The Cartridge Family

United States v. Graham, No. 09-2819-cr (2d Cir. August 15, 2012) (Cabranes, Livingston, Carney, CJJ)

Title 18, U.S.C. § 844(h) makes it a separate offense to use “an explosive” to commit a federal felony. During an attempted extortion of one of his fellow-gang members - a dispute over some robbery proceeds - defendant Graham fired a cartridge from his 9-millimeter semi-automatic into the ground. A jury convicted defendant Graham under this section, amongst other offenses; his 50-year sentence included the ten-year mandatory consecutive sentence that the statute requires.

On appeal, however, the circuit agreed that the single cartridge in his semi-automatic handgun did not constitute an “explosive.” It reversed the conviction on the § 844(h) count and remanded the case for resentencing.

Superficially, it would seem like firing a bullet might well trigger the statute (bad pun, I know). Section 844(j) defines “explosive” for purposes of § 844(h) as, inter alia, “gunpowders, powders used for blasting, ... and any chemical compounds [and similar mechanical mixtures or devices] that fire, by friction, by concussion, by percussion, or by detonation of the compound [etc.]” and “may cause an explosion.”  And, at Graham’s trial, an ATF described the mechanics of firing a semi-automatic pistol as a “mini-explosion”: the gun’s hammer falls, causing the firing pin to strike the ammunition and ignite the “very volatile” primer, which lights a propellant that burns “very rapidly,” creating a lot of gas and heat. The gas, looking for an area to escape, causes the bullet to “exit the firearm down the barrel.”

Nevertheless, the circuit examining the statute’s plain meaning “by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute,” held that the cartridge was not an “explosive.” 

First, the court, while noting that the gun here expelled bullets by the combustion of gunpowder, also noted that § 844(j) did not list single cartridges or ammunition generally as a form of “explosive.”  Instead, it used the phrase “gunpowders, powders use for blasting, al forms of high explosive,” and other more extreme terms. Since “words ... are known by their companions,” the circuit “deem[ed] it significant” that the word “gunpowders” was accompanied by other materials used in “detonation, a particularly fierce and explosive chemical reaction” that produces a “vigorous evolution of heat and spakrs or flame” moving through the material detonated. To the circuit, this meant things more like dynamite or TNT. And, even though, in quantity, gunpowder can also be a “powerful explosive” like those, the court concluded that “a person carrying a single unspent pistol cartridge in his pocket” is not, in “ordinary usage” thought to be “armed with gunpowder or an explosive,” even if the cartridge contains a small amount of gunpowder.

The circuit also rejected the argument that the cartridge was “device” containing ingredients “such that ignition could cause an explosion.”  The circuit was concerned that this would expand the statute beyond its intended reach, for example, to the unarmed getaway driver in a bank robbery, since the internal combustion engine of his car relies on a “mini-explosion” to run. 

Finally, the court noted that discharging a firearm in connection with a crime of violence, under 18 U.S.C. § 924(c), is a separate offense with a separate penalty. The circuit viewed § 844(h) as a “counterpart” to this - to cover cases not covered by § 924(c) - and did not see any congressional intent to heighten the penalty for the firearms offense merely because the gun  “happened to contain at least one cartridge.” 

Have Guns, Will Travel

United States v. Nadirashvili, No. 08-4211-cr (2c Cir. August 23, 2011) (Winter, Pooler, Hall, CJJ)

Six-defendant appellants appealed their convictions in a wide-ranging firearms conspiracy that had both international and domestic components. One part of the activity involved trafficking in “foreign defense articles” - here, grenades, warheads, missiles and launchers, amongst other things - under 22 U.S.C. 2278(b), and the other part involved domestic firearms trafficking under 18 U.S.C. § 922(a)(1)(A). Apart from one sentencing glitch, the circuit affirmed.

The opinion contains two interesting discussions of statutory requirements that the criminal activity involve those who are “in the business” of weapons dealing.

First, two defendants argued that there was insufficient evidence to support their § 922(a)(1)(A) convictions because they were aware of only a single gun transaction, and the evidence did not show that they knew the seller was engaged in the business of trafficking in firearms. The court agreed that the statute requires proof of “more than just a single sale of weapons,” since the statute uses the phrase “engaged in the business” of dealing in firearms and defines this as involving their “repetitive purchase and resale.” But the evidence is sufficient under this section where a seller holds himself out as a source of firearms who is ready to procure them for his customers. The evidence supported this, albeit barely, since while “[p]erhaps not every rational trier of fact would” convict on the evidence here, at least some might, and that was enough.

Next, the court considered - and rejected - an “as applied” vagueness challenge to 22 U.S.C. 2278(b)(1)(A)(ii), which covers “engag[ing] in the business of brokering activities with respect to ... any defense article.” Brokering includes any action that “facilities the manufacture, export, or import of a defense article.” While the court suggested that there might be “ambiguity at the outer reaches” of this definition - perhaps merely providing information about prices and availability might be problematic - here the challenge failed, since the defendant’s activities clearly fell within its intended scope.

Finally, the court agreed that, for one defendant, the district court used the wrong evidentiary standard for certain sentencing enhancements. The court applied a preponderance standard but, this case was governed by the conspiracy guideline, § 2X1.1(a). This section provides that for a conspiracy that is not covered by a specific offense guideline, the court should apply the base offense level from the guideline for the substantive offense, plus any adjustments from that guideline for “any intended offense conduct that can be established with reasonable certainty.” Since the offense level adjustments in guideline section 2K2.1(b) “make no mention of a conspiracy,” the court should have applied the “reasonable certainty” standard instead of the preponderance standard.