IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 92-1029

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FRANKLIN MONROE JOKEL,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________

 (August 10, 1992)

Before HIGGINBOTHAM, SMITH, and DEMOSS, Circuit Judges.

PER CURIAM:

Franklin Jokel appeals his conviction of possession of a

shotgun and explosive mines that were unregistered and had no

serial numbers, in violation of 26 U.S.C. §§ 5845(d) and (f) and

5861(d) and (i). Finding no error, we affirm.

I.

A sheriff's deputy had seized from Jokel's residence a shotgun

that the government introduced at trial; also seized were four

incomplete directional mines consisting of pipe nipples, end plugs,
2

and fuses, which could be converted into completed mines with the

addition of explosive powder and metal shot. In the container in

which deputies found the incomplete mines, deputies also found

gunpowder and metal shot called Minie balls.

Jokel does not dispute that he manufactured the shotgun and

pipe devices; he testified that he made them for his own use. He

believed that, without a trigger, no device that he made would be

a firearm within the meaning of the law. He used pipe material

that he obtained from hardware and plumbing stores and that had

been left at his house by a previous owner. He never intended to

use any of his homemade devices as a weapon.

He did not think the shotgun had a trigger. He fired it by

inserting a nail near the hammer in such a way that, when the

hammer was released, it would fall forward and hit the nail.

Jokel testified that he owned black powder firearms, that is,

ones that fire Minie balls. He also owned several cans of

smokeless ball powder.

He also testified that he intended to use the pipe devices

only to create smoke to detect opponents in paint ball war games;

he intended to lay a trip cord in the area of the games. When a

member of the opposing teams would walk over the cord, it would

trip the pipe device, emitting smoke for his team to see. Jokel

testified that neither the shotgun nor the four pipe devices had

serial number or were registered.

Bureau of Alcohol, Tobacco, and Firearms (ATF) officer Curtiss

H.A. Bartlett testified that the shotgun did not have a separate
3

and distinct trigger but had a mechanism that served the function

of a trigger. With the insertion of a nail and a spring, which was

a ready restoration, the shotgun did and would fire a shell. The

shotgun is fired by pulling back a springed hinge as one would do

with a trigger on a gun; the hinge would move forward to strike the

firing pin (the nail), which would cause the shell to fire.

Bartlett testified, "It does not have a separate trigger. In

this particular case, the hammer and the trigger are really the

same piece. You just draw the hinge back and let it go. So the

hinge serves as both the hammer and the trigger." That is, the

hinge is the shotgun's triggering mechanism. The shotgun "can only

fire a single shot with each function of the trigger." Thus,

Bartlett in fact testified that the shotgun has a trigger.

AFT officer Jerry Taylor described the mines as being composed

of pipe material, end plugs, and fuses. He also described the

metal shot and the gunpowder that were found with the mines and

that could make them operable.

II.

Jokel argues that the evidence was insufficient to support the

convictions. On such a claim, we examine the evidence in the light

most favorable to the government, making all reasonable inferences

and credibility choices in favor of the verdict. The evidence is

sufficient if a reasonable trier of fact could have found that it

established guilt beyond a reasonable doubt. Every reasonable

hypothesis of innocence need not have been excluded, nor need the
4

evidence be entirely inconsistent with innocent conduct. United

States v. Vasquez, 953 F.2d 176, 181 (5th Cir.), cert. denied, 112

S. Ct. 2288 (1992).

A.

Jokel first argues that the evidence on counts 1 and 2 was

insufficient to prove that the shotgun was a shotgun within the

meaning of the statute, on the ground that it did not have a

trigger. Section 5845(d) provides,

The term "shotgun" means a weapon designed or redesigned,

made or remade, and intended to be fired from the

shoulder and designed or redesigned and made or remade to

use the energy of the explosive in a fixed shotgun shell

to the fire through a smooth bore either a number of

projectiles (ball shot) or a single projectile for each

pull of the trigger, and shall include any such weapon

which may be readily restored to fire a fixed shotgun

shell.

Jokel testified that he thought that the shotgun did not have

a trigger. Bartlett testified that the hinge was a trigger. A

reasonable jury certainly could have found Bartlett's testimony

more persuasive than Jokel's. The evidence undoubtedly was

sufficient.

