United States v. James Goff

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4136

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES EDWARD GOFF,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James C. Turk, Senior
District Judge. (1:11-cr-00025-JCT-PMS-1)

Argued: December 7, 2012 Decided: February 11, 2013

Before NIEMEYER, KING, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Abingdon, Virginia, for Appellant. Albert Pilavin
Mayer, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia,
for Appellee. ON BRIEF: Larry W. Shelton, Federal Public
Defender, Roanoke, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia, Zachary T. Lee,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

On October 17, 2010, Appellant James Edward Goff, a

convicted felon and resident of Tazewell County, Virginia,

arrived at his mother’s home in Richlands, Virginia. Goff

unloaded three cardboard boxes from his vehicle and cautiously

carried them into a shed at the back of his mother’s property.

The shed was a dilapidated, wooden structure with a tin roof and

at least one broken window. The property abutted William Cole,

Jr.’s property, and when Goff arrived, Cole was on his back

porch grilling steaks. Cole observed Goff’s transfer of the

boxes and noticed that one of the boxes had wires the size of an

“ink pen filler” stringing out of its top.

The next day, Cole, believing that the three boxes

contained blasting caps, peered through the window of the shed,

observed three boxes of Hercules brand static resistant blasting

caps, and called 911. When officers arrived and entered the

shed, they confirmed that the boxes did indeed contain blasting

caps.

The government subsequently charged Goff with knowingly and

intentionally possessing blasting cap explosives as a convicted

felon, in violation of 18 U.S.C. § 842(i)(1), and knowingly

storing blasting cap explosives in a manner not in conformity

with regulations promulgated by the Attorney General pursuant to

18 U.S.C. § 847, in violation of 18 U.S.C. § 842(j). On

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November 7, 2011, a jury convicted Goff of both counts. Post-

trial, Goff filed a motion seeking judgment of acquittal on both

counts or, in the alternative, a new trial on any remaining

count. The district court denied the motion in its entirety.

Goff now appeals this denial, and we affirm.

I.

We first address the district court’s denial of Goff’s

motion for judgment of acquittal, reviewing such denial de novo.

United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011).

Three issues are before us: (1) whether the government presented

sufficient evidence to convict Goff of both counts, (2) whether

Goff’s indictment on Count Two adequately informed him of the

nature of the charge, and (3) whether the statutory regulations

under which Goff was charged on Count Two are unconstitutionally

vague.

A.

Goff alleges that the government failed to present

sufficient evidence to convict him of his charges because it

failed to prove “an essential element” of each count—namely,

“that the items recovered from the shed met the definition of an

explosive.”

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 Count One of Goff’s indictment charged him with violating

18 U.S.C. § 842(i)(1), which makes it unlawful for a felon “to

receive or possess any explosive which has been shipped or

transported in or affecting interstate or foreign commerce.”

Count Two charged him with violating 18 U.S.C. § 842(j), which

makes it unlawful for “any person to store any explosive

material in a manner not in conformity with regulations

promulgated by the Attorney General.”

Per 18 U.S.C. § 841(d), an “explosive” is “any chemical

compound mixture, or device, the primary or common purpose of

which is to function by explosion.” 18 U.S.C. § 841(d). “[T]he

term includes, but is not limited to, dynamite and other high

explosives . . . [and] detonators . . . .” Id. Further, a

“detonator” is “any device containing a detonating charge that

is used for initiating detonation in an explosive.” § 841(f).

This term “includes, but is not limited to, electric blasting

caps of instantaneous and delay types, blasting caps for use

with safety fuses[,] and detonating-cord delay connectors.” Id.

Goff contends that the government failed to prove either

charged count because it did not present evidence that his

blasting caps “contained a detonating charge.” In effect, Goff

maintains that the government proved only that he possessed

blasting caps, not that the blasting caps would or could

explode. And without such proof, Goff argues, the government

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failed to demonstrate that the caps were detonators or

explosives. We disagree.

