PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5460

BOBBY RAY SIMMONS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Court Judge.

(CR-95-8)

Argued: April 5, 1996

Decided: May 20, 1996

Before MURNAGHAN and LUTTIG, Circuit Judges, and JAMES

H. MICHAEL, JR., Senior United States District Judge for the

Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in

which Judge Murnaghan and Senior Judge Michael concurred.

_________________________________________________________________

COUNSEL

ARGUED: Hunt L. Charach, Federal Public Defender, Charleston,

West Virginia, for Appellant. Margaret Agnes Hickey, Assistant

United States Attorney, Charleston, West Virginia, for Appellee. ON

BRIEF: C. Cooper Fulton, Assistant Federal Public Defender,

Charleston, West Virginia, for Appellant. Rebecca A. Betts, United

States Attorney, Charleston, West Virginia, for Appellee.
OPINION

LUTTIG, Circuit Judge:

The sole question before the court in this case is whether a Molotov

cocktail, comprising a glass bottle filled with gasoline and a cloth

fuse, is a "destructive device" as that term is defined in 26 U.S.C.

§ 5845(f)(1), if the defendant does not physically possess a match or

lighter with which to light the device. Concluding that it is, we affirm

the defendant's conviction.

On March 17, 1993, an unknown female stopped a local police

officer and pointed to appellant, Bobby Ray Simmons, stating that

"he's going to blow up something." J.A. at 13. When the officer confronted Simmons, Simmons had in his pocket a vodka bottle filled

with gasoline. Protruding from the bottle was a cloth wick, the other

end of which was immersed in the gasoline. After waiving his

Miranda rights, Simmons told federal agents that he had constructed

the Molotov cocktail "because earlier that evening he had gotten into

a fight with Bubby Mullins and had intended to set his car on fire."

Id. at 14. A search of Simmons incident to arrest revealed that Simmons did not possess a match or a lighter.

A grand jury indicted Simmons for possession of a destructive

device in violation of 26 U.S.C. §§ 5861(d) and 5871, and Simmons

entered a conditional guilty plea, reserving the right to appeal the

issue of whether a gasoline-filled glass bottle with a cloth fuse could

constitute a "destructive device" if he did not have in his physical possession a match or lighter. Simmons now appeals, raising the issue

that he reserved in his plea agreement.

Title 26, section 5861(d) makes it unlawful to possess an unregistered "firearm," defined in 26 U.S.C. § 5845(a) as including "a

destructive device." "Destructive device" in turn is defined in relevant

part as:

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

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charge of more than one-quarter ounce, (E) mine, or (F)

similar device.

Id. at § 5845(f)(1) (emphasis added).

Without ever as much as suggesting that a defendant must possess

a means by which to ignite the device, courts have uniformly held that

a fully-assembled Molotov cocktail -- defined as a device comprising

a bottle, gasoline, and a rag -- constitutes an"incendiary . . . bomb"

or "similar device" under section 5845(f). See, e.g., United States v.

Neal, 692 F.2d 1296, 1303-04 (10th Cir. 1982) (affirming conviction

for possession of a destructive device made from"a one gallon plastic

jug, a flammable liquid, and a rag wick"); United States v. Campbell,

685 F.2d 131, 132 (5th Cir. 1982) (sustaining indictment for possession of a destructive device "made from cloth rags, [and] flammable

liquid with a fuse made of incense sticks"); United States v. Ross, 458

F.2d 1144, 1144-46, 1144 n.1 (5th Cir.) (affirming conviction for possession of "crude incendiary devices" consisting of "a quart glass bottle with cloth therein and containing a flammable liquid and having

a cloth wick in the mouth of said bottle"), cert. denied, 409 U.S. 868

(1972); United States v. Curtis, 520 F.2d 1300, 1304 (1st Cir. 1975)

("[W]hile gasoline, bottles and rags all may be legally possessed, their

combination into the type of home-made incendiary bomb commonly

known as a Molotov cocktail creates a destructive device."); United

States v. Wilson, 546 F.2d 1175, 1177 (5th Cir.) (same), cert.

dismissed, 431 U.S. 901 (1977). Similarly, without ever suggesting

that a match or lighter is an essential part, courts have consistently

held that the unassembled component parts of a Molotov cocktail

(i.e., bottles, gasoline, and rags), constitute a destructive device under

section 5845(f), when such parts are in the possession of one who

intends to assemble an incendiary bomb. See, e.g., United States v.

