Submitted: May 19, 2016
from United States District Court for the District of
Nebraska - Omaha
WOLLMAN, LOKEN, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
L. Belmont pled guilty to manufacturing explosives in
violation of 18 U.S.C. §§ 842(a)(1), 844(a)(1). He
reserved the right to appeal the meaning of "engage in
the business" in § 842(a)(1). The district
court sentenced him to six months'
imprisonment, two years' supervised release, and a fine
of $100. Belmont appeals. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
search of a shed on Belmont's property yielded 36
completed M-series improvised explosive devices (IEDs)-found
next to a hydraulic press located on a work bench-and 28
partially completed IEDs. The completed IEDs were functional;
the partially completed IEDs lacked only fuses. All the
IEDs-commonly called M80s-had over 130 milligrams of an
explosive material. According to the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF), all the IEDs had a
perchlorate explosive mixture of potassium perchlorate and
aluminum powder-the primary ingredients for flash powder, a
covered material under the explosives statute. See
18 U.S.C. § 841(d); 27 C.F.R. § 555.23. A search of
Belmont's home yielded over 1, 000 pounds of potassium
perchlorate, over 1, 000 pounds of aluminum powder, and large
spools of fuse. Also found in the home: (1) various invoices
and shipping documents for small quantities of tubes and end
caps, addressed to Belmont; (2) over 1, 000 candy-striped
cardboard tubes of various sizes, most with one end cap; and
(3) many sizes of end caps.
items in Belmont's shed included: (a) metal mixing bowls,
funnels, and sifting screens; (b) a white trash bag with 45
candy-striped cardboard tubes, measuring 6" x 1.25"
with plastic end caps on one end; (c) a cardboard box with
765 candy-striped cardboard tubes of assorted sizes; (d)
another box with 53 red cardboard tubes 2.5" x 1"
in size; (e) 104 red cardboard tubes 2" x 9/16" in
size; (f) a bucket with 85 red cardboard tubes 2.5" x
1" in size, and two silver cardboard tubes
V2" x 1.25" with hobby fuse in each tube,
plus one red-and-white tube 3" x 5" in size, and
various paper end plugs; (g) a plastic trash bag with paper
and plastic end caps and plugs; (h) a plastic container with
hydraulic press instructions, pyrotechnic recipes, a small
metal bowl, and other tools and items; and (i) a powder
measuring kit. With all these components and ingredients,
Belmont had the ability to manufacture around 2, 000 IEDs.
was charged with engaging in the business of manufacturing
explosive materials without a license: "It shall be
unlawful for any person-(1) to engage in the business of
importing, manufacturing, or dealing in explosive materials
without a license issued under this chapter." 18 U.S.C.
§ 842(a)(1) ("the explosives statute").
Belmont did not have a license to manufacture explosives. The
government found no historical evidence he sold any explosive
materials or items. However, at the plea hearing, Belmont
admitted traveling to conventions to sell "components
for hobbyists, pieces-cardboard tubes, end caps, ball shells,
rocket tubes, just anything pyrotechnic-related that
wasn't explosive." Belmont also admitted selling the
chemical components at conventions and by mail-order. The
presentence investigation report details an explosion at a
Kansas City home that caused critical injuries and one death.
The occupants of the home were manufacturing IEDs from
chemical powders they purchased from Belmont. The presentence
report also details a website,
"pastimepyrochemicals.com, " run by A
Whole New Look Inc., which Belmont operated. The site sold
fuels, oxidizers, additives, binders, stabilizers, and color
agents associated with explosive-making.
pleading guilty, Belmont argued that under the explosives
statute, he would be in the business of manufacturing
explosives only if it occupied his time, attention, and labor
for the purpose of livelihood or profit. Belmont asserted he
was manufacturing fireworks as a hobby, not for livelihood or
profit. The district court found that at trial, the
government would "not have to prove that the defendant
intended to sell or seek livelihood or profit from the
explosive manufacturing activities." Belmont then pled
guilty, reserving the right to appeal the court's
interpretation of the explosives statute.
court reviews de novo the district court's interpretation
of the statute. United States v. Williams,
136F.3d547, 550(8thCir. 1998). This court assumes that
"Congress intended to adopt the plain meaning or common
understanding of the words used in a statute."
United States v. Petruk, 781 F.3d 438, 441 (8th Cir.
urges this court to interpret "engage in the
business" as it interpreted the same phrase in the Gun
Control Act. See United States v. Perkins, 633 F.2d
856 (8th Cir. 1981), interpreting 18 U.S.C. §
922(a)(1) (1968). The Gun Control Act prohibited any person
"except a licensed importer, licensed manufacturer, or
licensed dealer, to engage in the business of importing,
manufacturing, or dealing in firearms ...."§
922(a)(1) (1968). Until 1986, the Gun Control Act did not
define the phrase "engage in the business." Before
1986, this court held that "the proper focus in
ascertaining 'business' is whether the pursuit
'occupies time, attention and labor for the purpose of
livelihood or profit' by the person and not merely the
number of sales." Perkins, 633 F.2d at 860.
