United States v. Teston

• Decision Date: 05 May 2023
• Docket Number: CR 22-1400 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. TROY DON TESTON, Defendant.
• Court: U.S. District Court — District of New Mexico

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UNITED STATES OF AMERICA, Plaintiff, v. TROY DON TESTON, Defendant.

No. CR 22-1400 JB

United States District Court, D. New Mexico

May 5, 2023

Alexander M.M. Uballez United States Attorney Maria Ysabel Armijo Christopher McNair Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

Stephen A. Taylor Martin Juarez Office of the Federal Public Defender Albuquerque, New Mexico Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the United States of America's Motion in Limine to Preclude Evidence of Defendant's Subjective Intent in Making or Possessing the Device, filed April 24, 2023 (Doc. 61)(“Motion in Limine”). The Court held a hearing on the Motion in Limine, as well as on other motions, on April 26, 2023. See Clerk's Minutes at 1, filed April 26, 2023 (Doc. 73). The primary issues are: (i) whether evidence of Defendant Troy Don Teston's subjective intent in assembling his device is relevant in applying the statutory exception to 26 U.S.C. § 5845(f)(1) for devices which are “neither designed or redesigned for use as a weapon”; (ii) whether evidence that the device was poorly constructed is relevant to whether the device is a destructive device under 26 U.S.C. § 5845(f)(1); and (iii) whether evidence that the amount of powder in the device made the device harmless is relevant to whether the device is a destructive device under 26 U.S.C. § 5845(f)(1). The Court concludes that: (i) because Teston is charged with possessing an assembled device under 26 U.S.C § 5845(f)(1), his subjective intent in designing the device is not relevant to the statutory exception's application, and, therefore, it does not bear on whether Teston possessed a “destructive device” under that statute, and should be excluded; (ii) under relevant case law, evidence that Teston's device was poorly constructed is irrelevant in determining whether 26 U.S.C. § 5845(f)(1) applies, and should therefore be excluded; and (iii) relevant case law does not bar presenting evidence that the amount of powder in Teston's device rendered it harmless as part of the analysis of the device's objective qualities, and therefore should not be excluded. Accordingly, the Court grants in part and denies in part the Motion in Limine.

PROCEDURAL HISTORY

The United States filed an Indictment on August 23, 2022 (Doc 1), against Teston containing two counts: (i) Count 1, Felon in Possession of Explosives under 18 U.S.C. § 842(i); and (ii) Count 2, Possession of an Unregistered Firearm (Destructive Device) under 26 U.S.C. §§ 5841(a), 5845(a)(5), 5861(d), and 5871. See Indictment at 1-2. The Indictment alleged that Teston, a felon with prior convictions for aggravated assault with a deadly weapon and possession of controlled substances, “knowingly possessed explosives,” and “knowingly possessed a firearm, that is, a destructive device, and said firearm was not registered to him in the National Firearms Registration and Transfer Record.” Indictment at 1.

On March 15, 2023, the United States filed a Superseding Indictment, filed March 15, 2023 (Doc. 34). In the Superseding Indictment, the Grand Jury charged Teston with three counts: (i) the original Count 1, Felon in Possession of Explosives under 18 U.S.C. § 842(i); (ii) an amended Count 2, Possession of a Firearm Not Registered with the National Firearms Registration and Transfer Record under 26 U.S.C. §§ 5841, 5861(d) and 5871; and (iii) a new Count 3, Making of an Unregistered Firearm under 26 U.S.C. §§ 5841, 5861(f), and 5871. See Superseding Indictment at 1-2. The allegations in the Superseding Indictment's Count 1 were unchanged from those in the Indictment. Compare Indictment at 1, with Superseding Indictment at 1. The amended Count 2 stated that Teston “knowingly possessed a firearm, a destructive device, more fully described as a flattened ball morphology, double base smokeless powder, an expended Crosman 12 gram CO2 cartridge, screws, flattened metal, wire and tape, that was not registered in the National Firearms Registration and Transfer Record.” Superseding Indictment at 1-2. The new Count 3 stated that Teston made the “firearm, specifically, a destructive device” that Count 2 described, and that it is “a destructive device as defined pursuant to 26 U.S.C. §§ 5845(a)(8), (f)(1), and (f)(3), that was not registered in the National Firearms Registration and Transfer Record.” Superseding Indictment at 2.

