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Boston, MA - Criminal defense lawyer represented defendant with four
charges of violations of the National Firearms Act (NFA).

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.

Outcome: 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.

Plaintiff's Experts:

Defendant's Experts:

Comments: