United States v. Brannan
In United States v. Brannan, —- F.4th —-, No. 23-40098 (5th Cir. Apr. 12, 2024), the Fifth Circuit affirmed the defendant’s conviction for possessing an unregistered destructive device — here, a “sealed metal pipe containing pyrotechnic material harvested from fireworks” — under 26 U.S.C. § 5861(d).
Issue: Was the trial evidence insufficient to convict Brannan because it failed to prove that his device was “designed for use as a weapon”? See 26 U.S.C. § 5845(f).
Holding: The evidence was sufficient because the “designed for use as a weapon” exception is an affirmative defense, not an element of the crime, so the burden of proof was on Brannan, not the Government.
Facts and Reasoning: At trial, Brannan argued that this pipe was not an explosive; instead, it was a “makeshift roman-candle or fountain firework” that was “designed to emit a pyrotechnic display.” He called an expert witness who testified that the device would not have exploded, but the expert admitted the device’s structure was not typical of improvised fireworks.
Brannan asked the court to instruct the jury that “to convict him under 26 U.S.C. § 5861(d), it had to find he had intentionally designed the device for use as a weapon.” The district court declined and instead provided the Fifth Circuit pattern jury instruction, which explained (in relevant part), that the Government needed to prove this was an “explosive bomb” and Brannan “knew the characteristics of the destructive device, an explosive bomb.”
On appeal, the Fifth Circuit rejected Brannan’s argument that the Government should have also been required to prove his device was designed as a weapon. The court relied on United States v. Beason, 690 F.2d 439, 445 (5th Cir. 1982), in which it held that the exceptions in § 5845(f) are affirmative defenses, not elements of the crime. Here, the court declined to disturb the jury’s verdict.
Finally, in a footnote, the court wrote that in prior cases it has “repeatedly determined that pipe bombs are ‘destructive devices’ within the meaning of § 5845(f),” noting its recent suggestion that “given their inherent dangerousness, ‘metal pipe[s] containing explosives’ are ‘per se weapons.’” United States v. Harbarger, 46 F.4th 287, 289 n.5 (5th Cir. 2022).