Petition for Writ of Certiorari — Kenneth William Kirkland, Petitioner v. United States

Supreme Court briefJan 31, 2019

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APPENDIX 1

Case: 16-10514, 11/28/2018, ID: 11101131, DktEntry: 43-1, Page 1 of 10

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 16-10514

D.C. No.

1:15-cr-00322DAD-BAM-1

KENNETH WILLIAM KIRKLAND,

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Argued and Submitted July 10, 2018

Pasadena, California

Filed November 28, 2018

Before: D. Michael Fisher, * Paul J. Watford,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Watford

The Honorable D. Michael Fisher, United States Circuit Judge for

the U.S. Court of Appeals for the Third Circuit, sitting by designation.

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UNITED STATES V. KIRKLAND

SUMMARY **

Criminal Law

The panel affirmed the defendant’s convictions and

sentence for being a felon in possession of a destructive

device in violation of 18 U.S.C. § 922(g)(1) and possessing

an unregistered destructive device in violation of 26 U.S.C.

§ 5861(d).

The defendant contended that the definition of

“destructive device” in 18 U.S.C. § 921(a)(4)(C) requires

possession of every component necessary to construct a

functional weapon, and that he would be entitled to a

judgment of acquittal because the government did not

introduce any evidence to establish that he possessed the

eight C-cell batteries needed for the device in question to

operate.

The panel held that § 921(a)(4)(C) requires only that the

defendant possess a combination of parts from which a

functional device “may be readily assembled”; that the

requirement does not categorically exclude situations in

which the assembly process entails the acquisition and

addition of a new part; and that the “readily assembled”

element can still be met so long as the defendant could

acquire the missing part quickly and easily, and so long as

the defendant could incorporate the missing part quickly and

easily. The panel concluded that because the defendant

could have quickly and easily obtained the missing batteries

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. KIRKLAND

assuming he did not have them lying around the house

already, and because he could have quickly and easily

incorporated them into his partially constructed bomb to

render it functional, ample evidence supports the conclusion

that a functional explosive device could be readily

assembled from the combination of parts the defendant

possessed.

COUNSEL

Carlton F. Gunn (argued), Pasadena, California, for

Defendant-Appellant.

Angela Scott (argued) and Christopher D. Baker, Assistant

United States Attorneys; Camil A. Skipper, Appellate Chief;

United States Attorney’s Office, Fresno, California; for

Plaintiff-Appellee.

OPINION

WATFORD, Circuit Judge:

When executing a search warrant at Kenneth Kirkland’s

home, police officers discovered a partially constructed

homemade bomb concealed inside a shoe box. The device

contained: a battery box designed to hold eight C-cell

batteries, which served as the device’s power source; a radio

frequency receiver to pick up the radio signal that would

detonate the device; a detonator; wires to conduct electricity

from the batteries to the detonator; and shotgun shells that

served as the explosive main charge. All of the components

necessary for the device to function were present except for

the eight C-cell batteries. An explosives expert testified at

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UNITED STATES V. KIRKLAND

trial that to render the device functional, Kirkland simply had

to insert the batteries into the battery box and connect the

detonator to the power source. That process, the expert said,

would take “a matter of minutes.”

Based on Kirkland’s possession of this homemade

bomb, the jury convicted him of being a felon in possession

of a destructive device in violation of 18 U.S.C. § 922(g)(1),

and possessing an unregistered destructive device in

violation of 26 U.S.C. § 5861(d). On appeal, Kirkland

challenges the sufficiency of the evidence to support his

convictions, on the ground that the device he possessed does

not qualify as a “destructive device.” He also argues that his

sentence should not have been enhanced under the

“destructive device” provision of the Sentencing Guidelines,

U.S.S.G. § 2K2.1(b)(3)(B), as that enhancement turns on the

same definition of “destructive device.” (We resolve his

remaining contentions in an unpublished memorandum

disposition filed concurrently with this opinion.)

Both of the statutes under which Kirkland was convicted

prohibit the unlawful possession of a “firearm,” which is

defined to include a “destructive device.” 18 U.S.C.

§ 921(a)(3)(D); 26 U.S.C. § 5845(a)(8). Both statutes—one

a provision of the Gun Control Act of 1968, the other a

provision of the National Firearms Act—define the term

“destructive device” in almost identical language. 18 U.S.C.

§ 921(a)(4); 26 U.S.C. § 5845(f). We will refer throughout

to the definition found in the Gun Control Act, but our

analysis applies equally to the definition provided in the

National Firearms Act. See United States v. Lussier,

128 F.3d 1312, 1314 n.3 (9th Cir. 1997).

Section 921(a)(4) defines “destructive device” in

relevant part as follows:

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UNITED STATES V. KIRKLAND

(4) The term “destructive device” means—

(A) any explosive, incendiary, or poison

gas—

(i) bomb,

(ii) grenade,

(iii) rocket having a propellant charge

of more than four ounces,

(iv) missile having an explosive or

incendiary charge of more than onequarter ounce,

(v) mine, or

(vi) device similar to any of the

devices described in the preceding

clauses;

(B) any type of weapon (other than a

shotgun or a shotgun shell which the

Attorney General finds is generally

recognized as particularly suitable for

sporting purposes) 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, and which has any barrel with

a bore of more than one-half inch in

diameter; and

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UNITED STATES V. KIRKLAND

designed or intended for use in

converting any device into any

destructive

device

described

subparagraph (A) or (B) and from which

a destructive device may be readily

assembled.

The term “destructive device” shall not

include any device which is neither

designed nor redesigned for use as a

weapon . . . .

Subsections (A) and (B) cover fully assembled weapons;

subsection (C) generally applies to a combination of parts

that has not yet been assembled into a functional weapon.

Lussier, 128 F.3d at 1315. At trial, the government

proceeded against Kirkland solely under subsection (C), so

we will confine our discussion to that provision.

Kirkland does not dispute that the parts he possessed

were designed for use as one of the weapons described in

subsection (A)—namely, an explosive bomb. He challenges

only the sufficiency of the evidence to support the jury’s

finding that he possessed a combination of parts “from

which” an explosive bomb could be “readily assembled.” In

his view, a conviction under subsection (C) requires proof

that the defendant possessed every component necessary to

construct a functional weapon. Under Kirkland’s reading of

the statute, he would be entitled to a judgment of acquittal

because the device in question needed eight C-cell batteries

to operate, and the government did not introduce any

evidence establishing that he possessed such batteries.

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UNITED STATES V. KIRKLAND

We do not think the statute can be read in the manner

urged by Kirkland. Nothing in the text of § 921(a)(4)(C)

states that a defendant must possess every component

necessary to render a partially constructed device capable of

detonating. The statute requires only that the defendant

possess a combination of parts from which a functional

device “may be readily assembled.” As used in this

provision, the term “readily” means quickly and easily: The

combination of parts possessed by the defendant must be

capable of being assembled into a functional device within a

short period of time and with little difficulty—measures that

may depend on the expertise of the defendant constructing

the device. That requirement does not categorically exclude

situations in which the assembly process entails the

acquisition and addition of a new part. Thus, if the defendant

lacks a part necessary to render the device functional, the

“readily assembled” element can still be met so long as the

defendant could acquire the missing part quickly and easily,

and so long as the defendant could incorporate the part into

the device quickly and easily. See United States v. Sheehan,

838 F.3d 109, 125 (2d Cir. 2016) (upholding a conviction

even though the device lacked a piece of tape needed to

connect the wires to the battery); United States v. Russell,

468 F. Supp. 322, 329–30 (S.D. Tex. 1979) (same where the

device lacked a 1.5-volt battery).

Ample evidence supports the conclusion that a

functional explosive device could be readily assembled from

the combination of parts Kirkland possessed. As noted

above, Kirkland had assembled a nearly complete

homemade bomb; only the eight C-cell batteries were

missing. The testimony at trial confirmed that those batteries

are common household items “readily available to an

ordinary consumer.” Thus, Kirkland could have quickly and

easily obtained the missing batteries, assuming he did not

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UNITED STATES V. KIRKLAND

have them lying around the house already. The jury also

heard expert testimony that it would have taken only a matter

of minutes to install the batteries and connect the detonator

to the power source. Thus, once he obtained the batteries,

Kirkland could have quickly and easily incorporated them

into his partially constructed bomb to render it functional.

This evidence is more than sufficient to satisfy the “readily

assembled” element.

Kirkland contends that our reading of the statute will

lead to intractable line-drawing problems as courts are

forced to decide which components a defendant must

possess in order to be convicted, and which he need not. We

do not think that prediction will prove accurate. Whether a

particular combination of parts may be “readily assembled”

into an operable device is an inherently factbound issue that

juries will have to resolve on a case-by-case basis. With one

exception, mentioned below, no bright-line rules can be

drawn declaring which components of a destructive device

must be in the defendant’s possession in order for a

conviction to be sustained. That will depend in every case

on both the nature of the parts the defendant has already

assembled and the ease with which the defendant could

acquire and incorporate any missing parts. At the end of the

day, regardless of which components are missing from the

device, the ultimate question will be the same: Can the

missing parts be obtained quickly and easily, and if so, can

they quickly and easily be incorporated to render the device

functional?

The one exception involves the material necessary to

bring a device within the coverage of § 921(a)(4).

Subsection (A) covers any “explosive, incendiary, or poison

gas” bomb, grenade, etc. At least two circuits have held that

a conviction may not be sustained under subsection (C),

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UNITED STATES V. KIRKLAND

which tracks the coverage of subsection (A), unless the

defendant possesses the explosive material necessary to

construct an operable explosive weapon. See United States

v. Blackburn, 940 F.2d 107, 110 (4th Cir. 1991); United

States v. Malone, 546 F.2d 1182, 1184 (5th Cir. 1977). The

same would be true of the incendiary material or poison gas

necessary to construct a weapon of that ilk. This exception

does not apply here, as Kirkland does not dispute that he

possessed the necessary explosive material in the form of a

detonator and shotgun shells. 1

We reject Kirkland’s reading of the statute for the

additional reason that it is at war with Congress’ purpose in

enacting the “combination of parts” provision. Congress

sought to protect the public from the danger posed by

military-style weaponry and “the street variety of homemade

instruments and weapons of crime and violence.” United

States v. Peterson, 475 F.2d 806, 810 (9th Cir. 1973). That

danger exists not only when a defendant possesses a fully

assembled weapon, but also when a defendant who intends

to construct such a weapon has gathered enough of the

necessary components such that a functional weapon can be

readily assembled. Reading the statute to require possession

of every necessary component, even a single item that could

be readily obtained, would defeat the flexibility Congress

sought to build into the statutory scheme and “would foster

easy evasion to thwart the Congressional intent.” United

States v. Shafer, 445 F.2d 579, 583 (7th Cir. 1971). While

The court in Malone did state, as Kirkland points out, that “the

defendant cannot be guilty of [possessing a destructive device] because

he did not have in his possession all of the component parts from which

a destructive device might be readily assembled.” 546 F.2d at 1184. The

court, however, explicitly limited its holding to the facts before it—

namely, a “complete absence of explosive material.” Id.

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UNITED STATES V. KIRKLAND

the ultimate harm that Congress sought to prevent occurs

when the covered weapons are used, Congress chose to take

the prophylactic measure of criminalizing the possession of

such weapons—as well as the possession of parts that could

readily become such weapons. Under Kirkland’s reading,

an individual could render that prophylactic measure futile,

avoiding criminal exposure for possession simply by

refraining from adding some easily obtainable part to an

otherwise fully assembled weapon until use of the weapon is

imminent.

This case provides a good illustration of the concerns

that motivated Congress to enact the “combination of parts”

provision. The evidence at trial showed that Kirkland’s

explosive device lacked batteries because he was not yet

ready to use it. In a post-arrest interview, Kirkland told the

police that he had not added the batteries because he knew

the device could explode inadvertently once he did. Because

C-cell batteries could be readily obtained at any time, there

was no need for Kirkland to add them in advance. If and

when he was ready to deploy his weapon, he could acquire

the batteries and insert them into the device right before

doing so. The absence of the batteries does not make

Kirkland less culpable from the standpoint of the statute’s

prime objective—keeping inherently dangerous weapons

out of the hands of those who are not permitted to possess

them.

AFFIRMED.

A010

APPENDIX 2

Case: 16-10514, 06/02/2017, ID: 10458565, DktEntry: 10, Page 1 of 61

CA No. 16-10514

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

KENNETH WILLIAM KIRKLAND,

Defendant-Appellant.

___________________________________

)

(D.Ct. 15-cr-00322-DAD)

APPELLANT’S OPENING BRIEF

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

HONORABLE DALE A. DROZD

United States District Judge

CARLTON F. GUNN

Attorney at Law

234 East Colorado Blvd.

Pasadena, California 91101

Telephone (626) 844-7660

Attorney for Defendant-Appellant

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TABLE OF CONTENTS

PAGE

STATEMENT OF ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III.

STATEMENT OF JURISDICTION.. . . . . . . . . . . . . . . . . . . . . . . . 3

COURSE OF PROCEEDINGS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

BAIL STATUS OF DEFENDANT.. . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

THE SEARCH WARRANT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

THE SEARCH OF MR. KIRKLAND’S HOME. .. . . . . . . . . . . . . . . 6

THE TRIAL... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Percipient Witnesses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Non-Percipient Expert Witnesses.. . . . . . . . . . . . . . . . . . . . . 10

THE VERDICT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

SENTENCING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

IV.

