Petition for Writ of Certiorari — Elden Don Brannan, Petitioner v. United States

No. 24IN THE

Supreme Court of the United States

_____________

ELDEN DON BRANNAN,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

_____________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

TOBIAS S. LOSS-EATON

STEPHEN S. LAUDONE

ROCHELLE BALLANTYNE

SIDLEY AUSTIN LLP

501 K Street NW

Washington, DC 20005

(202) 736-8427

tlosseaton@sidley.com

JEFFREY T. GREEN

DANIELLE HAMILTON

THE CARTER G. PHILLIPS/

SIDLEY AUSTIN LLP

SUPREME COURT CLINIC

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

*EVAN G. HOWZE

ASSISTANT FEDERAL

PUBLIC DEFENDER

SOUTHERN DISTRICT

OF TEXAS

440 Louisiana Street,

Suite 1350

Houston, Texas 77002

(713) 718-4600

evan_howze@fd.org

Counsel for Petitioner

December 13, 2024

* Counsel of Record

QUESTION PRESENTED

The National Firearms Act criminalizes the unregistered possession of a narrow subset of inherently dangerous “firearms,” including a “destructive device.” 26

U.S.C. § 5861(d). Under the Act, “destructive device” is

defined by reference to two categories of military-style

ordinance and artillery—like bombs, grenades, mines,

and large-projectile launchers—plus combinations of

parts designed or intended to be converted into such

weapons. Id. § 5845(f)(1)–(3). The same definitional

provision clarifies, however, that “[t]he term ‘destructive device’ shall not include any device which is neither designed nor redesigned for use as a weapon.” Id.

§ 5845(f).

The circuits openly disagree over the meaning and

significance of this limiting language in the context of

a § 5861(d) prosecution. On one view, applied by the

Fifth Circuit below, the language creates an affirmative defense to liability. The opposing view, in contrast,

holds that the language identifies design (or redesign)

for use as a weapon as an essential characteristic of a

covered destructive device, and thus an element of the

crime.

The question presented is:

Whether the Act’s instruction that the term destructive device “shall not include any device which is neither designed nor redesigned for use as a weapon” describes an essential feature that the government must

prove in order to obtain a conviction under 26 U.S.C.

§ 5861(d), or instead sets forth an affirmative defense.

(i)

ii

RULE 14.1(b)(iii) STATEMENT

This case arises from the following proceedings in

the District Court for the Southern District of Texas

and the Court of Appeals for the Fifth Circuit:

United States of America v. Brannan, No. 2:22-cr00184 (S.D. Tex.);

United States of America v. Brannan, No. 23-40098

(5th Cir.).

No other proceedings in state or federal trial or appellate courts, or in this Court, directly relate to this case.

iii

TABLE OF CONTENTS

Page

Question Presented..............................................

i

Rule 14.1(B)(iii) Statement .................................

ii

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

iv

Petition for a Writ of Certiorari ..........................

1

Opinions and Orders Below ................................

1

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

1

Statutory Provisions Involved .............................

1

Introduction .........................................................

3

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

6

Reasons for Granting The Petition .....................

11

I. The circuits are openly split on the elements

necessary to establish guilt for the knowing

possession of a registrable “destructive

device” under 26 U.S.C. § 5861(d). ................

11

II. The question presented is important, and

this case is an ideal vehicle ..........................

18

III. The decision below is wrong ........................

20

Conclusion ............................................................

26

iv

TABLE OF AUTHORITIES

Page

Cases:

Azar v. Allina Health Servs., 587 U.S. 566

(2019) .............................................................

25

Elonis v. United States, 575 U.S. 723

(2015) .............................................................

19

Garland v. Cargill, 602 U.S. 406

(2024) .............................................................

5

Neder v. United States, 527 U.S. 1

(1999) ........................................................ 5, 18, 20

Rehaif v. United States, 588 U.S. 225

(2019) .............................................................

19

Ruan v. United States, 597 U.S. 450

(2022) .................................................. 5, 18, 19, 23

Staples v. United States, 511 U.S. 600

(1994) ...................................... 3, 5, 9, 18-19, 23-24

United States v. Beason, 690 F.2d 439

(5th Cir. 1982) ........................................ 9, 12, 24

United States v. Cook, 84 U.S. 168

(1872) .............................................................

22

United States v. Creek, 95 F.4th 484

(7th Cir. 2024) ...............................................

17

United States v. Dalpiaz, 527 F.2d 548

(6th Cir. 1975) ...............................................

13

United States v. Hammond, 371 F.3d 776

(11th Cir. 2004) ............. 4, 5, 14, 15, 17, 19, 22, 23

United States v. Johnson, 152 F.3d 618

(7th Cir. 1998) ...............................................

13

United States v. La Cock, 366 F.3d 883

13

(10th Cir. 2004) .............................................

United States v. Musso, 914 F.3d 26

(1st Cir. 2019) ................................................

13

v

TABLE OF AUTHORITIES—continued

Page

United States v. Neil, 138 F. App’x 418

(3d Cir. 2005) .................................................

4

United States v. Oba, 448 F.2d 892

(9th Cir. 1971) ...............................................

13

United States v. Pisa, 701 F. App’x 781

(11th Cir. 2017) .............................................

17

United States v. Posnjak, 457 F.2d 1110

(2d Cir. 1972) .......................................... 13, 21, 24

United States v. Qureshi, 121 F.4th 1095

(5th Cir. 2024) ...............................................

20

United States v. Spoerke, 568 F.3d 1236

(11th Cir. 2009) .............................................

