United States v. Jeffrey Belmont

Filing

OPINION FILED - THE COURT: Roger L. Wollman, James B. Loken and Duane Benton AUTHORING JUDGE:Duane Benton (PUBLISHED) [4434944] [15-3721]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3721
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jeffrey Belmont
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 19, 2016
Filed: August 8, 2016
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Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Jeffrey L. Belmont pled guilty to manufacturing explosives in violation of 18
U.S.C. §§ 842(a)(1), 844(a)(1). He reserved the right to appeal the meaning of
“engage in the business” in § 842(a)(1). The district court1 sentenced him to six
1

The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.

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months’ imprisonment, two years’ supervised release, and a fine of $100. Belmont
appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
A search of a shed on Belmont’s property yielded 36 completed M-series
improvised explosive devices (IEDs)—found next to a hydraulic press located on a
work bench—and 28 partially completed IEDs. The completed IEDs were functional;
the partially completed IEDs lacked only fuses. All the IEDs—commonly called
M80s—had over 130 milligrams of an explosive material. According to the Bureau
of Alcohol, Tobacco, Firearms, and Explosives (ATF), all the IEDs had a perchlorate
explosive mixture of potassium perchlorate and aluminum powder—the primary
ingredients for flash powder, a covered material under the explosives statute. See 18
U.S.C. § 841(d); 27 C.F.R. § 555.23. A search of Belmont’s home yielded over
1,000 pounds of potassium perchlorate, over 1,000 pounds of aluminum powder, and
large spools of fuse. Also found in the home: (1) various invoices and shipping
documents for small quantities of tubes and end caps, addressed to Belmont; (2) over
1,000 candy-striped cardboard tubes of various sizes, most with one end cap; and (3)
many sizes of end caps.
Other items in Belmont’s shed included: (a) metal mixing bowls, funnels, and
sifting screens; (b) a white trash bag with 45 candy-striped cardboard tubes,
measuring 6” x 1.25” with plastic end caps on one end; (c) a cardboard box with 765
candy-striped cardboard tubes of assorted sizes; (d) another box with 53 red cardboard
tubes 2.5” x 1” in size; (e) 104 red cardboard tubes 2” x 9/16” in size; (f) a bucket
with 85 red cardboard tubes 2.5” x 1” in size, and two silver cardboard tubes ½” x
1.25” with hobby fuse in each tube, plus one red-and-white tube 3” x 5” in size, and
various paper end plugs; (g) a plastic trash bag with paper and plastic end caps and
plugs; (h) a plastic container with hydraulic press instructions, pyrotechnic recipes,
a small metal bowl, and other tools and items; and (i) a powder measuring kit. With
all these components and ingredients, Belmont had the ability to manufacture around
2,000 IEDs.
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Belmont was charged with engaging in the business of manufacturing explosive
materials without a license: “It shall be unlawful for any person—(1) to engage in the
business of importing, manufacturing, or dealing in explosive materials without a
license issued under this chapter.” 18 U.S.C. § 842(a)(1) (“the explosives statute”).
Belmont did not have a license to manufacture explosives. The government found no
historical evidence he sold any explosive materials or items. However, at the plea
hearing, Belmont admitted traveling to conventions to sell “components for hobbyists,
pieces—cardboard tubes, end caps, ball shells, rocket tubes, just anything pyrotechnicrelated that wasn’t explosive.” Belmont also admitted selling the chemical
components at conventions and by mail-order. The presentence investigation report
details an explosion at a Kansas City home that caused critical injuries and one death.
The occupants of the home were manufacturing IEDs from chemical powders they
purchased from Belmont. The presentence report also details a website,
“pastimepyrochemicals.com,” run by A Whole New Look Inc., which Belmont
operated. The site sold fuels, oxidizers, additives, binders, stabilizers, and color
agents associated with explosive-making.
Before pleading guilty, Belmont argued that under the explosives statute, he
would be in the business of manufacturing explosives only if it occupied his time,
attention, and labor for the purpose of livelihood or profit. Belmont asserted he was
manufacturing fireworks as a hobby, not for livelihood or profit. The district court
found that at trial, the government would “not have to prove that the defendant
intended to sell or seek livelihood or profit from the explosive manufacturing
activities.” Belmont then pled guilty, reserving the right to appeal the court’s
interpretation of the explosives statute.
