Sunday, December 16, 2018

Case o' The Week: Convictions resist a battery of challenges - Kirkland and "Explosive Devices"

  “Batteries not included."
   Ruins Christmas mornings.
  (Convictions? Not so much).

United States v. Kirkland, 2018 WL 6186513 (9th Cir. Nov. 28, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judges Fisher and Friedland. Hard-fought appeal by former CD Cal AFPD Carl Gunn.

Facts: Cops found a box when they searched Kirkland’s home. It contained a radio frequency receiver that could be used to detonate a device, a detonator, and shotgun shells that could provide an explosive charge. Id. at *1. Missing were eight batteries needed to make a functional bomb. Id. At trial, a government expert testified that the box could be made a bomb in minutes, by inserting batteries and by connecting the detonator. Id. Kirkland was convicted of being a felon in possession of a destructive device, and of possessing an unregistered destructive device. Id.

Issue(s): “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.’” Id. “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.” Id. at *2.

Held: “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.” Id.
  “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?” Id. at *3.

Of Note: Gunn’s at war. More specifically, the Ninth contends that Carl Gunn’s urged interpretation was “at war with Congress’s purpose” in enacting the “combo of parts” provision of this statute. Id. at *3.
  Maybe so, maybe not, but – as the defense warned -- this decision leaves “intractable line-drawing” problems for future cases. If this box had batteries, but no detonator, would that be a bomb that is “readily assembled?” What if it was missing the radio frequency receiver? What if the parts were, but it had not been wired?
  All of these scenarios are now “inherently factbound issues that juries will have to resolve on a case-by-case basis.” Id. at *3.

How to Use: Judge Watford flags an important exception to the Kirkland holding: a destructive device needs explosive material. Id. at *3. That wasn’t at issue here, because the shotgun shells were the explosive component of this device. Id.  
  Note this important Kirkland exception to the bits and bobs theory of conviction: a bomb needs something that goes boom.
For Further Reading: Will President Trump’s appointments remake the Ninth? Perhaps less than is assumed. 
  For an interesting article on the actual numbers, see a Brookings report here

Image of “batteries not included” from

Steven Kalar, Federal Public Defender Northern District of California. Website at



Labels: , ,


Post a Comment

<< Home