Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-28-2006

USA v. Hull
Precedential or Non-Precedential: Precedential

Docket No. 05-2028




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                                                PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 05-2028


                 UNITED STATES OF AMERICA

                                 v.

                     DAVID WAYNE HULL,

                                                     Appellant



           On Appeal from the United States District Court
              for the Western District of Pennsylvania
                 (D.C. Criminal No. 03-cr-00096-1)
            District Judge: Honorable Gary L. Lancaster


                       Argued May 18, 2006

 Before: RENDELL and VAN ANTWERPEN, Circuit Judges,
            and ACKERMAN, District Judge*


       *
        Honorable Harold A. Ackerman, Senior United States
District Judge for the District of New Jersey, sitting by designation.
                     (Filed: July 28, 2006)

Lisa B. Freeland
Karen S. Gerlach (Argued)
Federal Public Defender Office
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222

Counsel for Appellant

Mary Beth Buchanan
Laura S. Irwin (Argued)
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219

Counsel for the Government
                              ____

                  OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

        David Wayne Hull appeals from the judgment of
conviction entered by the District Court after he was found
guilty by a jury on 7 of 10 counts related to explosives, firearms,
and witness tampering. We will vacate Hull’s conviction as to
Count 7, and affirm the judgment of conviction as to all
remaining counts.

                                2
                                I.

        David Wayne Hull, the admitted Imperial Wizard of the
splinter group White Knights of the Ku Klux Klan, was arrested
on February 13, 2003. A search warrant was executed by law
enforcement on his home. Agents found loaded handguns, a
rocket tube, military-style weapons, ammunition, a silencer and
accompanying instructions for manufacture, diagrams and
instructions for making pipe bombs and booby-traps, explosives
components, and, outside the home, cars damaged by explosions
but still containing parts of pipe bombs. Hull did not have
licenses or registrations for any of the weapons or explosives, or
the silencer.

        The FBI had had Hull under surveillance and
investigation for several years, utilizing a government informant
to infiltrate and observe the KKK. This informant met Hull and
other members of the KKK at various gatherings and privately
at Hull’s house. The informant watched and participated in the
detonation of several pipe bombs and other explosives, and the
testing of silencers. The informant also discussed the making of
pipe bombs with Hull, and repeatedly requested that Hull
construct pipe bombs for him. At some point, Hull apparently
deduced the informant was just that, and allegedly took steps to
provide him with only bomb components (minus the fuse)
instead of a completed pipe bomb. The informant also
cooperated with the FBI to record conversations with Hull,
beginning in September 2002.

      A District Judge from the Eastern District of
Pennsylvania approved a wiretap interception order on January

                                3
13, 2003, for various suspects’ phones, including Hull’s home
and cell phones. In the supporting wiretap affidavit, agents
promised to “minimize” the interceptions by screening out: calls
under two minutes; calls not involving Hull or any other named
interceptee; and conversations “non-criminal in nature.” The
agents reserved the right to “spot-check” any of these calls to
“ensure that the conversations have not turned to criminal
matters.” In practice, this procedure involved initial monitoring
for identity and subject verification; one minute without
monitoring if the call fell into an above category; then two
minutes of active monitoring for “spot-checking”; and so forth
until the call was completed. Several of the resulting intercepts
were later used in Hull’s trial.

        Hull was eventually indicted by a federal grand jury,
which indictment was followed by a ten-count superseding
indictment. The superseding indictment charged Hull with:
Counts 1, 2, 3, and 4, possession of unregistered firearms (pipe
bombs and a silencer) on various dates; Count 5, transfer of a
firearm (pipe bomb); Count 6, manufacture of a firearm (pipe
bomb); Counts 7 and 8, teaching or demonstrating, and
distributing information regarding, the making and use of a pipe
bomb with the intent that the teaching or information be used for
a “Federal crime of violence” (“unlawful possession of a pipe
bomb”) on two dates; Count 9, possession of a firearm in
interstate commerce by a felon; and Count 10, attempting to
influence the testimony of a witness.

       Hull pleaded not guilty and moved to have the wiretap
interceptions suppressed. The District Court denied the motion
on May 7, 2004, and the case was tried to a jury in the Western

                               4
District of Pennsylvania. Over the course of several weeks, the
jury heard testimony from various FBI and law enforcement
agents, technical experts, and several informants and
cooperating witnesses. One of Hull’s girlfriends, Deborah
Rusch, testified that she had helped Hull by using her legal
secretary position and skills to format articles for publication in
a KKK newspaper. The articles dealt with topics including the
manufacture of propane tank explosives and pipe bombs; several
were attributed to an author identified as the “Unknown
Terrorist.” Rusch had also had conversations with Hull about
explosives. Rusch later received several letters from Hull while
he was in prison, and turned these letters over to the FBI. The
letters asked her to “remember” several conversations; to say
that they were merely “casually dat[ing]” instead of calling
herself his girlfriend; reminded her of things she “knew”; listed
things she “must tell . . . to the jury”; and, most critically, to tell
the jury that she did not believe Hull wrote the “Unknown
Terrorist” articles. She was then instructed to burn one of the
letters. On the stand, Rusch testified instead that she did not
recall ever speaking with a specific FBI agent, as alleged in the
letters, and that she did believe Hull to be the Unknown
Terrorist, as most, but not all, of the articles matched his writing
style.

        Hull took the stand in his own defense, and testified that
neither he nor the White Knights had ever espoused violence, or
had intended to hurt anyone. He denied being the “Unknown
Terrorist,” or that he had ever demonstrated how to make a pipe
bomb to anyone or participated in detonating any pipe bombs.
All the firearms and explosives components, he alleged, were
for legitimate purposes. He claimed that he knew all along that

                                  5
 the informant was helping law enforcement, and therefore
 purposefully refused to give him an assembled bomb.

        At the close of the trial, the District Court instructed the
 jury. In particular, the District Court refused to include a
 proposed instruction from Hull that in order to be found guilty
 of “transferr[ing]” a firearm, he had to know and intend that the
 bomb, unassembled and without a fuse, constitute a firearm.
 The District Court did instruct the jury that mere possession of
 a bomb could qualify as a “Federal crime of violence,” after
 expressing deep doubts over the issue and noting that the court
 had not “made up my mind on this.”

