United States of America v. Daniel E. Musso, Sr.

The government appeals from the

district court's pretrial dismissal of four charges of violations

of the National Firearms Act (NFA), 26 U.S.C. § 5801 et seq.,

brought against Daniel Musso. Musso bought four military M67

fragmentation grenades from an FBI agent during an undercover sting

operation. The FBI had obtained the grenades used in the sting

from the U.S. Marine Corps. M67 grenades are issued to Marines

for combat. Before the sale to Musso, the FBI had replaced each

grenade's original, operable fuze with an identical but inoperable

one. The district court agreed with Musso that, because the

operable fuzes had been removed and replaced with inoperable fuzes,

the grenades were not "explosive grenades" under the NFA. United

States v. Musso, No. 16-CR-033-JD, 2018 WL 1313977, at *8 (D.N.H.

Mar. 9, 2018).

For purposes of the motion to dismiss, Musso admitted,

among other things, that each grenade was still armed with its

original explosive charge: 6.5 ounces of Composition B high

explosives. Composition B is a mixture of TNT and RDX that, when

in the amount included in an M67 grenade, has a killing radius of

about five meters (just over sixteen feet). The motion further

admitted that each grenade could be made to explode by reinserting

a live fuze or by a "commercial/military/improvised detonator."

Based on the admitted facts and on the complete text,

statutory context, and Congress's intent in enacting the

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"explosive grenade" provision of the NFA, we reverse and hold that

each grenade, as purchased by Musso, was an "explosive grenade."

I.

A. The National Firearms Act, 26 U.S.C. § 5801, et seq.

The NFA makes it a crime to receive or possess an

unregistered "firearm." 26 U.S.C. § 5861(d). There is no dispute

that the grenades here were "unregistered." Under the NFA, the

definition of the term "firearm" includes a "destructive device."

Id. § 5845(a)(8). The act later, in Section 5845(f)(1), defines

a "destructive device" as

(1) any explosive, incendiary, or poison gas

(A) bomb,

(B) grenade,

(C) rocket having a propellent [sic]

charge of more than four ounces,

(D) missile having an explosive or

incendiary charge of more than onequarter

ounce,

(E) mine, or

(F) similar device . . . .

Id. § 5845(f)(1). The government relies on this definition. We

note that the NFA does not define the terms "explosive" or

"grenade."

Section 5845(f) has two later sections that include

other things as destructive devices:

(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 onehalf

inch in diameter, except a shotgun or

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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.

Id. § 5845(f)(2)-(3).

Following these terms, the statute has a separate

sentence that excludes "any device which is neither designed nor

redesigned for use as a weapon" and "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." Id. Those exclusions present affirmative defenses; they

do not define elements of the substantive offense. United States

v. Beason, 690 F.2d 439, 445 (5th Cir. 1982).

The NFA was not the first statute to deal with devices

like those at issue here. In April 1968, six months before

Congress enacted the above "destructive device" provision,

Congress made it a crime to, among other things, teach the "use,

application, or making of any firearm or explosive or incendiary

device." 18 U.S.C. § 231(a)(1). One such "explosive or incendiary

device" is an "explosive . . . grenade." 18 U.S.C. § 232(5)(B).

Congress again addressed these devices when it enacted a

"destructive device" provision as part of the gun control

provisions of the Omnibus Crime Control and Safe Streets Act of

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1968. See Pub. L. No. 90-351, § 921(a)(4). Congress shortly

thereafter added the same "destructive device" provision to the

NFA with the Gun Control Act of 1968 (GCA). See United States v.

Oba, 448 F.2d 892, 893-94 (9th Cir. 1971).

The GCA's purpose was "to provide support to Federal,

State, and local law enforcement officials in their fight against

crime and violence." Pub. L. No. 90-618, § 101. It represented

"a Congressional attempt to stem the traffic in dangerous weapons

being used in an increasing number of crimes involving personal

injury." United States v. Posnjak, 457 F.2d 1110, 1113 (2d Cir.