Contra, e.g., United States v. Swinton, 521
F.2d 1255, 1258 (10th Cir. 1975) (holding § 922(a)(1)
"does not require that the Government establish that a
person engaged in the business of dealing in firearms make a
profit" and describing the circuit split). In 1986,
Congress resolved the circuit split, defining "engage in
the business" in the Gun Control Act to require a
livelihood or profit motive. See §
921(a)(21)(A). ("The term 'engaged in the
business' means ... as applied to a manufacturer of
firearms, a person who devotes time, attention, and labor to
manufacturing firearms as a regular course of trade or
business with the principal objective of livelihood and
profit through the sale or distribution of the firearms
contends that the Perkins definition-"for the
purpose of livelihood or profit"-should control the
explosives statute. However, Congress-in adopting (more than)
the Perkins definition-clarified that it amended the
Gun Control Act because of Second Amendment concerns.
Congress said that the "Firearms Owners' Protection
Act" was "additional legislation to correct
existing firearms statutes and enforcement policies" due
to "the rights of citizens ... to keep and bear arms
under the second amendment to the United States
Constitution." Firearms Owners' Protection Act, Pub.
L. 99-308, § l(b)(1)-(2), 100 Stat. 449 (May 19, 1986).
The Second Amendment does not protect manufacturing
explosives. See United States v. Graham, 305 F.3d
1094, 1106 (10th Cir. 2002) (rejecting the "contention
that section 842(a)(1) [the explosives statute] violates his
constitutional rights guaranteed" by the Second
Amendment). See generally District of Columbia v.
Heller, 554 U.S. 570, 627 (2008) (The "sorts of
weapons protected were those 'in common use at the
time.' .... We think that limitation is fairly supported
by the historical tradition of prohibiting the carrying of
'dangerous and unusual weapons.'"). Importantly,
in the 1986 Firearms Owners' Protection Act, Congress did
not amend the explosives statute-a statute in the Organized
Crime Control Act of 1970. This court's interpretation of
the Gun Control Act in the Perkins case does not
control the meaning of the explosives statute's phrase
"engage in the business."
Tenth Circuit has interpreted "engage in the
business" in the explosives statute. See
Graham, 305 F.3d at 1101-04. A jury convicted Graham of
engaging in the business of dealing in explosive materials
without a license. Id. at 1097, citing
§ 842(a)(1). Graham argued that "engage in the
business of. . . dealing" required the government to
prove "that the defendant engaged in the sale of
explosives as his primary business, or for profit as a means
of sustaining his livelihood." Id. at 1099.
Graham urged the Tenth Circuit to adopt the Firearms
Owners' Protection Act's definition. Id. at
1101. The court declined, concluding that "intent to
profit is not a required element of the offense."
Id. at 1103. The Tenth Circuit held that "a
person would be 'engage[d] in the business' of
dealing in explosives under section 842(a)(1) if he
'take[s] part' in, 'occup[ies] or involve [shim]
self, ' or is otherwise 'active' in the
'buying and selling' or 'trad[ing]' of
explosives in 'commerce.'" Id. at 1102.
"Stated another way, one is guilty of 'engag[ing] in
the business' of dealing in explosives under the statute
if one has explosives 'on hand or is ready and able to
procure them for the purpose of selling them from time to
time to such persons as might be accepted as
customers.'" Id. The Tenth Circuit found
that this "broad definition of the term
'business' ... is the most consistent with the broad
corrective and remedial purposes of the explosives
statute." Id. at 1103.
Tenth Circuit's definition is supported by another
section of the explosives statute (enacted in the same Act of
Congress as § 842(a)(1)). See Organized Crime
Control Act of 1970, Pub. L. 91-452, Title XI, §
1102(a), 84 Stat. 922, 952-53 (Oct. 15, 1970); Homeland
Security Act of 2002, Pub L. 107-296, Title XI, 116 Stat.
2135 (Nov. 25, 2002); TRW Inc. v. Andrews, 534 U.S.
19, 31 (2001) ("It is 'a cardinal principle of
statutory construction' that 'a statute ought, upon
the whole, to be so construed that, if it can be prevented,
no clause, sentence, or word shall be superfluous, void, or
insignificant.'"). The explosives statute defines
"Manufacturer" as "any person engaged in the
business of manufacturing explosive materials for purposes of
sale or distribution or for his own use." 18 U.S.C.
§ 841(h). By the definition of "Manufacturer,
" the explosives statute includes a person in the
business of manufacturing explosives who does not sell them,
but only distributes them. See § 841(n)
("Distribute" means "sell, issue, give,
transfer, or otherwise dispose of"). The statute does
not require proof of an intent to seek livelihood or profit
in order to prove a person engaged in the business of
manufacturing explosives without a license.
also insists his manufacturing was a "hobby" not
covered by the statute. He emphasizes the ATF's
interpretation of § 841(h)'s "own use"
language: "A manufacturer's license is required by
persons engaged in the business of manufacturing explosive
materials for sale, distribution, or for their own
business use." ATF Federal Explosives Law and
Regulations 64 (2012), available at