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Kircus v. United States

United States District Court, N.D. Alabama, Southern Division

December 12, 2018

JAMES D KIRCUS, Petitioner,



         This case is before the court on Petitioner‘s Motion to Vacate, Set Aside, or Correct Sentence. (No. 2:16-cv-08134-RDP ("Habeas Docket"), Doc. # 1). The Government responded to Petitioner‘s Motion on May 15, 2017. (Id., Doc. # 9). Petitioner amended his Motion on June 23, 2017 (Id., Doc. # 13), and the Government responded on May 16, 2018. (Id., Doc. # 15). The court then sent Petitioner an order with instructions on filing a reply on May 22, 2018. (Id., Doc. # 16), and Petitioner replied on July 18, 2018 (Id., Doc. # 21). The Motion to Vacate is now ripe for decision. After careful review, and for the reasons explained below, the court concludes that Petitioner‘s Motion to Vacate is due to be denied.

         I. Factual and Procedural Background

         In October 2013, a grand jury issued an indictment charging Petitioner with knowingly possessing a "firearm," defined as a "destructive device, also known as a 'pipe bomb, ‘ which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5861(d)." (No. 2:13-cr-00456-RDP-JHE ("Criminal Docket"), Doc. # 8). W. Scott Brower entered an appearance for Petitioner on November 4, 2013 (Id., Doc. # 10), and two days later William J. Brower entered his appearance. (Id., Doc. # 12).

         After a Scheduling Order was issued (Id., Doc. # 13), Petitioner‘s counsel filed a Motion to Continue the trial in order to retain an explosives expert and to adequately prepare for trial. (Id., Doc. # 15). The Motion was conditionally granted on December 13, 2013, pending the filing of a signed Waiver of Speedy Trial (Id., Doc. # 17), which Petitioner submitted on December 17, 2013. (Id., Doc. # 20). The Motion was granted on December 22, 2013, and the case was continued to the February 2014 trial docket. (Id., Doc. # 22). After accepting the Waiver of Speedy Trial, the court then moved the trial date to March 3, 2014. (Id., Doc. # 25).

         On February 24, 2014, the Government filed a Notice of its intent to offer 404(b) evidence of Petitioner‘s 2007 conviction for "manufacturing/possession of an unregistered destructive device (pipe bomb)." (Id., Doc. # 29). The Government also filed a Motion in Limine requesting the defense be precluded from (1) "argument during opening statement;" (2) "commenting on the possible sentence of consequences that may be imposed on the Defendant if the jury finds him guilty;" (3) "commenting on any failure by the [Government] to call witnesses to testify who have been equally accessible to the defense;" (4) "arguing or presenting testimony to support a 'temporary‘ or 'transitory, ‘ innocent possession defense" and "presenting a jury instruction on such a defense;" (5) "introducing any video from YouTube or similar websites purporting to show the detonation of an automobile airbag assembly;" (6) and "arguing or presenting testimony to support a 'mistake of law‘ or a 'mistake of fact‘ defense" by "arguing that he was unaware of the requirement that a destructive device must be registered under the National Firearms Act." (Id., Doc. # 31).

         Counsel for Petitioner also filed a Motion in Limine requesting that the Government be precluded from commenting on or testifying about the following: (1) Petitioner‘s alleged membership in any hate group or white supremacist organization, or any items he displayed at his work station depicting those views; (2) any "document or evidence, which has not been properly authenticated and admitted into evidence;" (3) any "hearsay statements made by any witness to the incident who are not themselves testifying in court;" (4) any "hearsay statements made to any witness by any individual other than the [Petitioner];" (5) any "mention of the [Petitioner‘s] prior criminal conduct;" (6) any "statements or evidence regarding the [Petitioner‘s] residence in a Halfway House at the time of his arrest;" (7) and any "statements or evidence that the [Petitioner] is alleged to have made threatening statements toward other individuals." (Id., Doc. # 33).

