If It Looks Like a Bomb, and Explodes Like a Bomb . . . : The Court Finds Model Pipe Bomb Is a Destructive Device
Is a pipe bomb that exploded a “destructive device”? Though it may seem like a trick question, in United States v. Sheehan, 15-2028-cr (Lynch, J., joined by Judges Winter and Wesley), issued September 23, 2016, the Court spends most of its 44-page decision grappling with whether a bomb built and planted by the defendant was an “explosive bomb” (or a “combination of parts” from an explosive bomb could readily be assembled) such that it qualifies as a destructive device under Section 924. The Government (and common sense) prevailed: the Court concluded that, indeed, this exploding bomb was an explosive bomb.
The panel seemed drawn to the colorful facts of the case, which it described in detail. Defendant Daniel Patrick Sheehan devised a scheme to extort money from Home Depot by planting “an inert ‘model’ of a pipe bomb” in a Home Depot store and threatening to plant functional bombs if he was not paid $2 million. Sheehan constructed the device out of a metal pipe, end caps, shot-gun shell powder, a nine-volt battery, a pull string and switch, and a model rocket igniter. After placing the device (which he smuggled into the store using a disguise consisting of a wig, arm sling, make-up, and a ketchup packet), Sheehan sent a ransom letter to the store manager. In it, Sheehan emphasized that the store was “in no danger” and that “[t]he battery is not connected [and] igniter is separated. It cannot go off[.]” He added: “Pay me this one time and you have my word you will never hear from me again. I am going to a warm climate with . . . girls and drink myself to death. I will also get a two mill[ion dollar] life insurance policy naming Home Depot beneficiary. So consider this an interest free loan.”
Sheehan’s offer was not too good for Home Depot to pass up. The store called the police, who sent a bomb squad to defuse the device. The officers moved the device to the back of a store and used a projectile-firing robot to dislodge one of the end caps from the device; this caused the device to explode, damaging the ceiling, walls, and doors of the surrounding area. Police eventually found and arrested Sheehan. In a written confession, Sheehan admitted to making and placing the bomb, and revealed his plan to have the ransom money placed in a hollowed-out Wave-Runner docked in Huntington Harbor, from which he would then retrieve the money and, using a wet suit and air tank, swim away.
At trial in the U.S. District Court for the Eastern District of New York (Hurley, J.), a jury found Sheehan guilty of Hobbes Act extortion (as to which Sheehan had conceded his guilt) and use of a destructive device to commit extortion in violation of 18 U.S.C. § 924. The latter charge carries a mandatory minimum sentence of thirty years. On appeal, Sheehan argued that there was insufficient evidence that his pipe bomb was an “explosive bomb” within the meaning of Section 924, since there was no dispute that the device’s electrical fuzing system (i.e., its victim-activated trigger device) was not hooked up. The panel framed the pertinent question as “whether a jury could reasonably find that a device that is incapable of detonating in its ordinary or intended manner (because, for example, it lacks a particular component ordinarily present in such a device), but is nonetheless capable of detonating, is an ‘explosive bomb’ within the meaning of the statute.” The panel found “little difficulty in concluding” that such a device is an explosive bomb, noting that the “touchstone” is whether the device is capable of exploding, not whether it was capable of exploding only in the manner the maker would have intended. Thus, “[t]o the extent the lack of a functional fuzing system may indicate that Sheehan did not subjectively intend for the device to be capable of detonation, or did not know such detonation was possible, Sheehan’s belief is irrelevant . . . .”
As his second argument on appeal, Sheehan contended that the district erred in charging the jury on the government’s alternative “combination-of-parts” theory of guilt – i.e., that even if it was not an “exploding bomb,” the device met Section 924’s alternative definition of a destructive device as a “any combination of parts either designed or intended for use in converting any device into [an explosive bomb] and from which [an explosive bomb] may be readily assembled.” If court’s instruction had been prejudicially erroneous and there were no way to discern which theory of guilt formed the basis of the jury’s verdict, Sheehan would be entitled to a new trial notwithstanding the evidence supporting the government’s “exploding bomb” theory.
However, the panel found no error in the district court’s instructions to the jury on this theory. First, the panel rejected Sheehan’s argument that the combination-of-parts theory “applies only to incomplete devices, and not to devices that are fully assembled but missing key components.” Section 924 does not limit the combination-of-parts language to disassembled devices; instead, the statute specifies that the pivotal factor is the device’s “design (in an objective sense) in such a way that it can be easily converted into an effective explosive” – a definition that covers both partially completed and fully disassembled devices. In any event, whether the device was at least partially disassembled was a jury question, and a rational jury could have so concluded. Second, the district court appropriately declined to instruct the jury that Sheehan’s lack of subjective intent to build a destructive device would preclude his conviction. The relevant language of Section 924 – “either designed or intended for use” – is phrased in the alternative, signifying that “design” as a destructive device does not require intent. Although case law has identified a limited carve-out for when subjective intent may be relevant in this context – i.e., when the same parts could also be used to build a device with a legitimate purpose – there was no evidence that Sheehan’s device was intended to serve any function other than to “be assembled into an explosive bomb, or a non-functioning version of an explosive bomb.” Third, the district court properly rejected a proposed jury instruction that a device is capable of being “readily assembled” only if the defendant possesses all components needed to assemble it. Expert testimony at trial established that the only component missing from Sheehan’s device was adhesive tape, and “the government need not offer evidence that the defendant possessed commonly available materials – such as tape – if the defendant otherwise possesses all of the key components necessary to assemble a destructive device.” Finally, although the district court (admittedly) erred in reciting intent as part of the jury charge, the error was harmless because there was “no meaningful possibility” that the jury thereby lost certitude that the government’s case proceeded solely on a theory of objective design.
Turning briefly to Sheehan’s challenges to the prosecution’s remarks in summation, the panel concluded that most of the challenged remarks were either fair commentary as the merits of defendant’s theory or permissible responses to defense counsel’s remarks during summation. To extent any remarks were improper, they collectively fell well short of a “flagrant abuse” that would warrant reversal.
The facts of the case make for an entertaining read and the Court seems so clearly to have reached the right result—a device that explodes is an explosive device—that it leaves the reader wondering if the argument merited the searching legal analysis it received. This is not the first time the Court has wrestled with a question of whether to apply a seemingly straightforward statutory label to a specific weapon. See United States v. Kirvan, 86 F.3d 309, 311 (2d Cir. 1996) (holding that antique gun was a “firearm” for purposes of Guidelines enhancement for “brandish[ing], display[ing], or possess[ing]” a firearm). Just as in Kirvan, the Court here ultimately determined the ordinary meaning of the statutory language to be the most telling gauge of its substance, and affirmed.
-By Joshua Kipnees and Harry Sandick