        On May 28, 2004, the jury returned verdicts of not guilty
 on 3 of the 10 counts (possession of a pipe bomb on 2 of 3
 relevant dates, and distribution of information related to a pipe
 bomb on one date). The jury found Hull guilty of the remaining
 7 counts. On March 21, 2005, the District Court sentenced Hull
 to 144 months imprisonment for the distribution of information
 related to a pipe bomb (Count 7), to run concurrently with
 sentences of 120 months imprisonment for each of the
 remaining six counts of conviction. Hull now appeals his
 conviction on myriad grounds.1

                                 II.

       Hull raises five challenges to his conviction, one of
 which we find meritorious and thus will address first in detail.

       1
       The District Court had jurisdiction pursuant to 18 U.S.C. §
3231; we have jurisdiction pursuant to 18 U.S.C. § 1291.

                                 6
Hull alleges that: (1) mere “possession” of a pipe bomb, as
charged in the indictment, does not qualify as a “Federal crime
of violence” under 18 U.S.C. § 842(p)(2)(A); (2) the evidence
was insufficient to prove the witness tampering change; (3) the
wiretaps should have been suppressed due to the Government’s
failure to properly “minimize” interceptions; (4) for the purpose
of making, possessing, or transferring a firearm, Hull could not
be convicted because he did not intend that a pipe bomb,
unassembled, be assembled into a firearm; and (5) 18 U.S.C. §
922(g)(1), felon in possession of a firearm, is unconstitutional.
We have rejected this last contention outright, and will not give
it further consideration here. United States v. Singletary, 

(3d Cir. 2001).

                               III.

        Hull’s first argument presents a matter of first impression
in this Court, and to our knowledge, in any court of appeals.
Hull was convicted, at Count 7, of violating 18 U.S.C. §
842(p)(2)(A):

       “(p) Distribution of information relating to explosives,
       destructive devices, and weapons of mass destruction.

       (1) Definitions. In this subsection--
              (A) the term ‘destructive device’ has the same
              meaning as in section 921(a)(4);
              (B) the term ‘explosive’ has the same meaning as
              in section 844(j); and
              (C) the term ‘weapon of mass destruction’ has the
              same meaning as in section 2332a(c)(2).

                                7
          (2) Prohibition. It shall be unlawful for any person--
                 (A) to teach or demonstrate the making or use of
                 an explosive, a destructive device, or a weapon of
                 mass destruction, or to distribute by any means
                 information pertaining to, in whole or in part, the
                 manufacture or use of an explosive, destructive
                 device, or weapon of mass destruction, with the
                 intent that the teaching, demonstration, or
                 information be used for, or in furtherance of, an
                 activity that constitutes a Federal crime of
                 violence;” (emphasis added)

 The superseding indictment charged that the “Federal crime of
 violence” at issue was solely the “unlawful possession of a pipe
 bomb,” on or about November 19, 2002.2 As we will set out
 below, “crime of violence” is not defined in the statute.

          The District Court instructed the jury that:

          “[P]ossession of an unregistered pipe bomb is a federal
          crime of violence. . . . The government does not have to
          prove defendant intended the recipient of the information
          to blow up someplace or blow up somebody. They need
          only prove that the defendant intended the recipient of
          this information to make and thereafter possess the pipe
          bomb.”

      2
       Count 8 charged Hull with the identical crime, but
committed in or around May 2002. Hull was found not guilty of
Count 8, however, and therefore does not challenge the
construction of 18 U.S.C. § 842(p)(2)(A) as to Count 8.

                                  8
Hull alleges that simple possession of a pipe bomb, as opposed
to the use or detonation of a pipe bomb, cannot qualify as a
“Federal crime of violence” under § 842(p)(2)(A), and that his
conviction at Count 7 must be vacated. We exercise plenary
review over questions of law, such as whether a crime is a crime
of violence, United States v. Luster, 

, 200 (3d Cir.
2002). We will vacate the conviction for Count 7.

         We note first the regrettable fact that we do not have the
benefit of any analysis or ruling by the District Court on this
issue. The District Court initially expressed its “concern” to the
parties during trial that “if the mere possession satisfied the
crime of violence element, why even put that element into it?
Transferring it implies the other person is going to possess it. .
. . [that is,] [t]he teaching charge, not the transfer, the teaching
charge.” App. vol. IV.1109. Both Hull and the Government
submitted memoranda on the point, and while later in the trial,
the District Court returned to the issue again, expressing doubt
on the Government’s theory of the charge, it did not analyze the
issue on the record:

       “I read your briefs about this, whether or not mere
       possession alone constitutes a crime of violence. I think
       it is a very close question. I haven’t made up my mind
       on this. Probably what I will do, though, is I might
       submit it to the jury as proferred by the government, and
       then in post-verdict motions, if they find the guy not
       guilty, then it’s moot. If they find him guilty, then as a
       matter of law, I can rule whether or not to take out the
       verdict. And then if it goes to the Court of Appeals, at
       least we’ll have a verdict. If I’m wrong, we’ll have to do

                                 9
       it again.” App. vol. IV.1348.

The District Court then gave the requested jury instruction we
have set forth above, without further discussion.

        With regard to 18 U.S.C. § 842(p)(2)(A), we are treading
on fairly undisturbed ground. Section 842(p) was added to the
criminal code in 1999, see P.L. 106-54 § 2(a), 113 Stat. 398
(Aug. 17, 1999), and as yet has been applied only sparingly
across the country.

        Unfortunately, as we noted above § 842(p) does not
define “Federal crime of violence.” Accordingly, the Supreme
Court recently instructed courts to look at 18 U.S.C. § 16’s
definition of “crime of violence” for the purposes of 18 U.S.C.
§ 842(p). Leocal v. Ashcroft, 

, 7 n.4 (2004) (“a
number of statutes criminalize conduct that has as an element
the commission of a crime of violence under § 16. See, e.g., 18
U.S.C. § 842(p)”). Leocal, which examined in detail § 16’s
usage of the term, therefore controls our analysis under § 842.
18 U.S.C. § 16 defines “crime of violence” as follows:

       “(a) an offense that has as an element the use, attempted
       use, or threatened use of physical force against the
       person or property of another, or

       (b) any other offense that is a felony and that, by its
       nature, involves a substantial risk that physical force
       against the person or property of another may be used in
       the course of committing the offense.” (emphases added)



                              10
        The Supreme Court in Leocal considered whether a
conviction for a state DUI offense that did not require proof of
a mental state nonetheless qualified as a crime of violence under
§ 16. The Court concluded that it did not fit either § 16(a) or
(b). Under § 16(a), the Court held that “use” requires the
“active employment” of force, and therefore a degree of intent
higher than negligence. 