On April 19, 2023, the United States filed its Second Superseding Indictment, filed April 19, 2023 (Doc. 55). In the Second Superseding Indictment, the Grand Jury charges Teston with four counts: (i) the original Count 1, Felon in Possession of Explosives under 18 U.S.C. § 842(i); (ii) an amended Count 2, Possession of a Firearm Not Registered with the National Firearms Registration and Transfer Record under 26 U.S.C. §§ 5841, 5861(d) and 5871; (iii) an amended Count 3, Making of an Unregistered Firearm under 26 U.S.C. §§ 5841, 5861(f), and 5871; and (iv) a new Count 4, Felon in Possession of Ammunition under 18 U.S.C. §§ 922(g)(1) and 924. See Second Superseding Indictment at 1-3. The allegations in the Second Superseding Indictment's Count 1 are unchanged from those in the Indictment and Superseding Indictment:

Teston, knowing that he had been convicted of at least one crime punishable by imprisonment for a term exceeding one year, specifically:

(1) aggravated assault with a deadly weapon, and

(2) possession of a controlled substance,

knowingly possessed explosives in and affecting commerce.

In violation of 18 U.S.C. § 842(i).

Second Superseding Indictment at 1. The amended Count 2 adds to the Superseding Indictment's allegations references to 26 U.S.C. § 5845(a) and (f):

Teston[] knowingly possessed a firearm as defined by 26 U.S.C. § 5845(a) and (f), that is, a destructive device, made from a flattened ball morphology, double base smokeless powder, an expended Crosman 12 gram CO2 cartridge, screws, flattened metal, wire and tape, that was not registered in the National Firearms Registration and Transfer Record.

In violation of 26 U.S.C. §§ 5841, 5861(d) and 5871.

Second Superseding Indictment at 2. The amended Count 3 eliminates specific reference to the 26 U.S.C. §§ 5845(f)(3), instead referencing only 26 U.S.C. §§ 5845(a)(8) and (f)(1):

Teston[] knowingly made a firearm as defined by 26 U.S.C. § 5845(a) and (f), that is a destructive device, made from a flattened ball morphology, double base smokeless powder, an expended Crosman 12 gram CO2 cartridge, screws, flattened metal, wire and tape, which is a destructive device as defined pursuant to 26 U.S.C. §§ 5845(a)(8) and (f)(1), that was not registered in the National Firearms Registration and Transfer Record.

In violation of 26 U.S.C. §§ 5841, 5861(f) and 5871.

Second Superseding Indictment at 2. The new Count 4 alleges that Teston was a felon in possession of ammunition:

Teston, knowing that he had been convicted to at least one crime punishable by imprisonment for a term exceeding one year, specifically:

(1) aggravated assault with a deadly weapon, and

(2) possession of a controlled substance,

knowingly possessed ammunition in and affecting commerce.

In violation of 18 U.S.C. §§ 922(g)(1) and 924.

Second Superseding Indictment at 2. The Second Superseding Indictment additionally adds three Forfeiture Allegations. See Second Superseding Indictment at 3. The First Forfeiture Allegation states:

Upon conviction of any offense in violation of 18 U.S.C. § 842(i), . . . Teston[] shall forfeit to the United States, pursuant to 18 U.S.C. §§ 844(c)(1), 981(a)(1)(C), 982(a)(2)(B), and 28 U.S.C. § 2461(c), any explosive materials involved or used or intended to be used in the offense, and any property, real or personal, which constitutes or is derived from proceeds traceable to the offense, including, but not limited to:

a. double base smokeless powder.

Second Superseding Indictment at 3. The Second Forfeiture Allegation states:

Upon conviction of any offense in violation of 26 U.S.C. § 5861, . . . Teston[] shall forfeit to the United States, pursuant to[]26 U.S.C. § 5872 and 28 U.S.C. § 2461(c), any firearms involved in the commission of the offense(s), including, but not limited to:

a. double base smokeless powder.

Second Superseding Indictment at 3. The Third Forfeiture Allegation states:

a. Upon conviction of any offense in violation of 18 U.S.C. § 922(g), . . . Teston[] shall forfeit to the United States, pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c), any firearms and ammunition involved in the commission of the offense I, including, but not limited toa. double base smokeless powder.

Second Superseding Indictment at 3.

On April 24, 2023, the United States filed the Motion in Limine. See Motion in Limine at 1-6. In the Motion in Limine, the United States contends that, because Teston is on trial for possessing an assembled device under 26 U.S.C § 5845(f)(1), rather than unassembled components under 26 U.S.C. § 5845(f)(3), his subjective intent in designing the device is irrelevant in determining whether the device at issue is a destructive device under the operative statute. See Motion in Limine at 1. The United States emphasizes that 26 U.S.C. § 5845(f)(1), unlike § 5845(f)(3), lacks language referencing the defendant's intent, and that, accordingly, “when a defendant is charged for making or possessing an assembled destructive device under (f)(1), courts consistently hold that his or her subjective intent is irrelevant.” Motion in Limine at 2. In support, the United States cites case law from the United States Court of Appeals for the Second Circuit, the United States Court of Appeals for the Fourth Circuit, the United...