17

Statutes:

26 U.S.C. § 5801, et seq ....................................

3

26 U.S.C. § 5845 ...............................................

1

26 U.S.C § 5845(a)(8) ......................................

21

26 U.S.C. § 5845(f)........................... 3, 4, 8, 11, 21, 23

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

3

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

23

26 U.S.C. § 5845(f)(2) ......................................

3

26 U.S.C. § 5845(f)(3) ...................................... 4, 21

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

2

26 U.S.C. § 5861(d) ............................... 3, 4, 7, 16, 20

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

3

28 U.S.C. § 1254(1) ...........................................

1

Legislative History:

H.R. Rep. No. 90-1577, reprinting in 1968

U.S.C.C.A.N...................................................

S. Rep. No. 90-1501 (1968) ...............................

25

25

PETITION FOR A WRIT OF CERTIORARI

Petitioner Elden Don Brannan petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit.

OPINIONS AND ORDERS BELOW

The Fifth Circuit’s opinion is reported at 98 F.4th

636 and reproduced at App. 1a–8a.

STATEMENT OF JURISDICTION

The Fifth Circuit entered judgment on April 12,

2024, and denied petitioner’s timely petition for rehearing en banc on August 15, 2024. App. 1a, 9a. On

November 6, 2024, Justice Alito extended the deadline

to file this petition to December 13, 2024. The Court

has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

26 U.S.C. § 5845, in pertinent part, provides (with line

breaks added):

For purposes of this chapter—

(a) Firearm.—The term “firearm” means . . . (8) a

destructive device.

*

*

*

(f) Destructive Device.—The term “destructive device” means

(1) any explosive, incendiary, or poison gas (A)

bomb, (B) grenade, (C) rocket having a propellent

charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than

one-quarter ounce, (E) mine, or (F) similar device;

2

(2) any type of weapon by whatever name known

which will, or which may be readily converted to,

expel a projectile by the action of an explosive or

other propellant, the barrel or barrels of which

have a bore of more than one-half inch in diameter,

except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly

suitable for sporting purposes; and

(3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in 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; any device, although originally designed for use as a weapon, which is redesigned for

use as a signaling, pyrotechnic, line throwing, safety,

or similar device; surplus ordnance sold, loaned, or

given by the Secretary of the Army pursuant to the

provisions of section 7684(2), 7685, or 7686 of title

10, United States Code; or any other device which

the Secretary finds is not likely to be used as a

weapon, or is an antique or is a rifle which the owner

intends to use solely for sporting purposes.

26 U.S.C. § 5861 provides, as relevant:

It shall be unlawful for any person—

*

*

*

(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record[.]

3

INTRODUCTION

This case presents the Court with the opportunity to

resolve an acknowledged and entrenched circuit conflict over the meaning and elemental significance of

the National Firearms Act’s instruction that “[t]he

term ‘destructive device’ shall not include any device

which is neither designed nor redesigned for use as a

weapon,” 26 U.S.C. § 5845(f), in the context of a prosecution, under the Act, for the alleged unlawful possession of such a device.

The National Firearms Act, 26 U.S.C. § 5801, et seq.,

imposes strict registration and other regulatory restraints on a subset of statutorily defined “firearms.”

The Act makes it a felony, punishable by up to 10 years

in prison, id. § 5871, for anyone “to receive or possess

a firearm which is not registered to him” in a national

database. Id. § 5861(d). Because the line between proscribed and lawful weapons is blurry and often technical, and because the penalty for misperceiving that

line is so steep, § 5861(d) requires proof of scienter—a

guilty mind. Staples v. United States, 511 U.S. 600,

604–19 (1994). To obtain a § 5861(d) conviction, then,

the government must prove not only that an alleged

“firearm” had all the features necessary to “br[ing] it

within the statutory definition,” id. at 602, but also

that the accused knew the weapon had each essential

feature. Id. at 619–20.

At issue here are the features that define the class of

registrable “destructive devices.” Section 5845(f) of the

Act exhaustively defines what can be considered a “destructive device”—and what cannot. Covered devices

fall into three categories consisting of military-type ordinance and artillery (e.g., “explosive” “bombs,” “grenades,” and “missiles”), id. § 5845(f)(1), “weapon[s] by

whatever name” that “expel” large-bore “projectile[s],”

id. § 5845(f)(2), and “combination[s] of parts designed

4

or intended” to convert “any device” into a weapon in

the first two categories. Id. § 5845(f)(3). But the same

provision also takes care to identify devices that are

not covered. In particular, a “‘destructive device’ shall

not include any device which is neither designed nor

redesigned for use as a weapon.” Id. § 5845(f).

The circuits are openly split on whether, as incorporated into § 5861(d), “th[is] limiting language constitutes an element of the offense or an affirmative defense.” United States v. Neil, 138 F. App’x 418, 420–21

n.3 (3d Cir. 2005); App. 6a n.4 (noting “diverge[nt]” circuit decisions). The Eleventh Circuit reads § 5845(f)’s

instruction not to include devices “neither designed

nor redesigned for use as a weapon” as “exclud[ing]”

such devices from the “statutory framework.” United

States v. Hammond, 371 F.3d 776, 780 (11th Cir.

2004). On this view, a device “is a ‘destructive device’

within the meaning of the statute if, and only if, it was

designed for use as a weapon.” Ibid. The government

thus bears the burden of proving that feature “beyond

reasonable doubt” to secure a § 5861(d) conviction. See

id. at 780–82.

In the decision below, the Fifth Circuit reaffirmed its

commitment to the contrary view that it and six other

circuits share. App. 6a n.4 (collecting cases). These

courts interpret § 5845(f)’s “neither designed nor redesigned” language to create an “affirmative defense” to

§ 5861(d) liability, “not an element of the crime.” App.

1a. The government thus has no duty to “affirmatively

prove” that a “device was designed as a weapon.” Id. at

5a (original emphasis). Instead, the burden rests on

the individual accused of violating § 5861(d) to assert

and establish that his device was not so designed.

5

This square conflict clearly implicates this Court’s

paramount interest in rectifying the uneven application of the federal criminal law. The “distinction between the elements of an offense and an affirmative

defense is well-known and important.” Ruan v. United

States, 597 U.S. 450, 468 (2022) (Alito, J., concurring).

