Opinion
Crim. No. 04-130 (JNE/JGL).
September 14, 2004
ORDER
Michael John Walker (Defendant) was charged with unlawful possession of a firearm (Count I) and possession of an unregistered firearm (Count II) in connection with an incident that took place on January 17, 2004. On August 13, 2004, a jury found him guilty of both counts. This matter is before the Court on Defendant's renewed motion for a judgment of acquittal, or in the alternative, a new trial. Because the Government failed to establish sufficient evidence with respect to the interstate commerce element of Count I, the Court grants Defendant's motion with respect to that count. Because the Court finds that Defendant's arguments with respect to Count II are without merit, the Court denies Defendant's motion with respect to that count.
I. BACKGROUND
The evidence, taken in the light most favorable to the verdict, is that during the night of January 17, 2004, Defendant lit and threw three Molotov cocktails — crude, but well-known, varieties of home-manufactured incendiary bombs — into the home of his estranged girlfriend. Each Molotov cocktail was made from a Starbucks glass bottle, gasoline, and a blue rag. The Government established at trial that the Starbucks glass bottles and the gasoline had traveled in interstate commerce. Specifically, the Starbucks bottles traveled from Missouri to Minnesota, and the gasoline traveled from Canada or North or South Dakota to Minnesota. Nothing is known about the origins of the blue rags, which witnesses said appeared to be similar to the paper towels that are commonly provided at gas stations.
II. DISCUSSION
A motion for a judgment of acquittal challenges the sufficiency of the evidence. During the course of trial, when the evidence is insufficient to sustain a conviction, the court must, on motion of the defendant or its own motion, order the entry of a judgment of acquittal. See Fed. Crim. P. 29(a). After the jury returns a verdict of guilty, a court may, on timely motion, set aside the verdict and enter a judgment of acquittal. See Fed.R.Crim.P. 29(c). Jury verdicts, however, should not be lightly overturned. United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995). When reviewing the sufficiency of the evidence, the court examines the evidence and all reasonable inferences in the light most favorable to the Government. Id. A verdict may be reversed only if the evidence is such that a reasonable jury must have entertained a reasonable doubt as to the government's proof on one of the essential elements of the offense. United States v. Yerks, 918 F.2d 1371, 1374 (8th Cir. 1990).
A district court may grant a motion for a new trial "if the interests of justice so require." Fed.R.Crim.P. 33. In contrast to a motion for acquittal, on a motion for a new trial, a district court does not view the evidence in a light most favorable to the Government; instead, it weighs the evidence and evaluates the credibility of the witnesses. United States v. Brown, 956 F.2d 782, 786 (8th Cir. 1992). In doing so, a district court will grant a new trial "only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred." Id.
A. Count I
In Count I, Defendant, who was previously convicted of a felony, was charged with unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 921(a)(3), 921(a)(4)(A)(i), 924(e)(1) (2000). Defendant now asserts that he is entitled to a judgment of acquittal because the evidence presented at trial was too tenuous and insufficient as a matter of law to support the jury's verdict as to the interstate commerce element of § 922(g)(1). Specifically, § 922 provides, in relevant part:
It 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 ship or transport in interstate or foreign commerce, or 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.18 U.S.C. § 922(g)(1) (emphasis added). Under § 921, a firearm is "any destructive device." Id. § 921(a)(3)(D). A "destructive device" is:
(A) any explosive, incendiary, or poison gas —
(i) bomb,
. . .
[or]
(vi) device similar to any of the devices described in the preceding clauses;
. . .
[and]
(C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled.Id. §§ 921(a)(4)(A), (a)(4)(C). The term "destructive device" does not include "any device which is neither designed nor redesigned for use as a weapon." Id. § 921(a)(4)(C).
The Molotov cocktails at issue here could have been assembled and deployed wholly within the State of Minnesota. Given this possibility, Defendant argues that he is entitled to a judgment of acquittal because the Government has failed to establish that that the firearm Defendant possessed was "shipped or transported in interstate or foreign commerce." In response, the Government argues that it has met the interstate commerce element by establishing that at least two of the component parts of the Molotov cocktails — the Starbucks glass bottles and the gasoline — traveled in interstate commerce. To support its proposition, the Government relies on three cases: United States v. Mosby, 60 F.3d 454 (8th Cir. 1995); United States v. Verna, 113 F.3d 499 (4th Cir. 1997); and United States v. Gresham, 118 F.3d 258 (5th Cir. 1977). The Court will address each in turn.
First, in Mosby, the only Eighth Circuit Court of Appeals case cited by the Government, the defendant was a convicted felon who was found guilty of possessing ammunition cartridges in violation of § 922(g). Mosby, 60 F.3d at 455. The evidence at trial established that the ammunition cartridges were manufactured and possessed by the defendant entirely within the State of Minnesota. Id. However, the components used to manufacture the cartridges were made from out-of-state components that had traveled through interstate commerce into the State of Minnesota. Id. at 457. The Eighth Circuit reversed the district court's entry of judgment of acquittal by concluding that the defendant's possession of the component parts of the ammunition cartridge was sufficient to satisfy the interstate commerce element of § 922(g). Id. In doing so, the Eighth Circuit focused on the fact that at least some of the component parts independently and separately satisfied the definition of ammunition under § 921(a)(17). Id. In contrast to the ammunition in Mosby, the Starbucks glass bottles and the gasoline in this case do not independently qualify as ammunition or any other type of firearm under § 921. Accordingly, the Government's reliance on Mosby is misplaced.