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

THE TWO DESTRUCTIVE DEVICE CONVICTIONS AND THE

DESTRUCTIVE DEVICE SENTENCING GUIDELINES

ENHANCEMENT MUST BE VACATED BECAUSE A

PARTIALLY ASSEMBLED DEVICE QUALIFIES AS A

DESTRUCTIVE DEVICE ONLY IF THE DEFENDANT HAS ALL

THE NECESSARY COMPONENTS, AND MR. KIRKLAND DID

NOT HAVE THE BATTERIES WHICH WERE NEEDED TO

PROVIDE A POWER SOURCE. . . . . . . . . . . . . . . . . . . . . . . . . . 15

Reviewability and Standard of Review. ... . . . . . . . . . . . . . . . 15

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TABLE OF CONTENTS (cont’d)

PAGE

An Unassembled Destructive Device Qualifies as a Destructive

Device Only If the Defendant Has All the Necessary

Components, and Mr. Kirkland Did Not Have the Batteries

Which Would Have Been the Power Source.. . . . . . . . . . . . . 16

The Sentences on Any Counts Which Remain Standing Must

Be Vacated Because They Were Based on a Guideline Range

Which Included an Adjustment for Possession of a Destructive

Device.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

THE DESTRUCTIVE DEVICE CONVICTIONS AND SENTENCE

ENHANCEMENT MUST BE VACATED BECAUSE IT WAS

PLAIN ERROR TO (1) ALLOW THE COMBINED EXPERT AND

PERCIPIENT WITNESS TESTIMONY BY THE BOMB SQUAD

OFFICER ABOUT THE ALLEGED DEVICE WITHOUT

APPROPRIATE GATEKEEPING AND (2) ALLOW THE

TESTIMONY BY THE OFFICER WHO CONDUCTED THE

SECOND INTERVIEW OF MR. KIRKLAND THAT HE

BELIEVED MR. KIRKLAND MIGHT BE MAKING IMPROVISED

EXPLOSIVE DEVICES FOR TERRORIST ORGANIZATIONS... . 24

Reviewability and Standard of Review. ... . . . . . . . . . . . . . . . 24

It Was Plain Error to Allow the Combined Expert and

Percipient Witness Testimony by the Bomb Squad Officer

Without Appropriate Gatekeeping.. . . . . . . . . . . . . . . . . . . . . 25

The district court erred in allowing the dual percipient

witness and expert testimony without appropriate

protections.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

As to the destructive device convictions, the district

court’s error affected Mr. Kirkland’s substantial

rights.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

It Was Plain Error to Allow the Testimony by the Officer Who

Conducted the Second Interview of Mr. Kirkland that He

Believed Mr. Kirkland Might Be Making Improvised Explosive

Devices for Terrorist Organizations.. . . . . . . . . . . . . . . . . . . . 31

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TABLE OF CONTENTS (cont’d)

PAGE

The testimony about the officer’s reasons for not

recording the interview should have been excluded as

irrelevant... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

The erroneous admission of the testimony affected Mr.

Kirkland’s substantial rights.. . . . . . . . . . . . . . . . . . . . 33

THE DISTRICT COURT ERRED IN DENYING THE DEFENSE

MOTION TO SUPPRESS EVIDENCE BECAUSE THE

THUMBPRINT ON THE BEER CAN, THE PRESENCE OF A

WHITE TRUCK AT THE TIME THE TRESPASSERS WERE

INSIDE THE HOUSE, AND THE PRESENCE OF A WHITE

TOYOTA PICKUP AT MR. KIRKLAND’S HOME A MONTH

LATER DID NOT ESTABLISH PROBABLE CAUSE TO BELIEVE

THE STOLEN PROPERTY WOULD BE FOUND IN MR.

KIRKLAND’S HOME.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Reviewability and Standard of Review. ... . . . . . . . . . . . . . . . 35

The Search Warrant Affidavit Did Not Establish Probable

Cause to Believe the Stolen Property Would Be Found in Mr.

Kirkland’s Home.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

VI.

Weakness in the showing Mr. Kirkland had participated

in the trespassing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Weakness in the showing stolen property was in Mr.

Kirkland’s home.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

The totality of the circumstances.. . . . . . . . . . . . . . . . . 42

The Good Faith Exception Does Not Save the Government.. . 43

CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

iii

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TABLE OF AUTHORITIES

CASES

PAGE

Brown v. Illinois,

422 U.S. 590 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Jackson v. Virginia,

443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 38

Jones v. State,

833 S.W.2d 118 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . 38

McMillan v. Gomez,

19 F.3d 465 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39

Mikes v. Borg,

947 F.2d 353 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38

Schell v. Witek,

218 F.3d 1017 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

State v. Grant,

944 A.2d 947 (Conn. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Taylor v. Stainer,

31 F.3d 907 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

United States v. Anchrum,

590 F.3d 795 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28, 29

United States v. Arvizu,

534 U.S. 266 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

United States v. Bass,

404 U.S. 3368 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Blackburn,

940 F.2d 107 (4th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Bonilla-Guizar,

729 F.3d 1179 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Caldwell,

423 F.3d 754 (7th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

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TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Collins,

559 F.2d 561 (9th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41

United States v. Corso,

439 F.2d 956 (4th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

United States v. Crocker,

260 Fed. Appx. 794 (6th Cir. 2008) (unpublished). . . . . . . . . . . . . . . . 21, 22

United States v. Dean,

980 F.2d 1286 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

United States v. Dukagjini,

326 F.3d 454 (2d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Durham,

403 F.2d 190 (9th Cir. 1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

United States v. Flyer,

633 F.3d 911 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Frederick,

78 F.3d 1370 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

United States v. Freeman,

498 F.3d 893 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

United States v. Gann,

732 F.2d 714 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

United States v. Garcia-Guizar,

160 F.3d 511 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Grant,

682 F.3d 827 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . 35, 39, 40, 43

United States v. Hamrick,

995 F.2d 1267 (4th Cir. 1993),

rev’d on other grounds by evenly divided court,

43 F.3d 877 (4th Cir. 1995) (en banc). . . . . . . . . . . . . . . . . . . . . . . 19, 20, 22

A016

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TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Hamrick,

43 F.3d 877 (4th Cir. 1995) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Jackson,

756 F.2d 703 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

United States v. Jacobs,

715 F.2d 1343 (9th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41

United States v. Johnson,

529 U.S. 538 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Langan,

263 F.3d 613 (6th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Leon,

468 U.S. 897 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

United States v. Lussier,

128 F.3d 1312 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Makhlouta,

790 F.2d 1400 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 32

United States v. Malone,

546 F.2d 1182 (5th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 20

United States v. Martinez,

657 F.3d 811 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Munoz,

412 F.3d 1043 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Nguyen,

673 F.3d 1259 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

United States v. Oba,

448 F.2d 892 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Pelisamen,

641 F.3d 399 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 38

A017

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TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Posnjak,

457 F.2d 1110 (2d Cir. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 23

United States v. R.L.C.,

503 U.S. 291 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

United States v. Ruiz,

73 F.3d 949 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Sedaghaty,

728 F.3d 885 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

United States v. Sheehan,

838 F.3d 109 (2d Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

United States v. Simmons,

83 F.3d 686 (4th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Steeves,

525 F.2d 338 (8th Cir. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

United States v. Strayhorn,

743 F.3d 917 (4th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

United States v. Torralba-Mendia,

784 F.3d 652 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Vera,

770 F.3d 1232 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27, 28

United States v. Vizcarra-Martinez,

66 F.3d 1006 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Wallace,

848 F.2d 1464 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

United States v. Weber,

923 F.3d 1338 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

United States v. Wing,

682 F.3d 861 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vii

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TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Wipf,

620 F.3d 1168 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Youssef,

547 F.3d 1090 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

STATUTES, RULES AND GUIDELINES

18 U.S.C. § 921(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

26 U.S.C. § 5845. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 18, 20

26 U.S.C. § 5845(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

26 U.S.C. § 5845(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

26 U.S.C. § 5861. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rule 401, Federal Rules of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Rule 402, Federal Rules of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

USSG § 2K2.1(b)(3)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 24

USSG § 3D1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 23

USSG § 3D1.3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 23

USSG § 5G1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 24

viii

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TABLE OF AUTHORITIES (cont’d)

OTHER AUTHORITIES

PAGE

H. Friendly, Benchmarks (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment

(5th ed. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Manual of Model Criminal Jury Instructions for the District Courts of the Ninth

Circuit (2010 ed. 12/2016 update) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

A020

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CA No. 16-10514

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

KENNETH WILLIAM KIRKLAND,

Defendant-Appellant.

______________________________________

)

(D.Ct. 15-cr-00322-DAD)

STATEMENT OF ISSUES PRESENTED

MUST CONVICTIONS FOR FELON IN POSSESSION OF A

DESTRUCTIVE DEVICE AND POSSESSION OF AN UNREGISTERED

DESTRUCTIVE DEVICE, AND A RELATED DESTRUCTIVE DEVICE

SENTENCING GUIDELINES ENHANCEMENT, BE VACATED BECAUSE A

PARTIALLY ASSEMBLED DEVICE QUALIFIES AS A DESTRUCTIVE

DEVICE ONLY IF THE DEFENDANT HAS ALL THE NECESSARY

COMPONENTS, AND MR. KIRKLAND DID NOT HAVE BATTERIES

WHICH WERE NEEDED TO PROVIDE A POWER SOURCE?

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MUST THE DESTRUCTIVE DEVICE CONVICTIONS AND RELATED

SENTENCE ENHANCEMENT BE VACATED BECAUSE IT WAS PLAIN

ERROR TO (1) ALLOW COMBINED EXPERT AND PERCIPIENT WITNESS

TESTIMONY BY A BOMB SQUAD OFFICER ABOUT THE ALLEGED

DEVICE WITHOUT APPROPRIATE GATEKEEPING AND (2) ALLOW AN

OFFICER TO TESTIFY AS PART OF AN EXPLANATION FOR NOT

RECORDING AN INTERVIEW OF MR. KIRKLAND THAT HE BELIEVED

MR. KIRKLAND MIGHT BE MAKING IMPROVISED EXPLOSIVE DEVICES

FOR TERRORIST ORGANIZATIONS?

Was It Plain Error to Allow Combined Expert and Percipient Witness

Testimony by a Bomb Squad Officer About the Alleged Device Without

Appropriate Gatekeeping?

Was It Plain Error to Allow an Officer to Testify as Part of an

Explanation for Not Recording an Interview of Mr. Kirkland that He Believed Mr.

Kirkland Might Be Making Improvised Explosive Devices for Terrorist

Organizations?

DID THE DISTRICT COURT ERR IN DENYING A DEFENSE MOTION

TO SUPPRESS EVIDENCE BECAUSE THE PRESENCE OF MR.

KIRKLAND’S THUMBPRINT ON A BEER CAN WHICH TRESPASSERS

HAD BROUGHT INTO A HOUSE, THE PRESENCE OF A WHITE TRUCK AT

THE TIME THE TRESPASSERS WERE INSIDE THE HOUSE , AND THE

PRESENCE OF A WHITE TOYOTA PICKUP AT MR. KIRKLAND’S HOME A

MONTH LATER DID NOT ESTABLISH PROBABLE CAUSE TO BELIEVE

A022

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PROPERTY STOLEN FROM THE HOUSE WOULD BE FOUND IN MR.

KIRKLAND’S HOME?

Pursuant to Circuit Rule 28-2.7, the pertinent statutory provisions are

included in a Statutory Appendix.

II.

STATEMENT OF THE CASE

STATEMENT OF JURISDICTION.

This appeal is from convictions for felon in possession of firearms and

ammunition, in violation of 18 U.S.C. § 922(g)(1); felon in possession of a

destructive device, in violation of 18 U.S.C. § 922(g)(1); felon in possession of

explosives, in violation of 18 U.S.C. § 922(g)(1); and possession of an

unregistered destructive device, in violation of 26 U.S.C. §§ 5845, 5861. The

district court had jurisdiction under 18 U.S.C. § 3231, and this Court has

jurisdiction under 28 U.S.C. § 1291. The appeal is timely because Mr. Kirkland

was sentenced on December 5, 2016, ER 2, and a notice of appeal was filed on

December 13, 2016, ER 1.

COURSE OF PROCEEDINGS.

On November 12, 2015, an indictment was filed, ER 156-59, and on

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December 9, 2015, Mr. Kirkland was arraigned and pled not guilty, CR 5. On

August 16, 2016, defense counsel filed a Motion to Quash Warrant and Suppress

Evidence. CR 25. The government filed an opposition to the motion on August

19, 2016, CR 29, and the defense filed a reply the same day, CR 32. On August

22, 2016, the district court held a hearing and denied the motion. ER 135-40.

On August 30, 2016, trial began. CR 54. The trial ended on September 1,

2016, CR 56, and the jury returned verdicts of guilty on September 2, 2016, ER 913.

On November 23, 2016, the probation office filed a final revised

presentence report. See PSR. On December 5, 2016, the court sentenced Mr.

Kirkland – to 57 months in prison. ER 3. On December 13, 2016, the defense

filed a notice of appeal. ER 1.

BAIL STATUS OF DEFENDANT.

Mr. Kirkland is presently serving his sentence. His projected release date is

November 30, 2019.

III.

STATEMENT OF FACTS

THE SEARCH WARRANT.

On October 10, 2015, local police officers sought a search warrant for Mr.

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Kirkland’s home. ER 149-55. The affidavit stated that the owner of a house in

California City, California, had contacted police on September 5, 2015 after a

neighbor reported multiple people appeared to be using the house, which the

owner had last visited in July. See ER 152. The owner said he had not authorized

anyone to be in the house and took the affiant officer and the officer’s sergeant to

the house. ER 152. The residence appeared to have been recently occupied, and

there were several items inside that did not belong to the owner, including beer

cans, fresh fruit, candles, novelty items, a business card, and bolt cutters. ER 15253.1 In addition, several items of the owner’s property were missing, which the

affidavit described as (1) “1989 ‘Geo Tracker’ transmission without a shifter

handle, aluminum in color (estimated value $600)”; (2) “2006 Coleman Generator,

red in color (estimated value $350)”; (3) “2004 ‘Pantera Specialist’ digital

computer, black in color (estimated value $800)”; (4) 2005 ‘Kennedy’ adapter

plate, aluminum in color (estimated value $900)”; and (5) Duffle bag, black in

color, containing eleven (11) life jackets (estimated value $450).” ER 153.

The affidavit also summarized an interview of the neighbor. The neighbor

said he had been checking his own property the day before and saw several beer

cans, a barbecue, and a white truck outside the victim’s house. ER 153. He also

heard more than two people talking inside the house at approximately 3:00 a.m. on

September 5 and saw candlelight coming from inside. ER 153.

The affidavit then described the identification of a thumbprint. The officers

had taken the beer cans which the owner said had not been in the house, dusted

There were also items that did not belong to the owner outside the house,

including two flags, several empty beer cans, a sign stating “new owners,” a

skateboard, and a pizza box containing two slices of unspoiled pizza. ER 152.

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them for fingerprints, and found several latent prints which they sent to a lab for

evaluation. ER 153. More than a month later, on October 7, the lab had provided

a report identifying one of the prints as the left thumbprint of Mr. Kirkland. ER

153.

The affidavit next described further investigation the officers conducted.

First, it indicated the affiant officer had spoken with the owner of the house who

said he had never authorized Mr. Kirkland to be in the house. See ER 153.

Second, the affiant officer and his sergeant had driven by Mr. Kirkland’s home on

October 10, and seen a white Toyota pickup parked in front of Mr. Kirkland’s

home. ER 153.

Based on this affidavit, a state court judge issued a search warrant for Mr.

Kirkland’s home.

THE SEARCH OF MR. KIRKLAND’S HOME.

Officers went to Mr. Kirkland’s home to execute the search warrant on

October 11, the day after the warrant was issued. RT(8/30/16) 134. Mr.

Kirkland’s father answered the door and told the officers Mr. Kirkland was

sleeping in his bedroom. RT(8/30/16) 135. The officers went to the bedroom and

saw a rifle “kind of propped up at the doorjamb of the bedroom door.”

