UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States
v. Criminal No. 16-cr-033-JD Opinion No. 2018 DNH 049 Daniel E. Musso, Sr.
O R D E R1
Daniel E. Musso, Sr., is charged with four counts of
receiving an unregistered firearm in violation of the National
Firearms Act (“NFA”), 26 U.S.C. § 5801, et seq., and one count
of receiving explosive materials in violation of 18 U.S.C. §
842(a)(3)(A). Musso moves to dismiss all the charges against
him, arguing that the government acted outrageously in handling
critical evidence. In addition, Musso moves to dismiss Counts
I-IV charging violations of the NFA for receiving an
unregistered firearm, arguing that he did not possess a firearm
as defined by that statute. The government objects.
Background
In this case, the government alleges that Musso illegally
received a firearm and explosive materials when he purchased
four M67 military fragmentation grenades from an undercover FBI
agent. Musso’s motion challenges the government’s acquisition
1 Corrected Order omitting extra spacing in paragraph 1, line 6. and handling of those grenades and whether those grenades
qualify as firearms under the NFA.
For purposes of this motion, the following facts about the
grenades are undisputed by both parties. The FBI purchased the
grenades at issue in this case from the United States Marine
Corps in Quantico, Virginia. In November of 2015, the FBI
Explosives Unit in Quantico, Virginia sent the grenades to Brian
Leblanc in Boston, who was a bomb technician for the FBI’s
Boston field office. Shortly thereafter, the FBI began its
investigation concerning Musso.
When Leblanc received the grenades, their original fuzes
had been removed and replaced with inoperable fuzes. As a
result, the grenades would not explode if the pin were pulled,
as they were designed to do. Nevertheless, each grenade
contained 6.5 ounces of Composition B high explosive material
and was capable of exploding by means of a commercial detonator.
Following Musso’s arrest, the FBI searched Musso’s premises and
did not find any fuzes or detonating devices.
Discussion
Musso moves to dismiss all counts, arguing that the
government’s conduct in acquiring, possessing, and transporting
the grenades that it provided him was outrageous. Musso also
contends that dismissal is warranted because the government
2 cannot demonstrate an adequate chain of custody for the
grenades. Finally, Musso moves to dismiss the four counts
against him under the NFA for receiving an unregistered firearm,
arguing that the devices that he allegedly possessed, military
grenades with inoperable fuzes, did not qualify as a firearm
under that statute.
I. Government’s Handling of the Grenades
Musso moves to dismiss the charges against him, arguing
that the government’s handling of the grenades (1) constituted
outrageous conduct and (2) raises questions as to whether the
government will be able to prove a chain of custody for the
grenades.
A. Standard of Review
Under Federal Rule of Criminal Procedure 12(b)(1), “[a]
party may raise by pretrial motion any defense, objection, or
request that the court can determine without a trial on the
merits.” Fed. R. Crim. P. 12(b)(1). “A motion is capable of
pretrial determination ‘if trial of the facts surrounding the
commission of the alleged offense would be of no assistance in
determining the validity’ of the motion.” United States v.
Turner, 842 F.3d 602, 604 (8th Cir. 2016) (quoting United States
v. Covington, 395 U.S. 57, 60 (1969)). Accordingly, although
3 courts may make pretrial factual findings in resolving a
pretrial motion, they may not “make factual findings when an
issue is inevitably bound up with evidence about the alleged
offense itself.” Id. at 605 (internal quotation marks omitted).
B. Outrageous Conduct
In support of his claim of outrageous conduct, Musso points
to an array of federal laws and regulations governing the
handling of weapons and explosive materials, including
registration requirements, military safety regulations, and
excise taxes for explosives. Musso contends that because there
is no evidence that the government complied with these laws and
regulations, the court should infer that the government acted
unlawfully and dangerously, thereby putting the public at risk.
Musso further charges that such conduct is outrageous and that
the remedy for it is the dismissal of the charges against him.