. Nor did the DUI
conviction qualify under § 16(b), which “covers offenses that
naturally involve a person acting in disregard of the risk that
physical force might be used against another in committing the
offense.” 

(emphasis added). “Thus, §
16(b) plainly does not encompass all offenses which create a
‘substantial risk’ that injury will result from a person’s conduct.
The ‘substantial risk’ in § 16(b) relates to the use of force, not
to the possible effect of a person’s conduct.” 

n.7.

       Here the Government does not allege that possession of
a pipe bomb involves the actual use of physical force, only that
it involves a substantial risk of use of physical force against
another. In light of this and Leocal’s holding, we therefore
confine our analysis to 18 U.S.C. § 16(b).

        Leocal dictates a “categorical” approach to determining
whether a crime is a crime of violence. 

;
see also Oyebanji v. Gonzales, 

, 262 (3d Cir.
2005). “This . . . requires us to look to the elements and nature
of the offense of conviction, rather than to the particular facts
relating to petitioner’s crime.” 

. Our task,
then, is to determine whether simply “possessing” a pipe bomb
is an “offense[] that naturally involve[s] a person acting in
disregard of the risk that physical force might be used against

                                11
another in committing the offense.” 

. We
hold that it is not.

        The Government’s argument in favor of the District
Court’s charge is this: Because there are no “legitimate” uses for
a pipe bomb, and because they are such dangerous items, mere
possession of a pipe bomb involves the “substantial risk of
physical force.” Were that the complete test, we might agree.
However, the Government ignores the remainder of § 16(b):
“may be used in the course of committing the offense,”
(emphasis added). The Government’s argument fails to
acknowledge that the Supreme Court in Leocal repeatedly
emphasized the importance of the requirement that the force be
used in committing the offense, and here the offense is but one
of possession. “The risk that an accident may occur when an
individual drives while intoxicated is simply not the same thing
as the risk that the individual may ‘use’ physical force against
another in committing the DUI offense.” 

n.7. This element of § 16(b) is perhaps the most important. The
Leocal Court rejected, as dissimilar and insufficient, the
definition and interpretation of U.S.S.G. § 4B1.2(a)(2)’s
definition of “crime of violence,” which required only “conduct
which presents a serious potential risk of physical injury to
another.” 

n.7. This latter definition, by
contrast, might have covered the possession of a pipe bomb.

       The danger from a pipe bomb comes not from the offense
of possession, but from the added factor of use of the pipe
bomb. See 

(“‘use’ requires active
employment”) (citing Bailey v. United States, 

, 143
(1995) (substantive holding superseded by statute)); Bailey, 

(“use . . . requires more than a showing of mere
possession”). To commit the offense of possession, Hull
merely had to exercise control or dominion over the pipe bomb.
There is no risk that physical force might be used against
another to commit the offense of possession, regardless of
whether pipe bombs have a legitimate purpose or not. Cf.
United States v. Bowers, 

, 519 (3d Cir. 2005) (“[A]
felon in possession has committed a crime of violence only if
the nature of that offense is such that there is a ‘substantial risk’
that he will use ‘physical force’ against another ‘in the course
of’ his possession of the weapon.”) (emphasis added). In
contrast, had Hull been charged in the indictment with using a
pipe bomb, then commission of such an offense would
“involve[] a substantial risk that physical force against the
person or property of another may be used in the course of
committing” that offense. 18 U.S.C. § 16(b). Use of a pipe
bomb is the type of “violent, active crime[]” the Supreme Court
found constituted a crime of violence under § 16. 

(emphasis added). Possession is simply not such an
“active” crime; “A crime that increases the likelihood of a crime
of violence need not itself be a crime of violence.” United
States v. Lane, 

, 907 (7th Cir. 2001), quoted with
approval in 

.

       The Government’s theory that a pipe bomb might “go
off’ at any moment and is therefore inherently, and
unredeemably, dangerous, is further foreclosed by our recent
decision in Tran v. Gonzales, 

(3d Cir. 2005). Tran
addressed whether “reckless burning or exploding” constituted
a crime of violence under § 16, and concluded that it did not.
We held that Ҥ 16(b) crimes are those raising a substantial risk

                                 13
that the actor will intentionally use force in the furtherance of
the offense.” 

at 471 (emphasis in original). We
reasoned that:

       “This element [recklessly endangering the property of
       another], on its face, involves a substantial risk of
       causing injury to the property of another. But it does not
       involve a substantial risk of using force against the
       property of another. The substantial risk involved in the
       Pennsylvania statute is the risk that the fire started by the
       offender will spread and damage the property of another.
       This risk cannot be said to involve the intentional use of
       force, as required by [United States v.] Parson [, 

(3d Cir. 1992)]. The statute does not
       contemplate a risk that the reckless-burning offender will
       step in and commit an intentional act of violence . . . .”

(emphasis in original). Similarly here, mere
possession of a pipe bomb holds no risk of the intentional use of
force. Even if, as the Government posited at argument, a pipe
bomb can unexpectedly explode (and the possessor has this
knowledge) during even the most passive constructive
possessions, such an explosion would not have been the result
of any intentional use of force. Possessing a pipe bomb does not
necessarily include a substantial risk that the possessor might
step in and intentionally detonate the device, i.e., use force
within the meaning of § 16.

       The Government points us to several other statutes under
which courts have found the mere possession of a “firearm” to
constitute a crime of violence. We do not find these statutes or

                                14
 case law persuasive with respect to the case at hand. The
 Government relies most heavily on a Fifth Circuit case, United
 States v. Jennings, 

(5th Cir. 1999), interpreting 18
 U.S.C. § 924(c), which defines “crime of violence” in the same
 language as § 16. The Jennings court held that possession of a
 pipe bomb satisfied that definition in the context of the
 possession of a firearm in relation to a crime of violence. First,
 Jennings is in no way binding on this Court. Second, we
 disagree with the analysis of the Jennings court because it
 conflates “use” with “possession,” which conflation the
 Supreme Court took the opportunity to explicitly forbid in its
 later opinion in Leocal. See, e.g., 

 (“We hold that possession of an unregistered pipe bomb, by its
 very nature, creates a substantial risk of violence. . . . In fact, we
 cannot conceive of any non-violent or lawful uses for a pipe
 bomb.”) (emphases added).

