United States v. Kenneth Kirkland , 909 F.3d 1049 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10514
Plaintiff-Appellee,
D.C. No.
v. 1:15-cr-00322-
DAD-BAM-1
KENNETH WILLIAM KIRKLAND,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted July 10, 2018
Pasadena, California
Filed November 28, 2018
Before: D. Michael Fisher, * Paul J. Watford,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Watford
*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 UNITED STATES V. KIRKLAND
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
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KIRKLAND 3
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.
COUNSEL
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.
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
4 UNITED STATES V. KIRKLAND
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 definition provided in the
National Firearms Act. See United States v. Lussier,
128 F.3d 1312, 1314 n.3 (9th Cir. 1997).
Section 921(a)(4) defines “destructive device” in
relevant part as follows:
UNITED STATES V. KIRKLAND 5
(4) The term “destructive device” means—
(A) any explosive, incendiary, or poison
gas—
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge
of more than four ounces,
(iv) missile having an explosive or
incendiary charge of more than one-
quarter ounce,
(v) mine, or
(vi) device similar to any of the
devices described in the preceding
clauses;
(B) any type of weapon (other than a
shotgun or a shotgun shell which the
Attorney General finds is generally
recognized as particularly suitable for
sporting purposes) by whatever name
known which will, or which may be
readily converted to, expel a projectile by
the action of an explosive or other
propellant, and which has any barrel with
a bore of more than one-half inch in
diameter; and
6 UNITED STATES V. KIRKLAND
(C) any combination of parts either
designed or intended for use in
converting any device into any
destructive device described in
subparagraph (A) or (B) 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 . . . .
Subsections (A) and (B) cover fully assembled weapons;
subsection (C) generally applies to a combination of parts
that has not yet been assembled into a functional weapon.
Lussier, 128 F.3d at 1315. At trial, the government
proceeded against Kirkland solely under subsection (C), so
we will confine our discussion to that provision.
Kirkland does not dispute that the parts he possessed
were designed for use as one of the weapons described in
subsection (A)—namely, an explosive bomb. He challenges
only the sufficiency of the evidence to support the jury’s
finding that he possessed a combination of parts “from
which” an explosive bomb could be “readily assembled.” In
his view, a conviction under subsection (C) requires proof
that the defendant possessed every component necessary to
construct a functional weapon. Under Kirkland’s reading of
the statute, he would be entitled to a judgment of acquittal
because the device in question needed eight C-cell batteries
to operate, and the government did not introduce any
evidence establishing that he possessed such batteries.
UNITED STATES V. KIRKLAND 7
We do not think the statute can be read in the manner
urged by Kirkland. Nothing in the text of § 921(a)(4)(C)
states that a defendant must possess every component
necessary to render a partially constructed device capable of
detonating. The statute requires only that the defendant
possess a combination of parts from which a functional
device “may be readily assembled.” As used in this
provision, the term “readily” means quickly and easily: The
combination of parts possessed by the defendant must be
capable of being assembled into a functional device within a
short period of time and with little difficulty—measures that
may depend on the expertise of the defendant constructing
the device. That requirement does not categorically exclude
situations in which the assembly process entails the
acquisition and addition of a new part. Thus, if the defendant
lacks a part necessary to render the device functional, 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 part into
the device quickly and easily. See United States v. Sheehan,
838 F.3d 109, 125 (2d Cir. 2016) (upholding a conviction
even though the device lacked a piece of tape needed to
connect the wires to the battery); United States v. Russell,
468 F. Supp. 322, 329–30 (S.D. Tex. 1979) (same where the
device lacked a 1.5-volt battery).
Ample evidence supports the conclusion that a
functional explosive device could be readily assembled from
the combination of parts Kirkland possessed. As noted
above, Kirkland had assembled a nearly complete
homemade bomb; only the eight C-cell batteries were
missing. The testimony at trial confirmed that those batteries
are common household items “readily available to an
ordinary consumer.” Thus, Kirkland could have quickly and
easily obtained the missing batteries, assuming he did not
8 UNITED STATES V. KIRKLAND
have them lying around the house already. The jury also
heard expert testimony that it would have taken only a matter
of minutes to install the batteries and connect the detonator
to the power source. Thus, once he obtained the batteries,
Kirkland could have quickly and easily incorporated them
into his partially constructed bomb to render it functional.