1972). And, in the GCA, Congress included the "destructive device"

provision at issue here to cover "military-type weapons," id. at

1115 (citing S. Rep. No. 90-1501, at 25, 30 (1968)), and

"objectively identifiable weapons of war," id. at 1116.

Unlike with many other crimes, Congress chose not to

criminalize attempts to violate the GCA's destructive device

provision. A practical consequence of that decision is that agents

engaged in undercover sting operations actually pass destructive

devices like explosive grenades to the target, which runs some

operational risks. Law enforcement tries to reduce those risks to

agents, targets, and the public by removing fuzes from otherwise

live grenades.

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B. Background

The essential facts are undisputed for our purposes and

are worth repeating. The FBI replaced the grenades' original fuzes

with mechanically and visually identical, but inoperable, fuzes

before giving them to Musso. Each grenade was, however, armed

with its original explosive charge of Composition B.1 Each grenade

could be made to explode by, for example, replacing the inoperable

fuze with an operable one, by using a commercial or homemade

detonator, or by a sufficient impact. The government concedes

that the grenades as purchased by Musso would not have detonated

absent these other circumstances had Musso or anyone else merely

pulled their pins. A search of Musso's property following his

arrest did not turn up any fuzes or other detonators.

C. Procedural History

Musso moved to dismiss four counts of the resulting

indictment, arguing that the grenades he received were not

"explosive grenades" and so were not destructive devices under the

NFA. On March 9, 2018, the district court granted Musso's motion

to dismiss those counts. Musso, 2018 WL 1313977, at *8.

1 We deem Musso to have admitted this for purposes of the

motion to dismiss. We note that he has not pleaded guilty to the

fifth count of his underlying indictment, which charges him with

knowingly receiving "approximately 26 ounces of Composition B high

explosive, contained within four grenades."

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The district court consulted several dictionaries and

concluded that "the ordinary meaning of 'grenade' implies a device

that contains not only explosive material but also a means of

detonating that explosive material." Id. at *5. The district

court next reasoned that "explosive," when modifying "grenade,"

necessarily implied that the grenade "must, in fact, be capable of

exploding." Id. Combining these understandings, the district

court found that "the ordinary meaning of the phrase 'explosive

grenade' . . . is a device that is in and of itself capable of

exploding." Id. The district court then dismissed the counts.

Id. at *8.

II.

We clear away a preliminary procedural issue. Although

we have not before addressed the issue, other "circuit courts have

almost uniformly concluded" that, under Federal Rule of Criminal

Procedure 12(b)(1), "a district court may consider a pretrial

motion to dismiss an indictment where the government does not

dispute the ability of the court to reach the motion and proffers,

stipulates, or otherwise does not dispute the pertinent facts."

United States v. Weaver, 659 F.3d 353, 355 n* (4th Cir. 2011)

(collecting cases). We join this consensus.

The facts necessary to resolve the issue now on appeal

are not in dispute, and the government had requested that the

district court resolve the issue. We review the district court's

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conclusion de novo, id. at 356, and determine that the court erred

and so reverse.

III.

As framed, on admitted facts, the question before us is

an issue of law. The government bears the burden of establishing

that the grenades here met the definition of "explosive grenades."

Musso, in turn, bears the burden as to whether the grenades fall

within the exclusionary clause. On the facts presented, we reject

Musso's definitional argument as well as his argument, based on

the exclusionary clause, that the FBI's removal of the grenades'

fuzes means the grenades are not "designed" as weapons. In

addressing his argument based on the exclusionary clause, we treat

Musso as having raised that affirmative defense and bypass any

potential forfeiture resulting from his failure to pursue that

argument in his motion to dismiss.

We begin, as always, with the statutory text concerning

"explosive grenades." The NFA definitional section requires that

to be a "destructive device," a grenade must be an "explosive,

incendiary, or poison gas . . . grenade." 26 U.S.C. § 5845(f).