An incorrect answer both shifts to the accused the burden of disproving a fact that Due Process makes essential to his guilt, and denies his Sixth Amendment right

to “a ‘complete verdict’” from a jury properly instructed

“on every element of the [charged] offense.” Neder v.

United States, 527 U.S. 1, 12 (1999). And in the context

of a § 5861(d) prosecution, those consequences follow

not only as to the burden to prove the defendant possessed a “firearm,” but as to the mens rea requirement

identified in Staples, 511 U.S. at 619. If design as a

weapon is an elemental fact the jury must find beyond

reasonable doubt, then, under Staples, so too is the accused’s knowledge of that characteristic.

The decision below also warrants review because the

Fifth Circuit’s approach is wrong. Text, structure, and

context all compel the conclusion that § 5845(f)’s definition of “destructive device” reaches only those devices that have been designed, or redesigned, for use

as one of the weapons the statute enumerates. And

that interpretation has clear import as to the elements

in a § 5861(d) prosecution. An alleged destructive device’s character as “designed for use as a weapon” is a

fact the government must prove to establish its status

as a statutory “firearm.” Hammond, 371 F.3d at 780

(original emphasis). Just as a rifle is a registrable “machinegun” only if it is capable of firing more than one

round automatically upon a single function of the trigger, see Garland v. Cargill, 602 U.S. 406, 415–16

(2024); Staples, 511 U.S. at 602, the makeshift device

Elden Brannan filled with a small amount of firework

6

powder was an “explosive bomb” only if it was designed

to function as that type of weapon.

In short: this case meets all the criteria for review.

The stakes of the question presented are high. There

are no roadblocks on the Court’s path to reaching that

question. And the court of appeals itself acknowledged

that its answer squarely conflicts with that of another

circuit. The petition should be granted.

STATEMENT OF THE CASE

1. Elden Brannan has been “fascinate[d]” with fireworks “since he was a kid” and still uses any occasion

as an excuse to set them off, particularly as a means to

entertain his sister and her three children. Indeed, at

the Corpus Christi, Texas, home he shares with his sister and the kids, Mr. Brannan’s firework displays are

“definitely a family activity.” C.A. ROA.446, 453–54.

In February of 2022, Mr. Brannan got into an altercation with his sister’s then-boyfriend, and the police

were called to intervene. App. 2a. Sill upset over the

incident, Mr. Brannan’s sister told the responding officers about a device in her brother’s bedroom closet

that she said might be a “pipe bomb”—a description

she based on portrayals of such devices on television.

She knew about the device because she had seen Mr.

Brannan working on it at the kitchen table, openly,

several weeks prior, and had since noticed it in the

closet, which her brother kept unlocked, while borrowing a shirt. C.A. ROA.442, 444–45, 448–49.

Inside the closet, next to Mr. Brannan’s collection of

arial-shell fireworks leftover from New Year’s, the officers found a slender metal pipe, about six inches in

length. App. 2a. One end, covered by some tape but

“not fully enclosed,” had a hobby fuse protruding from

the opening, with holed pieces of cardboard and clay

7

below. Ibid.; C.A. ROA.490, 500, 545. The other end

consisted of a plastic soda-bottle cap, above five dimes

and a piece of wax. App. 2a. The middle contained 39.7

grams of pyrotechnic composition (the mixture of black

powder and stars that produces colors) taken from one

of the nearby fireworks. Ibid.; C.A. ROA.546.

The government subsequently charged Mr. Brannan

with possessing an unregistered “destructive device,”

specifically, an “explosive bomb,” contrary to 26 U.S.C.

§ 5861(d). Maintaining his innocence, Mr. Brannan insisted on a trial.

2. At Mr. Brannan’s trial, there was no dispute that

he made the makeshift firework device and hadn’t registered it. The case thus turned on (1) whether the device was in fact a “destructive device,” in that it had all

the essential features of an “explosive bomb,” and (2)

whether Mr. Brannan knew the device had those features. As to the two contested elements, the government’s evidence consisted entirely of testimony from

the ATF agents who examined the device and deemed

it registrable. App. 2a.

That testimony revealed that, apart from confirming

the identity of the firework powder, and that samples

of both the powder and fuse burned when exposed to

flame, the agents performed no other analysis or tests.

The agents explained that most of the device’s component parts, like hobby fuse, low-explosive powder, clay,

and a metal tube, are often seen in improvised bombs.

But they agreed that each of those commonplace items,

except the metal tube, is regularly present in commercial and hobbyist fireworks. C.A. ROA.492–94, 498–

500, 527–30, 535–37, 541–46, 558–60.

The agents also conceded that Mr. Brannan’s device

lacked any additional components typically associated

with bombs and other explosive weaponry, such as

8

shrapnel, high-explosive powders, and metal end caps.

C.A. ROA.497–98, 507, 547. And, aside from the device’s composition, the agents were aware of no direct

or circumstantial evidence suggesting Mr. Brannan intended to make a bomb. Nevertheless, the ATF’s explosives expert testified that the device qualified as a

“bomb,” and thus a “destructive device” under the National Firearms Act, because he believed the device

“could” explode as constructed, and would be capable

of causing some degree of harm if it did. C.A. ROA.538–39, 548–49, 565, 568–69.

In defense, Mr. Brannan presented his own explosives expert, a former Air Force bomb technician. App.

2a. Based on the device’s composition—particularly,

the absence of components guaranteed to ensure the

tube would confine enough gas to fragment (e.g., metal

end caps), or that would, if present, objectively signal

an intent to harm (e.g., shrapnel)—the expert opined

that the device was most consistent with a makeshift

roman-candle or fountain firework, i.e., a device that

was designed to emit a colorful pyrotechnic display out

of one end, but not to explode. C.A. ROA.588–92, 603–

04, 609–11; App. 2a. The expert thus concluded that

the device lacked the essential qualities of a “destructive device” within the meaning of the Act. App. 2a–3a.