         In conjunction with his Motion in Limine, Petitioner‘s counsel also filed an objection to the Government‘s Notice of intent to offer evidence of other criminal conduct. (Id., Doc. # 35). Counsel clarified that previously Petitioner had only been charged with (and plead guilty to) possession of a destructive device in 2007, rather than the manufacture of such device. (Id. at 2). Contrary to the Government‘s assertion that the conviction was relevant to show Petitioner‘s knowledge and intent, Petitioner‘s counsel argued that this evidence was not offered for any other purpose other than to show the bad character of Petitioner. (Id. at 2-3). Furthermore, because Petitioner had not disputed his knowing possession of the device, his counsel argued that evidence of his prior conviction could have no other purpose but to cause prejudice to the Petitioner. (Id. at 3-5). In Petitioner‘s view, the only relevant question at trial was whether the device was a "destructive device," i.e., whether it was designed as a weapon. (Id.).

         In its Trial Brief filed on February 26, 2014, the Government responded to Petitioner‘s Motion in Limine, and argued that evidence related to Petitioner‘s white supremacist expressions, his residence in a halfway house, and his threats toward other individuals were "inextricably intertwined with the charged crime." (Id., Doc. # 38 at 10). The Government acknowledged that Petitioner‘s alleged membership in any hate group or white supremacist organization was not relevant to the charge; however, it contended that the defaced license plate displaying swastikas and the words "Fuck America" were "temporally and physically related to the charged offense" due to their "close proximity to the device." (Id.). Similarly, it asserted testimony about Petitioner‘s residence and threats were necessary to construct a cohesive narrative. (Id. at 12).

         In relation to Petitioner‘s intent, the Government summarized the "mixed standard" approach adopted by the Seventh Circuit in United States v. Johnson, 152 F.3d 618, 628 (7th Cir. 1998). (Id. at 13). "The Seventh Circuit reasoned that, generally, the 'objective analysis‘ will satisfy to determine whether the device falls within the ambit of the National Firearms Act, rendering the defendant‘s subjective intent regarding the device inappropriate." (Id., citing Johnson, 152 F.3d at 627). In other words, "whether the 'objective design of the device or component parts indicates that the object may only be used as a weapon, i.e., for no legitimate social or commercial purpose.‘" (Id., quoting Johnson, 152 F.3d at 628). If, however, "'the objective design inquiry is not dispositive because the assembled device or unassembled parts may form an object with both a legitimate and illegitimate use, then subjective intent is an appropriate consideration in determining whether the device or parts at issue constitute a destructive device.‘" (Id. at 13-14, quoting Johnson, 152 F.3d at 628). The Government argued that the case fell into the second category under the Johnson approach, and subjective intent was "an appropriate factor for the jury to consider when determining what the design and purpose of the device was and whether it had any value other than as a weapon." (Id. at 14). The Government further maintained that intent also related to the Rule 404(b) prior conviction in that the evidence tended to show Petitioner‘s lack of mistake as to the design features of the device. (Id. at 15).

         The court held a pretrial conference on February 27, 2014 in order to address the pending Motions in Limine. (Id., Doc. # 57). It first addressed the Government‘s Motion and quickly granted requests one through four and request six, and thus precluded the defense from presenting arguments during opening statement, commenting on sentencing or punishment, commenting on the failure to call witnesses equally accessible to both sides, or arguing a temporary or transitory innocent possession defense. (Id. at 2). The court also granted the Government‘s fifth request to prevent the defense from introducing YouTube videos at trial, because the parties agreed that videos pulled "hobnob off the Internet" would not be able to be authenticated. (Id. at 2).

         As to the question of whether Petitioner‘s subjective intent was relevant, Petitioner‘s counsel clarified that they did not intend to argue Petitioner‘s possession of the device. (Id. at 6). The Government then described the case as "a definitional case," and conceded that the evidence could be assessed according to the objective test referenced in the Government‘s Trial Brief. (Id. at 6). Petitioner‘s counsel then agreed to discuss the propriety of stipulating to possession of the device with Petitioner, as such a stipulation would have the effect of limiting the Government‘s evidence at trial to only the characterization of the device and whether it qualified as a destructive device under the statute. (Id. at 7). In light of these developments, the court ultimately decided that evidence about Petitioner‘s supposed membership in hate groups, his Aryan self-identification, the threats he made towards others, and his residence at the halfway house should be excluded at trial. (See generally Doc. # 57). The court left open the possibility that some of this information might be elicited at trial if Petitioner decided to testify and a stipulation was not reached. (Id. at 8-9). On March 3, 2014, an oral order was entered granting Petitioner‘s Motion in Limine without prejudice. (Id., Docket Entry # 40).