And an NFA "destructive device" must have been "designed [or]

redesigned for use as a weapon," and not, if originally designed

as a weapon, "redesigned for use as a signaling, pyrotechnic, line

throwing, safety, or similar device." Id. No issue is before us

of the interpretation of other parts of the statute concerned with

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other destructive devices or with the clause in Section 5845(f)(3)

concerning "any combination of parts . . . from which a destructive

device may be readily assembled."2

We dispose of Musso's argument based on the statutory

exclusion first. On these facts, we reject the argument that

because the grenades' fuzes were inoperable, that meant the

grenades were "redesigned" so as not to be weapons. Congress only

excluded certain "redesigned" devices: those that have been

"redesigned for use as a signaling, pyrotechnic, line throwing,

safety, or similar device." 26 U.S.C. § 5845(f). There is no

contention here that Musso's devices were redesigned for any of

those purposes.

Musso's grenades were designed as weapons. Each M67

grenade sold to Musso was a standard-issue Marine Corps weapon.

That the grenades were inoperable when purchased by Musso does not

change the fact that they were "designed" as weapons. Cf. United

States v. Rivera, 415 F.3d 284, 286 (2d Cir. 2005) ("Where a weapon

designed to fire a projectile is rendered inoperable, whether on

purpose or by accident, . . . it continues to be 'designed' to

fire a projectile."). We conclude that Musso's explosive grenades

were each "designed . . . for use as a weapon," 26 U.S.C.

§ 5845(f), and so were not excluded from the NFA's coverage.

2 Cases construing that clause, like United States v.

Posnjak, 457 F.2d 1110 (2d Cir. 1972), are not relevant here.

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We turn to the definitional arguments. Congress did

not, in the NFA, define the term "explosive grenade." When

Congress uses words that it does not define, "we assume those words

'carry their plain and ordinary meaning.'" United States v.

Gordon, 875 F.3d 26, 33 (1st Cir. 2017) (quoting Stornawaye Fin.

Corp. v. Hill (In re Hill), 562 F.3d 29, 32 (1st Cir. 2009)). The

district court reasoned "that the ordinary meaning of the phrase

'explosive grenade' in [Section] 5845(f) is a device that is in

and of itself capable of exploding," Musso, 2018 WL 1313977, at

*5, and "that a destructive device must contain certain essential

components" -- namely, a working fuze, id. at *6.

The government challenges the district court's plaintext

reading here. We find that the plain meaning of the words

"explosive" and "grenade" do not clearly exclude the devices Musso

purchased -- M67 grenades with inoperable fuzes. We then assume

arguendo that the plain meaning of those words does not resolve

this case in the government's favor and so we turn to other

traditional tools of statutory interpretation. See Yates v. United

States, 135 S. Ct. 1074, 1081 (2015) (noting that the meaning of

a statutory term "does not turn solely on dictionary definitions

of [that term's] component words"). We ultimately reject the

district court's glosses on the term "explosive grenade" because

they do not come from the NFA's text, "and we may not engraft our

own exceptions onto the statutory text." Henry Schein, Inc. v.

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Archer & White Sales, Inc., No. 17-1272, 2019 WL 122164, at *5

(U.S. Jan. 8, 2019). We conclude, looking to statutory context,

that Congress intended that the term "explosive grenade" include

the grenades as purchased by Musso.

Where Congress wanted to define a device by its

capability, it said so explicitly. Under Section 5845(f)(2), a

weapon with a "bore of more than one-half inch in diameter" is a

destructive device if it "will, or . . . may be readily converted

to, expel a projectile by the action of an explosive or other

propellant." 26 U.S.C. § 5845(f)(2) (emphasis added). This is a

"test of objective capability," United States v. Crooker, 608 F.3d

94, 98 & n.2 (1st Cir. 2010), and it is not unique to Section

5845(f)(2). For instance, Section 5845(b) defines a machinegun as

"any weapon which shoots, is designed to shoot, or can be readily

restored to shoot, automatically more than one shot, without manual

reloading, by a single function of the trigger." 26 U.S.C.

