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Criminal Resource Manual

1441. Discussion of Selected Section 842 Offenses

Section 842(a)(1) makes it unlawful for a non-licensee to import, manufacture or deal in explosive materials. While the term "deal" is not defined, a single sale with evidence of intent to engage in future sales, is sufficient and that defendant cannot avail himself of the "single sale" defense. See United States v. Hamilton, 689 F.2d 1262, 1272 (6th Cir. 1982), cert. denied, 459 U.S. 1117 (1983).

Section 842(a)(2) makes it unlawful to withhold information or make any false oral or written statement "for the purpose of obtaining explosive materials." While a defendant may argue that a false statement was given for a different purpose, the United States Court of Appeals for the Fourth Circuit has interpreted "for the purpose of" to be a description of the explosives transaction, that the dealer is also statutorily required to keep records about. See United States v. Johnson, 726 F.2d 1018, 1020-21 (4th Cir. 1984); see also H.R. Rep. No. 91-1549, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. and Adm. News 4007, 4043. Additionally, a truthful statement made in the context of a larger illegal operation is not a violation of this subsection. See United States v. Lake, 985 F.2d 265, 270 (6th Cir. 1993)(although mine was unlicensed, miner's conviction could not be sustained where he stated explosives were for mining).

Section 842(a)(3)(A) bars a non-licensee or non-permittee from engaging in the knowing interstate shipment, transportation or receipt of explosive materials, except that a non-licensee lawful purchaser may transport purchased explosives across a contiguous State border so long as the transportation, shipment or receipt of explosives is lawful in the destination State. Congress considered this a key provision of Chapter 40. See H.R. Rep. No. 91-1549, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. and Adm. News 4007, 4042.

Section 842(a)(3)(B) prohibits nonlicensees and nonpermittees from knowingly distributing explosive materials to any unlicensed person who the distributor knows or has reasonable cause to know does not reside in the distributor's State. Explosive materials include explosives, blasting agents, and/or detonators. United States v. Blackwell, 946 F.2d 1049, 1053 (4th Cir. 1991).

Section 842(f) is a specific intent crime, where it is unlawful for any licensee or permittee to willfully fail to fulfill the mandated record-keeping for any type of explosives transaction.

Section 842(h) was broadened by the Antiterrorism Act of 1996, §  707, 108 Stat. at 1296, to prohibit knowing unlawful possession of stolen explosives. This subsection now reads:

(h) It shall be unlawful for any person to receive, possess, transport, ship, conceal, store, barter, sell, dispose of, or pledge or accept as security for a loan, any stolen explosive materials which are moving as, which are part of, which constitute, or which have been shipped or transported in, interstate or foreign commerce, either before or after such materials were stolen, knowing or having reasonable cause to believe that the explosive materials were stolen.

The new subsection also requires an interstate nexus that was missing in the older statute. The interstate nexus, however, may be supplied if the stolen explosives came from a shipment intended for interstate movement.

[cited in USAM 9-63.900]