In response, the government has provided an affidavit from
Brian Leblanc, an FBI special agent, who states that the
grenades were stored safely at all times during the
investigation. The government also argues that it is exempt
from the rules and regulations that Musso cites. Finally, the
government argues that even if it did not comply fully with all
of the rules and regulations governing the handling of the
4 grenades, that conduct does not constitute outrageous conduct
that would support dismissal of the charges.
“A defendant's claim of outrageous government misconduct
faces a demanding standard, permitting the dismissal of criminal
charges ‘only in those very rare instances when the government's
misconduct is so appalling and egregious as to violate due
process by shocking . . . the universal sense of justice.’”
United States v. Therrien, 847 F.3d 9, 14 (1st Cir. 2017), cert.
denied, 137 S. Ct. 2227 (2017) (quoting United States v. Luisi,
482 F.3d 43, 59 (1st Cir. 2007)). Although the defense is
theoretically possible, the First Circuit has yet to approve its
use, United States v. Luisi, 482 F.3d 43, 59 (1st Cir. 2007),
and has remarked that it is “almost never successful,” United
States v. Santana, 6 F.3d 1, 4-5 (1st Cir. 1993). Indeed, the
defense is “reserved for only the most egregious circumstances
and should not be invoked each time the government acts
deceptively or participates in a crime that it is
investigating.” Therrien, 847 F.3d at 14 (internal quotation
marks omitted).
In addition, to benefit from an outrageous conduct defense
the defendant must show that the conduct at issue violated some
right of the defendant, not merely that the government harmed
third parties. Santana, 6 F.3d at 9 (overturning district
5 court’s dismissal of indictment for outrageous government
conduct based on the danger posed to the public when government
agents allowed 13 grams of heroin to enter commerce); see also
United States v. Teague, 469 F.3d 205, 210-11 (1st Cir.
2006)(rejecting outrageous conduct defense based on illegal
search of third parties’ property).
Here, the purported outrageous conduct that Musso points to
is the government’s noncompliance with a panoply of federal laws
and regulations concerning the transport and regulation of
explosives and weapons. In the first instance, the relevance of
the alleged conduct to the pending indictment is highly doubtful
on its face, and Musso has not shown the relevance in his
memorandum. Furthermore, even if the court were to take Musso’s
unsubstantiated allegations as true—something that is far from
certain—the conduct at issue does not rise to the level of
outrageousness that is required to dismiss criminal charges. In
other words, the government’s alleged failure to abide by the
cited laws and regulations is not so appalling or egregious as
to shock a universal sense of justice or fundamental fairness.
Further, Musso does not explain how the public safety risk, that
he contends the government may have created, had any detrimental
effect on his due process rights. To that end, Musso has failed
to explain how the government’s acquisition, safekeeping, and
6 transport of the grenades prior to the alleged crime at issue
has any bearing on the matters in this case. Accordingly,
Musso’s motion to dismiss based on the government’s purported
outrageous conduct in handling the grenades is denied.2
C. Chain of Custody
As another basis for dismissal, Musso argues that the
grenades, a critical piece of evidence in the government’s case,
must be excluded from evidence because the government cannot
demonstrate an adequate chain of custody for them. In support,
Musso points to the lack of documentary evidence tracking the
grenades from the time that the FBI acquired them from the
Marines to their arrival at the FBI’s Boston field office.
Musso also asserts that the government’s refusal or inability to
demonstrate compliance with the numerous laws and regulations
that he cited in support of his outrageous conduct argument
requires an inference that the government will not be able to
2 On the last page of his memorandum, Musso raises the argument that the court should also dismiss the indictment based on the government’s alleged misconduct under its inherent supervisory powers. To the extent Musso raises this argument as a distinct basis for dismissal, separate from due process concerns, that argument fails because (1) the conduct alleged is not egregious enough to warrant such a remedy and (2) Musso has not demonstrated that the alleged conduct prejudiced him. See United States v. Houlihan, 92 F.3d 1271, 1291 (1st Cir. 1996) (explaining when courts may use supervisory powers to dismiss charges).
7 demonstrate chain of custody for the grenades. Finally, Musso
contends that the government’s chain of custody form was filled
out months after his arrest, raising questions about its
legitimacy.
