U.S. v. La Cock

• Decision Date: 27 April 2004
• Docket Number: No. 02-2283.,02-2283.
• Citation: 366 F.3d 883
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Phillip LA COCK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

366 F.3d 883

UNITED STATES of America, Plaintiff-Appellant, v. Phillip LA COCK, Defendant-Appellee.

No. 02-2283.

United States Court of Appeals, Tenth Circuit.

April 27, 2004.

John G. Malcolm, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, Washington, D.C. (David C. Iglesias, United States Attorney, District of New Mexico, and Nina Goodman, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C., with him on the briefs), for Plaintiff-Appellant.

Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, NM, (Scott M. Davidson, Research and Writing Specialist, Albuquerque, NM, with him on the brief), for Defendant-Appellee.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and MURPHY, Circuit Judge.

EBEL, Circuit Judge.

Defendant Phillip La Cock was indicted on three counts stemming from his possession of a "destructive device" as defined in 26 U.S.C. § 5845(f). He moved to dismiss the indictment on the ground that his device was a homemade intruder alarm that fell outside the definition of the statute. After hearing testimony from experts on both sides, the district court granted Defendant's motion. The Government timely appealed. For the reasons that follow, we take jurisdiction pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291, conclude that the district court erroneously dismissed the indictment, REVERSE the dismissal of the indictment and REMAND for further proceedings consistent with this opinion.

BACKGROUND¹

On December 1, 1998, police officers executed a search warrant at the home of Defendant-Appellee Phillip La Cock ("Defendant") in Roswell, New Mexico. They were looking for kitchenware and other items that Defendant had allegedly stolen from a local hotel. While in Defendant's bedroom, the officers discovered a small metal box that was 11 inches high, 12.5 inches wide and 10 inches deep. On top of the box was written, "Danger Do Not Open." Seeing this, the officers called the bomb squad to disarm the box, which they did successfully.

The inside of the box contained a metal divider that separated its interior into two compartments, one slightly larger than the other. In the larger compartment were three rounded river rocks that weighed about 18 pounds. In the smaller compartment were approximately 80 grams of Pyrodex powder scattered around the bottom.² Mixed in with the Pyrodex powder were 26 Black Cat firecrackers and some wooden matches. An initiator for the device was attached to the divider on the side of the compartment containing the Pyrodex and the firecrackers. The initiator consisted of a small cylinder of duct tape that was lined with strike pads torn from matchbooks. At the bottom of the cylinder were three wooden matches with a cluster of match heads ("the match device") glued to them. The three matches were bound together with a wire that was also attached to the lid of the box. The initiator was designed such that when the lid of the box was opened, the wire would pull the match device through the cylinder and along the strike pads, causing the match device to ignite. The resulting flame would ignite the Pyrodex power, which in turn would light the firecrackers.

For his possession of the device, Defendant was charged, in a three-count superseding indictment, with manufacturing a destructive device, in violation of 26 U.S.C. §§ 5822, 5861(f), and 5871; possessing an unregistered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; and using explosive material to commit a felony (specifically, the manufacture of a destructive device), in violation of 18 U.S.C. § 844(h). All of the charges thus turn on whether the Defendant's device is a "destructive device" as defined in 26 U.S.C. § 5845(f). That statute defines "destructive device" as follows:

The term "destructive device" means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon 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, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; 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; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.

Id. (emphasis added).

Defendant moved to dismiss the indictment, arguing that 1) the statute was unconstitutionally vague as applied to his case; 2) his device was simply an improvised intruder alarm and not designed as a weapon; and 3) his device was not a "destructive device" because it would not explode. He argued in the motion that his device was usually kept on a table near the back entrance to his house.³ It was intentionally placed there, Defendant said, to get the attention of anyone who broke into his home, which had been burglarized several times previously. If the lid were removed quickly enough, the box was meant to send up a brief flash of light, a cloud of smoke, and noise from the firecrackers. The noise and light, said Defendant, were intended to alert his neighbors to the intruder's presence and presumably scare the intruder away.⁴

On July 23, 2002, the district court held a hearing on the motion to dismiss the indictment, and both parties introduced exhibits and expert testimony.⁵ Defendant's expert, Nelson Welch, testified that he had conducted experiments using a device similar to the one found in Defendant's home. He testified that he could not determine whether Defendant's device actually would have worked, but that if it had, the Pyrodex would have burned, not exploded. He stated that the only way that black powder can "cause any kind of damage is if it is confined, compressed, held together." In Defendant's device, however, the powder was only loosely scattered at the bottom of the box. Welch said that he did not think that the device was intended as a weapon. But on cross-examination, Welch acknowledged that the flames that shot up from the device could injure someone "[i]f their face was directly over the box."

The Government called three expert witnesses. Michael Davies, a member of the bomb squad that disarmed the device, called it an "incendiary type of device which was an improvised explosive device" and that "the initiator was not electrical and that it was of a booby-trap, victim-related type of device." He believed that the device would function as designed.

Bradley Cooper, a forensic chemist for the Bureau of Alcohol, Tobacco, and Firearms (ATF), testified that Pyrodex is "considered an explosive material" because it is "a chemically unstable material that will react and with great rapidity, with great speed. It would deflagrate, burn very, very quickly, and would give out large amounts of gas, heat, energy, and that would put it into the explosives classification." He characterized Pyrodex as a "low explosive" (as opposed to TNT, a high explosive), because it would deflagrate, or burn up very rapidly. On cross-examination, Cooper acknowledged that the Pyrodex "would need to be confined to have any type of explosive property," such as being "piled up in a pile" in significant (but unspecified) amounts.

The Government's last expert witness was Brian Hart, an ATF explosives enforcement officer, who testified about what constitutes a "destructive device" under 26 U.S.C. § 5845(f). To fit within the definition, "there must be a main charge explosive or incendiary or poisonous gas ... a means of confinement and a means of initiation. If those three components are in a device, along with if it is designed as a weapon, it is a destructive device." Hart testified that Defendant's device was a "destructive device" because it contained all three components. He said that it could be characterized as either an "explosive" or "incendiary" bomb — the former because it "had explosive material in it," and the latter because it would "deflagrate" but not explode. Hart said that "[b]y design it is a weapon" and called it a "booby trap."

The hearing concluded at the end of Hart's testimony. In a written disposition entered on August 12, 2002, the district court granted Defendant's motion to dismiss the indictment, on the grounds that the device was not designed as a weapon and was not a "bomb" because it would not explode.⁶

The court first resolved in Defendant's favor the conflict between the government's characterization of the device as a booby trap and Defendant's characterization of it as an intruder alarm. Although, noted the court, "the flame [from the device] may have some potential to cause harm,"

... the device is by no means clearly designed for that purpose. The box cannot expel projectiles. The box is constructed to emit noise, light, and smoke. Viewed objectively, this admittedly "unique device" was not designed to be a weapon, but rather a signaling device in the form of an alarm...