Second, in Verna, the Fourth Circuit Court of Appeals affirmed the defendant's conviction under § 922(g). In that case, the defendant, a convicted felon, placed a homemade bomb in his former wife's automobile. Verna, 113 F.3d at 501. The homemade bomb was manufactured from, among other things, Pyrodex-brand gunpowder, a glass tequila bottle, quartered pennies, and two igniters. Id. The defendant stipulated that "the single most important component of the firearm — the Pyrodex gunpowder which served as the explosive of the bomb — [had] traveled in interstate commerce." Id. at 502. In addition, he did not contest, and a jury could reasonably infer, that the tequila bottle, pennies, and at least one igniter had traveled in interstate commerce. Id. at 502-03. Finally, the defendant's counsel conceded at oral argument that the defendant possessed the component parts "from which a bomb could readily be made," thus signaling the language from § 921(a)(4)(C) concerning a combination of parts from which a destructive device may be "readily assembled." Id. at 502. Nevertheless, the defendant argued that the interstate commerce element of § 922(g) had not been met because the component parts of the bomb had not traveled together in interstate commerce. Id. at 503. The Fourth Circuit disagreed. It held:
At least where, as here, the principal parts of a combination of parts from which a destructive device concededly can be assembled have moved in interstate commerce, then the "combination" of parts is one which has traveled in interstate commerce and the interstate travel element of section 922(g) is met. It is simply not necessary, in order to satisfy the statute, that each and every individual part of the bomb itself have traveled across state lines, much less, as Verna argues . . . that each and every component part have traveled across state lines together. Obviously, for example, a combination of parts from which a bomb can readily be assembled, each individual part of which has moved in interstate commerce, is a "firearm" "which has been shipped or transported in interstate . . . commerce."Id. (emphasis in the original). Moreover, the Fourth Circuit concluded that the evidence that the defendant possessed and placed the bomb in an automobile that traveled on the highways of North Carolina, and possibly the federal highway system, was also sufficient to satisfy the interstate commerce element of § 922(g). Id. at 502. Specifically, the Fourth Circuit noted that "[t]he potential, if not actual, effect on interstate commerce of a bomb in a vehicle traveling on a state highway which connects directly or indirectly with the interstate highway system is more than sufficient to meet § 922(g)'s `affecting commerce' requirement." Id.
In this case, there appears to be no dispute that the component parts of the Molotov cocktails used by Defendant could be readily assembled. However, ease of assembly is only part of what makes a component part a firearm under § 921(a)(4)(C). Section 921(a)(4)(C) also requires that the combination of parts either be designed or intended for use in converting any device into any destructive device. See 18 U.S.C. § 921(a)(4)(C). Verna makes it clear that Pyrodex-brand gunpowder might qualify as a component part designed or intended for use in converting any device into a destructive device. Glass bottles and gasoline, however, do not qualify as such. Specifically, a Starbucks glass bottle is designed and intended for the storage of beverages, and gasoline is, among other things, intended to explode in an internal combustion engine. Although both the glass bottle and the gasoline can be readily made into a destructive device for the transportation of flaming gasoline, neither component part was designed or intended for that purpose. Therefore, the Government's reliance on Verna is misplaced because that case involved component parts that were designed for use in converting a device into a destructive device. In this case, the component parts were not designed for use in converting a device into a destructive device. Finally, because the Government advanced no theory relating to the interstate commerce element being satisfied through Defendant's transportation of the Molotov cocktails on state and/or federal highways, the Government also failed to establish the interstate commerce element of § 922(g) under alternative theory recognized in Verna.
Third, the Government relies on Gresham. In that case, the Fifth Circuit Court of Appeals affirmed the defendant's conviction under § 922(g). The defendant, a convicted felon, made arrangements for a package containing a pipe bomb to be sent to his former girlfriend. Gresham, 118 F.3d at 260-61. The evidence at trial established that the pipe bomb was assembled and transported entirely in the State of Texas but that the component parts of the pipe bomb were manufactured outside the State of Texas. Id. at 265-66. The component parts included Pyrodex-brand gunpowder, two batteries, and "end caps." Id. at 266, n. 14. Because the pipe bomb itself did not travel in interstate commerce, the defendant argued that the interstate commerce element of § 922(g) was not met. Id. at 265. The Fifth Circuit rejected the defendant's argument, noting that the definition of a destructive device under § 921(a)(4)(C) includes "any combination of parts either designed or intended for use in converting any device into a destructive device . . . and from which a destructive device may be readily assembled." Id. Because the component parts in Gresham included Pyrodex-brand gunpowder, a component part designed and intended for use in converting any device into a destructive device, Gresham is akin to Verna. Accordingly, the Government's reliance on Gresham is also unavailing for the reason stated above.