In response, the government argues that the chain of
custody inquiry is a factual one that is properly reserved for
trial. The government also argues that it will present evidence
demonstrating that the grenades are admissible. In support, the
government has provided an affidavit from Brian Leblanc, who
states that the grenades have been in his custody from the time
they arrived in Boston until now, except for the hour and
twenty-two-minute period when they were being used for the
undercover transaction at issue in this case. Leblanc asserts
that while the grenades were in his custody, he kept them
safeguarded in compliance with ATF regulations and did not
tamper with them. Finally, the government asserts that “the
manner in which [the] FBI came into possession of the
grenades before their use in this investigation is categorically
irrelevant, since it is of no consequence in resolving the
charges in the indictment.” Doc. no. 75 at 21.
Under Federal Rule of Evidence 901, “[t]o satisfy the
requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to
8 support a finding that the item is what the proponent claims it
is.” Fed. R. Evid. 901(a). If evidence is not “readily
identifiable by a unique feature or other identifying mark” or
is “susceptible to alteration, a testimonial tracing of the
chain of custody is needed.” United States v. Espinal-Almeida,
699 F.3d 588, 609 (1st Cir. 2012) (internal quotation marks
omitted).
When proof of chain of custody is necessary, the testimony
must “‘render it improbable that the original item either has
been exchanged with another or has been tampered with or
contaminated.’” United States v. Anderson, 452 F.3d 66, 80 (1st
Cir. 2006) (quoting United States v. Abreu, 952 F.2d 1458, 1467
(1st Cir. 1992)). Where that standard is met, any gaps in the
chain of custody “‘factor into the weight given to the evidence
rather than its admissibility.’” Id. (quoting Abreu, 952 F.2d
at 1467).
As an initial matter, as the government points out, the
handling of the grenades before the FBI used them in its
investigation of Musso is not relevant to this case. See
Anderson, 452 F.3d at 80 (“In determining whether the evidence
is admissible, the trial court must conclude that it was
reasonably probable that the evidence had not been altered since
the occurrence of the crime.” (internal quotation marks
9 omitted). Therefore, any purported gaps in the chain of custody
for the grenades before they were delivered to the FBI’s Boston
field office for investigatory purposes does not support a
finding that the grenades are inadmissible.
Further, chain of custody is an evidentiary issue that is
usually best decided at trial. See Hinkle v. Ford Motor Co.,
2012 WL 5868899, at *4 (E.D. Ky. Nov. 20, 2012) (“Issues of
authentication and foundation are issues which are better
examined during trial as evidence is presented in context of the
parties’ arguments and testimony.”); United States v. Perez, 405
F. Supp. 2d 852, 856 (N.D. Ohio 2005) (denying motion to dismiss
based on assertion that government will not be able to establish
chain of custody and noting that “[t]he defendant has not cited,
and this court is not aware of any case or cases holding that a
possible inability to construct a seamless chain of custody
entitles a defendant to dismissal before the government has
offered its proof.”). Here, the grenades’ authenticity and
chain of custody involve facts pertinent to the merits of the
case, and therefore any question concerning the admissibility of
the grenades is deferred until trial.
The defendant’s motion to dismiss alleging the government’s
inability to authenticate the grenades is denied. At trial the
defendant may raise any relevant and material challenges to the
10 authenticity of the grenades from the time they arrived at the
FBI’s Boston field office to the time they are offered into
evidence.
II. NFA Counts I-IV
Musso moves to dismiss Counts I-IV, charging him with
receiving an unregistered firearm in violation of § 5861(d) of
the NFA, arguing that the devices that he allegedly received do
not qualify as firearms under that statute.
“[C]ourts must not inquire into the sufficiency of the
evidence underlying the indictment—for when a defendant seeks
dismissal of the indictment, the question is not whether the
government has presented enough evidence to support the charge,
but solely whether the allegations in the indictment are
sufficient to apprise the defendant of the charged offense.”