Emphasizing the apparent ambiguity as to whether

he designed the device to explode at all, let alone as a

bomb, Mr. Brannan moved for judgment of acquittal at

each stage of the trial. App. 3a. In support, he argued

that, by instructing that “[t]he term ‘destructive device’ shall not include any device which is neither designed nor redesigned for use as a weapon,” 26 U.S.C.

§ 5845(f), the Act required the government to prove he

designed his device to function as the charged weapon.

App. 3a. In the case of an explosive bomb, he further

argued, this meant proof that the device was designed

9

both to explode, and to do so as a means of inflicting

harm. C.A. ROA.227–35, 239. He also urged the district court to instruct the jury consistent with his interpretation of the Act. App. 3a.

The district court denied those requests. It reasoned

that the government had no duty to prove Mr. Brannan designed his device as an explosive bomb because,

under Fifth Circuit precedent, United States v. Beason,

690 F.2d 439 (5th Cir. 1982), an alleged destructive device’s design as a weapon “was not an element of the

offense but an affirmative defense.” App. 3a. Mr. Brannan declined to assert that defense, maintaining that

doing so would impermissibly shift to him the government’s burden as to the two key contested elements.

Ibid. As to those elements, the jury was instructed to

find that “this destructive device was an explosive

bomb,” and that Mr. Brannan “knew the characteristics of the destructive device, an explosive bomb.” App.

3a. Yet, over Mr. Brannan’s objection, the only guidance the court jury received as to what those terms

meant was, “In this case, the term destructive device

means any explosive bomb.” C.A. ROA.116.

So instructed, the jury voted to convict. App. 4a. Mr.

Brannan was later sentenced to 24 months’ imprisonment, and three years of supervised release. Ibid.

3. On appeal, Mr. Brannan pressed the same construction of the Act, renewing his insufficiency claim,

and alleging that the district court reversibly erred by

declining to instruct the jury consistent with his reading. App. 4a–5a. He further asserted that a more recent Fifth Circuit decision indicated that Beason did

not foreclose his interpretation. Id. at 7a–8a. Alternatively, he argued that, in any event, Beason lacked

binding force because it conflicted with an earlier Fifth

Circuit decision, id. at 6a–7a, as well as this Court’s

10

intervening decision in Staples, 511 U.S. at 600. See

Def. C.A. Br. 25–26 (ECF No. 35).

4. The Fifth Circuit affirmed. App 1a–8a. The panel

held that Mr. Brannan’s reading of the Act was indeed

“foreclose[d]” by its prior decision in Beason. App. 5a.

As the panel explained, Beason interpreted § 5845(f)’s

neither-designed-nor-redesigned language as creating

an “exception” to liability under § 5861(d), and accordingly an affirmative defense the accused must invoke.

This was so, in Beason’s view, because § 5861(d)’s “destructive device” element “can be defined accurately”

by reference to the term “explosive bomb” alone, and

thus “without reference” to an allegedly proscribed device’s quality as designed (or redesigned) as a weapon.

App. 5a–6a (citing Beason, 690 F.2d at 445).

“Because” it was “bound by Beason,” the panel “reject[ed] [the] contention that the Government must affirmatively prove § 5845(f)’s ‘not designed as a weapon’

exception as an element of the crime,” App. 6a, and

held that the district court did not err by failing to so

instruct the jury. App. 8a. And the panel concluded

that, under Beason’s construction of the Act, the government provided “ample evidence” to convict in light

of the ATF expert’s opinion that Mr. Brannan’s device

“would explode and produce dangerous metal shrapnel” if it did. Id. at 7a–8a. In so holding, the panel

noted that the circuits that have addressed the issue

“mostly agree” with Beason’s affirmative-defense reading, but acknowledged that the Eleventh Circuit has

“diverged” from this view. Id. at 6a n.4.

5. Mr. Brannan timely petitioned for rehearing en

banc, urging the Fifth Circuit to revisit Beason and

embrace the Eleventh Circuit’s interpretation in Hammond. The court denied the petition. App. 9a.

11

REASONS FOR GRANTING THE PETITION

I. The circuits are openly split on the elements

necessary to establish guilt for the knowing

possession of a registrable “destructive device” under 26 U.S.C. § 5861(d).

First and foremost, the Fifth Circuit’s decision warrants review because it cleanly presents an important

question of statutory interpretation that has split the

circuits. The National Firearms Act provides that the

term “‘destructive device’ shall not include any device

which is neither designed nor redesigned for use as a

weapon.” 26 U.S.C. § 5845(f). That language begs the

question: in order to obtain a § 5861(d) conviction for

the alleged possession of an unregistered “destructive

device,” should the government have to prove the device was designed, or redesigned, for use as a weapon?

As the circuits have long acknowledged, the answer

depends on geography. The majority of circuits, including the Fifth, say “no.” The key language is read as

merely creating an affirmative defense that, if satisfied, operates to justify the possession of an otherwise

covered device. In at least the Eleventh Circuit, in contrast, the answer is “yes.” The same language is understood as identifying a feature that is essential to

coverage, and thus a fact the government must prove

on pain of judgment of acquittal. This square circuit

conflict is open, longstanding, and firmly entrenched.

The Court should resolve the dispute, as only it can.

1. In the decision below, the Fifth Circuit reaffirmed

its commitment to the majority view that, as the court

observed, App. 6a n.4, it shares with six other circuits.

That view interprets § 5845(f) not as excluding “any

device which is neither designed nor redesigned for use

as a weapon” from the class of registrable “destructive

devices,” but as creating an exception (or exemption)

12

that the accused must assert and support as an affirmative defense to § 5861(d) liability.

a. The Fifth Circuit’s decisions in Beason, and now,

Mr. Brannan’s case, exemplify the majority approach.