In United States v. Markey, 393 F.3d 1132 (10th Cir. 2004),

the Tenth Circuit addressed an issue similar to the one that

Goff raises here. In Markey, the government charged the

defendant with unlawful possession of dynamite, and the

defendant argued that because he reasonably believed the

dynamite in his possession was incapable of exploding, he did

not knowingly possess explosives as required for a conviction

pursuant to 18 U.S.C. § 842(i)(1). Markey, 393 F.3d at 1136.

The Tenth Circuit rejected the defendant’s argument, however,

reasoning that because the definition of “explosive” includes

the words “primary or common purpose,” § 841(d), the operative

inquiry regarding proof involves “a device’s intended and usual

use—not its actual capability,” Id. Thus, it held that the

government “need not show that a device is actually able to

explode to prove that a defendant knowingly possesses an

explosive under § 842(i)(1).” Id. Rather, “it need only prove

that the defendant knew he possessed dynamite or other chemical

compound, mixture, or device that was primarily designed to

function by explosion.” Id.

Here, the district court relied on Markey to deny Goff’s

motion for judgment of acquittal, but Goff contends that his

case is distinguishable from Markey because in Markey the

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general definition of “explosive” applied, and here, the more

specific definition of “detonator” applies. He notes that the

definition of “detonator” requires a device to “contain[] a

detonating charge.”

Goff is correct that the definition of “detonator” includes

the phrase “containing a detonating charge,” but the application

of the statute that Goff presses is incompatible with the

statute as a whole. Detonators are a type of explosive, see

§ 841(d), and explosives are devices that “function by

explosion,” not just devices that contain explosive

capabilities, see Markey 393 F.3d at 1136. We decline to single

out one type of explosive (i.e., detonators) by holding that

they can be classified as such only when retaining an ability to

detonate. Such a ruling would be absurd and contrary to

Congress’s apparent intent. Griffin v. Oceanic Contractors,

Inc., 458 U.S. 564, 575 (1982) (“[I]nterpretations of a statute

which would produce absurd results are to be avoided if

alternative interpretations consistent with the legislative

purpose are available.”).

We cannot believe that Congress set out to police a myriad

of dangerous explosives regardless of their explosive power but

considered the policing of detonators necessary only when they

actually possess an ability to detonate. Nor are we ready to

require that the government discharge stashes of recovered

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blasting caps so that they can effectively prosecute felons who

store these caps. Such a ruling would be ridiculous indeed.

Thus, because we cannot countenance the statutory construction

that Goff proposes, we affirm the district court’s decision to

deny his motion for judgment of acquittal on that basis.

B.

Goff next contends that Count Two of his indictment lacked

sufficient specificity. As noted above, Count Two charged Goff

with violating 18 U.S.C. § 842(j), which states, “It shall be

unlawful for any person to store any explosive material in a

manner not in conformity with regulations promulgated by the

Attorney General.” Goff’s indictment for Count Two reads,

1. On or about October 18, 2010, in the Western
District of Virginia and elsewhere, JAMES EDWARD GOFF
knowingly stored explosives in a manner not in
conformity with regulations promulgated by the
Attorney General pursuant to Title 18, United States
Code, Section 847, namely, 3 boxes of Hercules
Superdet static-resistant delay electric blasting
caps.

2. All in violation of Title 18, United States Code,
Section 842(j).

Goff avers that his indictment’s “bare allegation of regulatory

non-compliance without either a reference to a particular

regulation, or a factual recitation of the alleged violation

conduct, was inadequate under the Fifth and Sixth Amendments”

and Federal Rule of Criminal Procedure 7(c).

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 The Fifth and Sixth Amendments form the basis of our

insistence that the government include a level of specificity in

its indictments. The Fifth Amendment prohibits the government

from prosecuting a defendant for an infamous crime (i.e., crimes

punishable by imprisonment for more than one year, see Green v.

United States, 356 U.S. 165, 183 (1958), overruled on other

grounds by Bloom v. Illinois, 391 U.S. 194 (1968)), except “on a

presentment or indictment of a Grand Jury,” U.S. Const. amend.