United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018)
(internal quotation marks omitted). For this reason, courts
“routinely rebuff efforts to use a motion to dismiss as a way to
test the sufficiency of the evidence behind an indictment's
allegations.” Id. (quoting United States v. Guerrier, 669 F.3d
1, 4 (1st Cir. 2011)).
11 Nevertheless, a narrow exception to this rule allows a
district court “to dismiss an indictment where the government
does not dispute the ability of the court to reach the motion
and proffers, stipulates, or otherwise does not dispute the
pertinent facts.” United States v. Weaver, 659 F.3d 353, 355 n*
(4th Cir. 2011) (noting near unanimity among circuit courts in
concluding that courts may decide such a pretrial motion);
United States v. Martinez-Mercado, 145 F. Supp. 3d 150, 151 n.1
(D.P.R. 2015) (deciding motion to dismiss indictment and
observing that “[a]lthough the First Circuit Court of Appeals
has not addressed this issue seven other circuit courts of
appeals have squarely held that district courts may properly
rule on a motion to dismiss an indictment when the facts are
undisputed, the government does not object to the procedure, and
the only question is a legal one.”).
Here, the government has requested that the court resolve
this issue. Furthermore, the facts necessary to decide the
issue are undisputed, meaning that the court’s inquiry is a
question of law. For those reasons, the court will consider
Musso’s motion to dismiss Counts I-IV charging violations of the
NFA.
12 B. NFA Counts I-IV
The government charges Musso with violations of 26 U.S.C.
§ 5861(d), which makes it unlawful “for any person . . . to
receive or possess a firearm which is not registered to him in
the National Firearms Registration and Transfer Record.” Id. at
§ 5861(d). Under the NFA, several types of weapons qualify as a
“firearm,” including a “destructive device.” 26 U.S.C. §
5845(a)(8). The NFA defines a “destructive device” as follows:
The term ‘destructive device' means (1) any explosive, incendiary, or poison gas . . . (B) grenade. . . or (F) similar device; (2) [not relevant]; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term ‘destructive device’ shall not include any device which is neither designed nor redesigned for use as a weapon . . . .
Id. at § 5845(f).
In support of its argument that the grenades without
operable fuzes are destructive devices, and thus firearms under
the statute, the government relies exclusively on the first
subsection of § 5845(f)(1)(B), asserting that the devices Musso
allegedly received were “explosive . . . grenades.” The
government argues that Congress intended § 5845(f)(1) to apply
to any device that is a “paradigmatic . . . example” of certain
categories of the military weapons listed in that subsection.
The government further argues that because the devices at issue
13 were originally designed as grenades for the military, and
because they contained explosives, they were “explosive
grenades” under the NFA, regardless of whether they contained a
mechanism capable of initiating detonation or explosion.
In response, Musso argues that the devices he allegedly
received do not qualify as “explosive grenades” because they did
not have operable fuzes and therefore could not explode. Musso
further contends that because he did not possess any mechanism
that could ignite or detonate the devices, the devices were not
explosive at the time of his arrest.
1. Interpretation of the NFA
To determine the meaning of statutory language, courts
“employ the traditional tools of statutory construction,
including a consideration of the language, structure, purpose,
and history of the statute.” United States v. Gordon, 875 F.3d
26, 33 (1st Cir. 2017) (internal quotation marks omitted). The
starting point of such an inquiry however, “is the text of the
statute itself.” Id. Where Congress has not defined the
language at issue, courts should “assume those words carry their
plain and ordinary meaning.” Id. (internal quotation marks
omitted); see also Artis v. D.C., 138 S. Ct. 594, 603 (2018)
(“[W]e look first to [a statute’s] language, giving the words
14 used their ordinary meaning.” (internal quotation marks
omitted)).
