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United States v. Kirkland

United States Court of Appeals, Ninth Circuit

November 28, 2018

United States of America, Plaintiff-Appellee,
v.
Kenneth William Kirkland, Defendant-Appellant.

          Argued and Submitted July 10, 2018 Pasadena, California

          Appeal from the United States District Court for the Eastern District of California, No. 1:15-cr-00322-DAD-BAM-1 Dale A. Drozd, District Judge, Presiding

          Carlton F. Gunn (argued), Pasadena, California, for Defendant-Appellant.

          Angela Scott (argued) and Christopher D. Baker, Assistant United States Attorneys; Camil A. Skipper, Appellate Chief; United States Attorney's Office, Fresno, California; for Plaintiff-Appellee.

          Before: D. Michael Fisher, [*] Paul J. Watford, and Michelle T. Friedland, Circuit Judges.

         SUMMARY [**]

         Criminal Law

         The panel affirmed the defendant's convictions and sentence for being a felon in possession of a destructive device in violation of 18 U.S.C. § 922(g)(1) and possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d).

         The defendant contended that the definition of "destructive device" in 18 U.S.C. § 921(a)(4)(C) requires possession of every component necessary to construct a functional weapon, and that he would be entitled to a judgment of acquittal because the government did not introduce any evidence to establish that he possessed the eight C-cell batteries needed for the device in question to operate.

         The panel held that § 921(a)(4)(C) requires only that the defendant possess a combination of parts from which a functional device "may be readily assembled"; that the requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part; and that the "readily assembled" element can still be met so long as the defendant could acquire the missing part quickly and easily, and so long as the defendant could incorporate the missing part quickly and easily. The panel concluded that because the defendant could have quickly and easily obtained the missing batteries assuming he did not have them lying around the house already, and because he could have quickly and easily incorporated them into his partially constructed bomb to render it functional, ample evidence supports the conclusion that a functional explosive device could be readily assembled from the combination of parts the defendant possessed.

          OPINION

          WATFORD, CIRCUIT JUDGE:

         When executing a search warrant at Kenneth Kirkland's home, police officers discovered a partially constructed homemade bomb concealed inside a shoe box. The device contained: a battery box designed to hold eight C-cell batteries, which served as the device's power source; a radio frequency receiver to pick up the radio signal that would detonate the device; a detonator; wires to conduct electricity from the batteries to the detonator; and shotgun shells that served as the explosive main charge. All of the components necessary for the device to function were present except for the eight C-cell batteries. An explosives expert testified at trial that to render the device functional, Kirkland simply had to insert the batteries into the battery box and connect the detonator to the power source. That process, the expert said, would take "a matter of minutes."

         Based on Kirkland's possession of this homemade bomb, the jury convicted him of being a felon in possession of a destructive device in violation of 18 U.S.C. § 922(g)(1), and possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d). On appeal, Kirkland challenges the sufficiency of the evidence to support his convictions, on the ground that the device he possessed does not qualify as a "destructive device." He also argues that his sentence should not have been enhanced under the "destructive device" provision of the Sentencing Guidelines, U.S.S.G. § 2K2.1(b)(3)(B), as that enhancement turns on the same definition of "destructive device." (We resolve his remaining contentions in an unpublished memorandum disposition filed concurrently with this opinion.)

         Both of the statutes under which Kirkland was convicted prohibit the unlawful possession of a "firearm," which is defined to include a "destructive device." 18 U.S.C. § 921(a)(3)(D); 26 U.S.C. § 5845(a)(8). Both statutes-one a provision of the Gun Control Act of 1968, the other a provision of the National Firearms Act-define the term "destructive device" in almost identical language. 18 U.S.C. § 921(a)(4); 26 U.S.C. § 5845(f). We will refer throughout to the definition found in the Gun Control Act, but our analysis applies equally to the ...


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