The requirement in § 922(g) that the firearm at issue must have "been shipped or transported in interstate or foreign commerce" is what saves § 922(g) from constitutional invalidity. See United States v. Bates, 77 F.3d 1101, 1104 (8th Cir. 1996) (discussing the constitutionality of § 922(g)). The Eighth Circuit Court of Appeals has explained that "it is sufficient that there exists `the minimal nexus that the firearm[s] have been, at some point, in interstate commerce." Id. (internal citations omitted). Unlike the statute in United States v. Lopez, 514 U.S. 549 (1995), which the United States Supreme Court invalidated because it exceeded Congress' power to regulate interstate commerce under the Commerce Clause, § 922(g) contains an express jurisdictional element that limits its reach to a discrete set of firearm possessions. For this reason, it is constitutional.
The Court will not, however, stretch § 922(g)'s reach to include the interstate transportation of entirely innocent components that are thereafter put to nefarious use. Doing so would make a mockery of the constitutionally mandated requirement concerning Congress' lawmaking power to regulate certain categories of interstate commerce. See Lopez, 514 U.S. at 559. According to the Government's theory, any innocent product could form the basis of an unforeseen and essentially unforeseeable federal offense. The Court does not believe that such a reach is constitutional or that the Eighth Circuit Court of Appeals or the United States Supreme Court would approve of such a reach, especially in light of Jones v. United States, 529 U.S. 848 (2000). In that case, the United States Supreme Court held that arson of a private residence not used for any commercial purpose — but constructed from materials that had moved in interstate commerce — was not subject to federal prosecution under the federal arson statute because the property was not "property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." Jones, 529 U.S. at 857; see also 18 U.S.C. § 844(i) (2000). In reaching that decision, the Supreme Court noted that "[w]ere we to adopt the Government's expansive interpretation of [section] 844(i), hardly a building in the land would fall outside the federal statute's domain." Jones, 529 at 857. Citing Lopez, the Supreme Court cautioned against rendering "traditionally local criminal conduct" a "matter for federal enforcement." Id. at 858. The Supreme Court also noted that "ambiguity concerning the ambit of criminal statues should be resolved in favor of lenity." Id.
In sum, the Government cites no case in which a § 922(g) conviction has been upheld when only innocuous component parts of a destructive device have been transported in interstate commerce. The Court found one federal case involving innocuous component parts in which a conviction under § 922(g) was upheld. See United States v. Thompson, 361 F.3d 918 (6th Cir. 2004). In that case, the defendant was convicted of firebombing two houses using Molotov cocktails, which were constructed from beer bottles, gasoline, and cloth rags. Id. at 919. The evidence at trial established that the beer bottles and gasoline had traveled in interstate commerce. Id. at 923. The defendant did not challenge, as Defendant does in this case, the sufficiency of the interstate commerce element; rather, the defendant in Thompson challenged the constitutionality of § 922(g). Id. at 922. The Sixth Circuit Court of Appeals rejected the defendant's constitutional challenge based on prior Sixth Circuit precedent establishing the constitutionality of § 922(g) and because the government had presented evidence that the component parts of the Molotov cocktails had traveled in interstate commerce. Id. at 923. Because the sufficiency of the evidence was not before the Sixth Circuit in Thompson, this Court is not persuaded by the Thompson holding as it relates to innocuous component parts satisfying the interstate commerce element. Without more, the Court finds that the Government's proof with respect to the interstate commerce element is simply too tenuous to satisfy the constitutional standard. Therefore, the Court grants Defendant's motion for judgment of acquittal with respect to Count I.
The Court will not address Defendant's other issues raised with respect to Count I because they are either moot or without merit.
B. Count II
In Count II, Defendant was charged with possession of an unregistered firearm in violation of 26 U.S.C. §§ 5854(f), 5861(d), 5871 (2000). Defendant now asserts that he is entitled to a judgment of acquittal, or in the alternative, a new trial because the Court erred in refusing Defendant's defense of impossibility and, citing Staples v. United States, 511 U.S. 600 (1994), because the Court erred as to the intent element of the offense charged in Count II. With respect to impossibility, the Eighth Circuit Court of Appeals rejected that argument in United States v. Elliot, 128 F.3d 671, 672 (8th Cir. 1997). Accordingly, the Court finds Defendant's impossibility arguments to be without merit. With respect to the intent element, the Court instructed the jury that the Government needed to prove the three elements of the offense charged in Count II beyond a reasonable doubt, and the Court gave the jury an instruction concerning the term "knowingly." Given these factors, the Court finds Defendant's intent argument to be without merit. Accordingly, the Court finds with respect to Count II that there was sufficient evidence to sustain Defendant's conviction and that the interests of justice do not require a new trial. Therefore, with respect to Count II, the Court denies Defendant's motion for judgment of acquittal, or in the alternative, a new trial.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Defendant's Renewed Motion for Judgment of Acquittal, or in the alternative, a New Trial [Docket No. 73] is GRANTED as to Count I and DENIED as to Count II.