        As discussed, the relevant inquiry is not whether
 possession makes it more likely that a violent crime will be
 committed, but instead whether there is a risk that in committing
 the offense of possession, force will be used. See 

.

        The remainder of the Government’s analogies are
 similarly inapposite.3 The Government suggests that we look to

       3
        At oral argument the Government abandoned its analogy to
the Bail Reform Act, 18 U.S.C. § 3142. In Bowers, we joined four
other Circuits in rejecting the Government’s argument that for bail
purposes, a “felon-in-possession offense constitutes a ‘crime of
violence,’” Br. for the United States at 63. See Bowers, 

 cases interpreting U.S.S.G. § 4B1.2 for guidance. Here we are
 troubled by the Government’s lack of candor. Unlike any of the
 previous definitions of “crime of violence” quoted by the
 Government, § 4B1.2(a) (which the Government explicitly does
 not quote or reference) defines a crime of violence as one that:

        “(1) has as an element the use, attempted use, or
        threatened use of physical force against the person of
        another, or
        (2) is burglary of a dwelling, arson, or extortion, involves
        use of explosives, or otherwise involves conduct that
        presents a serious potential risk of physical injury to
        another.” (emphasis added)

 Guidelines § 4B1.2 is inapposite to this case for at least two
 reasons. First, Leocal explicitly rejected using § 4B1.2 to
 interpret § 16 (and by extension, § 842(p)). 

n.7. Second, § 4B1.2 specifically sets apart “use of
 explosives” from any other “conduct that presents a serious
 potential risk of physical injury to another.” This implies that
 “possession” of an explosive cannot qualify as a crime of
 violence under § 4B1.2; if it did, we would be required to read
 “use of explosives” out of the Guideline provision. See United
 States v. Fish, 

, 1204 (9th Cir. 2004)
 (“Interpreting the catchall phrase . . . to cover possession of a
 ‘pipe bomb’ would render the provision’s specific inclusion of
 ‘use of explosives’ in the same section surplusage.”); see also 

(“To ‘use’ an explosive, one must first necessarily
 ‘possess’ it.”). For this reason, none of the numerous cases cited


at 521 (reaffirming Royce v. Hahn, 

(3d Cir. 1998)).

                                 16
by the Government finding mere possession of a firearm, but not
an explosive device, to be a crime of violence under § 4B1.2, is
applicable.

       Ultimately we, like the District Court and the jury, are
limited by the charge in the superseding indictment. Had the
indictment charged that the federal crime of violence intended
was the use or detonation of a pipe bomb, we would have no
difficulty upholding the validity of the jury instruction. Instead,
however, the indictment charged Hull with only the intent that
his teaching lead to the mere possession of a pipe bomb. The
District Court erred in holding that such possession on its own
legally constituted a federal crime of violence under 18 U.S.C.
§ 842(p), or by extension 18 U.S.C. § 16. Accordingly, the
judgment of conviction on Count 7 will be vacated.

                               IV.

       Hull next challenges the sufficiency of the evidence on
Count 10, witness tampering. Our review is plenary, but
deferential inasmuch as “we must . . . consider the evidence in
the light most favorable to the verdict and ask whether a
reasonable jury could have found that the contested elements
were proven beyond a reasonable doubt.” United States v.
Cohen, 

, 156-57 (3d Cir. 2002). This is a heavy
burden for Hull to meet, United States v. Dent, 

,
187 (3d Cir. 1998), and he has not done so on appeal.

       Hull was convicted under 18 U.S.C. § 1512(b)(1), which
penalizes “Whoever knowingly uses intimidation, threatens or
corruptly persuades another person, or attempts to do so, or

                                17
 engages in misleading conduct toward another person, with
 intent to– (1) influence, delay or prevent the testimony of any
 person in an official proceeding.” Specifically, the Government
 accused Hull of attempting to corruptly persuade Debbie Rusch
 to testify that she did not believe he was the Unknown Terrorist,
 when in fact, as she later testified, she did believe he was the
 Unknown Terrorist; and that he knew the falsehood of his
 desired testimony.4

         As to Hull’s knowledge, there was ample evidence from
 which the jury could conclude that Hull knowingly attempted to
 corruptly persuade Rusch, with the intent to change her
 testimony. See United States v. Farrell, 

, 488 (3d
 Cir. 1997) (holding that “corrupt persuasion” includes
 “attempting to persuade someone to provide false information
 to federal investigators”). “[T]he defendant must know that his
 conduct has the natural and probable effect of interfering with
 the witness’s communication, whether or not it succeeds.”
 United States v. Davis, 

, 248 (3d Cir. 1999). In his
 letter telling Rusch to testify on the stand that “I sent [the
 Unknown Terrorist article] to ya but you don’t think I wrote it,”
 Hull told Rusch to immediately burn the letter. Thus, the letter
 went beyond simply encouraging Rusch not to aid federal
 investigators, which encouragement alone we excepted from §
 1512(b)’s purview under the circumstances of Farrell. We note

       4
        While the superseding indictment included allegations that
Hull attempted to corruptly persuade Rusch on various topics,
including that someone else drilled an end cap and that Hull
refused to deal with the confidential informant, the District Court
charged the jury based only on the Unknown Terrorist allegation.

                                18
that, contrary to Hull’s assertions on appeal, whether or not the
jury had difficulty with certain elements of the charge is
ultimately not “proof” that the conviction does not rest on
substantial evidence, nor does Hull’s explanation that Rusch had
a poor memory in need of refreshing somehow justify his
suggestion that she testify in a way she affirmatively knew to be
untrue. The jury’s verdict in Count 10 was supported by
substantial evidence.

                               V.

       Hull next renews his attempt to suppress the wiretap
interceptions on the ground that agents failed to “minimize” the
interceptions and monitoring. Our review of the District Court’s
factual findings in a suppression hearing is for clear error.
United States v. Naranjo, 

, 226 (3d Cir. 2005). Our
review of legal rulings and mixed questions of law and fact is
plenary. 