V. The Sixth Amendment provides a defendant the right “to be

informed of the nature and cause of the accusation” against him,

U.S. Const. amend. VI; see also Fed. R. Crim. P. 7(c) (“The

indictment . . . must be a plain, concise, and definite written

statement of the essential facts constituting the offense

charged . . . . For each count, the indictment . . . must give

the official or customary citation of the statute . . . or other

provision of law that the defendant is alleged to have

violated.”). In short, to ensure constitutional guarantees are

met, “[a]n indictment must contain the elements of the offense

charged, fairly inform a defendant of the charge, and enable the

defendant to plead double jeopardy as a defense in a future

prosecution for the same offense.” United States v. Daniels,

973 F.2d 272, 274 (4th Cir. 1992).

Goff’s indictment was sufficient to afford him

constitutional protection. The indictment included the elements

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of his offense—namely, “knowingly stor[ing] explosives in a

manner not in conformity with regulations promulgated by the

Attorney General,” and notified him of his charge—violating 18

U.S.C. § 847—such that he could prepare an adequate defense and

sufficiently plead double jeopardy if prosecuted a second time

for the same crime. We recognize that the government’s

indictment fails to include much detail. Nevertheless, we

decline to adopt Goff’s view that “the allegation of regulatory

non-compliance was completely unclear.” Our review of the

Attorney General’s regulations indicates that the provisions

addressing the storage of explosives are few and certainly not

so extensive as to deny Goff the ability to craft an adequate

defense to his charge. Thus, we again affirm the district

court’s denial of Goff’s motion for judgment of acquittal as to

this issue.

C.

Next, Goff maintains that the Attorney General’s storage

regulations are unconstitutionally vague. The Attorney

General’s regulations regarding the storage of explosives are

found in 27 C.F.R. § 555.202–203. Section 555.202 delineates

the classes of explosives and reads:

For purposes of this part, there are three
classes of explosive materials. These classes,

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 together with the description of explosive materials
comprising each class, are as follows:

(a) High explosives. Explosive materials which
can be caused to detonate by means of a blasting cap
when unconfined, (for example, dynamite, flash
powders, and bulk salutes). See also § 555.201(e).

(b) Low explosives. Explosive materials which can
be caused to deflagrate when confined (for example,
black powder, safety fuses, igniters, igniter cords,
fuse lighters, and “display fireworks” classified as
UN0333, UN0334, or UN0335 by the U.S. Department of
Transportation regulations at 49 CFR 172.101, except
for bulk salutes).

(c) Blasting agents. (For example, ammonium
nitrate-fuel oil and certain water-gels (see also
§ 555.11)).

27 C.F.R. § 555.202. In turn, § 555.203 outlines the method of

storage for each explosive class:

For purposes of this part, there are five types of
magazines. These types, together with the classes of
explosive materials, as defined in § 555.202, which
will be stored in them, are as follows:

(a) Type 1 magazines. Permanent magazines for the
storage of high explosives, subject to the limitations
prescribed by §§ 555.206 and 555.213. Other classes of
explosive materials may also be stored in type 1
magazines.

(b) Type 2 magazines. Mobile and portable indoor and
outdoor magazines for the storage of high explosives,
subject to the limitations prescribed by §§ 555.206,
555.208(b), and 555.213. Other classes of explosive
materials may also be stored in type 2 magazines.

(c) Type 3 magazines. Portable outdoor magazines for
the temporary storage of high explosives while
attended (for example, a “day-box”), subject to the
limitations prescribed by §§ 555.206 and 555.213.
Other classes of explosive materials may also be
stored in type 3 magazines.

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 (d) Type 4 magazines. Magazines for the storage of low
explosives, subject to the limitations prescribed by
§§ 555.206(b), 555.210(b), and 555.213. Blasting
agents may be stored in type 4 magazines, subject to
the limitations prescribed by §§ 555.206(c),
555.211(b), and 555.213. Detonators that will not mass
detonate may also be stored in type 4 magazines,
subject to the limitations prescribed by
§§ 555.206(a), 555.210(b), and 555.213.

