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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