In Beason, the defendant challenged his conviction under § 5861(d) for having possessed five “homemade

hand grenades,” 690 F.2d 439, 441 (5th Cir. 1982), on

the ground that the government failed to present evidence that the grenades were “designed for use as a

weapon.” Id. at 445. The government contended that it

had no such duty because, in its view, that language

sets forth an “exception” that “the defendant must

raise.” Ibid. Adopting that view, the Fifth Circuit held

that “the exceptions contained in the definition of destructive device should be treated as affirmative defenses rather than as part of the elements of the offense.” Ibid.

The Fifth Circuit gave two reasons for this conclusion. First, the court noted that “[e]xceptions to statutory definitions are generally matters for affirmative

defenses, especially where the elements constituting

the offense may be defined accurately without any reference to the exceptions.” 690 F.2d at 445. “Since ‘firearm’ is defined as including destructive devices, such

as explosive grenades,” the court reasoned, “the elements of the offense may be defined accurately without

reference to the exceptions, which therefore should be

treated as affirmative defenses.” Ibid. Second, the

court cited “the legislative history of Section 5845,”

which it took to “suggest[ ] that Congress intended the

exceptions to operate as affirmative defenses.” Id. at

445 & n.8 (citing S. Rep. No. 90-1501 at 47 (1968)).

In affirming Mr. Brannan’s conviction, the panel below removed any basis to doubt that Beason is the law

of the Fifth Circuit: “Under our binding precedent, this

exception to § 5861(d) is an affirmative defense, not an

13

element of the crime.” App. 1a, 5a–7a. As the court expressly held, under that rule, the government is not

obliged to “affirmatively prove,” id. at 5a, 6a, and the

jury need not be instructed to find, id. at 8a, that an

alleged explosive bomb was designed for use as that

weapon. Indeed, the Fifth Circuit confirmed that, under its approach, the district court did not err in declining Mr. Brannan’s request to at least apprise the

jury of the bare fact that the statutory definition of “destructive device” says that term “shall not include” any

device neither designed nor redesigned as a weapon.

See id. at 3a–4a.

b. Six other circuits have reached the same conclusion. Notably, however, none of those circuits has engaged in any meaningful analysis, instead simply

treating Beason, or the legislative history, as dispositive. See United States v. Musso, 914 F.3d 26, 28 (1st

Cir. 2019) (citing Beason to hold that the “exclusions

present affirmative defenses; they do not define elements of the substantive offense”); United States v.

Posnjak, 457 F.2d 1110, 1116 (2d Cir. 1972) (“The

Committee Report stated that this exception was an

affirmative defense; a device which otherwise appeared to fall within the statute would be exempted

from its requirements if it could be shown that it was

not designed as a weapon.”); United States v. Dalpiaz,

527 F.2d 548, 552 (6th Cir. 1975) (“The legislative history of the section reveals that the exception is a matter of affirmative defense.”); United States v. Johnson,

152 F.3d 618, 623 (7th Cir. 1998) (“[T]he subsection

contains an affirmative defense: The term destructive

device does not include any device that is not designed

for use as a weapon.”); United States v. Oba, 448 F.2d

892, 894 (9th Cir. 1971) (“[W]e point out that the exception created by Congress . . . in substance constitutes an affirmative defense . . . .”); United States v. La

14

Cock, 366 F.3d 883, 889 (10th Cir. 2004) (“Along with

several other circuits, we have previously held that the

determination as to whether a device was ‘designed

[or] redesigned for use as a weapon’ is an affirmative

defense, not an element of” § 5861(d)).

The precise contours of the affirmative defense vary

slightly across these circuits. But the bottom line is the

same: in a § 5861(d) prosecution, the government has

no duty to “affirmatively prove the [defendant’s] device

was designed as a weapon.” App. 5a (original emphasis).

2. The exact opposite is true in the Eleventh Circuit.

In that circuit, if the government’s evidence is “insufficient to permit the jury to find beyond reasonable

doubt that [a] device was designed as a weapon,” then

the § 5861(d) defendant is entitled to “judgment of acquittal.” Hammond, 371 F.3d at 782. And while the

Fourth Circuit has not had occasion to directly address

the issue, that court’s precedent suggests that it would

almost certainly agree.

a. In Hammond, the Eleventh Circuit affirmed a district court’s grant of judgment of acquittal to a defendant alleged to have violated § 5861(d) based on his possession of a homemade “firecracker” device much like

the device at issue here. See 371 F.3d at 777–78, 780–

82. The alleged “explosive bomb” was a fused, 13-inch

tube “made of ten layers of industrial grade cardboard”

that “was ‘as hard as wood,’” and that the defendant

had filled with nine ounces (252 grams) of low-explosive powder mixture (significantly more than the 39.7

grams in Mr. Brannan’s device). Id. at 778. And there,

as here, the government’s case rested on the testimony

of an ATF expert who opined that the device fell within

the Act because it “would explode,” and anyone nearby

“could sustain serious injury or death” if it did. Id. at

780.