Here, the ordinary meaning of “grenade” implies a device
that contains not only explosive material but also a means of
detonating that explosive material. This conclusion is
supported by the dictionary definition of grenade, which is “[a]
small bomb or explosive missile that is detonated by a fuse and
thrown by hand or shot from a rifle or launcher.” See The
American Heritage Dictionary of the English Language, available
at https://ahdictionary.com/word/search.html?q=Grenade (2018);
see also Oxford Online English Dictionary (defining “grenade” as
“[a] small bomb thrown by hand or launched mechanically,”
available at https://en.oxforddictionaries.com/definition/
grenade, and defining bomb as “[a] container filled with
explosive or incendiary material, designed to explode on impact
or when detonated by a timing, proximity, or remote-control
device,” available at https://en.oxforddictionaries.com/
definition/bomb).
Moreover, the term “grenade” in § 5845(f) is modified by
the word “explosive.” When used as a modifier, that word
suggests that the grenade must, in fact, be capable of
exploding. See The American Heritage Dictionary of the English
Language (defining the adjective explosive as “(1) Relating to
15 or having the nature of an explosion. (2) Tending to explode.”),
available at https://ahdictionary.com/word/search.html?q=
explosive; Oxford English Dictionary (defining the adjective
“explosive” as “[a]ble or likely to shatter violently or burst
apart”), available at https://en.oxforddictionaries.com/
definition/explosive.3 Accordingly, the court concludes that the
ordinary meaning of the phrase “explosive grenade” in § 5845(f)
is a device that is in and of itself capable of exploding.
2. Interpretation by other courts
This interpretation is consistent with decisions from
courts that have considered whether a device that is not capable
of detonating may qualify as a “destructive device” under the
NFA. In United States v. Malone, 546 F.2d 1182 (5th Cir. 1977),
the defendant was convicted under § 5845(3) for possessing a
fragmentation grenade hull that contained no explosive material.
On appeal, the Fifth Circuit overturned Malone’s conviction,
holding that the lack of explosive material precluded the parts
The government contends that the modifiers “explosive, 3
incendiary, or poison gas” in § 5845(f)(1) do not take on their ordinary meaning but instead are meant to delineate the specific way that the device causes destruction. For example, the government asserts that “explosive” in § 5845(f)(1) means that the device at issue creates destruction “by explosion.” Doc. no. 75 at 7. Even if that is true, however, that meaning still contemplates a device that is capable of exploding.
16 in the defendant’s possession from being a destructive device.
Id. at 1184. The court concluded that, although it agreed with
the government that the device had no legitimate or innocent
use, “from a proper interpretation of the statute, the defendant
cannot be guilty of the offenses charged because he did not have
in his possession all of the component parts from which a
destructive device might be readily assembled.” Id.
In United States v. Blackburn, 940 F.2d 107 (4th Cir.
1991), the Fourth Circuit confronted a similar issue. The
defendant in Blackburn was arrested after purchasing thirty
grenades, only two of which contained explosive material. Id.
at 108. After being indicted for and then pleading guilty to a
single count of possessing a grenade, the district court
calculated Blackburn’s sentence under the United States
Sentencing Guidelines, which increased a defendant’s base level
offense based on the number of firearms he possessed. Id. For
purposes of calculating the number of firearms that a defendant
possessed, the Sentencing Guidelines incorporated § 5845’s
definition of “firearm.” Id. In calculating Blackburn’s
sentence under the guidelines, the district court counted the
twenty-eight grenades that did not contain explosive powder as
firearms in Blackburn’s possession. Id.
17 On appeal, the Fourth Circuit concluded that the district
court had erred in including the 28 grenades when calculating
Blackburn’s sentence. Id. at 110. In doing so, the court
framed the relevant legal question as “whether a person can be
deemed in possession of a ‘destructive device’ if he does not
possess one of the requisite parts or ingredients needed to
activate the device.” Id. The Fourth Circuit answered that
question in the negative. Citing Malone, it concluded that “[a]
defendant must possess every essential part necessary to
construct a destructive device.” Id.