         A jury trial was held before the undersigned on March 3-4, 2014. (Id., see generally Docs. # 54-55). At trial, the Government first called Jay Bagwell, a special agent with the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF). (Id., Doc. # 54 at 92-154). Bagwell testified that he received a call from a Birmingham FBI Agent on August 12, 2013, notifying him that Petitioner‘s co-workers thought they had found bombs in Petitioner‘s workstation. (Id. at 95-96). Bagwell explained the structural components of the device, how Petitioner had modified it, and how he and his team neutralized its explosive capabilities. (Id. at 97-130). He also offered his opinion that the end cap of the device, which was held in place with black electrical tape, would fly off at a speed of thousands of feet per second if detonated due to the amount of pressure building up inside the device. (Id. at 149-51). The Government then called Lloyd Erwin, a forensic chemist with the ATF in Atlanta, who had inspected the devices found in Petitioner‘s workstation. He confirmed that the mixture inside the device was sodium azide and iron oxide (Id. at 170), which if properly contained, could be classified as an explosive. (Id. at 189). Next, an ATF explosives enforcement officer, Walker Conklin, testified that he considered the device to be an "improvised explosive weapon" due to its capability to fragment and injure persons standing nearby. (Id., Doc. # 55 at 18-25). Finally, the Government called John Davis, Petitioner‘s employer at the auto parts store where the devices were found. (Id. at 49). When shown a picture of the modified airbag assembly, he clarified that there was no commercial use related to his business associated with such devices. (Id. at 50-51).

         After the Government concluded its case, Petitioner‘s counsel moved for a judgment of acquittal, and argued that while the Government had presented evidence that the device would detonate, it failed to show that the device was designed as a weapon. (Id. at 55-56). The court heard the Government‘s response and denied the motion. (Id. at 57). The court explained to Petitioner the consequences of choosing (or not choosing) to testify. (Id. at 59-60). Petitioner confirmed that he understood and that it was his decision (not his counsel‘s) about whether to testify. (Id. at 60). He decided not to do so. (Id.).

         Thereafter, Petitioner‘s counsel began the Defendant‘s case in chief and called David Townsend, a firearms and explosives expert. (Id. at 66). Townsend stated that he would not classify the device as a weapon, largely because Petitioner attached the end cap to the device using only black electrical tape, instead of welding it on. (Id. at 95-97). He opined that this likely would not allow enough pressure to build up inside the device to cause serious fragmentation. (Id.). At the conclusion of all the evidence, Petitioner‘s counsel renewed their judgment of acquittal, insisting that the Government had failed to prove that the device was a weapon. (Id. at 115). The court overruled the motion, determining that characterization of the device was a jury question. (Id.).

         In the final instructions to the jury, the court explained that due to a pre-trial stipulation, the jury need only decide one issue-whether the device qualified as a "destructive device" pursuant to the statutory definition. (Id. at 131). The court further instructed that in making this determination, the jury was not to consider Petitioner‘s intent in creating the device. (Id. at 105). After receiving the case and deliberating, the jury found Petitioner guilty of knowingly possessing a destructive device not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5861(d).

         On April 30, 2014, Petitioner moved to appoint substitute counsel. (Id., Doc. # 46). A hearing on that motion was held in front of Magistrate Judge John England on May 9, 2014, and William J. Brower and W. Scott Brower withdrew from representation that same day. (Id., Docs. # 47, 48). The court granted Petitioner‘s motion on May 13, 2014 (Id., Doc. # 49), and Rick L. Burgess, an Assistant Federal Public Defender, represented Petitioner through sentencing. (No. 2:16-cv-08134-RDP ("Habeas Docket"), Doc. # 1 at 13). Petitioner was sentenced to a term of 120 months on August 26, 2014. (No. 2:13-cr-00456-RDP-JHE ("Criminal Docket"), Doc. # 65). Although the Presentence Report noted that Petitioner was a "career offender" convicted of three total crimes of violence under USSG § 4B1.2(a)(2), Petitioner was sentenced under USSG § 2K2.1 because it produced a higher offense level. (Id., Doc. # 63 at 11).