RT(8/30/16) 136. After the officers entered the bedroom, they saw two more rifles

on the floor, near a bed in which Mr. Kirkland was sleeping. RT(8/30/16) 136-37.

Finally, they found ammunition and magazines in a dresser in the bedroom, in a

bathroom connected to the bedroom, and in a rolltop desk just outside the

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bedroom. RT(8/30/16) 143-53.

The officers also discovered detonators, which led them to call in bomb

squad officers. RT(8/30/16) 154. The bomb squad officers seized the detonators,

which were also described as blasting caps, see ER 100, and found additional

explosives and suspected explosive devices during a further search. This included

additional detonators/blasting caps, dynamite, and two shoeboxes under Mr.

Kirkland’s bed. See ER 100-20; RT(8/31/16) 262. Because the officers suspected

the shoeboxes might be explosive devices, they removed them from under the bed

with a long stick and then x-rayed them. See ER 118-20; RT(8/31/16) 262.

The x-rays convinced the officers it was safe to open the shoeboxes, so they

did that. See ER 125; RT(8/31/16) 264. In one shoebox, there was a battery box,

a capacitor, an explosives load with “cap wires” wound around it, and an

additional blasting cap. ER 126. In the other shoebox, there were LED lights, a

circuit board, a battery box, a pushbutton switch, and an alphanumeric keypad.

RT(8/31/16) 265-66. This shoebox did not have an explosives load in it. See

RT(8/31/16) 267.

For the explosive materials, the officers then proceeded with what were

described at trial as “render safe procedure[s],” ER 124. For the shoebox that had

an explosives load, this meant using what is called a “pan disruptor” to separate

the wires attached to the explosives load from the other components, and then

destroying the explosives load on site with a “counter charge.” See ER 127-29.

For the dynamite, which showed signs of deterioration, this meant spraying it with

diesel fuel to stabilize it and then taking it to a safe location and burning it. See

ER 109-14.

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THE TRIAL.

Percipient Witnesses.

The initial government witnesses at trial were the officers who conducted

the search and/or subsequently interviewed Mr. Kirkland. They testified about

finding the guns and ammunition, the blasting caps and dynamite, and the

shoeboxes, see ER 91-93, 99-126; RT(8/30/16) 136-53; RT(8/31/16) 262;

destroying the dynamite and the explosives load from the first shoebox, see ER

110-14, 127-31; and statements Mr. Kirkland made about the guns, the explosives,

and the shoeboxes, see ER 67-76; RT(8/30/16) 155-72.

The bomb squad officers who found the shoeboxes also offered expert

testimony about the shoeboxes and their contents.2 The officer who found the

shoebox that did have an explosives load testified he could see at least four

shotgun shells in the x-ray of the shoebox, see ER 123, 134, and that a void in the

x-ray could have been dynamite, see ER 123-24, 131. This officer also testified

the explosion when he blew up the explosives load was larger than he would have

expected from just shotgun shells. See ER 130-31. He added that the only reason

he could see for including the shotgun shells was to create shrapnel, so it

“appeared to me to be built as an antipersonnel-type device.” ER 132. He also

characterized it as an “improvised explosive device,” ER 126, and opined the

“device” was “relatively sophisticated,” because he seldom saw people integrating

The bomb squad officer who handled the blasting caps and dynamite also

gave some expert testimony about blasting caps and dynamite, see, e.g., ER 10610, but that testimony is not pertinent to this appeal.

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circuits, battery boxes, and a capacitor, ER 128-29. He felt safe opening the

shoebox because there did not appear to be any batteries or other power source.

ER 125.

The officer who handled the other shoebox described it as not “an actual

IED,” but as “contain[ing] the components of an IED.” RT(8/31/16) 267. He

explained the alphanumeric keypad in the box could serve as a switch and the

battery box could be used to provide power. See RT(8/31/16) 266-67. He

explained, “All these components put together in the proper manner and adding

batteries and an explosive load can be used as an explosive device.” RT(8/31/16)

267.

Two officers also testified about Mr. Kirkland’s statements, which were

made during two custodial interviews. The officer who had obtained the search

warrant identified excerpts of a recorded interview in which Mr. Kirkland had

said, inter alia, that he found the blasting caps and dynamite in a mine in the

desert, Govt. Ex. 28A, at 4; Govt. Ex. 30A, at 1; Govt. Ex. 36A, at 1-2, 8, 11-12,

and had put together the components in the shoeboxes as just “goofin’ around,”

Govt. Ex. 28A, at 2, or “goofin’ off,” Govt. Ex. 32A, at 1, “trying to simulate a

bomb of some sort,” Govt. Ex. 32A, at 1, to scare an ex-girlfriend who kept

“jumping over my fence,” Govt. Ex. 36A, at 9; see also Govt. Ex. 31A, at 1.3 A

local officer who had been called to the scene because he was part of a

federal/state Joint Terrorism Task Force with duties that included investigating

terrorism, see ER 61-64, testified about similar statements in a second, unrecorded

Mr. Kirkland also provided a comparable explanation in testimony he

gave at the trial. See RT(9/1/16) 393-96.

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interview. See ER 67-75. See also RT(8/31/16) 305-06 (concession on cross

examination that what said in second interview was “pretty much” or “close” to

what said in first interview).

For the second interview, the government also elicited an explanation about

why the officer had not recorded that interview. The officer testified he was

thinking he might be able to use Mr. Kirkland as a confidential informant, and it

was “common practice” not to record interviews of informants. ER 78. And the

reason he gave for thinking Mr. Kirkland could act as an informant was:

Mr. Kirkland did not appear to have any ties to any kind of

international or domestic terrorism, gang organization or any

criminal enterprise.

For that reason, what I have seen in the past is people

will make devices for other people. And what I believed was

Mr. Kirkland could have been making a device for a member of

one of those organizations.

ER 77-78.

Non-Percipient Expert Witnesses.

After the percipient witness officers testified, the government called two

FBI experts. One of the experts was a chemist who testified that nitroglycerin is

commonly used in some dynamites, see RT(8/31/16) 324,4 and that he found traces

of nitroglycerin on the parts which had been saved from the shoebox with the

explosives load, see RT(8/31/16) 321-23. The other FBI expert, who was an

explosives and hazardous device examiner, see ER 16, testified about the x-ray

The bomb squad expert who handled the dynamite at the scene also

testified nitroglycerin is used in some dynamite. See ER 109-10.

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from the first shoebox and the components which had not been destroyed. He

identified what he believed to be shotgun shells in the x-ray and testified shotgun

shells alone could serve as the explosives load in a destructive device. See ER 5152. He also testified it was possible the void in the x-ray was dynamite. See ER

54. Finally, he gave an opinion characterizing the device – as a “partially

constructed improvised explosive device,” ER 32, 56, which could be “readily

assembled” into “a fully constructed improvised explosive device,” ER 56. He

explained that “what this device needs to function is a power source.” ER 56. He

further explained the device had “a battery box . . . which could have held the

power source and also provided a switching mechanism.” ER 57. The expert

concluded that “if I had the eight C-cell batteries, it would take a matter of minutes

to plug the batteries in, turn the device on, hook the detonator up to it, then it

would be essentially ready to go.” ER 58. There was no testimony Mr. Kirkland

had the eight batteries, however.

THE VERDICT.

After closing arguments on the morning of the third day of trial, the jury

retired to deliberate. See RT(9/1/16) 501. The jury deliberated for the entire

afternoon and all of the next morning and did not return a verdict until after lunch

the next day. See RT(9/2/16) 511. While the jury found Mr. Kirkland guilty on all

counts, it was with limited findings on the special verdict form the jury had been

given. It found Mr. Kirkland possessed components of a destructive device as

charged in Counts 2 and 4 that were “designed . . . for use as a weapon,” but did

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not find the components were “intended . . . for use as a weapon.” See ER 11, 13.

The jury also found the components included a detonator and at least one shotgun

shell, but did not find they included dynamite. See ER 11.

SENTENCING.

Mr. Kirkland was subsequently sentenced based on a guideline range

recommended in a presentence report prepared by the probation office. See PSR.

The report recommended that all of the counts be “grouped” under the sentencing

guidelines grouping rules. See PSR, ¶ 21 (applying USSG § 3D1.2 and USSG §

3D1.3(a)). The report then recommended a 2-level offense level increase under §

2K2.1(b)(3)(B) for possession of a destructive device. See PSR, ¶ 23. When

combined with the other offense level factors and Mr. Kirkland’s criminal history

category of III, this produced a guideline range of 51-63 months. See PSR, at 4,

20. Given this range and a probation office recommendation of a mid-range

sentence, see PSR, at 22, the district court decided on a sentence of 57 months.

See RT(12/5/16) 12. The Court imposed this sentence concurrently on each of the

four counts, see ER 3, consistent with the guidelines multiple counts sentencing

rules, see USSG § 5G1.2(b),(c) & n.1 (providing that total punishment shall be

imposed on each count concurrently if total punishment is within statutory

maximum).

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IV.

SUMMARY OF ARGUMENT

Initially, there was insufficient evidence to support the two destructive

device convictions and the destructive device guidelines enhancement. Under

both the most reasonable interpretation of the statutory language and the most

persuasive case law, a combination of component parts qualifies as a destructive

device only if the defendant possesses all of the parts necessary to construct a

device that will serve as a bomb or a device similar to a bomb. Even cases

arguably qualifying this requirement require the defendant to possess all of the key

components. The “device” here did not satisfy this requirement, because it was,

according to the government’s own expert, only “partially constructed,” and was

missing a key component, namely, the batteries which were needed to provide a

power source.

Secondly, the combined prejudice from two plain evidentiary errors would

require a new trial on the destructive device counts even if the evidence could

somehow be found sufficient to support conviction. The first plain error was in

allowing one of the bomb squad officers to give combined expert and percipient

witness testimony about the alleged device without appropriate gatekeeping. This

Court allows such “dual role” testimony only when there are protective measures

taken, such as an instruction to the jury on the difference between the expert and

percipient witness testimony, clear separation of the two forms of testimony,

and/or assuring there is a clear foundation for the expert testimony. Here, the

foundation for at least some of the opinions, including in particular the opinion

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that the device was “an improvised explosive device,” was weak or completely

lacking; there was no cautionary instruction; and there was no separation of the

expert and percipient witness testimony.

The second plain evidentiary error was in allowing the officer who

conducted the second interview of Mr. Kirkland to testify, as part of his

explanation for not recording the interview, that he believed Mr. Kirkland might

be making destructive devices for terrorist organizations. This Court has held in

prior decisions that an officer’s reasons for his investigation and how he conducts

it are generally irrelevant, and this case law readily extends to the testimony here.

And the testimony was highly prejudicial, especially in today’s climate, invoking

the specter of a “Joint Terrorism Task Force” investigator, terrorism, and

“improvised explosive devices.”

Finally, all of the convictions must be vacated because the district court

erred in denying the defense motion to suppress evidence. A fingerprint on a

movable object that was not previously present at the crime scene – which is the

only significant information in the affidavit that pointed to Mr. Kirkland – is weak

probable cause at best. And the requirement that courts consider the “totality of

circumstances” means this weakness must be layered on top of at least two other

uncertainties. Those are (1) the fact that there were multiple people heard in the

house, so the stolen property could have been taken by someone other than Mr.

Kirkland, and (2) the fact that more than a month had passed since the property

had been stolen and most thieves would have disposed of stolen property by then.

There were thus at least three layers of uncertainty: first, the weak inference to be

drawn from a fingerprint on a movable object that was not previously at the scene;

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second, the fact that there were multiple people in the house who could have taken

the stolen property; and, third, a strong likelihood that whoever took the property

would have disposed of it during the month that had passed. These multiple layers

of uncertainty – or what might be called the “totality” of uncertainty – prevented

the affidavit from establishing probable cause.

ARGUMENT

THE TWO DESTRUCTIVE DEVICE CONVICTIONS AND THE

DESTRUCTIVE DEVICE SENTENCING GUIDELINES ENHANCEMENT

MUST BE VACATED BECAUSE A PARTIALLY ASSEMBLED DEVICE

QUALIFIES AS A DESTRUCTIVE DEVICE ONLY IF THE DEFENDANT

HAS ALL THE NECESSARY COMPONENTS, AND MR. KIRKLAND DID

NOT HAVE THE BATTERIES WHICH WERE NEEDED TO PROVIDE A

POWER SOURCE.

Reviewability and Standard of Review.

A ruling on a timely motion challenging the sufficiency of the evidence is

reviewed de novo, and the conviction is upheld if “viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v.

Pelisamen, 641 F.3d 399, 409 n.6 (9th Cir. 2011) (quoting Jackson v. Virginia,

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443 U.S. 307, 319 (1979)). A motion was not made in the present case, but there

can still be review for plain error, and this Court has characterized the difference

in review as “largely academic.” Pelisamen, 641 F.3d at 409 n.6. That is because

“it is difficult . . . to envision a case in which the result would be different because

of the application of one rather than the other of the standards.” United States v.

Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir. 1995). See, e.g., United States v.

Flyer, 633 F.3d 911, 917-19 (9th Cir. 2011) (finding evidence insufficient even

under plain error standard); United States v. Garcia-Guizar, 160 F.3d 511, 517

(9th Cir. 1998) (same).

An Unassembled Destructive Device Qualifies as a Destructive

Device Only If the Defendant Has All the Necessary Components, and Mr.

Kirkland Did Not Have the Batteries Which Would Have Been the Power Source.

“Destructive device” is defined in 18 U.S.C. § 921(4) and 26 U.S.C. §

5845(f) to include the following:

(1) “any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C)

rocket having a propellant 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

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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 subparagraphs

(1) and (2) and from which a destructive device may be readily assembled.”

26 U.S.C. § 5845(f); see also 18 U.S.C. § 921(4). Explosive devices which are

fully assembled fall under the first of these alternatives, and collections of

component parts which are not fully assembled fall under the third alternative.

United States v. Lussier, 128 F.3d 1312, 1315 (9th Cir. 1997); United States v.

Ruiz, 73 F.3d 949, 951 (9th Cir. 1996). As expressed by this Court in its first

opinion interpreting § 5845(f), unassembled components “may be ‘converted’ into

a destructive device as defined in Subparagraphs (1) and (2) by way of ‘design or

intent.’” United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1971).

The “device” here did not qualify under the first alternative, as the

government implicitly recognized in the instructions it proposed, see CR 47, at 19,

30 (proposing “components” instructions). This is because the “device” was, in

the words of the government’s own FBI expert, only “partially constructed.” ER

32, 56. Specifically, “[t]here was not a power source associated with this device.”

ER 56. “There was a battery box associated with this device, which could have

held the power source and also provided a switching mechanism,” ER 57, but

there were no batteries. Eight batteries were needed to transform the shoebox and

the components into a “fully constructed” device, ER 39, 58 – two to provide

power to a radio frequency receiver, and six more to provide an electrical charge

to set off the blasting caps, ER 39.

