United States of America v.  Amy Tucker

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4618 
AMY TUCKER,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Robert C. Chambers, District Judge.
(CR-02-186)
Argued: May 5, 2004
Decided: July 14, 2004
Before WIDENER and GREGORY, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by published opinion. Senior Judge Beam wrote the opin-
ion, in which Judge Widener and Judge Gregory joined.
COUNSEL
ARGUED: Leah Perry Macia, BAILEY & GLASSER, L.L.P.,
Charleston, West Virginia, for Appellant. Paula Suzanne Klotzbach,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON

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BRIEF: Kasey Warner, United States Attorney, Michael L. Keller,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
OPINION
BEAM, Senior Circuit Judge:
Amy Tucker appeals her jury conviction and sentence for know-
ingly conspiring to make a destructive device in violation of 18
U.S.C. § 371 and 26 U.S.C. § 5861(f). We affirm.
I.
In 2001, Tucker’s cousin was convicted of killing a pregnant
woman with a pipe bomb. In July 2002, Tucker visited the cousin in
jail. Following that visit, prison officials intercepted a letter from this
relative addressed to Tucker. The communication contained a shop-
ping list for buying bomb parts, ways to avoid detection in buying
these supplies, and instructions to ensure the letter had not been tam-
pered with by prison officials. The correspondence also stated that the
list contained therein was just the initial list, and that another list
would be forthcoming once all of the initial items were obtained.
Tucker later learned that the letter had been intercepted by prison offi-
cials. Tucker admitted to authorities that she anticipated receiving the
letter and that she and her cousin had discussed its contents in detail
when she visited him in prison. Tucker explained that she planned to
acquire all the parts contained in the letter to aid in her cousin’s
appeal.
At trial, an expert from the Explosive Technology Branch of the
ATF testified that, in his opinion, collecting and assembling all the
listed items would suffice to create a destructive device as defined in
26 U.S.C. § 5845(f). The expert admitted that the items on the list
could not explode without adding a power source such as a battery.
Since the items could otherwise be readily assembled into an explod-
able appliance, the expert opined that it qualified as an explosive
device. The jury convicted Tucker, and she was sentenced to thirty
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months in prison. Tucker appeals the denial of her motion for acquit-
tal, or, in the alternative, her motion for a new trial.
II.
This Court reviews de novo a district court’s decision to deny a
motion for judgment of acquittal. United States v. Gallimore, 247
F.3d 134, 136 (4th Cir. 2001). The decision to grant or deny a motion
for a new trial is within the broad discretion of the district court.
United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003), cert.
denied, 124 S. Ct. 1408 (2004).
To prove a conspiracy under 18 U.S.C. § 371, the government must
establish an agreement to commit an offense, willing participation by
the defendant, and an overt act in furtherance of the conspiracy.
United States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999). Knowl-
edge and participation in the conspiracy may be proven by circum-
stantial evidence. United States v. Meredith, 824 F.2d 1418, 1428 (4th
Cir. 1987).
Tucker admits that she agreed to purchase the explosive ingredients
on the list. But she argues that, because purchasing the ingredients on
the list would not subject her to criminal liability for possession of a
destructive device under 26 U.S.C. § 5861(f), she cannot be charged
with a conspiracy to make one.
This argument confuses the offense of criminal conspiracy with the
substantive goal of the conspiracy. To convict her of conspiracy to
make a destructive device, the government was only required to
prove, as earlier indicated, an agreement to violate the law, an overt
act, and Tucker’s willingness to participate in the conspiracy. United
States v. Fleschner, 98 F.3d 155, 159-60 (4th Cir. 1996). Proof of a
conspiracy does not require proof that the object of the conspiracy
was achieved or could have been achieved, only that the parties
agreed to achieve it. United States v. Molovinsky, 688 F.2d 243, 247
(4th Cir. 1982).
In this case, the government proved that Tucker visited her cousin
in prison, that they discussed the assembly of a bomb, that her cousin
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would send her a list of component parts comprising the major ele-
ments of a pipe bomb, and that she agreed to purchase the contents
of that list. There was also evidence from which the jury could infer
that her cousin intended to send her further instructions and another
list with more parts in the future. The overt act occurred when her
cousin mailed the first letter. This evidence, coupled with the govern-
ment’s expert testimony that collectively, the materials on the list
would, when assembled, result in the forming of a destructive device,
was sufficient to prove all the elements of the conspiracy.
AFFIRMED
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