Tankersley, 492 F.2d 962, 966 (7th Cir. 1974) (affirming conviction

for possession of a "destructive device" which consisted of "a bottle,

a firecracker and tape, and paint remover: the components of a Molotov cocktail"); United States v. Davis, 313 F. Supp. 710, 711, 714

(D.Conn. 1970) (denying motion to dismiss indictment for possession

of combination of parts that could be readily assembled into destructive device where defendant possessed "four empty bottles, a number

of cloth strips and a two gallon can of gasoline"); United States v.

Greer, 588 F.2d 1151, 1157 n.8 (6th Cir. 1978) ("[W]hile gasoline,

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bottles and rags all may be legally possessed, their combination into

the type of home-made incendiary bomb commonly known as a

Molotov cocktail creates a destructive device." (internal quotation

marks omitted)), cert. denied, 440 U.S. 983 (1979); United States v.

Peterson, 475 F.2d 806, 811 (9th Cir.), cert . denied, 414 U.S. 846

(1973).

Against the weight of this authority, Simmons asks us to hold that

he cannot be convicted for possession of a destructive device unless

he had in his physical possession matches, a lighter, or other means

by which to light the Molotov cocktail. This, we decline to do. Every

federal court addressing Molotov cocktails under section 5845(f) has

appeared to assume, and we now hold, that a Molotov cocktail is a

destructive device within the meaning of 26 U.S.C.§ 5845(f)(1),

regardless of whether the defendant has a match or lighter with which

to ignite the device, because a Molotov cocktail is, or at least is a

device similar to, an incendiary bomb, or grenade, in that it is a

weapon whose design and primary purpose is to cause injury or to

destroy property. Cf. 26 U.S.C. § 5845(f) ("The term `destructive

device' shall not include any device which is neither designed nor

redesigned for use as a weapon . . . [n]or any other device which the

Secretary finds is not likely to be used as a weapon. . . ."). That the

defendant does not possess a match does not render a Molotov cocktail any less an explosive or incendiary device, as Congress itself recognized when it prohibited in the District of Columbia possession of

a Molotov cocktail or "other explosive[ ]," the former of which it

defined as "[a] breakable container containing flammable liquid and

having a wick," see Pub. L. No. 91-358, 84 Stat. 603-04 (July 29,

1970) (codified at D.C. Code Ann. § 22-3215a (1971 Cumm. Supp.)).

Indeed, if Simmons' argument were correct, a fully-assembled Molotov cocktail, such as Simmons possessed, would not be a destructive

device under section 5845(f)(1), even if the defendant were holding

a match in his other hand. For, the match is still not a part of the

assembled device, and, as Simmons argues, the assembled device

must include every part necessary for its activation.

Simmons contends that the common-sense conclusion that a fullyassembled Molotov cocktail is an incendiary device, even absent a

match, is foreclosed by our decision in United States v. Blackburn,

940 F.2d 107, 110 (4th Cir. 1991). We disagree. There, we held only

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that grenades lacking explosive material cannot constitute "destructive devices," reasoning that "[a] defendant must possess every essential part necessary to construct a destructive device." Here, of course,

the Molotov cocktail possessed by Simmons contained the requisite

explosive material, the gasoline. Indeed, we even cited in Blackburn

as authority for our holding, United States v. Davis, 313 F. Supp. 710

(D.Conn. 1970), a decision which held that "cloth, gasoline and bottles" constitute "destructive devices" as that term is defined in section

5845(f), and which we had previously cited as correctly holding that

component parts of Molotov cocktails -- "bottles, gasoline, and strips

of cloth" -- constitute destructive devices under section 5845(f),

United States v. Morningstar, 456 F.2d 278, 281 (4th Cir.), cert.

denied, 409 U.S. 896 (1972) (citing Davis , 313 F. Supp. at 713).

The judgment of the district court is affirmed.

AFFIRMED.

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