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The FBI expert did testify the “device” could be quickly assembled into a

“fully constructed” device by inserting the required eight batteries. ER 56-57.

But there was no evidence Mr. Kirkland had the batteries. He was therefore

missing a key component of the “device.” This presents the question of whether a

mere partial “combination of parts” can constitute a destructive device.

Both an analysis of the statutory language and the case law suggest the best

answer to this question is “No.” As to statutory language, there is both the

language of the “combination of parts” clause itself and contrasting language in

one of the other provisions of 26 U.S.C. § 5845. With respect to the language of

the “combination of parts” clause itself, as noted by the Fifth Circuit in United

States v. Malone, 546 F.2d 1182 (5th Cir. 1977), “[t]he words of the statute are

‘from which a destructive device may be readily assembled’, and not, as the

government contends, ‘from which a destructive device may be readily assembled

with addition of other parts.’” Id. at 1184.

Then there is language in one of the other subsections of § 5845 which

contrasts with the language in subsection (f). The subsection defining

“machinegun” includes not just any “combination of parts designed and intended

[ ] for use in converting a weapon into a machine gun,” but also “any part designed

and intended solely and exclusively” for that purpose. 26 U.S.C. § 5845(b). The

contrasting language in this other subsection triggers the principle that the use of

limiting or broadening language in one statutory provision and the failure to use

the limiting or broadening language in a second statutory provision evidences an

intent that the limitation or broadening not apply to the second provision. See,

e.g., United States v. Johnson, 529 U.S. 53, 57-58 (2000); United States v. Wipf,

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620 F.3d 1168, 1171 (9th Cir. 2010); United States v. Youssef, 547 F.3d 1090,

1094-95 (9th Cir. 2008).

Case law also supports an interpretation of the “combination of parts”

clause as requiring all components to be present. In the Malone case quoted

above, the court held “the defendant cannot be guilty of [possessing a destructive

device] because he did not have in his possession all of the component parts from

which a destructive device might be readily assembled.” Id., 546 F.2d at 1184.

Malone cited United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972), see Malone,

546 F.2d at 1184, in which the court similarly stated, “All of the necessary

components ‘from which a destructive device may be readily assembled’ must be

possessed in order to possess a ‘destructive device’ under subparagraph (3).”

Posnjak, 457 F.2d at 1116. The Fourth Circuit held similarly in United States v.

Blackburn, 940 F.2d 107 (4th Cir. 1991), stating that “[a] defendant must possess

every essential part necessary to construct a destructive device.” Id. at 110

(emphasis in original) (citing Malone and Posnjak).

While the missing component in Malone and Blackburn was the actual

explosive charge, see Blackburn, 940 F.2d at 108; Malone, 546 F.2d at 1183,

nothing in the courts’ interpretation of the statutory language can be limited to the

absence of just that component. This was recognized by another Fourth Circuit

panel in United States v. Hamrick, 995 F.2d 1267 (4th Cir. 1993), rev’d on other

grounds by evenly divided court, 43 F.3d 877 (4th Cir. 1995) (en banc). The

component the panel in Hamrick understood to be missing5 – or, more accurately,

At least one judge on the en banc court – and possibly more – disagreed

with this reading of the record, as discussed infra p. 20 n.6.

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deficient – was, as in the present case, the power source, specifically, an igniter

substance that was not flammable and a battery which would not generate

sufficient heat. See id., 995 F.2d at 1269. The court applied Malone and

Blackburn nonetheless, stating that “[t]he language of the statute and our prior

precedents make it clear that a defendant must be in possession of all of the

necessary component parts to be convicted under section 5845.” Hamrick, 995

F.2d at 1271. The court considered, but rejected, a government argument that the

defendant need not possess component parts which are “readily available.”

The Government’s readily available components theory

requires reading the statute too broadly. The Malone court

rightly rejected this argument. Malone, 546 F.2d at 1184. The

Government’s interpretation of the statute alters its plain

meaning and relies on constructive possession of the missing

component to satisfy the statute’s requirements. We hold that

actual physical possession of all of the working parts is

required.

Hamrick, 995 F.2d at 1272.6

There are cases which have purported to limit the holding in Malone, but

those cases are, first, distinguishable, and, to the extent they are not

distinguishable, unpersuasive. United States v. Simmons, 83 F.3d 686 (4th Cir.

1996), which held a defendant did not have to possess matches or a lighter to use

with his Molotov cocktail, see id. at 686, is distinguishable because matches

The Fourth Circuit subsequently sua sponte granted rehearing en banc in

Hamrick, but split evenly on the destructive device question. See United States v.

Hamrick, 43 F.3d 877, 884 (4th Cir. 1995) (en banc). For at least one of the

judges – and possibly more – the different result was based on a different reading

of the record, as explained in a concurring opinion. See id. at 886-91 (Luttig, J.,

concurring). This concurring opinion did not address the panel’s statutory

interpretation, and neither did the plurality opinion, see id. at 884 (simply noting

that “convictions are now affirmed by an equally divided court”). See also id. at

891 n.1 (Ervin, J., dissenting) (noting that affirmance by equally divided court is

not entitled to precedential weight).

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and/or a lighter would not be part of the device. The same is true of pliers which

were missing in United States v. Langan, 263 F.3d 613 (6th Cir. 2001), see United

States v. Crocker, 260 Fed. Appx. 794, 797 (6th Cir. 2008) (unpublished)

(characterizing Langan as holding it was unnecessary for government to show

possession of pliers needed to solder insulated wires to pager that was part of

detonating mechanism).7 Pliers, like a match or lighter, would not be part of the

device, but would simply be a tool used to assemble the device.

Crocker, which is only an unpublished opinion, and United States v.

Sheehan, 838 F.3d 109 (2d Cir. 2016), arguably come closer to conflicting with

and/or limiting Malone and the other cases. In Crocker and Sheehan, the arguably

missing “component” was tape to hold wires in place, which would at least be

physically attached to and included in the device. But the tape was not really

missing in Sheehan, for there was tape around the device in that case which could

have been used to attach the wires. See id., 838 F.3d at 125 (noting defendant’s

own expert “acknowledged that there was tape around the device that could have

been used to attach one of the wires from the pipe to the top of the battery”). In

any event, tape which is used to do something like hold a wire in place is very

different from a battery which is – as characterized by the government’s own

expert in the present case – the “power source” for the “device.” See Sheehan, 838

F.3d at 115, 117 (describing expert characterization of battery as one of

components of “electrical fuzing system” and presence of battery in device in case

at bar); Hamrick, 995 F.2d at 1269 (noting deficient battery). Such a power source

is one of the “key components” which even Sheehan recognized must be

Langan itself did not actually discuss the absence of pliers. See id.

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possessed. The court in Sheehan articulated its holding as only that “the

government need not offer evidence that the defendant possessed commonly

available materials – such as tape – if the defendant otherwise possesses all of the

key components necessary to assemble a destructive device.” Id. at 125 (emphasis

added).

Crocker and Sheehan are also unpersuasive. First, there is nothing in the

statutory language supporting an exception for “commonly available materials.”

Second, Sheehan implicitly recognizes some limit on this exception, by still

requiring possession of the “key components”; it thus requires reading into the

statute not only a “commonly available materials” exception, but then a “key

components” exception to the exception. Third, both “commonly available

materials” and “key components” are amorphous concepts which will create

difficult line-drawing problems and lead courts down a slippery slope. The

present case is a good illustration of this, for what was missing here were the

batteries, which are, on the one hand, “commonly available,” but, on the other

hand, a “key component.” This poses the question of how Sheehan would

characterize batteries – as not required because they are “commonly available,” or

required because they are a “key component.”8

To the extent the statutory language and/or case law leaves doubt, the Court

can also look to what the Supreme Court has described as the “venerable rule of

lenity,” United States v. R.L.C., 503 U.S. 291, 305 (1992). This rule requires that

To the extent this might somehow be viewed as a jury question, there was

plain error in the jury instructions which would require a new trial, because

nothing in the instructions indicated all “key components” must be possessed. See

CR 64, at 39, 40, 45, 46-47.

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“ambiguities concerning the ambit of criminal statutes should be resolved in favor

of lenity to the defendant.” United States v. Wing, 682 F.3d 861, 874 (9th Cir.

2012). The rule, as eloquently put by Judge Friendly and the Supreme Court, is

“rooted in ‘“the instinctive distaste against men languishing in prison unless the

lawmaker has clearly said they should.”’” R.L.C., 503 U.S. at 305 (quoting United

States v. Bass, 404 U.S. 336, 348 (1971), and H. Friendly, Benchmarks 209

(1967)). Mr. Kirkland and other defendants should not be required to languish in

prison based on ambiguous statutory language which applies only if the courts

read language into the statute which is not there.9

The Sentences on Any Counts Which Remain Standing Must Be

Vacated Because They Were Based on a Guideline Range Which Included an

Adjustment for Possession of a Destructive Device.

There must also be resentencing on any counts which remain standing. As

noted supra p. 12, the felon in possession of firearms and felon in possession of

explosives counts were “grouped” with the destructive device counts. See PSR, ¶

21 (applying USSG § 3D1.2 and USSG § 3D1.3(a)). There was then a single total

punishment imposed for each count based on a single guideline range calculated

Strictly construing the “destructive device” statutes does not mean

unlawful conduct with explosives will be completely unconstrained, moreover. As

the Second Circuit noted in Posnjak, there are a multitude of other regulations and

statutes governing conduct with explosives. See id., 457 F.2d at 1120-21. The

present case is actually a good illustration of this. Vacating Mr. Kirkland’s

destructive device convictions will still leave standing his conviction for being a

felon in possession of explosives. The only effect on his total sentence will be to

eliminate a 2-level offense level increase for possession of a destructive device, as

discussed in the following subsection.

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for the “group.” See supra p. 12 (citing USSG § 5G1.2 requirement that total

punishment shall be imposed on each count concurrently if total punishment is

within statutory maximum). See also PSR, at 22 (sentence recommendation of

concurrent sentences of 57 months on each count). That guideline range included

a 2-level upward adjustment for possession of a destructive device, based on §

2K2.1(b)(3)(B) of the guidelines. See supra p. 12 (citing PSR, ¶ 23, and USSG §

2K2.1(b)(3)(B)). Since each sentence was affected by this erroneous adjustment,

there must be resentencing on any counts which remain standing.

THE DESTRUCTIVE DEVICE CONVICTIONS AND SENTENCE

ENHANCEMENT MUST BE VACATED BECAUSE IT WAS PLAIN ERROR

TO (1) ALLOW THE COMBINED EXPERT AND PERCIPIENT WITNESS

TESTIMONY BY THE BOMB SQUAD OFFICER ABOUT THE ALLEGED

DEVICE WITHOUT APPROPRIATE GATEKEEPING AND (2) ALLOW THE

TESTIMONY BY THE OFFICER WHO CONDUCTED THE SECOND

INTERVIEW OF MR. KIRKLAND THAT HE BELIEVED MR. KIRKLAND

MIGHT BE MAKING IMPROVISED EXPLOSIVE DEVICES FOR

TERRORIST ORGANIZATIONS.

Reviewability and Standard of Review.

As described supra pp. 8-9, one of the bomb squad officers gave both expert

and percipient witness testimony about the shoebox that was the alleged

destructive device. As described supra p. 10, the Joint Terrorism Task Force

A044

APPENDIX 3

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NO. 16-10514

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

______________________

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

KENNETH WILLIAM KIRKLAND,

DEFENDANT-APPELLANT.

______________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

D.C. NO. 1:15-CR-322-DAD

______________________

ANSWERING BRIEF OF THE UNITED STATES

______________________

PHILLIP A. TALBERT

United States Attorney

ANGELA L. SCOTT

CHRISTOPHER D. BAKER

Assistant U.S. Attorneys

Eastern District of California

2500 Tulare Street, Suite 4401

Fresno, California 93721

Telephone: (559) 497-4000

CAMIL A. SKIPPER

Assistant U.S. Attorney

Appellate Chief

Attorneys for Appellee

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TABLE OF CONTENTS

Table of Contents ................................................................................... i

Table of Authorities .............................................................................. v

Statement of Jurisdiction ..................................................................... 1

Issues Presented for Review ................................................................. 1

Bail Status ............................................................................................ 2

Statement of the Case........................................................................... 2

I. Procedural History ..................................................................... 2

II. Law enforcement obtained a search warrant for

Kirkland’s residence. ................................................................. 3

III. Kirkland, a convicted felon, possessed firearms,

explosives, a destructive device, and a partiallyconstructed destructive device at his residence. ....................... 6

IV. Sergeant Pratt’s dual role testimony covered his

factual observations at the scene that day, as well

as his expert opinions about the dynamite, blasting

caps, and the device found there. ............................................ 10

V. Officer Nicholson’s testimony regarding his

unrecorded interview of Kirkland was important to

the government’s case in light of Kirkland’s prior

interview, which was recorded and played to the

jury before Officer Nicholson testified. .................................... 13

Summary of Argument ....................................................................... 15

Argument ............................................................................................ 18

I. The district court properly denied Kirkland’s

motion to suppress. .................................................................. 18

A. Standard of Review ............................................................ 18

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B. The search of Kirkland’s residence was

supported by sufficient probable cause. ............................. 18

1. There was sufficient probable cause to

believe a crime had been committed. ........................... 20

2. There was sufficient probable cause to

believe that stolen items would be found at

Kirkland’s residence. .................................................... 22

3. The existence of multiple suspects does not

negate probable cause. .................................................. 30

4. The approximate month between the

burglary and the search does not negate

probable cause. .............................................................. 32

C. In any event, the good faith exception applies. ................. 34

1. Standard of Review ....................................................... 34

2. The affiant and executing officers relied

upon the warrant in good faith. .................................... 34

3. Officer Wilson conducted a thorough

investigation, meriting a determination that

good faith existed. ......................................................... 37

II. This court should affirm Kirkland’s destructive

device convictions because the evidence presented

at trial was sufficient to demonstrate that Kirkland

possessed parts that could be readily assembled

into a destructive device. ......................................................... 38

A. Standard of Review ............................................................ 38

B. The definition of destructive device for counts

two and four are identical and encompass a

“combination of parts.” ....................................................... 39

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C. From the testimony at trial, the jury could have

reasonably inferred that Kirkland possessed the

batteries or a destructive device that could have

otherwise easily exploded. .................................................. 40

D. Kirkland did not have to possess the batteries

to possess a destructive device. .......................................... 42

E. The language and purpose of the applicable

statutes supports this conclusion. ...................................... 49

III. The district court did not plainly err in admitting

Sergeant Pratt’s dual role testimony....................................... 52

A. The court’s issuance of Model Jury Instruction

4.14A was sufficient to reduce possible juror

confusion resulting from Sergeant Pratt’s dual

role testimony. .................................................................... 53

