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United States v. Sheehan

United States Court of Appeals, Second Circuit

September 23, 2016

United States of America, Appellee,
v.
Daniel Patrick Sheehan Defendant-Appellant.

          Submitted: April 21, 2016

         Defendant Daniel Patrick Sheehan appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) following a jury trial for extortion, in violation of 18 U.S.C. § 1951, and use of a destructive device to commit extortion in violation of 18 U.S.C. § 924(c)(1)(B)(ii). The conviction stems from Sheehan's plot to extort money from Home Depot by placing a device purporting to be an inert "model" of a pipe bomb in the Huntington Station Home Depot and threatening to plant bombs in other Home Depot stores. Sheehan, who conceded his guilt with respect to the extortion count at trial, challenges on appeal only his conviction for use of a destructive device. He argues (1) that the evidence was insufficient to show that the device planted in the Home Depot was, in fact, an explosive bomb; (2) that the jury was improperly instructed that it could convict on the theory that the device constituted a "combination of parts . . . designed . . . for use in converting any device into an explosive bomb and from which an explosive bomb may be readily assembled"; and (3) that the prosecutor made improper remarks during closing argument.

         We conclude that the evidence was sufficient to establish that the device planted in the Home Depot was an explosive bomb, that the jury instructions on the alternative theory of guilt were not prejudicially erroneous, and that the prosecutor's summation does not entitle Sheehan to a new trial.

          Jonathan I. Edelstein, Edelstein & Grossman, New York, New York, for Defendant-Appellant Daniel Patrick Sheehan.

          Jo Ann M. Navickas and Lara Treinis Gatz, Assistant United States Attorneys (of counsel), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York.

          Before: Winter, Wesley, and Lynch, Circuit Judges.

          Gerard E. Lynch, Circuit Judge

         Daniel Patrick Sheehan appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) after a jury found him guilty of extortion in violation of 18 U.S.C. § 1951, and use of a destructive device to commit extortion in violation of 18 U.S.C. § 924(c)(1)(B)(ii). The conviction arises from Sheehan's plot to extort money from Home Depot by placing a device purporting to be an inert "model" of a pipe bomb in a Home Depot store in Huntington Station, New York, and threatening to plant bombs in other Home Depot locations .

         Sheehan conceded his guilt on the extortion count at trial; on appeal, he challenges only his conviction for use of a destructive device. The district court instructed the jury that it could find Sheehan guilty if the device used by Sheehan during his crime was "an explosive bomb" or "any combination of parts . . . designed . . . for use in converting any device into an explosive bomb and from which an explosive bomb may be readily assembled." A. 176. Sheehan argues that the evidence was insufficient to establish that the device was an explosive bomb and that the jury should not have been given a combination-of-parts instruction. He also argues that the district court's combination-of-parts jury instruction was erroneous because it did not require subjective intent, failed to define the term "readily assembled, " and was misleading. Finally, he contends that he was denied a fair trial because of improper statements made by the prosecutor during summation.

         We conclude that the evidence was sufficient to establish that the device used by Sheehan was an "explosive bomb, " as contemplated by 18 U.S.C. § 921(a)(4), and that the district court did not err in instructing the jury on the combination-of-parts theory of guilt. We further conclude that the prosecutor's comments during summation did not deprive Sheehan of a fair trial. Accordingly, we affirm the judgment of conviction.

         BACKGROUND

         On March 20, 2013, a federal grand jury in the Eastern District of New York returned a three-count indictment charging Sheehan with Hobbs Act extortion, 18 U.S.C. § 1951, use of a destructive device to commit extortion, 18 U.S.C. § 924(c)(1)(B)(ii), and use of an explosive to commit extortion, 18 U.S.C. § 844(h)(1). The charges stemmed from Sheehan's attempt to obtain money from Home Depot by threatening to plant pipe bombs in Home Depot stores and placing a device purporting to be an inert "model" of a pipe bomb in a Home Depot in Huntington Station. At trial, only the first two charges were submitted to the jury. Sheehan conceded that he was guilty of extortion, but contended that the "pipe bomb" he left in the Home Depot was not functional and thus was not a "destructive device" as defined by the statute. The jury convicted Sheehan on both counts.

         I. The Extortion Plot

         Because the jury found Sheehan guilty of all charges relevant to this appeal, "we view the evidence in the light most favorable to the government." United States v. Mergen, 764 F.3d 199, 202 (2d Cir. 2014) (internal quotation marks omitted). So viewed, the evidence established the following facts.

         At some point prior to October 2012, Sheehan purchased a prepaid cell phone and the components necessary to create a pipe bomb. Using a pipe, end caps, powder from shotguns shells, and an igniter from a model rocket, Sheehan assembled and detonated a pipe bomb in a shed.[1] The explosion left a hole in the floor. Thereafter, Sheehan assembled a similar device using powder from shotgun shells, a metal pipe and end caps, a nine-volt battery, a pull string and switch, and (per his subsequent confession) another model rocket igniter, and placed it in a cardboard light fixture box previously purchased from a Home Depot.[2] Several days later, while wearing a disguise consisting of a wig, arm sling and make-up, he placed the cardboard box containing the device in the lighting department of the Huntington Station Home Depot. Sheehan, who is allergic to cats, also planted cat hair along with the device to throw off investigators, and further attempted to conceal his identity by changing a character on his license plate number with a marker. Sheehan did not initially connect the pull string to the shelf, but about a week to ten days later, Sheehan returned to the Home Depot and, using a construction adhesive transported in a ketchup packet, affixed the string extending from the device to the shelf "so that it would look like it would work." G.A. 13.

