UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

KENNETH JAMES HEBERT, a/k/a Keno, 

 Defendant - Appellant. 

No. 16-7000 

(D.C. No. 6:15-CR-00050-JHP-1) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

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Before LUCERO, HOLMES, and MORITZ, Circuit Judges. 

_________________________________ 

Kenneth Hebert appeals his conviction following a jury trial for being a felon 

in possession of an explosive device, in violation of 18 U.S.C. §§ 842(i)(1) and 

844(a)(1) and (2). He asserts that the evidence was insufficient to sustain his 

conviction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I 

Hebert lived in a house in Hugo, Oklahoma, with Carney Hood, Hood’s 

girlfriend Lacy Miller, and Miller’s two children. The house was condemned and the 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 29, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

occupants were told to leave. Sometime after they vacated the house, Ricky Britt, a 

Code Enforcement Officer, removed blankets covering a window so patrolling police 

officers could see if people were inside. Britt discovered a box of blasting caps in a 

bedroom, together with items that looked like bomb-building materials. He looked in 

the box and very gently picked out one of the items to confirm that it was a blasting 

cap. He then replaced it and called the police. 

Hebert was indicted and charged with being a felon in possession of an 

explosive, which makes it unlawful for any person who has been convicted of a 

felony to “possess any explosive which has been shipped or transported in or 

affecting interstate . . . commerce.” 18 U.S.C. § 842(i)(1). At trial, the government 

presented four witnesses. First, Britt testified about finding the box of blasting caps. 

Second, Lieutenant Steve Babcock, a Hugo police officer, testified that he responded 

to Britt’s call reporting the box of blasting caps. Third, Miller testified about seeing 

the box in the house where she and Hebert had lived. And finally, Special Agent for 

the Bureau of Alcohol, Tobacco, Firearms and Explosives, Ashley Stephens, related 

his interview with Hebert after his arrest, during which Hebert said he acquired the 

box of blasting caps when he cleaned out the shed of an acquaintance. Hebert told 

Agent Stephens that he took the box home and gave it to Hood, and that he did not 

know what was in the box. Agent Stephens also testified that a blasting cap is a 

primary explosive whose purpose is to initiate a secondary high explosive. Both 

officers described the warnings printed on the box of blasting caps. 
3 

At the close of the government’s case, Hebert moved for a judgment of 

acquittal based on insufficient evidence. The court denied the motion. Hebert did 

not testify and the defense presented no evidence. The jury returned a guilty verdict. 

Hebert was sentenced to 63 months’ imprisonment, followed by three years of 

supervised release. He timely appealed, arguing the evidence presented at trial that 

he knew the box contained explosive blasting caps was insufficient to convict him.1

 

II 

“We review the denial of a motion for judgment of acquittal, and hence the 

sufficiency of the evidence to support the jury verdict, de novo.” United States v. 

Alexander, 817 F.3d 1205, 1209 (10th Cir. 2016) (quotation omitted). This requires 

us to “view the evidence in the light most favorable to the government to determine 

whether a rational trier of fact could have found the elements of the offense beyond a 

reasonable doubt.” Id. (quotation omitted). “[T]his court does not decide credibility 

issues or reweigh the evidence.” United States v. Johnson, 821 F.3d 1194, 1201 

(10th Cir. 2016). Rather, “[w]e accept the jury’s resolution of conflicting evidence. 

As long as the possible inferences are reasonable, it was for the jury, not the court, to 

determine what may have occurred. The only question is whether the government’s 

evidence, credited as true, suffices to establish the elements of the crime.” Id. 

(citations, ellipsis, and quotations omitted). 

 1

 To the extent Hebert contends the government failed in its burden to prove 

that a blasting cap is an explosive as defined by 18 U.S.C. § 844(j), he stipulated 

before the district court that the blasting caps were explosives under federal law. 

