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United States v. Musso

United States Court of Appeals, First Circuit

January 25, 2019

UNITED STATES, Appellant,
v.
DANIEL E. MUSSO, SR., Defendant, Appellee.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

          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.

          Penny S. Dean for appellee.

          Before Lynch, Stahl, and Barron, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         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 "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 one-quarter ounce,
(E) mine, or
(F)similar device . . ...

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