B. The government took additional steps to

minimize juror confusion by demarcating

Sergeant Pratt’s expert testimony. .................................... 55

C. Affirmance is appropriate because no error

affected Kirkland’s substantial rights. .............................. 58

1. The dual role witness’s expert and percipient

testimony clearly was demarcated. .............................. 59

2. The dual role witness laid an adequate

foundation for his testimony. ........................................ 61

3. Other evidence aside from the dual role

witness’s testimony established Kirkland’s

involvement in the crime. ............................................. 64

IV. The district court did not plainly err in permitting

TFO Nicholson to explain why he did not record his

interview with Kirkland. ......................................................... 66

iii

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A. The challenged testimony was admissible as

evidence of credibility. ........................................................ 67

B. Affirmance is appropriate because no error

affected Kirkland’s substantial rights. .............................. 71

Conclusion ........................................................................................... 74

Statement of Related Cases................................................................ 75

Certificate of Compliance ................................................................... 76

Certificate of Service........................................................................... 77

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TABLE OF AUTHORITIES

Page

CASES

Gomez v. United States,

490 U.S. 858 (1989) ......................................................................... 19

Herring v. United States,

555 U.S. 135 (2009) ......................................................................... 35

Hooks v. State,

416 A.2d 189 (Del. 1980) ................................................................. 31

Hudson v. Michigan,

547 U.S. 586 (2006) ......................................................................... 35

Illinois v. Gates,

462 U.S. 213 (1983) ................................................. 18, 19, 20, 22, 28

Jackson v. Virginia,

443 U.S. 307 (1979) ......................................................................... 38

Jones v. State,

833 S.W.2d 118 (Tex. Crim. App. 1992) .......................................... 27

McMillan v. Gomez,

19 F.3d 465 (9th Cir. 1994) ........................................... 24, 25, 26, 27

Messerschmidt v. Millender,

132 S. Ct. 1235 (2012) ..................................................................... 35

Ornelas v. United States,

517 U.S. 690 (1996) ......................................................................... 19

People v. Tambe,

71 N.Y.2d 492 (N.Y. 1988)............................................................... 31

State v. Grant,

286 Conn. 499 (Conn. S.C. 2008) .................................................... 23

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United States v. Anchrum,

590 F.3d 795 (9th Cir. 2009) ........................................................... 53

United States v. Beckman,

298 F.3d 788 (9th Cir. 2002) ........................................................... 66

United States v. Begay,

673 F.3d 1038 (9th Cir. 2011) ......................................................... 66

United States v. Bosch,

951 F.2d 1546 (9th Cir. 1991), cert. denied, 504 U.S. 989 (1992)... 62

United States v. Bustillo,

789 F.2d 1364 (9th Cir. 1986) ......................................................... 39

United States v. Chase,

340 F.3d 978 (9th Cir. 2003) ........................................................... 66

United States v. Coonan,

938 F.2d 1553 (2d Cir. 1991) ..................................................... 68, 70

United States v. Corral,

970 F.2d 719 (10th Cir. 1992) ......................................................... 31

United States v. Crews,

502 F.3d 1130 (9th Cir. 2007) ......................................................... 37

United States v. Dean,

980 F.2s 1286 (9th Cir. 1992) .......................................................... 71

United States v. Fernandez,

388 F.3d 1199 (9th Cir. 2004), modified,

425 F.3d 1248 (9th Cir. 2005).......................................................... 19

United States v. Freeman,

498 F.3d 893 (9th Cir. 2007) ..................................................... 53, 61

United States v. Gambino,

926 F.2d 1355 (3d Cir. 1991) ..................................................... 68, 71

United States v. Garza,

980 F.2d 546 (9th Cir. 1992) ........................................................... 29

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United States v. Gil,

58 F.3d 1414 (9th Cir. 1995) ..................................................... 28, 29

United States v. Gourde,

440 F.3d 1065 (9th Cir. 2006) ................................................... 19, 20

United States v. Green,

617 F.3d 233 (3d Cir. 2010) ............................................................. 67

United States v. Greer,

404 F. Supp. 1289 (W.D.Mich. 1975), affirmed,

588 F.2d 1151 (6th Cir. 1978).................................................... 48, 49

United States v. Hankey,

203 F.3d 1160 (9th Cir. 2000) ................................................... 67, 70

United States v. Hay,

231 F.3d 630 (9th Cir. 2000) ........................................................... 20

United States v. Hayat,

710 F.3d 875 (9th Cir. 2013) ........................................................... 73

United States v. Jackson,

756 F.2d 703 (9th Cir. 1985) ..................................................... 28, 32

United States v. Krupa,

658 F.3d 1174 (9th Cir. 2011) ......................................................... 18

United States v. Kuball,

976 F.2d 529 (9th Cir. 1992) ........................................................... 38

United States v. Langan,

263 F.3d 613 (6th Cir. 2001) ..................................................... 44, 45

United States v. Leon,

468 U.S. 897 (1984) ................................................................... 34, 35

United States v. Luong,

470 F.3d 898 (9th Cir. 2006) ..................................................... 34, 35

vii

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United States v. Makhlouta,

790 F.2d 1400 (9th Cir. 1986) ......................................................... 71

United States v. Malone,

546 F.2d 1182 (5th Cir. 1977) ....................................... 45, 46, 47, 48

United States v. Man Nei Lui,

402 Fed. Appx. 235 (9th Cir. 2010) ............................... 55, 56, 59, 60

United States v. Marcus,

560 U.S. 258 (2010) ......................................................................... 58

United States v. Montes-Vargas,

679 Fed. Appx. 588 (9th Cir. 2017) ................................................. 55

United States v. Oba,

448 F.2d 892 (9th Cir. 1971) ........................................................... 51

United States v. Olano,

507 U.S. 725 (1993) ................................................................... 66, 72

United States v. Padilla,

506 Fed. Appx. 633 (9th Cir. 2013) ................................................. 55

United States v. Peacock,

761 F.2d 1313 (9th Cir.1985) .......................................................... 19

United States v. Pheaster,

544 F.2d 353 (9th Cir. 1976) ..................................................... 28, 30

United States v. Poland,

659 F.2d 884 (9th Cir. 1981) ........................................................... 28

United States v. Posnjak,

457 F.2d 1110 (2d Cir. 1972) ..................................................... 50, 51

United States v. Rahn,

511 F.2d 290 (10th Cir. 1975) ......................................................... 32

United States v. Redlightning,

624 F.3d 1090 (9th Cir. 2010) ................................................... 66, 67

viii

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United States v. Reed,

575 F.3d 900 (9th Cir. 2009) ........................................................... 60

United States v. Russell,

468 F. Supp. 322 (S.D. Tex. 1979)............................................. 48, 49

United States v. Sanger,

227 F.3d 1138 (9th Cir. 2000) ................................................... 71, 72

United States v. Seybold,

726 F.2d 502 (9th Cir. 1984) ........................................................... 28

United States v. Simmons,

83 F.3d 686 (4th Cir. 1996) ....................................................... 42, 43

United States v. Steeves,

525 F.2d 33 (8th Cir. 1975) ............................................................. 33

United States v. Torralba-Mendia,

784 F.3d 652 (9th Cir. 2015) ................................... 53, 58, 59, 61, 64

United States v. Ventresca,

380 U.S. 102 (1965) ................................................................... 20, 23

United States v. Zalapa,

509 F.3d 1060 (9th Cir. 2007) ................................................... 38, 42

STATUTES

18 U.S.C. § 842(i)(1) .............................................................................. 2

18 U.S.C. § 921.................................................................................... 44

18 U.S.C. § 921(3) ............................................................................... 40

18 U.S.C. § 921(4) ......................................................................... 40, 50

18 U.S.C. § 922.................................................................................... 16

18 U.S.C. § 922(g)(1) ....................................................................... 2, 40

18 U.S.C. § 3231 .................................................................................... 1

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26 U.S.C. § 5845(a) ............................................................................. 39

26 U.S.C. § 5845(b) ............................................................................. 49

26 U.S.C. § 5845(f) ............................................................ 39, 40, 50, 52

26 U.S.C. § 5845(f)(1) .......................................................................... 48

26 U.S.C. § 5845(f)(3) .......................................................................... 46

26 U.S.C. § 5861(d) ................................................. 2, 16, 42, 44, 46, 48

26 U.S.C. § 5871 .................................................................................. 42

28 U.S.C. § 1291 .................................................................................... 1

RULES

Fed. R. App. P. 4(b) ............................................................................... 1

SENTENCING GUIDELINES

U.S.S.G. § 2K2.1(b)(3)(B) .................................................................... 52

MISCELLANEOUS

Gun Control Act of 1968,

Pub. L. No. 90-618, § 82 Stat. 1213 (1968) ..................................... 50

Model Jury Instruction 4.14A ................................................ 53, 54, 56

Omnibus Crime Conrol & Safe Streets Act,

Pub. L. No. 90-351, § 82 Stat. 197 (1968) ....................................... 50

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STATEMENT OF JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C. § 3231.

Judgment was entered on December 5, 2016. ER 2; CR 72. Kirkland

filed a timely notice of appeal on December 13, 2016. Fed. R. App. P.

4(b); ER 1; CR 73. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1291.

ISSUES PRESENTED FOR REVIEW

1. Whether there was sufficient probable cause for the

issuance of a search warrant for Kirkland’s residence

where, among other evidence, his fingerprint was found

inside a house that the owner reported burglarized.

2. Was there plain error with respect to the sufficiency of

evidence supporting the jury’s verdict that Kirkland

possessed component parts that could be readily

assembled into a destructive device, where evidence

presented at trial indicated that his device was missing

only common batteries, and that the device could have

been activated in other ways, including by static

electricity.

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3. Whether the district court plainly erred in allowing

Sergeant Sean Pratt, head of the Kern County Bomb

Squad, to testify as both a lay and expert witness where

the jurors were aware of the witness’s dual roles.

4. Whether the district court plainly erred in permitting FBI

Task Force Office Joshua Nicholson to explain why he did

not record his interview with Kirkland.

BAIL STATUS

Kirkland is serving the sentence imposed in this case. His

projected release date is November 30, 2019.

STATEMENT OF THE CASE

Procedural History

On November 12, 2015, the grand jury returned a four-count

indictment against Kirkland. ER 156–59; CR 1. Kirkland was

charged with being a convicted felon in possession of firearms and

ammunition (count one), felon in possession of a destructive device

(count two), felon in possession of explosives (count three), and

possession of a destructive device not registered in the National

Firearms Registry (count four). 18 U.S.C. § 922(g)(1); 18 U.S.C.

§ 842(i)(1); 26 U.S.C. § 5861(d). ER 156–59; CR 1.

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Kirkland’s trial began on August 30, 2016. CR 54. On

September 2, 2016, the jury returned unanimous verdicts finding

Kirkland guilty on all counts. CR 59, 60.

On December 5, 2016, Kirkland was sentenced to serve a total

of 57 months of imprisonment on each count to be served

concurrently. ER 2–3; CR 71, 72.

II.

Law enforcement obtained a search warrant for

Kirkland’s residence.

In September 2015, California City Police Officer Gary Wilson

received a report of a burglary at a residence on Nonie Court in

California City. ER 152. The following facts regarding Officer

Wilson’s subsequent investigation were included in Officer Wilson’s

search warrant affidavit, which was signed by Kern County Superior

Court Judge Marcos Camacho on October 10, 2015. ER 149.

On September 5, 2015, Officer Wilson and Sergeant Blanton

met with the owner of the Nonie Court Residence. ER 152. The

owner explained to the officers that he resided in the Los Angeles

area and had last visited the Nonie residence on July 21, 2015. ER

152. The owner explained that his neighbor and friend (hereinafter

referred to as “reporting neighbor”) contacted the owner by telephone

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to advise the owner that several people were trespassing on his

property. ER 152. The owner explained to the officers that he had

not given anyone permission or access to his residence and he was

concerned that these individuals might still be at his residence. ER

152.

The officers immediately went to the Nonie Court residence

with the owner. ER 152. There they found various items that did

not belong to the owner, including beer cans, pizza, and fresh fruit,

which indicated that the residence had been recently occupied. ER

152–53. Novelty items not belonging to the owner were also

recovered from inside the residence. ER 152. The officers also found

bolt cutters, which the affidavit indicates were not the owner’s and

were seized as evidence. ER 152–53. Officer Wilson also stated in

his affidavit that he found evidence of forced entry to both a sliding

glass door leading into the residence and a back door leading into the

garage. ER 153.

The owner identified five items that were missing from his

residence including a transmission, a generator, a computer, an

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adaptor plate and a duffle bag that contained life vests. ER 153. The

owner estimated that these items were worth $3,100. ER 153.

Thereafter, Officer Wilson interviewed the reporting neighbor.

ER 153. The reporting neighbor stated that he, too, resides out of

town and came to visit his property the previous day—September 4,

2015. ER 153. The reporting neighbor stated that he is friends with

the owner, so the reporting neighbor checked on the owner’s property

as well. ER 153. Once there, he saw several beer cans and a

barbeque outside of the owner’s residence. ER 153. He also saw a

white truck parked in the driveway of the owner’s residence. ER

153. At 3:00 in the morning on September 5, 2016, the reporting

neighbor could hear more than two people talking inside of the

owner’s residence, and he saw candlelight coming from inside of the

residence. ER 153.

The three beer cans that were seized from inside of the owner’s

residence were dusted for prints. ER 153. On October 7, 2015,

Officer Wilson received notification that a fingerprint on the beer can

matched that of Kirkland. ER 153. On October 10, Officer Wilson

again interviewed the owner, who told Officer Wilson that he did not

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know Kirkland and never allowed him onto his property or in his

residence. ER 153.

Officer Wilson knew that Kirkland resided at a house on 79th

Street, California City from a DMV records check and by Kirkland’s

recent contact with the California City Police Department on

September 28, 2015, during which he provided the address as his

residence. ER 151, 153. After his interview with the owner, Officer

Wilson drove by the address and saw a white Toyota pickup truck

parked in front of Kirkland’s residence. ER 153.

III. Kirkland, a convicted felon, possessed firearms,

explosives, a destructive device, and a partiallyconstructed destructive device at his residence.