(e) Type 5 magazines. Magazines for the storage of
blasting agents, subject to the limitations prescribed
by §§ 555.206(c), 555.211(b), and 555.213.

§ 555.203. Finally, §§ 555.207–211 outline the construction

guidelines for each type of magazine.

“A statute is impermissibly vague if it either (1) ‘fails

to provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits’ or (2)

‘authorizes or even encourages arbitrary and discriminatory

enforcement.’” United States v. Shrader, 675 F.3d 300, 310 (4th

Cir. 2012) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)).

Notably, in applying these standards, we have never required

that a statute speak with “perfect clarity and precise

guidance.” Ward v. Rock Against Racism, 491 U.S. 781, 794

(1989). Instead, we ask simply whether a statute’s provisions

are articulated “in terms that the ordinary person exercising

ordinary common sense can sufficiently understand and comply

with.” U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter

Carriers, 413 U.S. 548, 579 (1973).

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 We cannot deny that under certain circumstances, the

Attorney General’s regulations might cause an ordinary person

exercising ordinary common sense some confusion. Nevertheless,

in this case, we need not engage in a lengthy discussion of

whether the guidelines were sufficiently clear. Goff stored his

blasting caps in cardboard boxes inside a dilapidated shed on

his mother’s property. As explained below, a cursory read of

the Attorney General’s regulations would have informed Goff that

storing blasting caps in this manner was woefully inadequate.

Assuming, without deciding, that under § 555.202, Goff’s

blasting caps qualified as “low explosives” (the type that

requires the least stringent storage), he should have stored

them in a type 4 magazine. And we need not delve deeply into

the parameters of type 4 magazines to determine that Goff did

not comply. Section 555.210 describes both indoor and outdoor

type 4 magazines as “fire-resistant” and “theft-resistant.”

Needless to say, Goff’s mother’s shed, a “board structure” with

a tin roof and at least one broken window, does not qualify as a

type 4 magazine. Accordingly, without further analysis, we can

affirm the district court’s denial of Goff’s motion for judgment

of acquittal on this basis as well.

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 II.

Next, we address the district court’s denial of Goff’s

motion for a new trial. We review the denial of such motions

for abuse of discretion. United States v. Smith, 451 F.3d 209,

216 (4th Cir. 2006). Goff founded his request for a new trial

on the district court’s failure to give jury instructions that

he requested. Specifically, he avowed that the court failed to

properly instruct the jury on the statutory elements of his

charges. “[W]e conduct a de novo review of any claim that jury

instructions incorrectly stated the law.” United States v.

Mouzone, 687 F.3d 207, 217 (4th Cir. 2012).

A.

With respect to Count One, the district court instructed

the jury that “[t]o find the defendant guilty of this charge,

the government must prove . . . that the defendant knowingly and

intentionally possessed explosives, as described in the

indictment.” The court further instructed that “[t]he word

‘knowingly,’ as used in [C]ount [O]ne of the indictment, means

that the defendant acted intentionally and voluntarily and not

by accident, mistake, or carelessness.” Goff contends here, as

he did in his motion, that the court should have instructed that

the government had to prove he knew he possessed items that

qualified as explosives or detonators under the statute. Thus,

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the crux of Goff’s concern is the mental state required for a

violation of 18 U.S.C. § 842(i)(1).

We determine the mental state required for the commission

of a federal crime by examining the construction of the relevant

statute and Congress’s intent in enacting the statute. United

States v. Balint, 258 U.S. 250, 252–53 (1922). Where, as here,

a statute is silent as to a required mental state, we must

determine whether to “construe the statute in light of the

background rules of the common law, in which the requirement of

some mens rea for a crime is firmly embedded” or to categorize

the regulated conduct as a public welfare offense. Staples v.