This evidence is more than sufficient to satisfy the “readily
assembled” element.
Kirkland contends that our reading of the statute will
lead to intractable line-drawing problems as courts are
forced to decide which components a defendant must
possess in order to be convicted, and which he need not. We
do not think that prediction will prove accurate. Whether a
particular combination of parts may be “readily assembled”
into an operable device is an inherently factbound issue that
juries will have to resolve on a case-by-case basis. With one
exception, mentioned below, no bright-line rules can be
drawn declaring which components of a destructive device
must be in the defendant’s possession in order for a
conviction to be sustained. That will depend in every case
on both the nature of the parts the defendant has already
assembled and the ease with which the defendant could
acquire and incorporate any missing parts. At the end of the
day, regardless of which components are missing from the
device, the ultimate question will be the same: Can the
missing parts be obtained quickly and easily, and if so, can
they quickly and easily be incorporated to render the device
functional?
The one exception involves the material necessary to
bring a device within the coverage of § 921(a)(4).
Subsection (A) covers any “explosive, incendiary, or poison
gas” bomb, grenade, etc. At least two circuits have held that
a conviction may not be sustained under subsection (C),
UNITED STATES V. KIRKLAND 9
which tracks the coverage of subsection (A), unless the
defendant possesses the explosive material necessary to
construct an operable explosive weapon. See United States
v. Blackburn, 940 F.2d 107, 110 (4th Cir. 1991); United
States v. Malone, 546 F.2d 1182, 1184 (5th Cir. 1977). The
same would be true of the incendiary material or poison gas
necessary to construct a weapon of that ilk. This exception
does not apply here, as Kirkland does not dispute that he
possessed the necessary explosive material in the form of a
detonator and shotgun shells. 1
We reject Kirkland’s reading of the statute for the
additional reason that it is at war with Congress’ purpose in
enacting the “combination of parts” provision. Congress
sought to protect the public from the danger posed by
military-style weaponry and “the street variety of homemade
instruments and weapons of crime and violence.” United
States v. Peterson, 475 F.2d 806, 810 (9th Cir. 1973). That
danger exists not only when a defendant possesses a fully
assembled weapon, but also when a defendant who intends
to construct such a weapon has gathered enough of the
necessary components such that a functional weapon can be
readily assembled. Reading the statute to require possession
of every necessary component, even a single item that could
be readily obtained, would defeat the flexibility Congress
sought to build into the statutory scheme and “would foster
easy evasion to thwart the Congressional intent.” United
States v. Shafer, 445 F.2d 579, 583 (7th Cir. 1971). While
1
The court in Malone did state, as Kirkland points out, that “the
defendant cannot be guilty of [possessing a destructive device] because
he did not have in his possession all of the component parts from which
a destructive device might be readily assembled.” 546 F.2d at 1184. The
court, however, explicitly limited its holding to the facts before it—
namely, a “complete absence of explosive material.” Id.
10 UNITED STATES V. KIRKLAND
the ultimate harm that Congress sought to prevent occurs
when the covered weapons are used, Congress chose to take
the prophylactic measure of criminalizing the possession of
such weapons—as well as the possession of parts that could
readily become such weapons. Under Kirkland’s reading,
an individual could render that prophylactic measure futile,
avoiding criminal exposure for possession simply by
refraining from adding some easily obtainable part to an
otherwise fully assembled weapon until use of the weapon is
imminent.
This case provides a good illustration of the concerns
that motivated Congress to enact the “combination of parts”
provision. The evidence at trial showed that Kirkland’s
explosive device lacked batteries because he was not yet
ready to use it. In a post-arrest interview, Kirkland told the
police that he had not added the batteries because he knew
the device could explode inadvertently once he did. Because
C-cell batteries could be readily obtained at any time, there
was no need for Kirkland to add them in advance. If and
when he was ready to deploy his weapon, he could acquire
the batteries and insert them into the device right before
doing so. The absence of the batteries does not make
Kirkland less culpable from the standpoint of the statute’s
prime objective—keeping inherently dangerous weapons
out of the hands of those who are not permitted to possess
them.
AFFIRMED.