United States Court of Appeals 

for the Fifth Circuit 

No. 21-40332 

United States of America, 

Plaintiff—Appellee, 

versus

Thomas Asa Harbarger, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 2:19-CR-16-1 

Before Jones, Southwick, and Oldham, Circuit Judges.

Edith H. Jones, Circuit Judge: 

Thomas Harbarger was convicted of illegally possessing an 

unregistered firearm, specifically a “destructive device,” under the National 

Firearms Act (“NFA”). See, e.g., 26 U.S.C. §§ 845(a), 5861(d). Appealing 

his conviction, Harbarger argues that the NFA is unconstitutionally vague as 

applied to his case and that the evidence is insufficient to support conviction. 

United States Court of Appeals 

Fifth Circuit 

FILED 

August 18, 2022 

Lyle W. Cayce 

Clerk 

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2 

After a thorough review of the record, we agree with the latter contention and 

accordingly REVERSE.1

I. Background 

While seeking to aid a man with his broken-down truck on a state 

highway, a Texas state trooper discovered that the truck was reported stolen 

and the man, Thomas Harbarger, had an outstanding warrant for failing to 

report to his parole officer.2

 That trooper arrested Harbarger while a second 

trooper, who had since arrived, searched the truck. The second trooper 

found a 7.5-inch-long piece of bamboo, sufficiently narrow that a penny (3/4” 

wide) was able to cap one end.3

 On the other end was a short fuse. When 

questioned about the fused bamboo stick, Harbarger stated that it was one of 

several he had possessed for the purpose of removing beaver dams. He had 

already used the others and had forgotten that one remained in the truck.

 After he was indicted for knowingly possessing an illegal destructive 

device-type firearm, Harbarger moved to dismiss the indictment by arguing 

that the statute was vague as applied to the facts. The district court was 

unmoved and about a year later held a two-day jury trial. 

 At trial, the government’s witnesses included three Bureau of 

Alcohol, Tobacco, Firearms and Explosives (“ATF”) employees who had 

1

 Because there is insufficient evidence, we do not reach Harbarger’s as-applied 

unconstitutional vagueness challenge to the NFA. 

2

 Regarding the stolen vehicle, Harbarger was making payments on the truck. The 

title-holder reported it stolen after Harbarger missed several of those payments, generating 

the stolen vehicle report. At the time of trial, Harbarger had resumed making payments on 

the vehicle.

3

 During his direct examination, the ATF’s Explosives Enforcement Officer stated 

that the end opposite the fuse was capped with a green bottle cap and “two U.S. pennies 

on that end also, all glued together to basically seal that end up.” 

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3 

analyzed the stick of bamboo. They testified that they found pyrodex inside 

the device, that one could consider the stick of bamboo a pipe bomb, and that 

it was possible the bamboo stick would burst if the pyrodex was ignited.4

 When the government completed its case in chief, Harbarger moved 

for acquittal under Federal Rule of Criminal Procedure 29 on the basis of 

insufficient evidence. The district court denied the motion. Harbarger then 

testified in his own defense. Despite his earlier statements, Harbarger 

testified that an acquaintance had built and ignited the other bamboo sticks. 

Further, he considered the devices to be like firecrackers, and they made a 

popping sound. At the conclusion of his case, Harbarger unsuccessfully 

renewed his motion for a judgment of acquittal. The jury returned a guilty 

verdict, and the court sentenced Harbarger to 72 months of imprisonment. 

Harbarger timely appealed.

II. Discussion 

 When a defendant moves for a judgment of acquittal at the close of the 

government’s case in chief and again at the close of all evidence, his challenge 

to the sufficiency of the evidence is reviewed de novo, with reasonable 

inferences drawn in favor of the government. United States v. Williams, 

507 F.3d 905, 907-08 (5th Cir. 2007). We may reverse a conviction only if no 

rational trier of fact could find guilt beyond a reasonable doubt. Jackson v. 

Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2788 (1979). 

4

 Pyrodex is a smokeless powder also known as a kind of black powder substitute. 

It is not black powder, and is not regulated as black powder. It can be purchased at some 

local convenience stores. The government did not admit into evidence the amount of 

pyrodex that was found within the bamboo stick, the thickness of the wall of the bamboo 

stick, nor an explanation of the extent of damage that the bamboo stick could cause. The 

government sought to establish that the bamboo stick contained incendiaries, that the 

bamboo could splinter or “create shrapnel,” and that with a fuse, the stick became a “pipe 

bomb.” 