B.

By way of the foregoing sufficiency argument, Jokel seems to

argue that the hinge was not a trigger within the meaning of

section 5845(d). The statute does not define "trigger," and we are

aware of no caselaw construing the statute in this regard.
5

Unless defined otherwise, words in a statute are given their

common meanings. United States v. Chen, 913 F.2d 183, 189 (5th

Cir. 1990). The numerous definitions of "trigger" include "a piece

(as a lever) connected with a catch or detent as a means of

releasing it . . .[;] the part of the action of a firearm moved by

the finger to release the hammer or firing pin in firing . . .[;]

a device that fires an explosive . . . functioning as or in a

manner analogous to a trigger." Webster's Third New Int'l

Dictionary of the English Language Unabridged 2444 (1971). Jokel

cites an older, abridged dictionary in his attempt to show that a

trigger must be a small lever pulled by a finger.

The ordinary meaning is not as restricted as Jokel argues.

The ordinary meaning is that a trigger is a mechanism that is used

to initiate the firing sequence. For example, the verb "to

trigger" means "to cause the explosion of." Id.

To construe "trigger" to mean only a small lever moved by a

finger would be to impute to Congress the intent to restrict the

term to only one kind of trigger, albeit a very common kind. The

language implies no intent to so restrict the meaning, and we will

not read such intent into section 5845(d).

One might argue that, if either a narrow or a broad construction of a term could be applied, the rule of lenity requires that

the former be used. The rule of lenity, however, is not to be used

to reject a common sense meaning of a term. Otherwise, the intent

of Congress would be defeated. Chen, 913 F.2d at 189.
6

C.

Next, Jokel argues that the jury instruction on counts 3 and

4 increased the government's burden and that the evidence was

insufficient to meet the increased burden. The court first defined

"destructive device" for the jury:

The term "destructive device" means any explosive

mine. A destructive device includes any combination of

parts either designed or intended for use in converting

any device into a destructive device and from which a

destructive device may be readily assembled . . . .

The court then instructed as follows:

For you to find the defendant guilty of the crime

set out in Count 3, you must be convinced that the

government has provided each of the following beyond a

reasonable doubt:

First, that the defendant knew that he had a

destructive device in his possession;

Second, that this destructive device was an explosive mine; 

Third, that the defendant knew of the characteristics of the destructive device, that it was an explosive

mine;

Fourth, that this was a destructive device, or a

combination of parts from which a destructive device

could be readily assembled, and;

Fifth, that this destructive device was not registered to the defendant in the National Firearms Registration and Transfer Record. It does not matter whether the

defendant knew that a destructive device had to be

registered.

The instruction on count 4 was identical, except for the fifth

item, which stated, "Fifth, that this destructive device was not

identified by a serial number. It does not matter whether the

defendant knew that the destructive device had to be identified by

serial number."
7

Jokel construes the second and third items of the instruction

to require that the government prove that the destructive devices

were completed explosive mines. Section 5845(f) provides the

following definition:

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) 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 statute criminalizes possession of a completed mine or a

thing that is readily convertible into a completed mine. The

language of the district court's second and third enumerated

instructions requires that the government prove that the devices

were completed mines.

An instruction that increases the government's burden and to

which the government does not object becomes the law of the case.

United States v. Gordon, 876 F.2d 1121, 1125 (5th Cir. 1989). The

government concedes that the instruction is the law of the case.

Jokel argues accordingly that the evidence was insufficient to

prove that the destructive devices were completed explosive mines.

Any one instruction, however, does not have meaning in

isolation from the instructions that went before and came after it.
8

See United States v. Daniel, 957 F.2d 162, 169 (5th Cir. 1992);

United States v. Cohen, 631 F.2d 1223, 1227 (5th Cir. 1980). Prior

to giving the second and third enumerated instructions, the

district court, pursuant to section 5845(f), defined a destructive

device to include both completed mines and things readily convertible into mines.

In context, the questioned instruction conformed to the

statute and did not increase the government's burden. The evidence

was sufficient to prove that the devices were readily convertible

into mines with the addition of only gun powder and shot, which

were found with the devices.

AFFIRMED.