U.S. v. Jokel ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-1029
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANKLIN MONROE JOKEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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(August 10, 1992)
Before HIGGINBOTHAM, SMITH, and DEMOSS, Circuit Judges.
PER CURIAM:
Franklin Jokel appeals his conviction of possession of a
shotgun and explosive mines that were unregistered and had no
serial numbers, in violation of 26 U.S.C. §§ 5845(d) and (f) and
5861(d) and (i). Finding no error, we affirm.
I.
A sheriff's deputy had seized from Jokel's residence a shotgun
that the government introduced at trial; also seized were four
incomplete directional mines consisting of pipe nipples, end plugs,
and fuses, which could be converted into completed mines with the
addition of explosive powder and metal shot. In the container in
which deputies found the incomplete mines, deputies also found
gunpowder and metal shot called Minie balls.
Jokel does not dispute that he manufactured the shotgun and
pipe devices; he testified that he made them for his own use. He
believed that, without a trigger, no device that he made would be
a firearm within the meaning of the law. He used pipe material
that he obtained from hardware and plumbing stores and that had
been left at his house by a previous owner. He never intended to
use any of his homemade devices as a weapon.
He did not think the shotgun had a trigger. He fired it by
inserting a nail near the hammer in such a way that, when the
hammer was released, it would fall forward and hit the nail.
Jokel testified that he owned black powder firearms, that is,
ones that fire Minie balls. He also owned several cans of
smokeless ball powder.
He also testified that he intended to use the pipe devices
only to create smoke to detect opponents in paint ball war games;
he intended to lay a trip cord in the area of the games. When a
member of the opposing teams would walk over the cord, it would
trip the pipe device, emitting smoke for his team to see. Jokel
testified that neither the shotgun nor the four pipe devices had
serial number or were registered.
Bureau of Alcohol, Tobacco, and Firearms (ATF) officer Curtiss
H.A. Bartlett testified that the shotgun did not have a separate
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and distinct trigger but had a mechanism that served the function
of a trigger. With the insertion of a nail and a spring, which was
a ready restoration, the shotgun did and would fire a shell. The
shotgun is fired by pulling back a springed hinge as one would do
with a trigger on a gun; the hinge would move forward to strike the
firing pin (the nail), which would cause the shell to fire.
Bartlett testified, "It does not have a separate trigger. In
this particular case, the hammer and the trigger are really the
same piece. You just draw the hinge back and let it go. So the
hinge serves as both the hammer and the trigger." That is, the
hinge is the shotgun's triggering mechanism. The shotgun "can only
fire a single shot with each function of the trigger." Thus,
Bartlett in fact testified that the shotgun has a trigger.
AFT officer Jerry Taylor described the mines as being composed
of pipe material, end plugs, and fuses. He also described the
metal shot and the gunpowder that were found with the mines and
that could make them operable.
II.
Jokel argues that the evidence was insufficient to support the
convictions. On such a claim, we examine the evidence in the light
most favorable to the government, making all reasonable inferences
and credibility choices in favor of the verdict. The evidence is
sufficient if a reasonable trier of fact could have found that it
established guilt beyond a reasonable doubt. Every reasonable
hypothesis of innocence need not have been excluded, nor need the
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evidence be entirely inconsistent with innocent conduct. United
States v. Vasquez, 953 F.2d 176, 181 (5th Cir.), cert. denied, 112
S. Ct. 2288 (1992).
A.
Jokel first argues that the evidence on counts 1 and 2 was
insufficient to prove that the shotgun was a shotgun within the
meaning of the statute, on the ground that it did not have a
trigger. Section 5845(d) provides,
The term "shotgun" means a weapon designed or redesigned,
made or remade, and intended to be fired from the
shoulder and designed or redesigned and made or remade to
use the energy of the explosive in a fixed shotgun shell
to the fire through a smooth bore either a number of
projectiles (ball shot) or a single projectile for each
pull of the trigger, and shall include any such weapon
which may be readily restored to fire a fixed shotgun
shell.
Jokel testified that he thought that the shotgun did not have
a trigger. Bartlett testified that the hinge was a trigger. A
reasonable jury certainly could have found Bartlett's testimony
more persuasive than Jokel's. The evidence undoubtedly was
sufficient.
B.