15

The Eleventh Circuit held that this testimony “[wa]s

not enough to bring the device within the statutory

framework.” Hammond, 371 F.3d at 780. And that conclusion followed from a straightforward reading of

§ 5845(f)’s text: “Although the statute does define a ‘destructive device’ to include explosive devices, . . . it also

explicitly excludes from coverage any explosive device

not designed for use as a weapon.” Ibid. (original emphasis). By force of logic, then, a device “is a ‘destructive device’ within the meaning of the statute if, and

only if, it was designed for use as a weapon.” Ibid. In

the context of an alleged explosive bomb, for instance,

“[s]tatutory coverage depends upon proof that a device

is an explosive plus proof that it was designed as a

weapon.” Ibid. (original emphasis). The government’s

failure to prove that essential characteristic accordingly mandated judgment of acquittal. See id. at 780–

82.

b. Fourth Circuit precedent strongly suggests the

same rule. In United States v. Morningstar, a defendant was charged under § 5861(d) for possessing several

sticks of “commercial explosives” he “fastened together

with electrical tape and several unattached blasting

caps”—on the theory that those items constituted “a

combination of parts intended for use as a bomb and

from which a bomb may be readily assembled.” 456

F.2d 278, 279–80 (4th Cir. 1972); see § 5845(f)(3). The

Fourth Circuit joined every other circuit in holding

that, although not encompassed by § 5845(f)(1), commercial explosives (like dynamite and fireworks) may

form one of a “combination of parts” as contemplated

in § 5845(f)(3). Morningstar, 456 F.2d at 280–81. It

thus reversed the district court’s dismissal of the indictment premised on contrary reasoning.

But, in so holding, the Fourth Circuit emphasized

that a qualifying combination of parts must be either

16

“designed,” or “intended,” to be converted into a device

listed in paragraph (f)(1) or (f)(2), and that the devices

in those categories are subject to the express limitation

that they be designed or redesigned as weapons. See

Morningstar, 456 F.2d at 280–81. The statutory text

and legislative history confirmed as much. See ibid.

And those sources revealed that the “designed or redesigned” language, like the “designed or intended for

use” language, serve to restrict the statute’s scope. The

Fourth Circuit thus held that the latter language in

§ 5845(f)(3) does not “simply creat[e] an affirmative defense.” Id. at 281. And it instructed that, at trial, “the

burden will be on the government to prove,” among

other things, that “the commercial materials mentioned in the indictment . . . could have been readily

assembled into a bomb,” and that “Morningstar intended to convert the sticks and caps into a bomb.” Id.

at 281–82.

To be sure, Morningstar did not specifically register

a view as to the whether the language excluding devices “neither designed nor redesigned for use as a

weapon” is also an element. But its reasoning as to

§ 5845(f)(3)’s “designed or intended” element leaves little doubt that, in the Fourth Circuit, Mr. Brannan’s

case would have turned out differently. That reasoning was necessary to its holding about the statute’s

scope, and applies equally to the “designed or redesigned” language. See id. at 281 (quoting H.R. Rep. No.

90-1577, at 12 (1968), reprinted in 3 U.S.C.C.A.N.

4410, 4418 (1968)).

3. This circuit conflict clearly implicates the Court’s

paramount interest in ensuring uniform application of

federal criminal statutes. As Mr. Brannan’s case illustrates, the predictable result of these divergent interpretations is different standards of proof that result in

disparate treatment of similarly situated defendants.

17

Had Mr. Brannan’s case arisen in Florida, he would

have been entitled to have the jury informed that the

firework-filled device he tinkered with openly and kept

unsecured in his bedroom closet was not a “destructive

device” within the meaning of the Act “merely because

it explodes,” and that his guilt thus “depend[ed] upon

proof that [the] device [wa]s an explosive plus proof

that it was designed as a weapon.” Hammond, 371

F.3d at 780 (original emphasis). But Mr. Brannan lives

in Texas, where Fifth Circuit precedent “foreclose[d]”

his request for just such an instruction. App. 5a.

Moreover, under the Eleventh Circuit’s interpretation, an ATF expert’s testimony that a makeshift “firecracker” device “would explode” and cause “serious injury or death” to those nearby is “clearly insufficient

proof” to secure a § 5861(d) conviction. Hammond, 371

F.3d at 780. But under the Fifth Circuit’s approach, an

agent’s opinion that Mr. Brannan’s device “would explode and produce dangerous metal shrapnel” qualified as “ample evidence” of his guilt. App. 7a–8a.

That is precisely the sort of geographic incongruity

that warrants this Court’s intervention.

4. It is also clear that this split will not resolve itself.

Mr. Brannan urged his panel to adopt the Eleventh

Circuit’s reading, arguing that a recent Fifth Circuit

decision had moved in that direction, and away from

Beason. But the panel rejected that contention, cementing Beason, and its affirmative-defense rule, as

binding Fifth Circuit law. App. 5a–7a. The Seventh

Circuit also recently reaffirmed that it “ha[s] never

adopted [the Eleventh Circuit’s] analysis” under “the

Hammond test.” United States v. Creek, 95 F.4th 484,

490 (7th Cir. 2024). Meanwhile, the Eleventh Circuit

continues to consistently apply Hammond. See United

States v. Spoerke, 568 F.3d 1236, 1246–47 (11th Cir.

18

2009) (so applying but rejecting insufficiency claim on

the case’s particular facts); United States v. Pisa, 701

F. App’x 781, 782–83 (11th Cir. 2017) (same). This conflict is entrenched, and ripe for the resolution only this

Court can offer.

II. The question presented is important, and

this case is an ideal vehicle.

The Court’s interest in ensuring uniform application

of federal law is reason enough to grant the petition.

But the question presented is also important in its own

right. And Mr. Brannan’s case presents an excellent

vehicle for reaching and resolving that question.

1. Whether the Act is best interpreted as making an

alleged destructive device’s character as having been

“designed [ ]or redesigned for use as a weapon” an affirmative defense, or an indispensable feature to the

device’s coverage, is important in numerous respects.

a. “In criminal law, the distinction between the elements of an offense and an affirmative defense is wellknown and important.” Ruan, 597 U.S. at 468 (Alito,

J., concurring). That is because an incorrect answer

shifts to the accused the burden of disproving a fact

that Due Process makes essential to his guilt. Just as

importantly, failing to properly instruct the jury “on

every element of the offense” denies the accused his

Sixth Amendment right to “a ‘complete verdict.’”

Neder, 527 U.S. at 12.