         In mid-October, approximately two weeks after he glued the pull string to the shelf, Sheehan sent a handwritten letter to the Huntington Station Home Depot.[3] The letter states, in full:

To the store mgr:
There is a bomb in the light box in the lighting dept. SKU # 491-803. YOU'RE IN NO DANGER. The battery is not connected [and] igniter is separated. It cannot go off: I needed to prove I can make a device [and] get 'em in the stores undetected.
I want two million (1.5 in 100, .5 in 50) or I will shut down all your [Long Island] stores on Black Friday. I can detonate 3 devices in 3 different stores remotely via [cellular phone]. Then bomb threats will close the rest. Doing this on Thanksgiving will assure no one gets hurt, except your wallet.
I will give you until the week of Oct. 26th to notify the suits in Atlanta [and] to get the cash. If you go to the police or feds I will go to the media - then you risk scaring off way more than two million in sales, and copycat actions.
Pay me this one time and you have my word you will never hear from me again. I am going to a warm climate with thin brown girls and drink myself to death. I will also get a two mill[ion dollar] life insurance policy naming Home Depot beneficiary. So consider this an interest free loan.
The other devices are 2[.5]ʺ by 6ʺ black pipe with 1 pound of roofing nails siliconed to them each.
If you do not pay employees will be the first then customers last. Please don't let this happen.
I will call your store at noon on Oct. 17th extension 300 to see what you decide.
I will know if you go to the cops. I can see your store all day.
Pay me - end this - raise your prices 10 cents [and] break even.

G.A. 16-17.[4]

         The Home Depot was subsequently evacuated. Members of the Suffolk County bomb squad located what appeared to be an improvised explosive device ("IED") in a cardboard light fixture box on a shelf in the lighting department. The device was x-rayed. Upon visual observation of the device and the x-ray images, the device appeared to be a pipe bomb consisting of a metal pipe and two metal end caps with wires and a nine-volt battery extending from the device. The device was affixed to the shelf via a string connected to a pull switch on the device and to a red carabiner glued to the shelf. The string appeared to be part of a triggering mechanism such that, when the device was picked up by a victim, the string attached to the shelf would pull the switch attached to the device (and, presumably, detonate it). The x-rays did not, however, provide the bomb squad with an image of the interior of the pipe.

         Standard procedure for disarming a pipe bomb requires the removal of an end cap to prevent pressure from building up inside the pipe. Before attempting to remove an end cap, the bomb squad moved the device to the back of the store to prevent accidental detonation in the lighting department, which contained metal and glass. Next, the bomb squad used a robot equipped with a Percussion Actuated Nonelectric Disrupter to shoot a disintegrating projectile at the pipe bomb in order to knock off an end cap. The device exploded, however, damaging the ceiling, walls, and doors on either end of the area in which the bomb had been placed. Post-detonation testing revealed that the powder inside the pipe bomb was double-base smokeless powder.

         Two days later, Andrew Salvoni, the Home Depot manager, received a phone call from Sheehan. That call was recorded. During the call, Sheehan reiterated his demand for money, but lowered the request to one million dollars. Sheehan subsequently sent a second, typed, letter addressed to Salvoni in which Sheehan apologized for the stress he was causing Salvoni and stated that his goal was "to get the money, get away . . . [, ] and not hurt anyone." G.A. 28. He then wrote:

To achieve my goal I am going to be wired up like a Christmas tree. I have 2 devices strapped to a belt and 1 to a neck chain that I will be wearing, wired together and attached to a "deadman" switch in my hand. SO PLEASE tell authorities not to approach me[.] I do NOT want to be the cause of a fatherless child (they always have small children). To keep from being shot from a distance I am going to deposit in one of your stores the morning of the drop a new device I designed. I attached a 2'' x 6'' pipe w[ith] 1 lb. of roofing nails glued to outside, wired to a 6 volt battery w[ith] 2 igniters to one of your digital thermostats set for 68 degrees. I put a[n] ice pack in the box that should give me no less th[a]n 11 hours to get money, get away and buy back device. I will call you when all is clear. You have my word and my word is my bond. . . .
If you guys try to screw me - You told me your company would pay. I have not lied to you or tried to hurt anyone, so if you lied or plan to trick me this whole thing will become personal. If you drop off ANYTHING besides U.S. circulated currency I will end Black [F]riday and all following sales events until I am caught.

G.A. 28. Sheehan later called Salvoni again and expressed anger about the presence of the police.

         Using telephone records, agents of the Federal Bureau of Investigation ("FBI") were able to identify the number of Sheehan's prepaid cellular phone and locate the phone, thereby enabling the agents to locate and arrest Sheehan. Upon arrest, Sheehan agreed to make a written statement. Sheehan's written confession admitted to purchasing a prepaid cellular phone and materials for making a pipe bomb, and creating and detonating a test bomb in a shed. Sheehan further admitted to creating a similar device using smokeless powder (from shotgun shells), a pipe and end caps, a nine-volt battery and a pull string switch, and a model rocket igniter; planting that device in the Home Depot; and returning to the Home Depot to attach the pull string to the shelf.

         Sheehan also described his escape plan:

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.

G.A. 14-15. Prior to his arrest, Sheehan had purchased a wetsuit and an air tank.

         II. The ...


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