         Allison Case entered an appearance on August 26, 2014 and represented Petitioner on appeal. (Id., Doc. # 62). On September 2, 2014, Petitioner filed a Notice of Appeal, challenging the district court‘s decision to deny his motion for a judgment of acquittal on the grounds that the Government purportedly failed to present sufficient evidence that the modified airbag cylinder was a "destructive device." (Id., Docs. # 67, 74). The Eleventh Circuit affirmed Petitioner‘s conviction on August 20, 2015, concluding that the Government‘s evidence provided a "sufficient basis for concluding the device was designed as a weapon." (Id., Docs. # 74 at 4). The Supreme Court then denied Petitioner‘s petition for a writ of certiorari on April 18, 2016 (Id., Docs. # 75). Thereafter, Petitioner filed the instant Motion to Vacate on July 25, 2016 (Id., Docs. # 76) and amended his Motion on June 23, 2017. (No. 2:16-cv-08134-RDP ("Habeas Docket"), Doc. # 13).

         II. Analysis

         A federal prisoner may file a motion to vacate his or her sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). It is well settled that "to obtain collateral relief[, ] a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Here, in his original and amended Motion to Vacate, Petitioner raises fifteen separate grounds for relief. The court divides its analysis between the original and amended grounds, addresses each claim, and after careful review finds that Petitioner‘s Motion is due to be denied.

         A. Petitioner's Original Motion to Vacate

         In his initial Motion to Vacate, Petitioner raised four grounds for relief (No. 2:16-cv-08134-RDP ("Habeas Docket"), Doc. # 1): (1) that Johnson v. United States, 135 S.Ct. 2551 (2015) invalidated the calculations of the sentencing guidelines used in his case (Id. at 4-6); (2) that his trial counsel was ineffective in allegedly advising him to concede to possession of a "pipebomb" (Id. at 6-9); (3) that his trial counsel, and perhaps appellate counsel, were ineffective in failing to appeal the trial court‘s decision to exclude Internet video evidence at trial (Id. at 9-11); and (4) that his sentence is invalid under the principles articulated in United States v. Lockwood, 789 F.3d 773 (7th Cir. 2015) (Id. at 11-13).[1] Below, the court addresses each assertion in turn, and after doing so finds that Petitioner is not entitled to any relief based on the grounds raised in his initial Motion to Vacate.

         i. Petitioner's Johnson-based Claim is Due to be Denied.

         In Johnson v. United States, the Supreme Court held that increasing a sentence under the residual clause of the Armed Career Criminal Act (ACCA) violates due process protections. 135 S.Ct. at 2551. The ACCA allows an increased sentence to be imposed where a defendant has three prior convictions for a "violent felony," which the residual clause defines as any felony that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(1), 924(e)(2)(B). The court reasoned that the clause was unconstitutionally vague because it created "uncertainty about how to estimate the risk posed by a crime" and "about how much risk it takes for a crime to qualify as a violent felony." 135 S.Ct. at 2554.

         Petitioner‘s reliance upon Johnson here is misplaced. In Beckles v. United States, 137 S.Ct. 866 (2017), the Supreme Court clarified that its ruling in Johnson had no impact on the advisory Sentencing Guidelines. 137 S.Ct. at 892. The plaintiff in Beckles was sentenced as a "'career offender‘ under United States Sentencing Guideline § 4B1.1(a) because his offense qualified as a 'crime of violence‘ under § 4B1.2(a)'s residual clause." Id. at 888. Significantly, Johnson considered a vagueness challenge to the ACCA‘s residual clause, i.e., a "statute fixing permissible sentences." Id. By contrast, the advisory Guidelines "merely guide the exercise of a court‘s discretion in choosing an appropriate sentence within the statutory ...

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