Likewise, in United States v. Osuna, 189 F.3d 1289 (10th
Cir. 1999), a defendant appealed the calculation of his
sentence, arguing that the district court had incorrectly
counted nine inert grenades as firearms in his possession under
the Sentencing Guidelines. Id. at 1294. The government
conceded that the inert grenades should not have been included,
and the Tenth Circuit agreed. Id. at 1295. Quoting Blackburn,
the Tenth Circuit concluded that “‘[i]nert’ hand grenades, by
definition, are not ‘destructive devices’ nor can they be
‘readily assembled’ into ‘destructive devices.’” Id.4
4 The court in Osuna did not explain why the grenades were “inert.”
18 The government argues that Malone and Blackburn are not
applicable here because they were decided under, § 5845(f)(3),
the “combination of parts” subsection, not § 5845(f)(1).
Subsection 5845(f)(3) provides that disassembled parts may only
be deemed a destructive device if they are a combination of
parts “from which a destructive device may be readily
assembled.” Accordingly, the Blackburn and Malone courts both
considered whether a fully assembled device containing the parts
that the defendant possessed would constitute a “destructive
device” under the NFA, which is the same issue raised in
construing § 5845(f)(1). Therefore, the court concludes that
the holdings in Malone and Blackburn, that a destructive device
must contain certain essential components, also applies to cases
under § 5845(f)(1).
It is correct, as the government points out, that Blackburn
and Malone concluded that explosive material, not a detonation
mechanism, was an essential component of a destructive device.
In both Malone and Blackburn, however, the courts reasoned that
the devices were not destructive devices because explosive
material was one of the essential components of a destructive
device. Malone, 546 F.2d at 1184 (“[T]he defendant cannot be
guilty of the offenses charged because he did not have in his
possession all of the component parts from which a destructive
19 device might be readily assembled.”(emphasis added)); Blackburn,
940 F.2d at 110 (“A defendant must possess every essential part
necessary to construct a destructive device.”). Given that a
grenade’s only function is to explode, it follows that a
mechanism for detonating the device is also an essential part of
an “explosive grenade” under the NFA.5
Recently, a judge in this district applied similar
reasoning in concluding that grenades containing inoperable
fuzes are not destructive devices under § 5845(f)(1). In United
States v. McLarnon, 15-cr-00212-SM-1, the defendant, who was
charged with two counts of receiving an unregistered firearm
under § 5861(d), moved for judgment of acquittal, arguing that
the evidence at trial demonstrated that the devices—which were
grenades altered in similar fashion to those at issue here—
contained inoperable fuzes and therefore could not readily
detonate. See McLarnon, Motion for Rule 29 Judgment (doc. no.
121).6 Based on that evidence, the defendant asserted that the
5 The Blackburn court framed the legal issue that it was deciding as “whether a person can be deemed in possession of a ‘destructive device’ if he does not possess one of the requisite parts or ingredients needed to activate the device.’” Blackburn, 940 F.2d at 110 (emphasis added).
6 As Leblanc acknowledges in his affidavit, the altered grenades in both McLarnon and this case come from the same batch of six grenades with inert fuzes that he received from the FBI’s Explosives Unit in Quantico, Virginia. See doc. no. 75-1 at ¶¶ 2-3.
20 devices were not destructive devices under the NFA. Id. The
court granted the defendant’s motion, concluding that the
grenades were not destructive devices. See McLarnon, oral
order, docket entry 1/29/2018.
In support of its different interpretation, the government
argues that several circuit courts have rejected the idea that a
device must be operable to qualify as a destructive device under
the NFA and other statutes with similar definitions of
“destructive device.” See doc. no. 75, pp. 8-9. In each of
those cases, however, even though the device could not explode
as designed, the government offered evidence that the device at
issue was capable of exploding on its own without additional
parts.7 Accordingly, the cases cited by the government do not
7 See United States v. Sheehan, 838 F.3d 109, 118 (2nd Cir. 2016) (upholding conviction because jury could have relied on expert testimony “that the device could be detonated in some manner, such as by dropping the device or by unscrewing the end cap” and observing that other circuits “have held that the touchstone of whether a device an ‘explosive bomb’ is simply whether the bomb is capable of exploding”); United States v. Unthank, 107 F. App'x 625, 629 (6th Cir. 2004) (upholding conviction because, in part, “according to trial testimony that the jury was free to credit, the device did in fact explode, although not with the high pressure fragmentation commonly associated with fragmentation grenades”); United States v. Langan, 263 F.3d 613, 625–26 (6th Cir. 2001) (affirming conviction because device “was capable of explosion by being thrown or dropped” and initiation circuity could have been achieved merely by stripping wires already on device); United States v. Evans, 526 F.2d 701, 707 (5th Cir. 1976) (expert testified that dynamite, which did not detonate originally,
21 stand for the proposition that a device that cannot explode in
and of itself is nevertheless a destructive device under the
NFA. Instead, in those cases, the devices were capable of
exploding without additional parts and therefore qualified as
destructive devices.