§ 5845(b) (emphasis added). From the presence of capability

requirements throughout Section 5845, and particularly in Section

5845(f)(2), we conclude that the absence of such a requirement in

Section 5845(f)(1), the "explosive grenade" provision, is

intentional. See New Prime Inc. v. Oliveira, No. 17-340, 2019 WL

189342, at *7 (U.S. Jan. 15, 2019) (drawing a negative inference

from word choices made in "a neighboring term in the statutory

text").

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Next, the language of Section 5845(f) does not require

that an "explosive grenade" have specific parts, like a working

fuze. Context immediately reinforces this conclusion: Under

Section 5845(f)(1)(c), which directly follows the "explosive

grenade" provision, a rocket only qualifies as a destructive device

if it has "a propellent [sic] charge of more than four ounces."

26 U.S.C. § 5845(f)(1)(C). And right after that, Congress required

that a missile have "an explosive or incendiary charge of more

than one-quarter ounce." Id. § 5845(f)(1)(D). Section 5845 is

filled with similar requirements: A shotgun must have "a barrel

or barrels of less than 18 inches in length." Id. § 5845(a)(1).

And a rifle must have "a barrel or barrels of less than 16 inches

in length." Id. § 5845(a)(3). Congress could easily have required

that an "explosive grenade" have a working fuze. We conclude that

the absence of any such requirement was intentional.

We also consider the "destructive device" provision in

the sequence in which Congress wrote Section 5845(f). See New

Prime, 2019 WL 189342, at *4 (analyzing a statute based on its

"terms and sequencing"). Section 5845(f)(1) first covers a bomb,

grenade, rocket, missile, mine, or "similar device." 26 U.S.C.

§ 5845(f)(1). Section 5845(f)(2) then covers a weapon, "by

whatever name known," that meets the capability test outlined

above. Id. § 5845(f)(2). And finally, Section 5845(f)(3) covers

"any combination of parts" that can be "readily assembled" into

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one of the devices described in the previous two sections. This

sequence highlights that Section 5845(f)(1) was meant to cover

weapons with evident, descriptive names, while 5845(f)(2) and

(f)(3) are more in the nature of catch-all provisions meant to

ensure coverage where intended beyond the named devices in

5845(f)(1). Because "explosive grenade" is sufficiently

descriptive to limit that provision's coverage, Congress did not

add a capability requirement or a parts requirement.

Were there any doubt left, we would also note that

Sections 5845(f)(2) and (f)(3) include language like "readily

assembled" or "readily converted." The functional cast of that

language fits in those later catch-all provisions, which deal with

all manner of weapons that have no evident name. But for Section

5845(f)(1), no such modifying language was necessary.

The district court's contrary view has further problems:

It reads the term "explosive" outside of its direct context. Our

interpretation avoids this problem. Looking again to neighboring

terms, we conclude that "explosive" describes a category of

grenade. Section 5845(f)(1) prohibits the unregistered receipt or

possession of not only an "explosive . . . grenade," but also an

"incendiary . . . grenade" or a "poison gas . . . grenade." 26

U.S.C. § 5845(f)(1)(B). The natural reading is that "explosive"

distinguishes one category of grenade covered by the statute from

other categories of grenades, either within the statute (like

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poison gas grenades) or outside the statute's reach (like, perhaps,

smoke grenades). Cf. United States v. Williams, 553 U.S. 285, 294

(2008) ("[A] word is given more precise content by the neighboring

words with which it is associated."). On the facts presented here,

the district court's reading of the term "explosive" violates the

"fundamental principle of statutory construction . . . that the

meaning of a word cannot be determined in isolation." Yates, 135

S. Ct. at 1082 (quoting Deal v. United States, 508 U.S. 129, 132

(1993)).

The reasoning we have provided suffices to support our

conclusion that Musso's devices were "explosive grenades," as

Congress intended that term to be understood.3

The district court attempted to support its

interpretation of "explosive grenade" by pointing to out-ofcircuit

precedent. But none of the cases the court cited were

decided under Section 5845(f)(1)(b), the provision at issue here,

and none involved grenades armed with their original explosive

charges. In United States v. Malone, 546 F.2d 1182 (5th Cir.

