Criminal Practice – Definition of ‘explosive’ includes inert bomb

Where an inmate arranged to have his ex-wife killed by having friends mail her a bomb, but the scheme was discovered and the bomb was intentionally inert, the conviction was upheld because the definition of “explosive” included the inert bomb.

Background

Michael James Young Jr. wanted his ex-wife dead. While serving a prison sentence for an unsuccessful first attempt on her life, Young concocted a plot for several friends on the outside, including Vance Edward Volious Jr., to mail her a bomb.

However the bombmaker he contacted was an undercover FBI agent, and the bomb was a dud by design. Young and Volious were indicted, a jury convicted them on several counts, and they appealed. Foremost among the questions the court must now answer is whether an inert bomb is a nonmailable item under federal law.

18 USC § 1716

The evidence at trial showed that the inert bomb contained high explosives. By banning “all explosives” as well as “other devices or compositions which may … explode,” Congress intended to enact separate bans on mailing (1) explosive substances or materials and (2) devices or compositions incorporating those substances or materials.

Young and Volious assert that § 1716(a) doesn’t apply to explosives mailed in such small quantities, or packaged in such a manner, that they couldn’t possibly do any harm. They argue that the placement of the word “explosives” next to “hazardous materials, inflammable materials, infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode” suggests that Congress intended to prevent people from mailing only those objects that could actually cause harm by exploding or igniting.

The court disagrees. Congress’s use of the word “all” before “explosives” suggests that it intended to prohibit the mailing of any explosive substance regardless of how it’s packaged or the quantities in which it’s sent. Were it otherwise, the statute would allow anyone to send “mail-safe” explosives to a recipient who could use them to assemble a functional bomb and accomplish the sender’s goal of harming another. That would be an absurd construction of a statute.

In United States v. Hamrick, 43 F.3d 877 (4th Cir. 1995) (en banc), the defendant mailed a package bomb to a federal prosecutor. When the prosecutor opened the package, the bomb ignited, but didn’t explode. The defendant asserted that “since his bomb was dysfunctional, it was not a nonmailable article.” This court rejected that argument and determined that a reasonable jury could have found the defendant guilty because his bomb contained “inflammable liquified butane” that could have “ignited” during transit.

Young and Volious next argue that the jury improperly convicted them of aiding and abetting the mailing of a nonmailable item because the government failed to introduce enough evidence that the package Fears deposited for mailing actually contained any high explosives. That argument lacks merit.

Aiding and abetting

The jury also convicted Young and Volious of aiding and abetting the carrying of “an explosive during the commission of [a] felony,” in violation of 18 U.S.C. § 844(h). Mailing a nonmailable item with intent to kill under § 1716(j) was the predicate felony. Young and Volious argue they can’t be guilty of violating § 844(h) because they didn’t violate § 1716(j). As already discussed, however, the law and the evidence at trial support their convictions under § 1716(j).

Conspiracy

Volious next argues the court should vacate his conviction for the conspiracy charged in Count One because the indictment fatally varied from the evidence presented at trial. Although a variance may have occurred at trial, the court declines to overturn Volious’s conviction because he hasn’t shown that the variance actually prejudiced him.

Jury instruction

Volious next argues that the district court erred by failing to instruct the jury that it could determine that multiple conspiracies took place. Even if the evidence at trial showed that two conspiracies existed, there’s no reason to believe that the jury would have acquitted Volious of the conspiracy count if the district court had given a multiple-conspiracy instruction.

Sever

Volious’s final argument is that the district court erred by denying his pre-trial motion to sever his trial from Young’s. The indictment alleges that Volious and Young were involved in both the drug conspiracy and the mail bomb plot. The court has no reason to believe that Volious and Young’s initial joinder was improper. Volious identifies no specific trial right that the district court’s decision compromised.

Affirmed.

United States v. Young (Lawyers Weekly No. 001-041-21, 22 pp.) (Albert Diaz, J.) Case Nos. 19-4149 and 19-4222. Feb. 26, 2021. From D.S.C. (J. Michelle Childs, J.) Jonathan McKey Milling and Aimee Zmroczek for Appellants. Brook Bowers Andrews for Appellee.