§ 2518(5) requires as follows:

       “Every order and extension thereof shall contain a
       provision that the authorization to intercept shall be
       executed as soon as practicable, shall be conducted in
       such a way as to minimize the interception of
       communications not otherwise subject to interception
       under this chapter, and must terminate upon attainment
       of the authorized objective, or in any event in thirty
       days.”

The interception application and order in this case did include a
plan to minimize interceptions, as Hull acknowledges.
Nonetheless, because some of the intercepted conversations

                               19
were between Hull and his various girlfriends or Hull and
commercial businesses, and because the subject matter included
sexual discussions, Hull alleges a failure to minimize in practice.
We note, however, that none of the calls Hull labels as “non-
pertinent” were played for the jury.

        Our inquiry is on the “reasonableness” of minimization
efforts, under the totality of the circumstances. United States v.
Scott, 

, 140 (1978); see also United States v.
Armocida, 

(3d Cir. 1975). We agree with the
District Court that when investigating a wide-ranging conspiracy
between parties known for their penchant for secrecy, broader
interceptions may be warranted. See United States v. Adams,

, 1115 (3d Cir. 1985); 

(upholding uninterrupted interceptions in drug conspiracy case).
The mere number of intercepted, but non-pertinent, calls is not
dispositive. 

; see also 

can demonstrate no pattern to the interception of non-
pertinent calls. Because of the variety of voices and transactions
involved, the government’s efforts at minimizing non-pertinent
conversations was acceptable.”). “The statute does not forbid
the interception of all nonrelevant conversations.” 

. Given, for example, the nature of the case and
circumstances known to the agents during the interceptions, we
discern no error in the District Court’s refusal to suppress the
wiretap interceptions on the ground of failure to minimize.

                               VI.

       Finally, Hull challenges the jury instructions on Counts
4, 5, and 6, which referred to an unassembled bomb Hull

                                20
 allegedly knowingly made, possessed, and transferred to the
 confidential informant. “Although we generally review jury
 instructions for abuse of discretion, our review is plenary when
 the question is whether a district court’s instructions misstated
 the law.” United States v. Dobson, 

, 236 (3d Cir.
 2005) (citations and quotation marks omitted). Hull disputed
 the jury instructions ultimately given by the District Court,5 but
 did not file his own proposed instructions.

       Hull was convicted under 26 U.S.C. §§ 5861(d)-(f),
 which state as follows:

           “It shall be unlawful for any person–

           [Count 4] (d) to receive or possess a firearm which is not
           registered to him in the National Firearms Registration
           and Transfer Record; or

           [Count 5] (e) to transfer a firearm in violation of the
           provisions of this chapter; or

           [Count 6] (f) to make a firearm in violation of the




       5
        The Government contends that Hull objected only to the
jury instruction at Count 5, and therefore that his challenge to
Counts 4 and 6 should be reviewed only for plain error. Counts 4,
5, and 6 all relied on the same statute, however, and the District
Court concluded under that statute that the Government was not
required to prove Hull’s intent.

                                   21
           provisions of this chapter;”6

 Specifically, Hull alleges that the jury should have been told that
 he could only be convicted if (1) he knew that an unassembled
 bomb was a “firearm” under the applicable statutes; and (2) he
 intended that the recipient, whom he knew to be an informant,
 assemble or use the bomb. The District Court’s refusal to
 instruct the jury on these elements, Hull alleges, amounted to an
 unconstitutional denial of his ability to mount a defense.

        The Government was required to prove that Hull knew of
 the features that made what he was making, possessing, or
 transferring, a “firearm,” Staples v. United States, 

,
 619 (1994), and indeed the District Court instructed the jury
 accordingly. However, Hull claims that the Government also
 had to prove that he intended for the unassembled parts of the
 pipe bomb to be assembled into a fully functioning pipe bomb.
 This is simply not an element of 26 U.S.C. § 5861. “Section
 5861(d) makes no reference to the intent of the person in
 possession of an unregistered firearm.” United States v. Urban,
 

, 232 (3d Cir. 1991).

        As Hull concedes, “an unassembled bomb can also
 qualify . . . as a destructive device,” Br. for Appellant at 60, and
 therefore as a “firearm,” for the purposes of 26 U.S.C. §§ 5861.

       6
        A pipe bomb is a “firearm” as defined for the purposes of
26 U.S.C. §§ 5861. Specifically, 26 U.S.C. § 5845(a)(8) defines a
“firearm” as, inter alia, a “destructive device.” 26 U.S.C. §
5845(f)(1) further defines a “destructive device” as “any explosive,
incendiary, or poison gas (A) bomb.”

                                   22
See 26 U.S.C. § 5845(f)(3) (defining as a “firearm,” “any
combination of parts either designed or intended for use in
converting any device into a destructive device as defined
[above, including a bomb] and from which a destructive device
may be readily assembled”). Hull ignores our previous holding
that where there is no “ambiguity . . . as to the nature of the
assembled device,” intent is irrelevant. 

.
Accordingly, we discern no error in the District Court’s refusal
to instruct the jury that the Government must prove Hull
intended that the parts be converted into a destructive device.

                             VII.

        We conclude that Hull’s conviction at Count 7 must be
vacated, as mere possession of a pipe bomb does not qualify as
a “Federal crime of violence” under 18 U.S.C. § 842(p). We
will affirm the judgment of conviction on all other Counts.




ACKERMAN, Senior District Judge, CONCURRING in part
and DISSENTING in part.



       Today, the Court holds that there is no substantial risk

                              23
that a person who unlawfully possesses a pipe bomb may
intentionally use physical force against another in the course of
committing the offense. Because I believe that a pipe bomb has
no lawful use, and that any unlawful possession of a pipe bomb
poses a substantial risk that the possessor may intentionally use
physical force against another in the course of possessing the
pipe bomb, I respectfully dissent from Part III of the majority’s
opinion.

                               I.

        I begin with the plain language of the statute. Section
16(b) of Title 18 of the United States Code defines a crime of
violence to include “any . . . offense that is a felony and that,
by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.” As the Supreme Court
explained in Leocal v. Ashcroft, 

, 9 (2004), the term
“use” requires more than negligent or merely accidental
conduct. Indeed, as the Third Circuit held in Tran v.
Gonzales, 

, 470 (3d Cir. 2005), it requires
“specific intent to employ force, and not mere recklessness as
to causing harm.”

