possession of an unregistered firearm.

Section 5845(f) defines the term "firearm" inter alia, as a "destructive device." A destructive device is defined ...


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