This court reviews de novo the district court’s interpretation of the statute.
United States v. Williams, 136 F.3d 547, 550 (8th Cir. 1998). This court assumes that
“Congress intended to adopt the plain meaning or common understanding of the
words used in a statute.” United States v. Petruk, 781 F.3d 438, 441 (8th Cir. 2015).
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Belmont urges this court to interpret “engage in the business” as it interpreted
the same phrase in the Gun Control Act. See United States v. Perkins, 633 F.2d 856
(8th Cir. 1981), interpreting 18 U.S.C. § 922(a)(1) (1968). The Gun Control Act
prohibited any person “except a licensed importer, licensed manufacturer, or licensed
dealer, to engage in the business of importing, manufacturing, or dealing in firearms
. . . .” § 922(a)(1) (1968). Until 1986, the Gun Control Act did not define the phrase
“engage in the business.” Before 1986, this court held that “the proper focus in
ascertaining ‘business’ is whether the pursuit ‘occupies time, attention and labor for
the purpose of livelihood or profit’ by the person and not merely the number of sales.”
Perkins, 633 F.2d at 860. Contra, e.g., United States v. Swinton, 521 F.2d 1255,
1258 (10th Cir. 1975) (holding § 922(a)(1) “does not require that the Government
establish that a person engaged in the business of dealing in firearms make a profit”
and describing the circuit split). In 1986, Congress resolved the circuit split, defining
“engage in the business” in the Gun Control Act to require a livelihood or profit
motive. See § 921(a)(21)(A). (“The term ‘engaged in the business’ means . . . as
applied to a manufacturer of firearms, a person who devotes time, attention, and labor
to manufacturing firearms as a regular course of trade or business with the principal
objective of livelihood and profit through the sale or distribution of the firearms
manufactured”).
Belmont contends that the Perkins definition—“for the purpose of livelihood
or profit”—should control the explosives statute. However, Congress—in adopting
(more than) the Perkins definition—clarified that it amended the Gun Control Act
because of Second Amendment concerns. Congress said that the “Firearms Owners’
Protection Act” was “additional legislation to correct existing firearms statutes and
enforcement policies” due to “the rights of citizens . . . to keep and bear arms under
the second amendment to the United States Constitution.” Firearms Owners’
Protection Act, Pub. L. 99-308, § 1(b)(1)-(2), 100 Stat. 449 (May 19, 1986). The
Second Amendment does not protect manufacturing explosives. See United States v.
Graham, 305 F.3d 1094, 1106 (10th Cir. 2002) (rejecting the “contention that section
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842(a)(1) [the explosives statute] violates his constitutional rights guaranteed” by the
Second Amendment). See generally District of Columbia v. Heller, 554 U.S. 570,
627 (2008) (The “sorts of weapons protected were those ‘in common use at the time.’
. . . . We think that limitation is fairly supported by the historical tradition of
prohibiting the carrying of ‘dangerous and unusual weapons.’”). Importantly, in the
1986 Firearms Owners’ Protection Act, Congress did not amend the explosives
statute—a statute in the Organized Crime Control Act of 1970. This court’s
interpretation of the Gun Control Act in the Perkins case does not control the meaning
of the explosives statute’s phrase “engage in the business.”
The Tenth Circuit has interpreted “engage in the business” in the explosives
statute. See Graham, 305 F.3d at 1101-04. A jury convicted Graham of engaging in
the business of dealing in explosive materials without a license. Id. at 1097, citing §
842(a)(1). Graham argued that “engage in the business of . . . dealing” required the
government to prove “that the defendant engaged in the sale of explosives as his
primary business, or for profit as a means of sustaining his livelihood.” Id. at 1099.
Graham urged the Tenth Circuit to adopt the Firearms Owners’ Protection Act’s
definition. Id. at 1101. The court declined, concluding that “intent to profit is not a
required element of the offense.” Id. at 1103. The Tenth Circuit held that “a person
would be ‘engage[d] in the business’ of dealing in explosives under section 842(a)(1)
if he ‘take[s] part’ in, ‘occup[ies] or involve[s him]self,’ or is otherwise ‘active’ in the
‘buying and selling’ or ‘trad[ing]’ of explosives in ‘commerce.’” Id. at 1102. “Stated
another way, one is guilty of ‘engag[ing] in the business’ of dealing in explosives
under the statute if one has explosives ‘on hand or is ready and able to procure them
for the purpose of selling them from time to time to such persons as might be accepted
as customers.’” Id. The Tenth Circuit found that this “broad definition of the term
‘business’ . . . is the most consistent with the broad corrective and remedial purposes
of the explosives statute.” Id. at 1103.

