United States v. James David Kircus , 610 F. App'x 936 ( 2015 )

Case: 14-13956 Date Filed: 07/22/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13956
Non-Argument Calendar
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D.C. Docket No. 2:13-cr-00456-RDP-JHE-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES DAVID KIRCUS,
Defendant - Appellant.
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Appeals from the United States District Court
for the Northern District of Alabama
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(July 22, 2015)
Case: 14-13956 Date Filed: 07/22/2015 Page: 2 of 3
Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.
PER CURIAM:
James Kircus appeals his conviction for knowing possession of a destructive
device, in violation of 26 U.S.C. § 5861(d). Kircus contends the district court
erred in denying his motion for a judgment of acquittal because the Government
failed to prove Kircus’s modified airbag cylinder was a “destructive device.” We
affirm.
A “destructive device” is statutorily defined as “any explosive, incendiary,
or poison gas (A) bomb” but not including “any device which is neither designed
nor redesigned for use as a weapon.” 26 U.S.C. § 5845(f). This section requires
proof that the device was both (1) “an explosive” and (2) “designed as a weapon.”
United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004). In determining
whether a device was designed as a weapon, “the critical inquiry is whether the
device, as designed, has any value other than as a weapon.” Id. at 781.
On appeal, Kircus does not argue the modified airbag cylinder was not an
explosive. Rather, he contends the evidence does not support a finding that the
device was designed or redesigned as a weapon. We disagree. The Government’s
experts testified the device as modified had no social, industrial, or commercial use
and was, in their opinion, designed to be an improvised explosive bomb. The
Government’s experts also testified the device would fragment into pieces moving
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at a high enough rate of speed to seriously injure anyone in the vicinity of the blast.
This testimony, along with other record evidence, provides a sufficient basis for
concluding the device was designed as a weapon. See, e.g., United States v.
Spoerke, 568 F.3d 1236, 1247 (11th Cir. 2009) (explaining the Government’s
expert testimony “established that [defendant’s] pipe bombs were designed as
weapons” when the expert testified the pipe bombs “had no social or entertainment
use, they propelled fragments, and the fragments were capable of causing severe
injury to people in the vicinity”). Therefore, the district court did not err in
denying Kircus’s motion for a judgment of acquittal.
AFFIRMED.
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