       The terms “substantial risk” and “may” make clear that
the actual use of physical force is not a required element of a
crime of violence. See United States v. Dodge, 

, 183 (D. Conn. 1994) (“Actual use of physical force
against another is not an essential element of a ‘crime of
violence’ . . . as evidenced by the use of the conditional term
‘may.’”). A “substantial risk” exists when there is a “strong

                               24
possibility” of the use of force. United States v. Jennings, 

, 798 (5th Cir. 1999); see also United States v.
Dillard, 

, 95 (2d Cir. 2000) (“It is sufficient that
the risk be material, important, or significant.”). As other
courts have recognized, the degree of probability required for
a risk to be “substantial” is undefined and difficult to quantify
with precision, see, e.g., 

, but where
Congress has not supplied meaning to the words of a statute,
common sense and ordinary usage are typically a court’s best
resort, see Dimuzio v. Resolution Trust Corp., 

,
783 n.5 (3d Cir. 1995); see also Am. Tobacco Co. v.
Patterson, 

, 68 (1982) (“[W]e assume ‘that the
legislative purpose is expressed by the ordinary meaning of
the words used.’” (quoting Richards v. United States, 

, 9 (1962))).

        The phrase “in the course of committing the offense” is
the final element of § 16(b) requiring interpretation.
Congress’s use of the present participle “committing”
connotes present, continuing action. See Am. Gas & Elec. Co.
v. Sec. & Exch. Comm’n, 

, 648 (D.C. Cir. 1943)
(Stephens, J., dissenting); Fawn Mining Corp. v. Hudson, 

, 243 (D.D.C. 1995). This usage accords with the
prepositional phrase “in the course,” which suggests not
merely a passing instant, but a continuum of time during
which a state or condition exists. See Webster’s Third New
International Dictionary 522 (1993) (defining “course” to
mean “progress or progression through a series . . . or through
a development or a period,” or “an ordered continuing
process, succession, sequence, or series”); see also 

(equating “in the course” with “during”).

                               25
Finally, the statute speaks plainly of “the offense,” meaning
the whole offense, and not merely a portion or an aspect of a
given offense. Thus, common sense and ordinary rules of
usage dictate that “in the course of committing the offense”
should encompass nothing less than all conduct comprising a
given offense. This, in turn, requires a court to consider the
entire period during which it can be said the offense is being
committed.

       Against this interpretive backdrop, I read “crime of
violence” under § 16(b) to mean any offense that is a felony
and that, by its nature, involves a strong possibility that
intentional physical force against the person or property of
another may be used in the period of time during which the
offense is being committed. This reading flows from the plain
language of the statute and honors the common meaning of its
terms. Moreover, because I find no ambiguity in the terms of
§ 16(b), I find no occasion to resort to the rule of lenity. Cf.

n.8.

       The Court today affirms Hull’s felony conviction for
possession of an unregistered pipe bomb. However, the
majority opines that “[t]here is no risk that physical force
might be used against another to commit the offense of
possession, regardless of whether pipe bombs have a
legitimate purpose or not.” Maj. Op. at 13 (emphasis
omitted). This interpretation distorts the language of § 16(b)
and significantly narrows its scope. By substituting “to
commit the offense” in place of “in the course of committing
the offense,” the majority adopts an interpretation under
which, once possession is initially obtained, a court need not

                              26
concern itself with whether there is any substantial risk that
the pipe bomb may be used thereafter. The majority considers
only the risk incident to effectuating the offense, and not the
risk that may exist during the continuing offense. For
instance, the majority opines that “[t]o commit the offense of
possession, Hull merely had to exercise control or dominion
over the pipe bomb.” 

ignores the
ongoing substantial risk that may exist throughout the course
of possession. I believe that the literal language of the statute
calls for a broader reading that takes into account any
substantial risk that may arise in the course of the continuing
offense. Under such a broad reading, if a substantial risk that
physical force may be used against another arises at any time
in the course of possessing a pipe bomb, the crime constitutes
a crime of violence.

       The broad reading of § 16(b) that I propose enjoys a
logical consistency lacking in the majority’s interpretation. It
defies contradiction that a person who obtains possession of a
pipe bomb on Monday is still “committing the offense” of
possession on Friday if he or she exercised continuous
dominion or control. Thus, the “course of committing the
offense” of possession includes the initial exercise of
dominion or control, the moment dominion or control is
relinquished, and all times in between. At any given time
within this continuum, it is obvious that the person is
“committing the offense” of possession.

       Nothing in Leocal dissuades me from this conclusion.
In Leocal, the late Chief Justice posed the example of
burglary as a crime for which there was a substantial risk that

                               27
 force would be used against the person or property of 

. At common law, an element of burglary was
 breaking, which, by definition, required the use of force.
 William Blackstone, 4 Commentaries *225. Although courts
 differ as to whether burglary is a continuing offense,7 the
 “substantial risk” element of § 16(b) is, at all events, satisfied
 upon the initial act of breaking. Therefore, a court need look
 no further than the initial breaking to conclude that burglary is
 a federal crime of violence. This is why Congress and the
 Court in Leocal identified burglary as the “classic example”
 of a crime of violence under § 

; see also
 S. Rep. No. 98-225, at 307 (1984), reprinted in 1984
 U.S.C.C.A.N. 3182, 3487.

        Possession, on the other hand, is almost universally
 recognized to be a continuing offense. See, e.g., United States
 v. Zidell, 

, 422 (6th Cir. 2003) (noting that
 “possession with intent to distribute a controlled substance is
 a continuing offense,” and collecting cases); United States v.
 Fleischli, 

, 658 (7th Cir. 2002) (“Possession of a
 firearm is a continuing offense which ceases only when the
 possession stops.”); United States v. Blizzard, 

,
 102 (4th Cir. 1994) (“[P]ossession is by nature a continuing
 offense.”); William Meyerhofer, Statutory Restrictions on


       7
          Compare People v. Shipley, 

, 863 (Mich. Ct.
App. 2003) (holding that burglary is not a continuing offense), and State
v. Brown, 

, 854 (La. Ct. App. 1993) (same), with State v.
Stearns, 

, 418 (Fla. 1999) (holding that armed burglary
is a continuing offense).