The government also asserts that it need not demonstrate
that the grenade was capable of exploding because courts have
“consistently held that ‘operability’ is not a required element
in other firearm cases.” Doc. no. 75 at 11-13. In support, the
government argues that courts have instead assessed whether a
device was designed to be a firearm. Id. at 13. The cases on
which the government relies interpreted different provisions of
federal law, which define a firearm broadly to include devices
“designed to” shoot or expel a projectile.8 While Congress used
could have done so if given the opportunity to dry); United States v. Kiliyan, 456 F.2d 555, 557 (8th Cir. 1972) (expert testified that device at issue could have exploded if it had been thrown or if the tape “band aid” in the device had been removed).
See United States v. Pena-Lora, 225 F.3d 17, 31-32 (1st 8
Cir. 2000) (interpreting 18 U.S.C. § 921(a)(23) and observing that the statute “broadly defines ‘machinegun’ as ‘any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading.” (emphasis in original)); United States v. Alston, 112 F.3d 32, 34 (1st Cir. 1997) (“The pertinent federal definition of a firearm is more expansive than the Massachusetts definition: It includes ‘any weapon which is designed to expel a projectile by the action of an explosive.’ 18 U.S.C. § 921(a)(3).” (alterations omitted)); United States v. Veilleux,
22 similar language—“designed to shoot” or “designed”—when defining
other subcategories of weapons in the NFA, Congress did not
employ that language when defining what qualified as a
destructive device under § 5845(f)(1). Cf. 26 U.S.C. § 5845(b),
(c) & (d) with § 5845(f). Congress’s decision not to use
similar language in its description of “destructive device” in
§ 5845(f) shows that Congress did not intend that the mere
design of a device be sufficient to render it a “destructive
device” for purpose of the NFA.9
Accordingly, the court concludes that to qualify as an
“explosive grenade” under § 5845(f)(1) a device must in and of
itself be capable of exploding. Here, it is undisputed that the
FBI replaced the fuzes in the grenades Musso received with inert
fuzes. Because the government does not dispute that these
devices were incapable of exploding on their own, without the
40 F.3d 9, 11 n.1 (1st Cir. 1994) (“The statute, 18 U.S.C. § 921(a)(3), . . . states, “The term ‘firearm’ means (A) any weapon ... which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.”); United States v. Kirvan, 997 F.2d 963, 966 (1st Cir. 1993) (assessing adequacy of evidence that gun was a firearm for purposes of 18 U.S.C. § 924, which uses definition of firearm in 18 U.S.C. § 921(a)(3)).
9 § 5845(f)(3) provides that “any combination of parts . . . designed . . . for use in converting any device into a destructive device as defined in subparagraph (1)” qualifies as a destructive device, but only if it is a combination “from which a destructive device may be readily assembled.” Id. (emphasis added).
23 aid of some other detonating device, they are not “explosive
grenades” under § 5845(F)(1). Therefore, the court concludes
that the devices Musso received are not destructive devices or
firearms under the NFA.
Musso’s motion to dismiss Counts I-IV is granted.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (doc. no. 72) is granted as to Counts I-IV and denied as
to Count V. The clerk shall schedule a final pretrial
conference with counsel.
SO ORDERED.
_________________________ Joseph A. DiClerico, Jr. United States District Judge
March 9, 2018
cc: John S. Davis, Esq. Penny Sue Dean, Esq. Matthew Hunter, Esq. Mark L. Sisti, Esq.