And in the context of a § 5861(d) prosecution, those

consequences follow not only as to the burden to prove

the defendant possessed a “firearm,” but as to the

mens rea requirement identified in Staples, 511 U.S.

at 619. If design as a weapon is an elemental fact the

jury must find beyond reasonable doubt, then, under

Staples, so too is the accused’s knowledge of that characteristic. As this Court’s enduring interest illustrates,

19

clarifying the mental state that distinguishes “entirely

innocent” acts from culpable ones is an issue of surpassing importance. See Staples, 511 U.S. at 614–15; see

also, e.g., Ruan, 597 U.S. at 468; Rehaif v. United

States, 588 U.S. 225, 232, 237 (2019); Elonis v. United

States, 575 U.S. 723, 740, 743–44 (2015).

b. The answer to the question presented also has implications throughout the National Firearms Act’s regulatory apparatus. Section 5845 defines the scope of all

“firearms” subject to the Act, and its corresponding

registration and other regulatory requirements. Subsection (f), in turn, governs which devices are, and are

not, subject to those requirements. Thus, proper construction of § 5845’s various provisions is crucial to

providing citizens with notice of the characteristics

that trigger the duty to seek advance government approval to make, possess, or carry a covered “firearm.”

See Hammond, 371 F.3d at 782 (“Whether Congress

should require registration, tax, and permission for

one to make or possess” a device like Mr. Hammond’s

“we cannot say; it has not, however, required it yet.”).

2. Mr. Brannan’s case is an excellent vehicle for resolving the conflict over this important question.

a. First, this case cleanly and squarely presents that

question. Mr. Brannan implored the trial court to

weigh the sufficiency of the evidence, and instruct the

jury, consistent with his preferred interpretation. App.

3a. He pressed that insufficiency claim, and alleged instructional error, for the same reasons on appeal. Id.

at 4a. And, after rejecting both claims on the merits,

id. at 4a–8a, the Fifth Circuit declined to revisit its position en banc. Id. at 9a.

b. The question presented is also dispositive. To be

sure, Mr. Brannan preserved his view that his conviction rests on insufficient evidence, and he would no

20

doubt renew that contention on remand if he were to

prevail in this Court.

For present purposes, however, the more important

point is that a favorable answer to the question presented would be outcome determinative of Mr. Brannan’s claim of reversible instructional error. Had his

case arisen in the Eleventh Circuit, the court of appeals would have held that the district court erred by

failing to instruct the jury that the government needed

to prove beyond a reasonable doubt that his device was

designed for use as a weapon. And there is no way this

constitutional instructional error could be deemed

harmless beyond a reasonable doubt. See Neder, 527

U.S. at 11. Given that the parties hotly contested the

device’s design and function, a reasonable jury could

easily have found that the government failed to carry

its burden under the correct reading of the statute. Indeed, the Fifth Circuit recently held that failing to instruct the jury that a defendant “knew that he ‘was

acting in an unauthorized manner’ as required by

Ruan”—a case similarly concerning an element formerly thought to be an affirmative defense—was not

harmless error. United States v. Qureshi, 121 F.4th

1095, 1100–03, 1105–08 (5th Cir. 2024). So too here.

III. The decision below is wrong.

The Fifth Circuit’s decision also warrants review because it is incorrect on the merits. The statutory text,

read in context and in light of this Court’s precedents,

confirms that whether a device was “designed [ ]or redesigned for use as a weapon” goes to the statute’s coverage. This language thus imposes a burden on the

government; it does not merely create an affirmative

defense that a defendant can invoke.

1. The Act prohibits any person from receiving or

possessing an unregistered “firearm.” 26 U.S.C.

21

§ 5861(d). A covered “firearm” includes “a destructive

device,” id. § 5845(a)(8), which in turn has a threeprong definition, id. § 5845(f).

The first two prongs essentially cover military-style

weapons whose sole function is combat. The first category includes ordinance like explosive, incendiary, or

poison gas bombs, grenades, rockets, missiles, and

mines. Id. § 5845(f)(1). Similarly, the second category

reaches large-bore projectile weapons. Id. § 5845(f)(2).

These two categories thus cover devices that, by their

design and nature, have no non-weapon purpose. See

Morningstar, 456 F.2d at 280–81.

The definition’s third prong reaches “any combination of parts either designed or intended for use in converting any device into a destructive device as defined

in” the first two prongs “and from which a destructive

device may be readily assembled.” Id. § 5845(f)(3).

“The third section does not broaden the group of devices which are covered; it merely precludes evasion

through possession of the unassembled components instead of the assembled item.” Posnjak, 457 F.2d at

1116.

Finally, the definition includes the key limitation at

issue: A “destructive device” “shall not include any device which is neither designed nor redesigned for use

as a weapon.”

In two ways, these provisions show that the “neither

designed nor redesigned” language goes to statutory

coverage, not an affirmative defense. First, none of

these provisions regulates primary conduct or governs

litigation burdens or procedures. They are all part of

the definition of a statutory term that forms part of the

offense itself. So when Congress instructed that a “destructive device” “shall not include” certain devices, it

was saying those devices are not covered by the statute

22

to begin with. As a matter of plain text, a device “is a

‘destructive device’ within the meaning of the statute

if, and only if, it was designed for use as a weapon.”

Hammond, 371 F.3d at 780.

Second, all three prongs of the definition focus on devices purposely made or converted to function as weapons—the first two directly, by listing objects that have

no other function, and the third by reference to the

first two. It thus makes perfect sense that the scope of

the entire definition would be limited to devices “designed [ ]or redesigned for use as a weapon.” A device

that is not so designed does not share the unifying

characteristic of the examples listed in the adjacent

provisions.

2. This reading also tracks this Court’s approach to

distinguishing elements from affirmative defenses, as

set out in United States v. Cook, 84 U.S. 168 (1872).

