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SOMEBODY SET UP US THE BOMB

Danny Sheehan was a guy who needed money, probably because he had spent his formative years watching action-adventure movies and playing video games instead of learning a gainful occupation. One of the games must have been Sega “Zero Wing”… because he sure “set up us the bomb.”

Danny concocted a get-rich-quick scheme with more moving pieces than a clock. He bought a prepaid cell phone and the components needed to build a pipe bomb. First, Dan built a bomb and set it off in his backyard shed, just to make sure it worked. It did. So he built a second pipe bomb, complete except the igniter was not wired up. He put the bomb in a cardboard light fixture box he’d gotten from Home Depot, and while wearing a wig, arm sling and make-up, planted the box with the bomb in a Home Depot lighting department. Dan, who’s allergic to cats, even planted cat hair in the box to throw off investigators.

He connected a string from the box to the shelf to make it seem that moving the box would set off the bomb. About two weeks later, Danny sent a handwritten letter to the store manager, telling him where the bomb was planted and that it could not go off. Pointing out that he could build and plant a bomb undetected, Danny demanded $2 million, or he would disrupt Black Friday sales.

Even though he warned against the store manager against it, Home Depot officials called the police. The EOD squad moved the bomb to a back room, but accidentally set it off while trying to take it apart. No one was hurt.

Two days later, Dan called the store manager on his throwaway cellphone, lowering his demand by a million. Unfortunately for a guy who planned everything else to a “t,” Danny inexplicably left his anonymous cellphone on after the call. The FBI snagged the phone number, then tracked the phone back to the retailer. Even though Danny bought it anonymously, the Feds – using what the Government drily calls “locational information” –  traced the location through cellphone towers right to Danny.

Too bad Danny wasn’t allowed to make it to the getaway phase, because those plans were worthy of Mission Impossible. In his admission, Danny explained:

Earlier this year, I… was given a Yamaha Wave-Runner which was hollow and motorless. I got this through a contact on [Craigslist]… I also purchased a cooler at a K-Mart… which I was going to use with the Wave-Runner as part of my plan for the money drop. I modified both the Wave-Runner and the cooler by putting holes in them. The cooler is now attached to the seat of the Wave-Runner… My plan for the money drop was to put the Wave-Runner in Huntington Harbor, and to hide in the water under the Wave-Runner and have the extortion money placed into the cooler and I would retrieve it from beneath the Wave-Runner through the holes I had cut into the cooler and the Wave-Runner. I planned to use an air tank so I could stay under water and swim away with the money.

Indeed, Danny had bought  SCUBA equipment in preparation for the escape.

Danny was charged with extortion and using a destructive device in a crime of violence under 18 U.S.C. Sec. 924(c)(1)(B)(ii). He admitted to the extortion, but argued the Home Depot bomb would not detonate absent extraordinary circumstances (such as the cops bungling the dismantling of it, as they did), and it could not be readily converted into such a device. The issue was important, because the 924(c) (1)(B)(ii) count carried a mandatory 30-year sentence.

The jury found the Home Depot bomb was a destructive device within the meaning of the statute. Last week, the 2nd Circuit agreed.

The Court of Appeals said that even though the device was “incapable of detonating in its ordinary or intended manner (because, for example, it lacks a particular component ordinarily present in such a device), but is nonetheless capable of detonating, is an ‘explosive bomb’ within the meaning of the statute.

Danny argued the government’s experts – who said the device could have exploded simply from being taken apart – were so obviously wrong that no reasonable jury could believe them. The Court said “although there may be rare circumstances where an expert’s testimony is so incredible that no rational factfinder could believe it beyond a reasonable doubt, the testimony of [the experts] does not fall into that category. Their testimony is not so illogical or contrary to common sense that no rational jury could accept it. Drawing all inferences in favor of the government, we must conclude that the jury credited their testimony that the device could be detonated over the contrary testimony of the defense expert.”

Danny also argued that even if the “device was an explosive bomb, [his] conviction must still be reversed because, measured objectively, it was neither designed nor redesigned for use as a weapon.” The Court ruled, however, that “in light of the objective features of the device – which was built to look like an IED, contained an explosive, and was capable of detonating – the jury could rationally find that the device was objectively designed as a weapon even if it was missing a component required to enable it to explode in a specific way.” The bomb could detonate (and in fact it did, albeit accidentally), making Danny’s belief it could not irrelevant.

Danny contended the device was missing crucial parts – the battery and connectors – and therefore could not be “readily assembled” into a working bomb. But the missing parts could have been found inside the Home Depot in which the device was planted. The 2nd Circuit said “a rational jury could conclude that Sheehan’s device – which indisputably lacked a functional fuzing system – was a partially completed device designed in such a way that with readily available materials it could have been converted into a functional explosive device… The government does not have to offer evidence that a defendant possesses commonly available materials if he or she otherwise possesses all of the key components necessary to assemble a destructive device.”

Accordingly, the appellate panel held, a jury could convict if it found beyond a reasonable doubt that the device qualified either as a “destructive device” or as a “combination of parts” designed so that it could readily be assembled into a listed destructive device.”

But, Danny complained, he never really intended to build a working bomb. The statute, however, makes it illegal to possess a working bomb or merely to intend to do so. The government proceeded on the theory of “objective design,” meaning that Danny’s intent was irrelevant.

 

This case is different, the Court said, from a case where a person “merely possessed, for legitimate reasons, a variety of ordinary items that could be used either to build bombs or to build something quite innocent.” There, intent to convert those items into a destructive device is required to prevent people from being convicted for harmless, legitimate acts. “That policy concern is not implicated,” the Court said, “where the assembled device lacks any legitimate purpose.”

Ironically, Danny could have made the same point to Home Depot had his pipe bomb been filled with sand instead of gunpowder. If he had done that, it is much less likely a jury could have found the device could readily be assembled into a destructive device with readily available parts, and – while he’d be doing time for extortion – he would have avoided the mandatory 30-year sentence.

United States v. Sheehan, Case No. 15-1028 (2nd Cir.  Sept. 23, 2016)