Moreover, he has not attempted to refute Agent Stephens’ testimony that the blasting 

caps were explosives. 
4 

III

 To establish Hebert’s guilt under § 842(i)(1), the government was required to 

“prove beyond a reasonable doubt that: (1) [he] was previously convicted of a 

felony; (2) he thereafter knowingly shipped, transported, received or possessed an 

explosive; and (3) the possession was in or affecting interstate or foreign commerce.” 

United States v. Markey, 393 F.3d 1132, 1135 (10th Cir. 2004). Only the second 

element of knowledge is in dispute; Hebert stipulated that he was a convicted felon, 

that the blasting caps were explosives, and that the blasting caps had traveled in 

interstate commerce. 

 Hebert argues that the evidence was insufficient to show he knowingly 

possessed explosives because two of the four trial witnesses testified that they 

thought the box found in Hebert’s former residence contained something other than 

blasting caps. He relies on the testimony of Officer Britt that when he first looked at 

the box, he thought it contained shoelaces. Acknowledging Britt’s unequivocal 

statement that, after he read the warnings on the box and looked at one of the items in 

the box, he knew they were blasting caps, Hebert nevertheless contends that Britt 

would not have picked one up if he truly believed they were blasting caps. And he 

misstates Britt’s testimony by saying Britt did not know what was in the box until he 

read the writing on the individual blasting cap that he picked up. But Britt testified 

that it looked like shoelaces until he read the writing on the box that said blasting 

caps. Thus, the jury was fully justified in crediting Britt’s testimony that he knew the 

box contained blasting caps. See Johnson, 821 F.3d at 1202. 
5 

 Hebert next points to the testimony of his former housemate Miller. Miller 

testified that during her initial telephone interview with the police, she said she 

thought the box contained speaker wire. At trial, however, she stated that Hebert 

offered the box to Hood and said they were blasting caps. Hebert argues that if 

Miller had known the box contained blasting caps, she would not have permitted 

them near her children. This is mere speculation; there is no evidence of Miller’s 

parenting policies. Again, we do not reweigh the evidence, but assess it in the light 

most favorable to the government. 

Thus, Hebert’s argument is that there was no evidence that he knew what the 

box contained—a position supported by two witnesses who also did not realize the 

box contained blasting caps. But Britt’s testimony was clear: He knew the box 

contained blasting caps, so he called the police and guarded the box until it was 

removed from the house. Miller’s testimony was less clear. She explained that she 

was untruthful during the telephone interview with the police because she did not 

want to become involved. Even though Miller changed her story, it was within the 

province of the jury to decide what part of her testimony to credit and what to reject. 

Cf. United States v. Cooper, 654 F.3d 1104, 1115 (10th Cir. 2011) (holding court 

does not “weigh conflicting evidence or consider witness credibility,” and witnesses’ 

conflicting or differing accounts do “not necessarily render the evidence 

insufficient”). 

 Hebert also contends that the jury was confused, as evidenced by a note they 

sent out during deliberations asking whether they were to determine that Hebert was 
6 

guilty of being a felon in possession of an explosive or that he was guilty of knowing 

he was in possession of an explosive. After consultation with counsel, the court 

responded that the jury had received all the law and evidence appropriate for their 

consideration. However, the issue on appeal is not jury confusion, but whether the 

evidence and the reasonable inferences to be drawn from it were sufficient to convict. 

 Furthermore, the writing on the box itself was sufficient evidence from which 

the jury could infer that Hebert knew the box contained blasting caps and the blasting 

caps were explosives. The following wording was clearly displayed on the box: 

“DANGEROUS EXPLOSIVES,” “KEEP FROM CHILDREN,” “LOCK UP 

BLASTING CAPS,” and “HANDLE CAREFULLY.” These cautions plainly printed 

on the outside of the box, together with Hebert’s statement that he took the box home 

from the shed where he found it, gave rise to the reasonable inference that Hebert 

knowingly possessed an explosive device. 

IV

 We AFFIRM Hebert’s conviction. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge