FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District
Matthew T. Hunter, Special Assistant U.S. Attorney, with whom
Scott W. Murray, United States Attorney, Seth R. Aframe,
Assistant U.S. Attorney, and John S. Davis, Assistant U.S.
Attorney, were on brief, for appellant.
S. Dean for appellee.
Lynch, Stahl, and Barron, Circuit Judges.
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).
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
on the admitted facts and on the complete text, statutory
context, and Congress's intent in enacting the
"explosive grenade" provision of the NFA, we
reverse and hold that each grenade, as purchased by Musso,
was an "explosive grenade."
The National Firearms Act, 26 U.S.C. § 5801, et
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
(C) rocket having a propellent [sic] charge of more than four
(D) missile having an explosive or incendiary charge of more
than one-quarter ounce,
(E) mine, or
(F)similar device . . ...