1977), the defendant did not have, either in his possession or in

3 Musso argues that we should apply the rule of lenity.

But this rule "applies only if, 'after considering text, structure,

history and purpose, there remains a grievous ambiguity or

uncertainty in the statute such that the Court must simply guess

as to what Congress intended.'" Abramski v. United States, 573

U.S. 169, 188 n.10 (2014) (quoting Maracich v. Spears, 570 U.S.

48, 76 (2013)). There is no grievous uncertainty here, so lenity

does not apply.

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the devices at issue, any explosive material. Id. at 1184. In

United States v. Blackburn, 940 F.2d 107 (4th Cir. 1991), a

sentencing appeal following a guilty plea, there were twenty-eight

inert grenade hulls that contained no explosive material. Id. at

109. There was no proof there that the explosive charge within

two live grenades could have been redistributed to make all thirty

grenades there active, and the quantity of destructive devices was

a factor in a sentencing enhancement. Id. at 110. And in United

States v. Osuna, 189 F.3d 1289 (10th Cir. 1999), the Tenth Circuit

merely accepted the government's concession that "inert" grenades

did not qualify as destructive devices (without defining "inert")

and so did not support a sentencing enhancement. Id. at 1295.

These cases say nothing about whether Musso's grenades fall under

the statute.

Further, United States v. Sheehan, 838 F.3d 109 (2d Cir.

2016), supports our reasoning.4 The Second Circuit there held that

a nonfunctioning homemade bomb that contained an explosive charge

but had an inoperable fuze was an "explosive bomb" because it

4 We acknowledge that Sheehan involved the "destructive

device" provision at 18 U.S.C. § 921(a)(4), enacted by the Omnibus

Crime Control and Safe Streets Act of 1968. But Congress, when it

added the "destructive device" provision here to the NFA, copied

that earlier provision verbatim. And when a term "is obviously

transplanted from another legal source, whether the common law or

other legislation, it brings the old soil with it." Stokeling v.

United States, No. 17-5554, 2019 WL 189343, at *5 (U.S. Jan. 15,

2019) (quoting Hall v. Hall, 138 S. Ct. 1118, 1128 (2018)).

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remained capable of detonating by other means. Id. at 119-20.

That the device "could not explode in the way its maker might have

assumed was the ordinary or even only way in which it could be

detonated -- i.e., via the fuzing system -- because it lacked a

particular component of which such a device is ordinarily composed"

was "irrelevant" there. Id. So too here.5

IV.

With the NFA, Congress aimed to decrease threats to

public safety from destructive devices. These devices have been

used for criminal conduct that has included robbery, S. Rep. No.

90-1097, at 78 (1968) (describing the use of a "Finnish Lahti

antitank gun . . . in the robbery of a Brinks Co. installation"),

and the "attempted assassination of a United States Attorney,"

United States v. Hamrick, 43 F.3d 877, 886 (4th Cir. 1995). And

while we have no need to resort to legislative history, there is

congressional history "to the effect that Congress intended to

proscribe the activities generally associated with armed groups

devoted to disruption of public authority." Posnjak, 457 F.2d at

5 We do not rely on United States v. Rushcamp, 526 F.3d

1380 (6th Cir. 1975), which the government cites. There, the Sixth

Circuit concluded that an inoperable military munition -- a rocket

launcher with a broken firing mechanism -- was a destructive

device. But that case turned on the language of Section (f)(2),

which defines a rocket launcher as a destructive device if it "may

be readily converted to, expel a projectile by action of an

explosive or other propellant," id. at 1382, and not the Section

at issue here.

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1120. But the district court's order would require agents

conducting an undercover sting operation to give fully functional

"weapons of war," id. at 1116, like explosive grenades, to

potential felons.

The result reached by the district court is contrary to

the complete text and context of the NFA and is not what Congress

intended. We reverse the dismissal of the counts against Musso,

reinstate them, and remand for further proceedings consistent with

this opinion.

Reversed.