On October 10, 2015, Officer Wilson obtained a search warrant

for Kirkland’s residence. ER 149. At the October 11 search of

Kirkland’s residence, officers found Kirkland asleep in his bedroom

with an AR-15 rifle beside his bed, which was loaded with a round in

the chamber. SER 24-29. At the foot of Kirkland’s bed was another

rifle. SER 32. A third rifle was just outside of Kirkland’s bedroom

door. SER 29. Officers also found the same type of novelty money

that was recovered from the Nonie Court address. SER 4. In the

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carport, they found numerous detonators contained in a large yellow

metal box, at which point they called in the Kern County Bomb

Squad. SER 46-47. Sergeant Pratt of the Kern County Bomb Squad

responded with his team. ER 91. Sergeant Pratt found an explosive

device in a shoebox under Kirkland’s bed, as well as dynamite and

additional explosives stored in a bag together in his bedroom, and

additional dynamite in a trailer on his property. ER 100–01, 110–13,

118–23. Once Sergeant Pratt found and removed the explosive

device, Senior Deputy Ethan Plugge continued the search of

Kirkland’s room. SER 80-83. He found yet another shoebox under

Kirkland’s bed, this one containing a circuit board, LED lights, a

battery box, but no explosive load. SER 83-88.

For safety reasons, the bomb squad destroyed the dynamite and

the load portion of the explosive device. ER 111–18, 125–30. Also

seized from Kirkland’s residence was the ammunition charged in this

case. SER 27-39.

Notably, the owner later identified the aforementioned yellow

metal box as his own from photographs that Officer Wilson took of it

before it was seized. SER 4.

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The first device found under Kirkland’s bed was a partially

constructed improvised explosive device (IED). ER 32. The device

contained a switch (the battery box), wires to conduct electricity, and

a main charge (shotgun shells and a detonator). ER 33–36, 43–49,

51–56. The detonator found in Kirkland’s device was one of many

detonators found on his property that day. ER 91–93. Many of the

other detonators were found in their original packaging, which

contained various warnings on the outside of the box. ER 91–92,

103. These detonators functioned by creating a small explosion when

connected to electrical current. ER 105. The warning on the box

from which the detonator came stated “Never expose detonators to

static electricity or stray current.” ER 105. This is because if a

detonator is exposed to a sufficient amount of static electricity, it can

explode. ER 105. Indeed, detonators are the most sensitive part of

the explosives train. ER 105. The packaging also stated “never force

a detonator into an explosive,” because if one applied a sufficient

amount of force or pressure to a detonator, it could also detonate. ER

105–06.

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One nine-volt battery attached to the wires of the detonator

would suffice to detonate the device. ER 56; SER 95. The device

could also have been powered by eight C-cell batteries in its battery

box. ER 58. It would have taken Kirkland a matter of minutes to

assemble the device into a fully constructed IED. ER 58. If

detonated, the device would have launched the birdshot from the

shotgun shells. ER 54. This could have resulted in serious bodily

injury or death to those standing near it. ER 133.

At the time Kirkland possessed the firearms and destructive

device, he was a convicted felon. CR 37.

Kirkland constructed the destructive device to deter a woman

with whom he was previously in a relationship from jumping his

fence and entering his home via his backyard. ER 72–73; Kirkland

interview (3/11/2015) (video recording admitted as Gov Tr. Exs. 31,

36).1 He made the device in her presence and told her that it was for

the people who kept jumping his fence. ER 72. Kirkland hung a line

with fishhooks in his backyard to deter her as well. ER 72; Kirkland

1 The government is concurrently submitting a motion for leave

to transmit to the court CDs containing video recordings.

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interview (3/11/2015) (video recording admitted as Gov Tr. Exs. 31,

37). Kirkland also made the device for “house protection.” SER 6263; Kirkland interview (3/11/2015) (video recording admitted as Gov.

Tr. Ex. 37).

IV.

Sergeant Pratt’s dual role testimony covered his

factual observations at the scene that day, as well

as his expert opinions about the dynamite, blasting

caps, and the device found there.

At trial, Sergeant Pratt, the sheriff deputy in charge of the

bomb squad that responded to Kirkland’s residence on October 11,

2015, testified regarding his discovery of explosives and explosive

devices at the residence, including that the principal device “had an

explosive load” and was “basically put together.” ER 82, 91, 126–27.

Prior to trial, the government had notified Kirkland that Sergeant

Pratt was expected to offer both fact and expert testimony. E.g., ER

146–47. As a result, the parties jointly proposed that the court

include in its charge to the jury Model Jury Instruction 4.14A

addressing dual role testimony. CR 47 at 15. The court’s final

instructions to the jury included Model Jury Instruction 4.14A

verbatim. SER 101; CR 64 at 31 (Instruction No. 14).

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On direct examination, the government established that

Sergeant Pratt had examined approximately 75 explosive devices

during his 18-year career with the bomb squad. ER 82–85. When

the prosecutor sought to explore expert issues with Sergeant Pratt,

she frequently flagged her question with the preface “based on your

training and experience.” For instance, early in the examination, the

prosecutor stated, “Now, I’m going to ask you some questions about

your training and experience with regard to dynamite.” ER 108.

When the prosecutor asked Sergeant Pratt to assess the nature of

the explosive device he observed at Kirkland’s residence, she asked,

“Based on your training and experience, what does this device look

like to you?” and “Based on your training and experience . . . did you

consider this device to be dangerous?” ER 108, 126.

Similarly, when she asked Sergeant Pratt to compare the

sophistication of the device to others he had seen, she asked, “Based

on other devices you have seen over the course of your 18 years with

the Bomb Squad, what did you think of it?” ER 128. Likewise, when

the prosecutor asked for Sergeant Pratt’s opinion about the “largerthan-expected explosion” he saw when he countercharged the

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explosive device at Kirkland’s residence, she prefaced the question

with “Based on your training and experience.” ER 130.

Following the government’s direct examination of Sergeant

Pratt, Kirkland cross-examined him about his expert opinions,

among other subjects. Kirkland first asked Sergeant Pratt about his

experience with the Sheriff’s Department “as the EOD [explosives

ordinance disposal] expert,” and then specifically inquired about

dynamite, blasting caps, the explosive device at issue, the x-ray

images of that device and Sergeant Pratt’s analysis of the x-rays, the

countercharge of that device, and Sergeant Pratt’s assessment that

the shoebox device was sophisticated. SER 67-78.

Much of Sergeant Pratt’s testimony was consistent with and

corroborated by the testimony of two other expert witnesses: FBI

Chemist Forensic Examiner Robert Gillette and FBI Explosives

Device Handler Travis McCrady. For example, Gillette testified that

the device components recovered from Kirkland’s residence contained

a high explosive residue called nitroglycerin that commonly is found

in dynamite and black powder. SER 90-91. McCrady described the

device as a “partially constructed improvised explosive device,” which

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he defined as a “homemade bomb.” ER 32–33. These expert

witnesses also testified about other subjects previously addressed

during Sergeant Pratt’s testimony, including the x-ray images of the

primary explosive device, the images of shotgun shells contained

therein, and the general explosion pattern of shotgun shells. ER 52–

54.

Officer Nicholson’s testimony regarding his

unrecorded interview of Kirkland was important to

the government’s case in light of Kirkland’s prior

interview, which was recorded and played to the

jury before Officer Nicholson testified.

At trial, the government introduced through its first witness

(Police Officer Gary Wilson) and played for the jury 10 audio/videorecorded excerpts of Officer Wilson’s interview of Kirkland conducted

shortly after his arrest on October 11, 2015. SER 47-63. Among

other admissions, Kirkland stated that he made the explosive device

with shotgun shells to ward off a trespasser and for home protection.

ER 72-73; SER 55-56, 59-60; Kirkland interview (3/11/2015) (video

recording admitted as Gov Tr. Exs. 28, 31, 36, 37). Five witnesses

later, FBI task force officer (TFO) Joshua Nicholson testified that he

separately interviewed Kirkland, during which Kirkland admitted

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making the explosive device and not connecting it to a power source

because he did not want it to blow up. ER 70, 73.

TFO Nicholson did not record his interview with Kirkland.

TFO Nicholson testified that because Kirkland did not appear to

have ties to terrorist or criminal organizations, he believed Kirkland

possibly had made the improvised explosive device for another

person or organization. ER 77–78. TFO Nicholson further explained

that, based on this assessment, he considered Kirkland a possible

candidate to serve as a confidential informant. In the interest of

avoiding the risk of injury that could result were any recording of

Kirkland’s interview inadvertently released, TFO Nicholson chose

not to record the interview. ER 77–78.

Immediately following this testimony, Kirkland cross-examined

TFO Nicholson and reinforced that Kirkland did not appear to be

affiliated with any terrorist organization. ER 78–79. For instance,

in closing, even though the government did not refer to TFO

Nicholson’s reasons for not recording his interview with Kirkland,

Kirkland again reinforced that the evidence established Kirkland

had no terrorist ties:

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[O]ne thing that’s very important, . . . and that

is if we think about what TFO Nicholson said

yesterday. My client is not connected up with

any type of terrorist activity. There is no

evidence of group with terrorism. There was

no anarchy cook book, no designs items like

that that were found in his home that would

implicate him or connect him up with any of

these individuals.

SER 100.

SUMMARY OF ARGUMENT

This Court should affirm the district court’s denial of

Kirkland’s suppression motion. Kirkland’s underlying motion and

his appeal understate critically important facts set forth in the

warrant’s supporting affidavit, which corroborate information

provided by two separate witnesses, also included in the affidavit.

When applied to relevant Constitutional, Supreme Court, and Ninth

Circuit authority, the statements contained in the affidavit justified

the issuance of the search warrant. Were this Court to find that the

warrant was not supported by sufficient probable cause, it should

nevertheless affirm the district court’s denial of Kirkland’s

suppression motion because the warrant was executed in good faith

reliance on the issuing judge’s probable cause determination.

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This Court should also affirm Kirkland’s convictions for

possession of a destructive device in violation of 18 U.S.C. § 922

(felon in possession) and 26 U.S.C. § 5861(d) (possession of

unregistered device). Kirkland possessed a partially assembled

device consisting of a switch (battery box), wires to conduct

electricity, and a main charge (shotgun shells and a detonator

wrapped together in tape). Connection of the detonator wires to a

nine-volt battery would have been sufficient to detonate the device.

The device could be readily assembled because, with the addition of

batteries, Kirkland could have created a live device in a matter of

minutes. While law enforcement did not seize batteries from the

residence, the absence of such an ubiquitous and accessible item does

not remove Kirkland’s device from the ambit of the applicable

statutes’ definitions of destructive device, just as a Molotov cocktail

is a destructive device even absent a match. Moreover, the evidence

here also indicated that static electricity or aggressive handling could

have ignited the device.

Additionally, the district court did not plainly err in allowing

Sergeant Pratt to testify as both a lay and expert witness because the

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determination of the good faith of Officer Wilson, and demonstrate

that the good faith exception applies in this case.

II.

This court should affirm Kirkland’s destructive

device convictions because the evidence presented

at trial was sufficient to demonstrate that Kirkland

possessed parts that could be readily assembled

into a destructive device.

Standard of Review

Where a defendant preserves at trial an insufficient evidence

argument, this Court reviews a challenge to the sufficiency of the

evidence by considering “whether, after viewing the evidence in the

light most favorable to the [government], any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Kirkland, however, did not object to the sufficiency of the evidence at

trial. Thus, this Court reviews the sufficiency of the evidence here

“only to prevent a manifest miscarriage of justice or for plain error.”

United States v. Kuball, 976 F.2d 529, 531 (9th Cir. 1992).2

2 To succeed on plain error review, Kirkland “must show (1) an

error, (2) that is plain, (3) that affects substantial rights, and (4) that

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Zalapa, 509 F.3d 1060, 1064

(9th Cir. 2007) (internal quotations omitted).

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“Reversal of a criminal conviction on the basis of plain error is an

exceptional remedy. . .” United States v. Bustillo, 789 F.2d 1364,

1367 (9th Cir. 1986).

The definition of destructive device for counts

two and four are identical and encompass a

“combination of parts.”

In count four, Kirkland was charged with a violation of 26

U.S.C. § 5861(d), which makes it unlawful for any person “to receive

or possess a firearm which is not registered to him in the National

Firearms Registration and Transfer Record.” The term “firearm” is

further defined in 26 U.S.C. § 5845(a) as, among other things, a

“destructive device.” A destructive device is defined in section

5845(f), in pertinent part, as:

(1) any explosive, incendiary, or poison gas (A)

bomb, (B) grenade, (C) rocket …, (D) missile

…, (E) mine, or (F) similar device;

… and

(3) any combination of parts either designed or

intended for use in converting any device into

a destructive device as defined in

subparagraphs (1) and (2) and from which a

destructive device may be readily assembled.

The term “destructive device” shall not include

any device which is neither designed nor

redesigned for use as a weapon . . .

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Kirkland was also charged in count one with a violation of 18 U.S.C.

§ 922(g)(1)—felon in possession of a firearm. The applicable

definition of firearm is set forth in 18 U.S.C. § 921(3) and includes

“destructive device.” Section 921(4) defines destructive device and is

substantively identical to 26 U.S.C. § 5845(f)’s definition of

destructive device set forth above.

From the testimony at trial, the jury could

have reasonably inferred that Kirkland

possessed the batteries or a destructive device

that could have otherwise easily exploded.

Contrary to Kirkland’s argument that there was “no evidence”

that he had the batteries that powered his device, (AOB at 18), the

jury heard testimony from which they could have inferred that

Kirkland possessed the batteries that powered the device. TFO

Nicholson testified that during his interview with Kirkland, they

discussed the power source to the device. ER 73. Specifically,

Kirkland told Nicholson that he did not hook up the power source

because he knew that it could be set off by stray microwave

electricity. ER 73. Kirkland’s statements indicated that he made a

conscious choice not to power the device, from which the jury could

infer that he had the ability to do so. This is especially true when

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what he needed to power the device was something as ubiquitous as

a battery.

Additionally, Sergeant Pratt, the responding bomb technician,

testified that the detonator found in Kirkland’s device creates a small

explosion “when you hook it up to electrical current.” ER 105. He

went on to explain the warning on the box from which the detonator

came, which stated “Never expose detonators to static electricity or

stray current.” ER 105. Sergeant Pratt explained that “if there is

enough static electricity applied to it, it can actually cause the cap to

detonate and explode.” ER 105. Sergeant Pratt further explained

that detonators are the “most sensitive part of the explosives train.”

ER 105. In discussing the box’s warning, “never force a detonator

into an explosive,” Sergeant Pratt stated that if one applied a

sufficient amount of force or pressure to a detonator, it could also

detonate. ER 105–06. Consequently, there was sufficient evidence

for the jury to conclude that this could become a live device even

absent the batteries. The jury verdict, therefore, involved no error,

let alone a plain one that “seriously affect[ed] the fairness, integrity,

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or public reputation of judicial proceedings.” Zalapa, 509 F.3d at

1064.

Kirkland did not have to possess the batteries

to possess a destructive device.

Moreover, Kirkland possessed a “destructive device” regardless

of whether he possessed the batteries that powered the device. This

case is analogous to the myriad of cases holding that a Molotov

cocktail consisting of a bottle filled with flammable liquid and a wick

constitutes a destructive device.

