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.
The opinion of the court was delivered by: Van Antwerpen, Circuit Judge.
Before: RENDELL and VAN ANTWERPEN, Circuit Judges, and ACKERMAN, District Judge*fn1
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.
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 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 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 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.*fn2
Hull raises five challenges to his conviction, one of which we find meritorious and thus will address first in detail.
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, 268 F.3d 196 (3d Cir. 2001).
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).
(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.*fn3 ]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."
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, 305 F.3d 199, 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 ...