Appeal from the United States District Court for the Western District of Wisconsin. No. 94 CR 29--Barbara B. Crabb, Judge.
Before ESCHBACH, COFFEY and EVANS, Circuit Judges.
SUBMITTED JANUARY 11, 1996
While investigating a domestic dispute, law enforcement authorities discovered an assortment of guns, grenades, and detonators in Larry Copus' residence. Copus was charged in a three-count indictment with various weapons violations. Count I charged Copus with unlawfully possessing a machine gun, in violation of 18 U.S.C. sec. 922(o)(1). Count II charged Copus with unlawfully possessing a silencer, in violation of 26 U.S.C. sec. 5861(d). Count III charged him with unlawfully manufacturing a firearm, in violation of 26 U.S.C. sec. 5861(f). A jury convicted Copus on all three counts, and the district court sentenced him to 97 months' imprisonment to be followed by a three-year term of supervised release. In this appeal, Copus challenges: the sufficiency of the evidence to convict him under Count III, the district court's decision to add six points to his base offense level for manufacturing fifty or more "destructive devices," and the constitutionality of the statutes under which he was prosecuted. We affirm.
Defendant Larry J. Copus resided with his wife and children in Edgerton, Wisconsin. On March 13, 1994, several police officers were dispatched to Copus' residence in response to a call from Copus that his wife had held a gun on him and threatened him. By the time the officers arrived, Copus had taken the handgun from his wife and she had fled the house. Copus' daughter informed the officers that another handgun was involved in the dispute.
In the process of searching the house for the other handgun, one of the officers discovered a rifle with a silencer in a gun case that had been converted into a machine gun. The officers also found a toolbox that contained twenty-seven shell casings. These shell casings had been converted into improvised detonators. The shell casings had been filled with explosive powder and then epoxied shut. Each detonator had a fuse attached to the shell casing. The toolbox also contained three hand grenade bodies, various hand grenade parts and explosive mixtures.
Not surprisingly, these discoveries led to further investigation of Copus. The Bureau of Alcohol, Tobacco, and Firearms searched Copus' residence and found explosive powder, U.S. military manuals detailing the manufacture of explosive devices and incendiary charges, and an improvised incendiary device. Still further investigation led authorities to a storage locker rented by Copus. In the storage locker, they found two pipe bombs made from 1/2-inch by 8-inch steel pipe in addition to four assembled hand grenades with pyrotechnic fuse protruding from the detonator assembly. Each of the four hand grenades and two pipe bombs were fitted with an improvised detonator similar to those recovered from Copus' residence. Also found in the storage locker were an additional twenty-three improvised detonators. Copus told authorities that he used the various devices found in his possession for blowing up stumps.
On appeal, Copus raises three issues. First, Copus challenges the sufficiency of the evidence to support the jury's verdict that he unlawfully manufactured "destructive devices," as that term is defined in the National Firearms Act, ch. 757, 48 Stat. 1236 (1934) (codified as amended at 26 U.S.C. secs. 5801 et seq.). Second, Copus argues that the district judge erred by increasing his offense level pursuant to U.S.S.G. sec. 2K2.1(b) based on a finding that Copus' offense involved fifty or more "destructive devices." Third, Copus challenges the constitutionality of the statutes under which he was prosecuted. He claims that the Supreme Court's decision in United States v. Lopez, 115 S. Ct. 1624 (1995), renders invalid his conviction under 18 U.S.C. sec. 922(o) for the possession of a machine gun. He also claims that the provisions of the National Firearms Act under which he was convicted cannot be justified on the basis of either the Commerce Clause or Con gress' taxing power.
A. Sufficiency of the Evidence
Count III of the indictment charged Copus with unlawfully making a "destructive device," in violation of 26 U.S.C. sec. 5861(f). *fn1 Copus maintains that there was insufficient evidence to support a verdict that his home-made detonators constituted "destructive devices" as that term is defined in the National Firearms Act. The National Firearms Act defines a "destructive device" as:
(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than ...