In United States v. Simmons, the Fourth Circuit considered

whether a Molotov cocktail was a destructive device if the defendant

did not possess a match or lighter to ignite it. 83 F.3d 686, 687 (4th

Cir. 1996). There, the defendant had in his pocket a vodka bottle

filled with gasoline. Id. Protruding from the bottle was a cloth wick,

the other end of which was immersed in the gasoline. Id. The

defendant told federal agents that he had constructed the Molotov

cocktail to set a man’s car on fire. Id. However, the defendant did

not possess a match or a lighter. Id. The defendant pleaded guilty to

possessing a destructive device in violation of 26 U.S.C. §§ 5861(d)

and 5871, but reserved the right to appeal the issue of whether the

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gasoline-filled glass bottle with a cloth fuse could constitute a

destructive device. Id.

The Fourth Circuit held that the defendant indeed possessed a

destructive device despite his lack of matches or a lighter. Id. In

support of this conclusion, the Fourth Circuit pointed to the many

circuits that have held that a Molotov cocktail consisting of a bottle,

gasoline, and a rag is a bomb for purposes of section 5845(f). Id.

(citing cases). The Fourth Circuit noted that the various courts came

to these conclusions “without ever as much as suggesting that a

defendant must possess a means by which to ignite the device.” Id.

Kirkland urges this Court to disregard these cases because

matches and lighters are not “part of” a Molotov cocktail. AOB at

20–21. In doing so, Kirkland ignores that matches and lighters, like

the batteries in this case, ignite the device. Moreover, like the

batteries in this case, lighters and matches are easily obtained.

Finally, as the FBI’s Explosives and Hazardous Device Examiner,

Travis McCrady, testified, Kirkland could have ignited the device by

simply attaching it to a nine-volt battery. ER 58. Touching wires to

a battery or a lighter to a fuse are comparable. For these reasons,

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the Molotov cocktail cases are analogous and relevant to the instant

case.

In United States v. Langan, the defendant was charged with

failing to register a destructive device in violation of 26 U.S.C.

§ 5861(d), among other crimes, for a pipe bomb that he left at the

scene of a bank robbery in which he had participated. 263 F.3d 613,

618 (6th Cir. 2001). The defendant argued that the government

failed to prove that the pipe bomb was operable or readily made

operable, and therefore did not qualify as a “destructive device”

under 18 U.S.C. § 921. Id. at 625. There, the Sixth Circuit began its

analysis by noting that “[t]o qualify under the statute, we do not

require that the destructive device operate as intended.” Id. “It is

sufficient for the government to show that the device was ‘readily

convertible’ to a destructive device.” Id. The Sixth Circuit went on

to hold that “the government need not establish that any particular

component be present for a device to qualify as a destructive device.

The only requirement is that the device be capable of exploding or be

readily made to explode.” Id. The government’s expert testified that

it would only take a few seconds to make the device operable. Id.

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The Sixth Circuit concluded that it was reasonable for the jury to

have found that the pipe bomb was indeed a destructive device,

which contained an explosive mixture and was capable of explosion.

Id.

Like the device in this case, and like a Molotov cocktail without

a match, the device in Langan was not operable as it was assembled.

As noted by Kirkland, the defendant in Langan would have had to

use a tool to make the device operable. AOB at 21. Nevertheless,

whether the defendant possessed the tools to strip the wires was not

a factor in the Sixth Circuit’s conclusion that the device was a

destructive device. See AOB at 21, n.7 (“Langan itself did not

actually discuss the absence of pliers.”)

Kirkland relies heavily on United States v. Malone, 546 F.2d

1182 (5th Cir. 1977), for his position regarding the batteries. AOB at

18–21. There, law enforcement found the following in the

defendant’s car upon a search incident to his arrest: a spring-top box

inside which had been inserted a hand grenade hull, one microswitch, one electrical solenoid switch, one transistor battery, one

small low voltage electrical bulb, glue, tape, small aluminum metals,

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nails, waterproofing spray, and one container of Play-Doh modeling

compound. Id. at 1183. He was convicted of possessing an

unregistered firearm (the destructive device as defined by 26 U.S.C.

§ 5845(f)(3) (combination of parts)) in violation of 26 U.S.C. § 5861(d).

Id.

At trial, the government’s witnesses testified that the materials

named in the indictment could be assembled into a destructive device

provided that explosive material was obtained and added. Id. The

witnesses also testified that the materials could be readily assembled

to function by the addition of explosive material. Id. The indictment

did not allege, and the evidence at the trial did not prove, that the

defendant was in possession of any explosive charge or detonation

device. Id. at 1184.

The Fifth Circuit concluded that these component parts did not

satisfy the definition of destructive device because “he did not have

in his possession all of the component parts from which a destructive

device might be readily assembled.” Id. at 1184. The Fifth Circuit

qualified their holding, however:

We make no attempt here to define what may

or may not constitute a “destructive device” or

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its components within the language of the

statute. What we do hold is that the complete

absence of explosive material would prevent

the component parts in the defendant's

possession from being a destructive device.

Our decision is limited solely to the facts of

this case.

Id.

Also noteworthy in Malone are the circumstances under which

the grenade was discovered. Law enforcement found the device in

the defendant’s car after they searched the car upon his arrest for

credit card fraud. Id. at 1183. Unlike Kirkland, the defendant in

Malone was not surrounded by loaded rifles, sticks of dynamite and

detonators, had not admitted to making the device at issue to

threaten someone, and the device was not found in his home in which

one would presumably have better access to various items (especially

commonplace items such as batteries). The defendant in Malone was

in his car and was arrested for credit card fraud. Id. The Fifth

Circuit’s conclusion that the absence of the actual explosives was

enough to remove the remaining component parts from the ambit of

section 5861 is not persuasive here.

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The district court in the Southern District of Texas came to a

similar conclusion about Malone in United States v. Russell, 468 F.

Supp. 322 (S.D. Tex. 1979). There, the defendant sold an undercover

agent explosive material (dynamite, which the defendant claimed

was C-4), blasting caps, and leg wire. He was charged with

possession of a destructive device in violation of 26 U.S.C. § 5861(d),

among other crimes. Id. at 324–25. Defendant claimed a

combination of the items sold could not be “readily assembled” into a

destructive device as defined in section 5845(f)(1) because it lacked a

power source. In distinguishing Malone, the district court noted that

the evidence presented at trial indicated that the device could be

armed by wiring it to a car battery. Id. at 325, 330. Evidence at trial

also demonstrated that a bomber would need nothing more than a

1.5 volt battery to set off the device. Id. at 330. The district court

concluded that, “in such instances, the energy source is really not

essential to the device. Id. (citing United States v. Greer, 404 F.

Supp. 1289, 1293 (W.D.Mich. 1975), affirmed, 588 F.2d 1151 (6th Cir.

1978) (battery or static electricity could have set off the blasting

caps)). The district court went on to note that “the acquisition of a

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1.5 volt battery would require no more effort than the acquisition of a

match which is the power source of a Molotov cocktail.” Id. Based on

these factors, the district court concluded that the combination of the

parts which were sold by the defendant would have and were

intended to have created a destructive device that could have been

readily assembled. Id.

The language and purpose of the applicable

statutes supports this conclusion.

Kirkland notes that the accompanying machinegun definition

in 26 U.S.C. § 5845(b) contains contrasting language that triggers

the principle that limiting or broadening language not apply to the

destructive device provision. AOB at 18. Even if that is the case,

section 5845(b)’s language actually supports the government’s

position in that, regarding component parts, it states “any

combination of parts from which a machinegun can be assembled if

such parts are in the possession or under the control of a person.”

Here, then, section 5845(b)’s definition of machinegun component

parts is arguably narrower than the component parts definition

applicable to destructive devices in that the latter does not expressly

state that the parts be “in the possession or under the control of a

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person.” See 26 U.S.C. § 5845(f). Consequently, that limiting

language should not apply to the definition of a destructive device in

section 5845(f).

Additionally, the legislative history behind the applicable

statutes containing the definitions of destructive device—26 U.S.C.

§ 5845(f) and section 18 U.S.C. § 921(4)—also militates in favor of the

government’s position. These provisions were enacted in 1968 as

part of the Omnibus Crime Control and Safe Streets Act and the Gun

Control Act. See Omnibus Crime Control and Safe Streets Act, Pub.

L. No. 90-351, § 82 Stat. 197, 225–231 (1968), amended by Gun

Control Act of 1968, Pub. L. No. 90-618, § 82 Stat. 1213, 1214–15,

1230–31 (1968). These acts were an attempt by Congress to “stem

the traffic in dangerous weapons being used in an increasing number

of crimes involving personal injury.” United States v. Posnjak, 457

F.2d 1110, 1113 (2d Cir. 1972) (discussing legislative history).

Legislative history indicates that explosives with legitimate uses

were not the target of the legislation. Id. Notably, this Court has

determined that a legitimate explosive such as dynamite can be a

“destructive device” for purposes of the applicable statutes where

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“the nature of the device” and the defendant’s “admitted purpose” so

indicate. United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1971).

The instant case is not one in which a defendant was charged with

various unassembled explosives that could have otherwise had a

legitimate use. Kirkland had already assembled explosives and

shrapnel into an anti-personnel device. That his device was missing

batteries does not contradict or otherwise offend the intent of the

applicable statutes—namely “clearly identifiable weapons which

were the cause of increasing violent crime and which had no lawful

uses.” Posnjak, 457 F.2d at 1116.

In sum, Kirkland’s device was nearly fully assembled and had

no legitimate purpose. ER 58. He made it to threaten a woman and

for home protection. ER 72-73; SER 55-56, 59-60; Kirkland interview

(3/11/2015) (video recording admitted as Gov Tr. Exs. 31, 36, 37). He

did not attach the power source to avoid harming himself. ER 73.

Under these circumstances, the fact that law enforcement did not

seize batteries from Kirkland’s house should not exclude the device

from the applicable statutory definitions of “destructive device.”

Kirkland could still readily assemble the device, even if he had to

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drive to the corner store to buy batteries. Moreover, the bomb

squad’s primary objective in these circumstances is to render the

device safe. Under the rule Kirkland proposes, the bomb squad

would be required to determine on scene what other parts might be

necessary to trigger the device (tools, batteries, etc.), and then to

search a residence and seize those additional parts or have other

teams re-enter the premises to conduct this search. The bomb squad

should not be mandated to determine every conceivable way that a

device can be detonated and then search the premises for those

parts. This is an overly burdensome requirement and, even in a

scene that has been cleared by the bomb squad, still presents a

certain element of danger. 3

III. The district court did not plainly err in admitting

Sergeant Pratt’s dual role testimony.

Because Kirkland did not object to the district court’s jury

instruction addressing dual role testimony and did not object

3 For the same reasons set forth in this section, the destructive

device enhancement imposed at sentencing should also be affirmed,

as the Sentencing Guidelines adopted the same destructive device

definition as that in section 5845(f). U.S.S.G. § 2K2.1(b)(3)(B), Cmt.

n.1.

A086

AP P ENDI X4

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CA No. 16-10514

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

KENNETH WILLIAM KIRKLAND,

Defendant-Appellant.

___________________________________

)

(D.Ct. 15-cr-00322-DAD)

APPELLANT’S REPLY BRIEF

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

HONORABLE DALE A. DROZD

United States District Judge

CARLTON F. GUNN

Attorney at Law

234 East Colorado Blvd.

Pasadena, California 91101

Telephone (626) 844-7660

Attorney for Defendant-Appellant

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TABLE OF CONTENTS

PAGE

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT MR.

KIRKLAND’S DESTRUCTIVE DEVICE CONVICTIONS.. . . . . . . 1

The Plain Error Standard of Review Does Not Defeat Mr.

Kirkland’s Sufficiency Claim.. . . . . . . . . . . . . . . . . . . . . . . . . 1

There Was Insufficient Evidence for the Jury to Infer Mr.

Kirkland Had the Required Batteries, and the Possibility the

Destructive Device Could Have Easily Exploded Even Without

Batteries Is Not Enough.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Possession of the Batteries Was Required to Convert the

Partially Assembled Device into a “Destructive Device.”. . . . . . 4

The case law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The statutory language, legislative history, and purpose.. . 6

IT WAS PLAIN ERROR AFFECTING MR. KIRKLAND’S

SUBSTANTIAL RIGHTS TO ALLOW THE UNBIFURCATED

DUAL EXPERT/PERCIPIENT WITNESS TESTIMONY AND THE

TESTIMONY MR. KIRKLAND MIGHT BE MAKING

IMPROVISED EXPLOSIVE DEVICES FOR TERRORIST

ORGANIZATIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

It Was Plain Error for the District Court to Allow the

Unbifurcated Dual Expert/Percipient Witness Testimony... . . . . 9

Insufficiency of the general jury instruction.. . . . . . . . . . 9

Intermittent prefacing of some questions with “based on

your training and experience.”. . . . . . . . . . . . . . . . . . . 10

Insufficient foundation for some of the testimony.. . . . . 14

Cross examination.. . . . . . . . . . . . . . . . . . . . . . . . . . . 16

The other evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . 17

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TABLE OF CONTENTS (cont’d)

PAGE

II.

It Was Plain Error for the District Court to Allow the

Testimony that the Second Interrogating Officer Believed Mr.