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The Tenth Circuit’s definition is supported by another section of the explosives
statute (enacted in the same Act of Congress as § 842(a)(1)). See Organized Crime
Control Act of 1970, Pub. L. 91-452, Title XI, § 1102(a), 84 Stat. 922, 952-53 (Oct.
15, 1970); Homeland Security Act of 2002, Pub L. 107-296, Title XI, 116 Stat. 2135
(Nov. 25, 2002); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal
principle of statutory construction’ that ‘a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.’”). The explosives statute defines “Manufacturer”
as “any person engaged in the business of manufacturing explosive materials for
purposes of sale or distribution or for his own use.” 18 U.S.C. § 841(h). By the
definition of “Manufacturer,” the explosives statute includes a person in the business
of manufacturing explosives who does not sell them, but only distributes them. See
§ 841(n) (“Distribute” means “sell, issue, give, transfer, or otherwise dispose of.”).
The statute does not require proof of an intent to seek livelihood or profit in order to
prove a person engaged in the business of manufacturing explosives without a license.
Belmont also insists his manufacturing was a “hobby” not covered by the
statute. He emphasizes the ATF’s interpretation of § 841(h)’s “own use” language:
“A manufacturer’s license is required by persons engaged in the business of
manufacturing explosive materials for sale, distribution, or for their own business
use.” ATF Federal Explosives Law and Regulations 64 (2012), available at
https://www.atf.gov/explosives/docs/publication-federal-explosives-laws-and-regul
ations-atf-p-54007/download (last visited Aug. 3, 2016) (emphasis added). See also
Appendix A (listing authorities Belmont cites).
This court agrees that to engage in the business of manufacturing explosives,
a person’s manufacturing must relate to business, as it is commonly understood. See
Petruk, 781 F.3d at 441 (“Congress intended to adopt the plain meaning or common
understanding of the words used in a statute.”). Under the explosives statute, a person
is engaged in the business of manufacturing explosives by taking part in, occupying
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or involving in, or are otherwise active in manufacturing for the purpose of selling,
distributing, or for their own business use. See Graham, 305 F.3d at 1102; § 841(h).
Stated another way, one engages in the business of manufacturing explosives if one
has explosives “on hand or is ready and able to procure them for the purpose of selling
[or distributing] them from time to time to such persons as might be accepted as
customers [or for their own business use].” See Graham, 305 F.3d at 1102. This
construction implements the explosives statute’s purpose to strengthen federal
regulation of explosives. See United States v. Dawson, 467 F.2d 668, 671 (8th Cir.
1972) (explaining that the explosives statute “represents a seriously conceived and
comprehensive attempt by Congress to protect interstate and foreign commerce
against disruption by reducing the hazards to persons and property associated with the
misuse of explosive materials”). Cf. ATF Ruling 75-31, 1975 WL 28638 (Oct. 1975)
(stating “the term ‘engaged in the business’ is not susceptible to a rigid definition,”
though “it is generally interpreted to imply an element of continuity or habitual
practice as against a single act or occasional participation”).
Based on his reading of the explosives statute, Belmont believes there was an
insufficient factual basis for his guilty plea because the government did not offer proof
he engaged in the business of manufacturing explosives for the purpose of livelihood
or profit. Belmont also argues that there was an insufficient factual basis because the
explosives statute does not prohibit manufacturing explosives as a hobby (when it is
a personal, non-business use). Generally, a challenge to the legal sufficiency of an
undisputed factual basis is a straightforward question of law, reviewed de novo.
United States v. Butler, 637 F.3d 519, 521 (5th Cir. 2011). This court’s “review of
the factual basis for a guilty plea is limited. We ask only whether there was sufficient
evidence before the district court upon which a court may reasonably determine that
the defendant likely committed the offense.” United States v. Johnson, 715 F.3d
1094, 1101 (8th Cir. 2013). “We have held that facts gathered from the prosecutor’s
summarization of the plea agreement and the language of the plea agreement itself,

