U.S. v. Malone, 76-2127

• Decision Date: 10 February 1977
• Docket Number: No. 76-2127,76-2127
• Citation: 546 F.2d 1182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Hunt MALONE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1182

546 F.2d 1182

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Hunt MALONE, Defendant-Appellant.

No. 76-2127.

United States Court of Appeals Fifth Circuit.

Feb. 10, 1977.

Roy L. Brun (Court-appointed), B. J. Woods (Retained counsel), Shreveport, La., for defendant-appellant.

Donald E. Walter, U. S. Atty., Paul Lynch, D. H. Perkins, Jr., Asst. U. S. Attys., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, GODBOLD, Circuit Judge, and MEHRTENS, District Judge. ^*

MEHRTENS, District Judge:

Patrick Hunt Malone appeals from a judgment of conviction for possession of an unregistered firearm, 26 U.S.C. § 5861(d) and § 5871, and for possession of a firearm not identified by a serial number as required by 26 U.S.C. § 482.

Malone's automobile was searched incident to an arrest for the unauthorized use of a credit card. In his vehicle were found one pressure release spring-top box containing a military MK2 fragmentation hand grenade hull inserted rigidly to the inside of the box, miscellaneous electrical wires inserted into the top of the hand grenade body, one micro-switch, one electrical solenoid switch, one transistor battery, one small low voltage electrical bulb, glue, tape, small aluminum metals, nails, waterproofing spray, and one container of Play-Doh modeling compound.

Count I of the indictment charged him with knowingly and unlawfully possessing a firearm as defined by § 5845(f)(3), Title 26, United States Code, to-wit, a destructive device, and more particularly described as a combination of parts designed and intended to use in converting a device into a destructive device and from which a destructive device may be readily assembled, specifying in detail the items listed above, which "firearm" was not registered to him, in violation of §§ 5861(d) and 5871, Title 26, United States Code. Count II was identical, except that it charged that the "firearm" was not identified by a serial number as required by § 5842, Title 26, United States Code.

Title 26, United States Code, § 5845(a) gives eight definitions of "firearm." 26 U.S.C. § 5845(f) defines "firearm" or "destructive device" as:

(1) any explosive, incendiary, or poison gas (A) bomb, (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; . . . .

The defendant moved to dismiss the indictment, asserting that even if everything alleged in the indictment were proven true, he would not be in violation of the statute. The motion was denied.

As to the second count, he asserts that since there was no explosive charge among the parts found, he could not have registered the objects specified in the indictment as a destructive device.

At the trial the government's witnesses testified that the materials named in the indictment could be assembled into a destructive device provided a "filler" or explosive material was obtained and added; that although the grenade was a mere hull with the primer punched out, the materials could be readily assembled to function by explosion by the addition of powder or other explosive material. At no time did the defendant have in his possession any type of explosive material, nor, in fact, did the indictment charge possession of any explosive.

The government contends that inasmuch as the only use of the materials found in defendant's car could be in violent and criminal activity of an anti-personnel nature, they had no legitimate or innocent use, and that the defendant was in violation of the statute because the device could be readily assembled to function by explosion by the addition of explosive material which could be easily obtained. As a result therefore, it was unnecessary to prove that the defendant had explosive material in his possession, citing United States v. Morningstar, 456 F.2d 278 (4th Cir. 1972); Ballew v. United States, 389 F.Supp. 47 (D.Md.1975); United States v. Cruz, 492 F.2d 217 (2nd Cir. 1973); United States v. Peterson, 475 F.2d 806 (9th Cir. 1973); United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970); United States v. Oba, 448 F.2d 892 (9th Cir. 1971); Langel v. United States, 451 F.2d 957 (8th Cir. 1971); Robbins v. United States, 476 F.2d 26 (10th Cir. 1973; and United States v. Evans, 526 F.2d 701 (5th Cir. 1976).

The government, in support of its position, also attempts to analogize cases dealing with a combination of parts from which a destructive device may be readily assembled into a machine gun.

The indictment did not allege, and the evidence at the trial did not prove, that Malone was in possession of any explosive charge or detonation device. The words of the statute are "from which a destructive device may be readily assembled", and not, as the government contends, "from which a destructive device may be readily assembled with addition of other parts."

Although we agree with the government's contention that the device...