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United States v. Belmont

United States Court of Appeals, Eighth Circuit

August 8, 2016

United States of America, Plaintiff - Appellee
v.
Jeffrey Belmont, Defendant-Appellant

          Submitted: May 19, 2016

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         Jeffrey 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[1] 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.

         A 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.

         Other 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.

         Belmont 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.

         Before 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.

         This 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. 2015).

         Belmont 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 manufactured").

         Belmont 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."

         The 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.

         The 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.

         Belmont 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 https://www.atf.gov/explosives/docs/publication-federal-explosives-laws-and-regul ...


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