Cook explained that a statutory exception is an essential element of the offense when it “is so incorporated

with the language defining the offence that the ingredients of the offence cannot be accurately and clearly

described if the exception is omitted.” Id. at 173. An

exception is an affirmative defense when “the language of the section defining the offence is so entirely

separable from the exception that the ingredients constituting the offence may be accurately and clearly defined without any reference to the exception.” Id. at

173–74. Thus, the core question “is whether the exception is so incorporated with the substance of the clause

defining the offence as to constitute a material part of

the description of the acts, omission, or other ingredients which constitute the offence.” Id. at 176.

Here, the “neither designed nor redesigned” language is fully “incorporated with the language defining

the offence.” Without this language, at least some aspects of the remaining definition cannot sensibly be

23

applied. In many cases, whether a device is a firework

or an “explosive . . . bomb,” see 26 U.S.C. 5845(f)(1)(A),

boils down to whether it is designed as a weapon. Both

explode, and both are potentially harmful, but only the

latter is covered by the statute. Likewise, how a device

is “designed or intended” to be used is the core focus of

the § 5845(f)(3) component-parts clause. Thus, treating the rest of subsection (f) as a complete offense arbitrarily severs part of the statutory definition from

the rest. And the “designed or intended” exclusion

looks nothing like an ordinary affirmative defense,

which is “a justification or excuse which is a bar to the

imposition of criminal liability on conduct that satisfies the elements of an offense.” Ruan, 597 U.S. at 472

(Alito, J., concurring) (cleaned up).

3. The Fifth Circuit’s approach also risks criminalizing large swaths of innocent commercial and personal

conduct, contrary to this Court’s guidance in Staples.

There, the Court ruled that § 5861(d) requires the government to prove not only that the alleged “firearm”

had each characteristic necessary to bring it within the

Act’s relevant definition, but also that the defendant

knew it had each such characteristic. 511 U.S. at 624–

25. In so holding, the Court emphasized “the particular care we have taken to avoid construing a statute to

dispense with mens rea where doing so would ‘criminalize a broad range of apparently innocent conduct.’”

Id. at 610.

The same reasoning applies here. Just as “all guns

[cannot] be compared to hand grenades,” id., the threeprong definition in § 5845(f) reflects that not all explosives are dangerous weapons—some have “a useful social [or] commercial purpose.” Hammond, 371 F.3d at

782. That is true even if they “are potentially harmful

devices”: “Even dangerous items can, in some cases, be

so commonplace and generally available that we would

24

not consider them to alert individuals to the likelihood

of strict regulation.” Staples, 511 U.S. at 611. Firecrackers and other fireworks fall into that category, as

do commercial explosives used for blasting or construction. Cf. Posnjak, 457 F.2d at 1112, 1119 (government

conceded, and court held, that commercial dynamite,

simpliciter, falls outside the statute’s ambit).

In such situations, this Court will not impute to Congress the intent to “subject such law-abiding, well-intentioned citizens to a possible ten-year term of imprisonment” without proof that they possessed a culpable mental state. Staples, 511 U.S. at 615. In turn,

“the background rule of the common law favoring mens

rea should govern interpretation of § 5861(d) in this

case.” Id. at 619. And that background rule dovetails

with the plain text, requiring the government to show

that the device was designed or redesigned for use as

a weapon, and that the defendant knew of the features

establishing that fact.

4. Below, the Fifth Circuit relied on Beason, which

held that because “‘firearm’ is defined as including destructive devices, such as explosive grenades, the elements of the offense may be defined accurately without

reference to the exceptions, which therefore should be

treated as affirmative defenses.” 690 F.2d at 445; see

App. 5a–6a. If the statute referred solely to grenades,

Beason’s reasoning might make sense. Congress would

have little reason to require the government to prove

specifically that an explosive grenade was designed as

a weapon, since that purpose is inherent in the concept

of a grenade.

But Beason’s reasoning ignores the statute’s other

terms. Again, the key difference between a “bomb,”

App. 3a, and some commercial explosives or fireworks

is the device’s design as a weapon. In turn, the “neither

25

designed nor redesigned” language is necessary to coherently define the full offense. Reading the statute as

a whole thus shows that the Fifth Circuit’s approach

is unsound.

Beason’s reliance on legislative history was also misplaced. As Morningstar explained, “the legislative history also suggests that the exclusion of devices made

of commercial explosives”—meaning devices beyond

the statute’s first two prongs—“depends on their intended use.” 456 F.2d at 281. The House Report notes

that the statute “excludes . . . from the definition of

‘destructive device’” those devices “not designed or redesigned or used or intended for use as a weapon.”

H.R. Rep. No. 90-1577, 1968 U.S.C.C.A.N. at 4418 (emphasis added). Unlike the Senate Report, the House

Report says nothing about any affirmative defense; it

refers to limits on the very concept of “destructive device.” Compare ibid., with S. Rep. No. 90-1501 at 47.

At best, then, the legislative history is inconsistent.

And this Court “won’t allow ambiguous legislative history to muddy clear statutory language.” Azar v. Allina

Health Servs., 587 U.S. 566, 579 (2019) (cleaned up).

*

*

*

26

CONCLUSION

The petition should be granted.

Respectfully submitted,

TOBIAS S. LOSS-EATON

STEPHEN S. LAUDONE

ROCHELLE BALLANTYNE

SIDLEY AUSTIN LLP

501 K Street NW

Washington, DC 20005

(202) 736-8427

tlosseaton@sidley.com

JEFFREY T. GREEN

DANIELLE HAMILTON

THE CARTER G. PHILLIPS/

SIDLEY AUSTIN LLP

SUPREME COURT CLINIC

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

*EVAN G. HOWZE

ASSISTANT FEDERAL

PUBLIC DEFENDER

SOUTHERN DISTRICT

OF TEXAS

440 Louisiana Street,

Suite 1350

Houston, Texas 77002

(713) 718-4600

evan_howze@fd.org

Counsel for Petitioner

December 13, 2024

* Counsel of Record