Kirkland Might Be Making Improvised Explosive Devices for

Terrorist Organizations... . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

The Errors, Considered Cumulatively, Affected Mr. Kirkland’s

Substantial Rights.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

THE SEARCH WARRANT AFFIDAVIT DID NOT ESTABLISH

PROBABLE CAUSE TO BELIEVE EVIDENCE WOULD BE

FOUND IN MR. KIRKLAND’S HOME.. . . . . . . . . . . . . . . . . . . . 21

CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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TABLE OF AUTHORITIES

CASES

PAGE

Briceno v. Scribner,

555 F.3d 1069 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

McMillan v. Gomez,

19 F.3d 465 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Parle v. Runnels,

505 F.3d 922 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Alvarez-Valenzuela,

231 F.3d 1198 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Anchrum,

590 F.3d 795 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Angulo-Lopez,

791 F.2d 1394 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Arvizu,

534 U.S. 266 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Blackburn,

940 F.2d 107 (4th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Bustillo,

789 F.2d 1364 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Cortes,

299 F.3d 1030 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Cox,

No. 13-30000, 2017 WL 3722825 (9th Cir. Aug. 29, 2017). . . . . . . . . . . . . 2

United States v. Crews,

502 F.3d 1130 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Dean,

980 F.2d 1286 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

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TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Dukagjini,

326 F.3d 45 (2d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

United States v. Fernandez,

388 F.3d 1199 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Flyer,

633 F.3d 911 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Freeman,

498 F.3d 893 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

United States v. Garza,

980 F.2d 546 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Gil,

58 F.3d 1414 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Gourde,

440 F.3d 1065 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Grant,

682 F.3d 827 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Hamrick,

995 F.2d 1267 (4th Cir. 1993),

rev’d on other grounds by evenly divided court,

43 F.3d 877 (4th Cir. 1995) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Jackson,

756 F.2d 703 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Katakis,

800 F.3d 1017 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Kuball,

976 F.2d 529 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Langan,

263 F.3d 613 (6th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A091

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TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Makhlouta,

790 F.2d 1400 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Malone,

546 F.2d 1182 (5th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

United States v. Martinez,

657 F.3d 811 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Nevils,

598 F.3d 1158 (9th Cir. 2010) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Oba,

448 F.2d 892 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Pelisamen,

641 F.3d 399 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Poland,

659 F.2d 884 (9th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Posnjak,

457 F.2d 1110 (2d Cir. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

United States v. Preston,

873 F.3d 829 (9th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Rahn,

511 F.2d 290 (10th Cir. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Reed,

575 F.3d 900 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Seybold,

726 F.2d 502 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

United States v. Simmons,

83 F.3d 686 (4th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Simmons,

923 F.2d 934 (2d Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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TABLE OF AUTHORITIES (cont’d)

CASES (cont’d)

PAGE

United States v. Torralba-Mendia,

784 F.3d 652 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,15

United States v. Vera,

770 F.3d 1232 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Vizcarra-Martinez,

66 F.3d 1006 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Weber,

923 F.2d 1338 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 24

United States v. Zalapa,

509 F.3d 1060 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ybarra v. McDaniel,

656 F.3d 984 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

STATUTES

26 U.S.C. § 5845(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

26 U.S.C. § 5861. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

OTHER AUTHORITIES

Can I Recover a Stolen Laptop?, PC World (Oct. 15, 2012 7:59 AM),

https://www.pcworld.com/ article/2010825/can-i-recover-a-stolenlaptop.html... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment

(5th ed. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Patricia Laurie, Prey Labs: These are places your stolen laptop will most likely

end up at (Feb. 11, 2017), https://www.preyproject.com/en/ blog/2013/03/

prey-labs-these-are-places-your-stolen-laptop-will-most-likely-end-up-at. . . . 23

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TABLE OF AUTHORITIES (cont’d)

OTHER AUTHORITIES (cont’d)

PAGE

Manual of Model Criminal Jury Instructions for the District Courts of the Ninth

Circuit (2010 ed.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Preventing Laptop Theft, Berkeley Information Security and Policy,

https://security.berkeley.edu/resources/best-practices-how-articles/

preventing- laptop-theft (last visited November 30, 2017). . . . . . . . . . . . . . 23

S. Rep. No. 1501, 90th Cong., 2d Sess. (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

https://www.justice.gov/opa/pr/attorney-general-holderannounces-significant-policy-shift-concerning-electronic-recording (last

visited November 30, 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vii

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CA No. 16-10514

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

)

Plaintiff-Appellee,

)

KENNETH WILLIAM KIRKLAND,

)

Defendant-Appellant.

)

______________________________________ )

(D.Ct. 15-cr-00322-DAD)

ARGUMENT

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT MR.

KIRKLAND’S DESTRUCTIVE DEVICE CONVICTIONS.

The Plain Error Standard of Review Does Not Defeat Mr. Kirkland’s

Sufficiency Claim.

Initially, the government exaggerates the effect of the plain error standard of

review on a sufficiency of evidence claim. The one sufficiency of evidence case

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the government cites – United States v. Kuball, 976 F.2d 529 (9th Cir. 1992)1 – is

an older case which must be read in light of the more recent cases cited in

Appellant’s Opening Brief. The recent cases recognize the difference between

plain error review and ordinary review of sufficiency of evidence claims is

“largely academic,” United States v. Pelisamen, 641 F.3d 399, 409 n.6 (9th Cir.

2011), because “it is difficult . . . to envision a case in which the result would be

different because of the application of one rather than the other of the standards,”

United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th Cir. 1995). See also

United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1201 (9th Cir. 2000) (citing

Kuball but going on to recognize qualification in Vizcarra-Martinez). The Court

reiterated this just 3½ months ago in vacating a solicitation of murder conviction

under the plain error standard. See United States v. Cox, No. 13-30000, 2017 WL

3722825, at *2 (9th Cir. Aug. 29, 2017) (unpublished) (noting “plain-error review

of a sufficiency-of-the-evidence claim is only theoretically more stringent than the

standard for a preserved claim,” (quoting United States v. Flyer, 633 F.3d 911, 917

(9th Cir. 2011) (internal quotation marks omitted)), and then finding evidence

insufficient).

The other two plain error standard of review cases the government cites

are not sufficiency of the evidence cases. See United States v. Zalapa, 509 F.3d

1060, 1064 (9th Cir. 2007) (multiplicity claim); United States v. Bustillo, 789 F.2d

1364, 1367 (9th Cir. 1986) (jury instruction claim).

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There Was Insufficient Evidence for the Jury to Infer Mr. Kirkland

Had the Required Batteries, and the Possibility the Destructive Device Could Have

Easily Exploded Even Without Batteries Is Not Enough.

The government’s first substantive argument is a factual one – that there

was sufficient evidence because the jury could have inferred Mr. Kirkland had

batteries, or, in the alternative, the device could have exploded just from static

electricity. The evidence cannot be found sufficient on either of these theories,

however.

The theory that static electricity could have accidentally triggered the device

fails because it ignores the intent requirement. When the government proceeds

under the “combination of parts” prong of the destructive device definition, it must

show an intent that the combination of parts act as a destructive device. And there

was no basis for inferring Mr. Kirkland intended static electricity to trigger the

device. Intending to trigger the device in such a random way would have meant

Mr. Kirkland had no control over when the device might go off, which would have

been extremely dangerous for both him and his family.

As to the government’s other theory – that the jury could have inferred Mr.

Kirkland had the necessary batteries – the testimony to which the government

points – that “he [Mr. Kirkland] said he did not hook up the power source to [the

device] because he knows that it could be set off by merely just microwave stray

electricity,”2 ER 73, cited in Govt. Brief, at 40 – is far too thin a reed. “The power

This statement also shows a lack of intent to trigger the device through

random static electricity, in that it suggests a desire to affirmatively avoid that risk.

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source” could refer to batteries Mr. Kirkland intended to buy if and when he

decided to fully assemble the device just as easily as it could refer to batteries Mr.

Kirkland already had.

It is true “the government does not need to rebut all reasonable

interpretations of the evidence that would establish the defendant’s innocence.”

United States v. Katakis, 800 F.3d 1017, 1023 (9th Cir. 2015) (quoting United

States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc)). Still, “evidence

is insufficient to support a verdict where mere speculation, rather than reasonable

inference, supports the government’s case.” Katakis, 800 F.3d at 1023 (quoting

Nevils, 598 F.3d at 1167, and Briceno v. Scribner, 555 F.3d 1069, 1079 (9th Cir.

2009)). Choosing between the two possibilities here – Mr. Kirkland already

having the eight C-cell batteries he needed, see ER 35, or Mr. Kirkland planning

on purchasing all or whatever additional ones he needed if and when he was ready

to fully assemble the device – would have been mere speculation, for there was no

basis for inferring one rather than the other.

Possession of the Batteries Was Required to Convert the Partially

Assembled Device into a “Destructive Device.”

The case law.

The government’s legal arguments also fail. Initially, the government’s

attempt to analogize the batteries needed for Mr. Kirkland’s device to the match or

lighter used to light a Molotov cocktail like that in United States v. Simmons, 83

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F.3d 686 (4th Cir. 1996), fails. The batteries are a component which had to be

inserted into the device. Further, the batteries alone would not trigger the device;

instead, a switch needed to be triggered by a radio frequency. See ER 35-36

(explaining battery box had to be loaded with eight C-cell batteries, two of which

would supply power to radio frequency receiver, and circuit within battery box

would close and allow remaining batteries to “dump” electricity when antenna

picked up radio frequency). It is the radio or other device which would send the

radio frequency that is analogous to the match or lighter used to light a Molotov

cocktail.3

The one other court of appeals case cited by the government – United States

v. Langan, 263 F.3d 613 (6th Cir. 2001) – is distinguishable because the device

there had all the components needed for a pipe bomb, including the pipe; powder

confined in the pipe; an electric circuit hooked up to a pager; a switch; and what

was missing here, namely, the batteries. See id. at 626. All that remained to be

done was to recrimp and strip the wires in the device and attach them to the pager

which would explode the device when paged. See id. In sum, there was an

already complete set of components the defendant simply had to finally assemble.

On the other side of the coin are the cases cited in Appellant’s Opening

Brief. The government’s attempt to distinguish United States v. Malone, 546 F.2d

1182 (5th Cir. 1977), on the ground the defendant there “was not surrounded by

There was also testimony the device could be triggered by attaching a

different type of battery directly to the detonator, see ER 58, but this could not be

intended because it would cause an immediate explosion which would kill or

injure whoever was attaching the battery. In any event, even a battery of this sort

is a physical component attached to the device, not an outside lighter, match, or

radio frequency.

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loaded rifles, sticks of dynamite and detonators, had not admitted to making the

device at issue to threaten someone, and the device was not found in his home in

which one would presumably have better access to various items,” Govt. Brief, at

47, ignores the fact that absence of intent was not what the holding in Malone

turned on. The government also ignores the other cases preceding and following

Malone – United States v. Posnjak, 457 F.2d 1110 (2d Cir. 1972); United States v.

Blackburn, 940 F.2d 107 (4th Cir. 1991); and United States v. Hamrick, 995 F.2d

1267 (4th Cir. 1993), rev’d on other grounds by evenly divided court, 43 F.3d 877

(4th Cir. 1995) (en banc). Those cases state that “[a]ll of the necessary

components ‘from which a destructive device may be readily assembled’ must be

possessed in order to possess a ‘destructive device’ under subparagraph (3),”

Posnjak, 457 F.2d at 1116; “[a] defendant must possess every essential part

necessary to construct a destructive device,” Blackburn, 940 F.2d at 110 (emphasis

in original) (citing Malone and Posnjak); and“[t]he language of the statute and our

prior precedents make it clear that a defendant must be in possession of all of the

necessary component parts to be convicted under section 5845.” Hamrick, 995

F.2d at 1271.

The statutory language, legislative history, and purpose.

Neither does the statutory language nor the legislative history support the

government’s interpretation. The government’s attempt to read a negative

pregnant into the use of the words “possession or control” in the definition of

“machinegun” and the absence of those words in the definition of “destructive

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device” ignores the overarching provision which incorporates the definition

provisions – 26 U.S.C. § 5861. The pertinent provisions of § 5861 require that the

defendant “receive or possess” the machine gun or destructive device. 26 U.S.C. §

5861(b), (c), (d), (h), (i), (k). What the different language in the definition of

“machinegun” potentially adds is an expansion beyond actual possession to

include “under . . . control.”4

The government also ignores additional legislative history. It is true

Congress wanted to “stem the traffic in dangerous weapons being used in an

increasing number of crimes involving personal injury.” Govt. Brief, at 50

(quoting Posnjak, 457 F.2d at 1113). But Congress also wanted to be cautious in

reaching commercial explosives which have legitimate purposes in addition to

potentially illegitimate ones. See Posnjak, 457 F.2d at 1115-16 (noting

congressional discussion of “specific[ ] exclu[sion] of items . . . which would be

used in commercial construction or business activities” and legislative history

“suggesting strongly . . . that Congress was concerned . . . with clearly identifiable

weapons which were the cause of increasing violent crime and which had no

legitimate uses”). This balancing is reflected in the inclusion without limitation of

destructive devices that have no commercial use – such as bombs, grenades,

certain rockets and missiles, mines, and large-caliber weapons such as bazookas,

mortars, and anti-tank guns, see Posnjak, 457 F.2d at 1115; 26 U.S.C. §

5845(f)(1), (2) – and the inclusion of explosives having a commercial use only

when they are “‘converted’ into a destructive device . . . by way of ‘design or

The court would then need to reconcile this with the § 5861 requirement

of “receive or possess,” but that is a question not presented here.

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intent,’” United States v. Oba, 448 F.2d 892, 894 (9th Cir. 1971) (quoting S. Rep.

No. 1501, 90th Cong., 2d Sess., p. 47 (1968)). And in the case of a “combination

of parts,” Congress chose to draw the line by requiring possession of all the parts,

so intent would be clear. Posnjak, 457 F.2d at 1116 (“All of the necessary

components ‘from which a destructive device may be readily assembled’ must be

possessed in order to possess a ‘destructive device’ under subparagraph (3).”); see,

e.g., Oba, 448 F.2d at 894 (seven sticks of dynamite wrapped in copper wire and

equipped with fuse and blasting caps).

Finally, the government grossly overstates the case when it suggests the

defense position would make enforcement impracticable because “the bomb squad

would be required to determine on scene what other parts might be necessary to

trigger the device (tools, batteries, etc.), and then to search the residence and seize

those additional parts” and that “[t]his is an overly burdensome requirement and,

even in a scene that has been cleared by the bomb squad, still presents a certain

element of danger.” Govt. Brief, at 52. For a truly dangerous defendant who is on

the verge of finally assembling his device, missing components such as batteries

would likely be very near the partially constructed device. Even if those

components were elsewhere in the house, it would not be dangerous to search for

such non-explosive components. And a truly dangerous defendant likely would

not go completely free even if the officers did not find such components. The

Second Circuit noted in Posnjak that there are a multitude of other regulations and

statutes governing conduct with explosives, see id., 457 F.2d at 1120-21, as Mr.

Kirkland’s case illustrates. His conviction for being a felon in possession of

explosives will remain standing, and the only effect on his sentence will be to

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eliminate a 2-level increase in his guidelines offense level. See Appellant’s

Opening Brief, at 23-24. That is actually not inappropriate when he had not taken

the final steps in assembling the device.

IT WAS PLAIN ERROR AFFECTING MR. KIRKLAND’S

SUBSTANTIAL RIGHTS TO ALLOW THE UNBIFURCATED DUAL

EXPERT/PERCIPIENT WITNESS TESTIMONY AND THE TESTIMONY MR.

KIRKLAND MIGHT BE MAKING IMPROVISED EXPLOSIVE DEVICES FOR

TERRORIST ORGANIZATIONS.

It Was Plain Error for the District Court to Allow the Unbifurcated

Dual Expert/Percipient Witness Testimony.

As noted in Appellant’s Opening Brief, allowing a witness to testify as both

an expert and percipient witness, while not categorically prohibited, is

problematic. If it is allowed, the distinction between expert and percipient witness

testimony must be made clear. The government’s argument there was enough

done in the present case is unpersuasive.

Insufficiency of the general jury instruction.

First, the jury instruction given by the district court in the midst of all the

final instructions at the end of the trial was insufficient. In the cases about jury

instructions making the distinction between expert and percipient witness

A103

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.