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a colloquy between the defendant and the district court, and the stipulated facts before
the district court are sufficient to find a factual basis for a guilty plea.” Id.
First, as discussed, the government need not prove Belmont engaged in the
business of manufacturing explosives for the purpose of livelihood or profit. Second,
although Belmont asserts on appeal that he was manufacturing explosives for his own
personal, non-business use, the district court, in its Order, stated, “The parties agreed
at oral argument that this case does not involve any assertion that the explosives at
issue were for personal use.” The district court specifically found that “the
government would not have to prove that the defendant intended to sell or seek
livelihood or profit from the explosive manufacturing activities.” (Emphasis added).
Because the term “Manufacturer” includes manufacturing “for purposes of sale or
distribution or his own [business] use,” the district court correctly concluded the
government need not prove the manufacturing was for the purpose of selling or
seeking livelihood or profit—as the government may prove a person is engaged in the
business of manufacturing for the purpose of distribution or own business use. See
§§ 841(h), (n).
Belmont had 36 completed IEDs, 28 partially-completed IEDs, over 1,000
pounds of potassium perchlorate, over 1,000 pounds of aluminum powder, large
spools of fuse, and the materials listed in the second and third paragraphs of this
opinion. These items were enough materials to manufacture around 2,000 IEDs. The
sheer quantity of completed and partially completed IEDs (and materials) shows that
Belmont was engaged in the business of manufacturing explosives. There was a
sufficient factual basis for the guilty plea. The district court reasonably determined
that Belmont likely committed the offense and did not err in accepting his guilty plea.

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The judgment is affirmed.
Appendix A
ATF Federal Explosives Law and Regulations 64 (2012), available at
https://www.atf.gov/explosives/docs/publication-federal-explosives-laws-and-regul
ations-atf-p-54007/download (last visited Aug. 3, 2016) (“37. When is a
manufacturer’s license required? A manufacturer’s license is required by persons
engaged in the business of manufacturing explosive materials for sale, distribution,
or for their own business use. For example, persons engaged in the business of
providing a blasting service using explosives of their own manufacture would be
required to have a manufacturer’s license. Persons who manufacture explosives for
their personal, non-business use are not required to have a manufacturer’s license . .
. .”).
Binary Explosives: Manufacturing, available at
https://www.atf.gov/explosives/binary-explosives (last visited Aug. 3, 2016)
(expanding on examples of personal business use and stating that “business uses
include manufacturing for use in commercial blasting applications, removing
obstacles such as trees or rocks during construction, theatrical special effects, and for
demonstration or product testing purposes.”)
ATF Letter No. 902030: GLB 07–0147 5400 (Mar. 22, 2007), available at
http://mc-4071-273355444.us-east-1.elb.amazonaws.com/press/releases/2007/03/0
32207-interpretation-pyrotechnic-club-member-activities.html (last visited Aug. 3,
2016) (“A manufacturer’s license is needed only by persons engaged in the business
of manufacturing fireworks for Sale, distribution, or for a commercial use.”).
ATF Explosives Industry Newsletter, Bureau of Alcohol, Tobacco, Firearms and
Explosives (June 2011), available at https://www.atf.gov/file/56586/download (last
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visited Aug. 3, 2016) (explaining that individuals “do not need a manufacturer’s
license if they are manufacturing black powder for their own personal, non-business
use.”).
Explosives Newsletter (June 1997), available at
https://www.atf.gov/file/56491/download (last visited Aug. 3, 2016) (stating a
“manufacturers [sic] license is needed only for persons who manufacture explosives
for sale, distribution, or for business use”).
FBI Intelligence Bulletin 3 (March 5, 2013), available at
https://info.publicintelligence.net/FBI-ExplodingTargets.pdf (last visited Aug. 3,
2016) (stating that persons “manufacturing explosives for their own personal,
nonbusiness use only (e.g., personal target practice) are not required to have a federal
explosives license (FEL) or permit.”).
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