By way of the foregoing sufficiency argument, Jokel seems to
argue that the hinge was not a trigger within the meaning of
section 5845(d). The statute does not define "trigger," and we are
aware of no caselaw construing the statute in this regard.
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Unless defined otherwise, words in a statute are given their
common meanings. United States v. Chen, 913 F.2d 183, 189 (5th
Cir. 1990). The numerous definitions of "trigger" include "a piece
(as a lever) connected with a catch or detent as a means of
releasing it . . .[;] the part of the action of a firearm moved by
the finger to release the hammer or firing pin in firing . . .[;]
a device that fires an explosive . . . functioning as or in a
manner analogous to a trigger." Webster's Third New Int'l
Dictionary of the English Language Unabridged 2444 (1971). Jokel
cites an older, abridged dictionary in his attempt to show that a
trigger must be a small lever pulled by a finger.
The ordinary meaning is not as restricted as Jokel argues.
The ordinary meaning is that a trigger is a mechanism that is used
to initiate the firing sequence. For example, the verb "to
trigger" means "to cause the explosion of." Id.
To construe "trigger" to mean only a small lever moved by a
finger would be to impute to Congress the intent to restrict the
term to only one kind of trigger, albeit a very common kind. The
language implies no intent to so restrict the meaning, and we will
not read such intent into section 5845(d).
One might argue that, if either a narrow or a broad construc-
tion of a term could be applied, the rule of lenity requires that
the former be used. The rule of lenity, however, is not to be used
to reject a common sense meaning of a term. Otherwise, the intent
of Congress would be defeated. Chen, 913 F.2d at 189.
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C.
Next, Jokel argues that the jury instruction on counts 3 and
4 increased the government's burden and that the evidence was
insufficient to meet the increased burden. The court first defined
"destructive device" for the jury:
The term "destructive device" means any explosive
mine. A destructive device includes any combination of
parts either designed or intended for use in converting
any device into a destructive device and from which a
destructive device may be readily assembled . . . .
The court then instructed as follows:
For you to find the defendant guilty of the crime
set out in Count 3, you must be convinced that the
government has provided each of the following beyond a
reasonable doubt:
First, that the defendant knew that he had a
destructive device in his possession;
Second, that this destructive device was an explo-
sive mine;
Third, that the defendant knew of the characteris-
tics of the destructive device, that it was an explosive
mine;
Fourth, that this was a destructive device, or a
combination of parts from which a destructive device
could be readily assembled, and;
Fifth, that this destructive device was not regis-
tered to the defendant in the National Firearms Registra-
tion and Transfer Record. It does not matter whether the
defendant knew that a destructive device had to be
registered.
The instruction on count 4 was identical, except for the fifth
item, which stated, "Fifth, that this destructive device was not
identified by a serial number. It does not matter whether the
defendant knew that the destructive device had to be identified by
serial number."
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Jokel construes the second and third items of the instruction
to require that the government prove that the destructive devices
were completed explosive mines. Section 5845(f) provides the
following definition:
The term "destructive device" means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade,
(C) rocket having a propellent 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; (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 one-half inch in diameter, except a
shotgun or 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 subpara-
graphs (1) and (2) and from which a destructive device
may be readily assembled . . . .
The statute criminalizes possession of a completed mine or a
thing that is readily convertible into a completed mine. The
language of the district court's second and third enumerated
instructions requires that the government prove that the devices
were completed mines.
An instruction that increases the government's burden and to
which the government does not object becomes the law of the case.
United States v. Gordon, 876 F.2d 1121, 1125 (5th Cir. 1989). The
government concedes that the instruction is the law of the case.
Jokel argues accordingly that the evidence was insufficient to
prove that the destructive devices were completed explosive mines.
Any one instruction, however, does not have meaning in
isolation from the instructions that went before and came after it.
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See United States v. Daniel, 957 F.2d 162, 169 (5th Cir. 1992);
United States v. Cohen, 631 F.2d 1223, 1227 (5th Cir. 1980). Prior
to giving the second and third enumerated instructions, the
district court, pursuant to section 5845(f), defined a destructive
device to include both completed mines and things readily convert-
ible into mines.
In context, the questioned instruction conformed to the
statute and did not increase the government's burden. The evidence
was sufficient to prove that the devices were readily convertible
into mines with the addition of only gun powder and shot, which
were found with the devices.
AFFIRMED.
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