United States, 511 U.S. 600, 605–06 (1994) (emphasis omitted)

(citation omitted). Public welfare offenses require no mens rea

and are a means by which Congress “impose[s] a form of strict

criminal liability through statutes that do not require the

defendant to know the facts that make his conduct illegal.” Id.

at 606.

There is wisdom in limiting the catalogue of public welfare

offenses. See id. at 607. Thus, the Supreme Court has

generally confined such offenses to statutes that “regulate

potentially harmful or injurious items.” Id. Indeed, imputing

strict liability to defendants who possess dangerous objects

makes good sense:

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 [A]s long as a defendant knows that he is dealing with
a dangerous device of a character that places him “in
responsible relation to a public danger,” he should be
alerted to the probability of strict regulation,
and . . . [should bear] the burden
[of] . . . “ascertain[ing] at his peril whether [his
conduct] comes within the inhibition of the statute.”

Id. (fifth alteration in original) (citation omitted) (quoting

United States v. Dotterweich, 320 U.S. 277, 281 (1943); Balint,

258 U.S. at 254).

Here, Goff primarily relies on the Supreme Court’s decision

in Staples v. United States, where it declined to categorize a

violation of 26 U.S.C. § 5861(d), which prohibits the possession

of an unregistered firearm (as defined in § 5845), as a public

welfare offense. See 511 U.S. at 619. The Court held that the

government could not simply prove that the defendant knowingly

possessed a dangerous weapon. Id. Instead, it had to prove

that the defendant knew his weapon fit within the statutory

definition of a firearm such that it had to be registered. Id.

Goff contends that the statute he violated is similar to the

statute in Staples and that the government needed to prove that

he knew his blasting caps qualified as explosives or detonators

as defined by 26 U.S.C. § 842. We disagree.

The reasoning that supported the Court’s treatment of the

statute in Staples does not neatly apply to the statute at issue

here. In Staples, the statute at issue regulated private gun

ownership, an activity that is “widespread” and that has been

15
long-recognized as lawful. Id. at 610. Such is not the case

with explosives and detonators. Moreover, whereas “[g]uns in

general are not ‘deleterious devices or products or obnoxious

waste materials’ that put their owners on notice that they stand

‘in responsible relation to a public danger,’” Staples, 511 U.S.

at 610–11 (citation omitted) (quoting United States v. Int’l

Minerals & Chem. Corp., 402 U.S. 558, 565 (1971); Dotterweich,

320 U.S. at 281), the same cannot be said for blasting caps.

Thus, we conclude that Goff had sufficient notice of “the

probability of strict regulation,” Staples, 511 U.S. at 607, and

that he was responsible for “ascertain[ing] at his peril whether

[his conduct was] within the inhibition of the statute,” Balint,

258 U.S. at 254. Accordingly, we hold that the district court

did not err in instructing the jury that the government needed

to prove only that Goff knew he possessed blasting caps.

B.

Similar to his argument regarding the mens rea requirement

for Count One, Goff argues that on Count Two, the district court

erred in failing to instruct the jury that the government had to

prove Goff knew the manner in which he stored the blasting caps

was illegal and unauthorized. Again, Goff seeks to use Staples

to his advantage, and, again, we hold that the case is

inapposite. By possessing dangerous objects such as blasting

16
caps, Goff had ample notice that his conduct was regulated, and,

therefore, the burden of ascertaining and complying with the

Attorney General’s storage regulations was his to bear. Thus,

the district court properly declined to instruct the jury that

the government did not need to prove that Goff knew the manner

in which he stored the blasting caps was illegal.

In sum, we conclude that the district court properly

instructed the jury on both counts and did not err in denying

Goff’s motion for a new trial based on faulty jury instructions.

III.

We have reviewed Goff’s contentions that the district court

improperly denied his motion for judgment of acquittal or, in

the alternative, for a new trial, and we find his arguments

lacking in merit. Therefore, we affirm the judgment of the

district court.

AFFIRMED

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