                                   28
Weapons Possession: Must the Right to Self-Defense Fall
Victim?, 1996 N.Y.U. Ann. Surv. Am. L. 219, 233 (“Because
possession is a continuing offense, there is ordinarily no
single act which can be used to establish the defendant’s guilt.
There is, rather, a continuum of time during which the
defendant possessed the weapon.” (footnotes omitted)).
Indeed, “Congress intended the crime of possession to refer to
a course of conduct rather than individual acts of dominion.”
United States v. Jones, 

, 606 (8th Cir. 2005)
(holding that “the continuous possession of the same firearm
constitutes a single offense”). “Possession is a course of
conduct, not an act; by prohibiting possession Congress
intended to punish as one offense all of the acts of dominion
which demonstrate a continuing possessory interest in a
firearm.” United States v. Jones, 

, 1391 (6th
Cir. 1976). To effectuate possession, it is true, one need not
use force. However, simply because force was not used
initially in obtaining possession does not excuse a court from
its obligation to consider the full “course” of the continuing
offense. See United States v. Medina-Anicacio, 

,
650 (5th Cir. 2003) (Garza, J., dissenting) (“The unlawful
possession of a dangerous weapon is an ongoing course of
conduct. Thus, an individual continues to commit the offense
as long as he holds onto the weapon.” (citations omitted)).

       Pre-Leocal decisions from our sister circuits reflect a
clear understanding and acceptance of the judicial
responsibility to consider the full course of the continuing
offense of possession. Numerous courts of appeals have
recognized that certain crimes of possession may qualify as
crimes of violence. See, e.g., United States v. Rivas-Palacios,

                              29


, 397-98 (5th Cir. 2001) (sawed-off shotgun);
Sutherland v. Flemming, 

(Table), 

, at *1 (10th Cir. 2000) (“Possession of a machine
gun, by its very nature, involves a substantial risk of violence
or force . . . .”); 

& n.9 (possession of
firearm by convicted felon); 

(pipe bomb); United States v. Drapeau, 

, 990
(8th Cir. 1999) (bomb); United States v. Newman, 

(Table), 

, at *1 (10th Cir. 1997) (pipe
bomb); Impounded, 

, 738 & n.12 (3d Cir. 1997)
(holding that possession with intent to use dangerous or
deadly weapon is a “crime of violence”); United States v.
Amparo, 

, 1226 (9th Cir. 1995) (referring to
“uniform holdings” that “mere possession of an unregistered
firearm is a crime of violence”); United States v. Dunn, 

, 620-21 (9th Cir. 1991) (sawed-off shotgun); see
also United States v. Fortes, 

, 7-8 (1st Cir. 1998)
(holding that possession of sawed-off shotgun is a “violent
felony”); United States v. Jay, Nos. 03-M-3114-01,
03-M-3114-02, 

, at *1-2 (M.D. Fla. Apr. 8,
2004) (pipe bomb); United States v. Powers, 

, 342 (W.D. Va. 2004) (collecting cases); United States v.
Butler, 

, 71-72 (N.D. Ohio 1996) (felon in
possession of rifle and pipe bomb); 

(silencer and pipe bomb). Under the majority’s
reading of § 16(b), these cases are no longer good law.
Because I do not believe that Leocal prohibited courts from
considering the entire course of a continuing offense when
determining whether that offense constitutes a crime of
violence, I do not believe that Leocal rendered these cases,
and their logic, obsolete.

                               30
                              II.

       If this Court were to consider the full course of the
continuing offense of possession of a pipe bomb, I believe it
would be compelled to conclude, as so many other courts
have done already, that when a person unlawfully possesses a
pipe bomb, there is a substantial risk that that person may
intentionally use force against another. Unlike many other
types of “firearms,” a pipe bomb has no legitimate social
purpose. As the Fifth Circuit has recognized,

      [u]nlike a handgun, it is not considered sport to
      hunt or engage in target practice with a pipe
      bomb. Moreover, it would be quite difficult to
      protect oneself or one’s family with a pipe bomb.
      In fact, we cannot conceive of any non-violent or
      lawful uses for a pipe bomb.

(footnotes omitted). The Ninth
Circuit has added that pipe bombs “have no legitimate
purpose and . . . have the potential to kill indiscriminately,
without warning, and with less chance that the perpetrator will
be caught.” United States v. Loveday, 

, 1416
(9th Cir. 1991); see also United States v. Dempsey, 

, 834 (11th Cir. 1992) (quoting Loveday). A panel of the
Tenth Circuit similarly concluded that “[p]ipe bombs are
‘inherently dangerous weapons for which no peaceful purpose
can be seriously suggested, regardless of whether the weapons
actually are used.’” Newman, 

, at *1
(quoting 

). In a case involving
firebombs, the Eighth Circuit agreed with the Newman court’s

                              31
finding of a “lack of a nonviolent purpose for a bomb and the
fact that, by its very nature, there is a substantial risk that the
bomb would be used against the person or property of
another.” 

. A panel of the Sixth
Circuit reached the same conclusion in a per curiam decision,
finding that “[p]ipe bombs are inherently dangerous and serve
no useful purpose.” United State v. Cole, 

(Table),

, at *3 (6th Cir. 1994). The judicial
authorities are legion and unanimous: a pipe bomb serves no
legitimate, non-criminal purpose.

       The judicial assessment in this regard mirrors the
views of Congress and law enforcement. Congress enacted a
registration requirement for certain firearms it deemed
“inherently dangerous and generally lacking usefulness,
except for violent and criminal purposes.” 

; see also United States v. Fields, No. 05-1318, 

, at *4 (3d Cir. Apr. 21, 2006). “The legislative
history of the Firearms Act indicates that it requires
registration of objectively destructive devices, devices
inherently prone to abuse and for which there are no
legitimate industrial uses.” United States v. Cruz, 

, 219 (2d Cir. 1974); see also United States v. Goldring,

, 843 (5th Cir. 2003). Federal law enforcement
authorities have acknowledged the specific threat posed by
pipe bombs, testifying before Congress that “pipe bombs and
firearms” have traditionally been regarded as “the favorite
weapons of the terrorist.” Patrick J. Daly, Assistant Special
Agent in Charge, Chicago Division, FBI, Testimony before
the House Committee on Governmental Reform,
Subcommittee on Government Efficiency, Financial

                                32
Management, and Intergovernmental Relations:
Counterterrorism (July 2, 2002), available at
http://www.fbi.gov/congress/congress02/daly07022002.htm.
One need only consider the prevalence of pipe bombs in the
activities of domestic terrorists to appreciate the verity of this
statement. See generally Brent L. Smith, Terrorism in
America: Pipe Bombs and Pipe Dreams (1994) (describing
the activities of terrorist groups operating in the United States
from the 1960s through the 1990s).