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 The determinative issue in this appeal is whether an explosivecontaining device falls within the NFA when it is susceptible of both innocent 

and destructive uses and not clearly designed as a weapon. The NFA 

criminalizes the possession of an unregistered firearm, 26 U.S.C. § 5861(d), 

including a “destructive device.” 26 U.S.C. § 5845(a). A destructive device 

is defined to include “any explosive, incendiary, or poison gas . . . bomb.” 

26 U.S.C. § 5845(f). But excluded from that definition is “any device which 

is neither designed nor redesigned for use as a weapon.” 26 U.S.C. § 5845(f). 

 Other circuits have grappled with the application of these provisions 

and whether the government provided sufficient evidence to prove a 

particular explosive-containing device was a “destructive device.” Those 

cases provide a helpful roadmap. For example, in United States v. Johnson

the Seventh Circuit aptly described the problem and the solution: 

the case law demonstrates a fundamental distinction between 

devices and components that are, by their very nature, ones 

that can be used only for illegal purposes and devices and 

components that could have both a proscribed and a legitimate 

use. When the destructive nature of the devices or of the 

component parts is obvious because they are suited only for a 

proscribed purpose, no inquiry into the intent of the possessor 

is necessary; when the item or items charged under [the NFA] 

can serve either a destructive or a salutary purpose, the intent 

of the possessor becomes important and criminal liability only 

attaches when the possessor intends to possess a device for 

destructive purposes. 

152 F.3d 618, 627 (7th Cir. 1998).5

 Similarly, the Fourth Circuit has held that 

“[t]he plain language of the Act, consequently, establishes that other types 

5

 The primary issue in Johnson was whether the district court correctly excluded 

evidence that Johnson intended his devices to be “hoax” devices. The Seventh Circuit 

affirmed the district court, reasoning that the exclusion of subjective intent evidence is 

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of explosives, such as commercial black powder or dynamite, are subject 

to . . . the National Firearms Act depending on their intended use.” United 

States v. Morningstar, 456 F.2d 278, 281 (4th Cir. 1972). 

 Drawing from these analyses, it is reasonable to conclude that when 

there is doubt whether a device that has some social value and legal use 

nonetheless falls within the NFA’s ambit, evidence of scienter or evidence 

that the device can be used solely for illegal purposes is necessary to sustain 

a conviction. This court’s decision in United States v. Charles, 883 F.2d 355 

(5th Cir. 1989), and the Eleventh Circuit’s decision in United States v. 

Spoerke, 568 F.3d 1236 (11th Cir. 2009), illustrate how this might be done.6

 In Charles, the defendant asserted that his pipe bombs were not 

weapons but percussive instruments to stun fish. The government tested his 

assertion by detonating them. Charles, 883 F.2d at 357. When detonated, 

Charles’s pipe bombs did not just pop, boom, or create some other innocuous 

effect as claimed. Id. Instead, they behaved like improvised fragmentation 

permissible when the device in question is so obviously designed as a weapon. Johnson, 

152 F.3d at 627. The court pointed to the analysis in United States v. Charles, 883 F.2d 355 

(5th Cir. 1989), regarding why certain devices, such as a metal pipe containing explosives, 

are per se weapons under the NFA. However, the Seventh Circuit emphasized that “when 

the components are susceptible to both innocent and destructive use, it is necessary to 

determine the subjective intent of the defendant in gathering them.” Id. at 625. 

6

 The government cites a number of unpublished and out of circuit cases in support 

of its argument, but none involve a bamboo device similar to the one here. See, e.g., United 

States v. Waits, 581 F. App’x 432 (5th Cir. 2014) (destructive device consisted of a metal 

flashlight); United States v. Rosa, 499 F. App’x 358 (5th Cir. 2012) (felon in possession of 

firearms, cocaine, marijuana, and a PVC pipe containing explosives); United States v. Hunn, 

344 F. App’x 920 (5th Cir. 2009) (destructive device consisted of a metal pipe containing 

explosives that was used to hold back police during a six-hour standoff); United States v. 

Bolatete, 977 F.3d 1022 (11th Cir. 2020), cert. denied, 141 S. