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Criminal - 'Explosive grenades'.

Byline: Mass. Lawyers Weekly Staff

Where four charges of violations of the National Firearms Act (NFA) were dismissed, that decision must be reversed, as four grenades purchased by the defendant could qualify as explosive devices despite being rendered inoperable.

"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.

"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.'

"Musso's grenades were designed as weapons. Each M67 grenade sold to Musso was a standard-issue Marine Corps weapon. That the grenades were inoperable when purchased by Musso does not change the fact that they were 'designed' as weapons. ... We conclude that Musso's explosive grenades were each 'designed for use as a weapon,' 26 U.S.C. 5845(f), and so were not excluded from the NFA's coverage.

" We find that the plain meaning of the words 'explosive' and 'grenade' do not clearly exclude the devices Musso purchased M67 grenades with inoperable fuzes. We ultimately reject the district court's glosses on the term 'explosive grenade' because they do not come from the NFA's text, 'and we may not engraft our own exceptions onto the statutory text.'

"With the NFA, Congress aimed to decrease threats to public safety from destructive devices. These devices have been used for criminal conduct that has included robbery. And while we have no need to resort to legislative history, there is congressional history 'to the effect that Congress intended to proscribe the activities generally associated with armed groups devoted to disruption of public authority.' But the district court's order would require agents conducting an undercover sting operation to give fully functional 'weapons of war,' id. at 1116, like explosive grenades, to potential felons.

"The result reached by the district court is contrary to the complete text and context of the NFA and is not what Congress intended. We reverse the dismissal of the counts against Musso, reinstate them, and remand for further proceedings consistent with this opinion."

United States v. Musso (Lawyers Weekly No. 01-025-19) (17 pages) (Lynch, J.) Appealed from the U.S. District Court for the District of New Hampshire (Docket No. 18-1260) (Jan. 25, 2019).

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Title Annotation:United States v. Musso, U.S. Court of Appeals for the 1st Circuit
Publication:Massachusetts Lawyers Weekly
Date:Jan 29, 2019
Words:591
Previous Article:Appeals - G.L.c. 211, s. 3.
Next Article:Criminal - Sentencing - Arrests.
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