        Evidence presented at trial provides even further
support for the conclusion that pipe bombs lack any legal
purpose. The Government’s expert, an officer with the
Bureau of Alcohol, Tobacco, Firearms and Explosives,
testified that pipe bombs like those discovered in Hull’s
possession “would not have any social or cultural value.”
(App. at 1258.) He testified that “[t]here is no legitimate
purpose for these devices,” and that “[f]rom our perspective
or from any reasonable person’s perspective, they can simply
be used as a weapon and nothing more.” (Id. at 1258-59.)
The expert elaborated that these pipe bombs “produce
fragmentation and they are not good for any kind of useful
work other than, of course, creating a weapon and injuring or
killing people.” (Id. at. 1261.) On cross examination, he
rejected any notion that a pipe bomb could be used for
farming purposes, such as removing stumps or rocks, because
the power generated by an exploding pipe bomb “is
insufficient to do any kind of useful work on a farm or
otherwise,” but “is enough to blow up the pipe, to throw
fragments.” (Id. at 1263.) At no time during trial did Hull
refute this evidence.

                                33
        For all of these reasons, there can be no serious dispute
that a pipe bomb lacks any nonviolent or lawful purpose. It
flows inexorably from this conclusion that when a person
unlawfully possesses a pipe bomb, there is a substantial risk
that he or she may put that pipe bomb to the use for which it
was intended: to perpetrate physical force against the person
or property of another.

                              III.

        None of the authorities cited in the majority’s opinion
compels a result contrary to the one I propose today. The
majority discusses our recent decision in Tran v. Gonzalez. In
Tran, a case which did not involve a pipe bomb, this Court
held only that § 16(b) requires that the “use” of “physical
force” be intentional, rather than merely 

. Intentional use of force is precisely the “substantial risk”
that I believe arises when one unlawfully possesses a pipe
bomb. Therefore, I find that Tran is fully consistent with the
interpretation I propose today.

        The majority also discusses United States v. Bowers,

(3d Cir. 2005), another case that did not involve
pipe bombs. In Bowers, we considered whether the crime of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1), was a crime of violence within the
meaning of 18 U.S.C. § 3142(g) and (f)(1)(A). We concluded
that it was not. We found that “many, perhaps most” of the
reasons why a felon might possess a firearm “do not involve
likely accompanying 

(internal
quotation marks omitted) (citing United States v. Lane, 252

                               

, 906 (7th Cir. 2001), for the proposition that felons
may use firearms for “self-defense, hunting, gun collecting,
and target practice”). That reasoning simply does not apply
here, where the possession of an unregistered pipe bomb has
no lawful purpose. See 

n.4 (“The
offense of being a felon-in-possession of a firearm focuses on
society’s determination that certain individuals—felons—are
unqualified to possess firearms, even for lawful purposes.
The offense of unlawfully making a bomb, however, focuses
on the inherent dangerousness of, and lack of a legitimate
purpose for, the bomb itself.” (citations omitted)).

        The majority also cites Bailey v. United States, 

(1995), to suggest that “[t]he danger from a pipe
bomb comes not from the offense of possession, but from the
added factor of use of the pipe bomb.” Maj. Op. at 12-13. In
Bailey, the Supreme Court considered the meaning of the term
“use” in 18 U.S.C. § 924(c)(1), a statute which specifies
penalties for the “use” of a firearm during and in relation to a
crime of violence. There, the Court held that “use” requires
“active employment,” rather than mere possession, of a
firearm. 

Although § 924(c)(1) and § 16(b) both
employ variations of the word “use,” the similarity stops
there. The Court in Bailey had no occasion to consider what
sort of conduct involves a substantial risk that physical force
may be used against the person or property of another.
Moreover, because I regard the possession of an unregistered
pipe bomb to involve a substantial risk that physical force
against another may be “actively employed” in the course of
committing the offense of possession, I find Bailey entirely
consistent with my proposed construction.

                              35
        Finally, the majority draws support from United States
v. Lane, in which the Seventh Circuit held that being a felon
in possession of a firearm was not a crime of violence within
the meaning of 18 U.S.C. § 3156(a)(4)(B). Aside from the
obvious fact that decisions of the Seventh Circuit do not bind
the Third Circuit, Lane did not involve a pipe bomb or other
weapon lacking any significant lawful use—a fact expressly
noted in the court’s opinion. 

(“Some
firearms, it is true—for example sawed-off shotguns— have
no significant lawful use, and so their possession by felons
may well constitute a crime of violence, as held in reference
to the sentencing guidelines . . . . Our defendant is not accused
of possessing such a weapon, however . . . .”). Therefore,
Lane is distinguishable and non-binding.

       In short, the majority’s opinion makes new law. With
today’s holding, the Court steers a new course into largely
uncharted waters. If the “mere” possession of a pipe bomb is
not a crime of violence, then neither, it would seem, is the
“mere” possession of an even more destructive implement. I
do not believe that any of the precedents cited in the
majority’s opinion compel or warrant this result.

                              IV.

       Today, the Court holds that the “mere” possession of a
pipe bomb is not a federal crime of violence. As I read this
holding, the “mere” possession of a car bomb, or a landmine,
or an explosive vest, or a “dirty bomb,” or even a nuclear
bomb, would also not constitute a crime of violence, because
there would be no substantial risk that the possessor may use

                               36
physical force against another in the course of committing the
offense of possession. I cannot condone such a crabbed
interpretation of § 16(b). The “course” of committing the
crime of possession includes the time that possession is
obtained, the time that possession is relinquished, and all
times in between. In the course of possessing a pipe bomb,
there is always a substantial risk that the possessor may
intentionally (not accidentally) use physical force against the
person or property of another. The plain language of § 16(b),
no less than common sense, dictates this result.




                              37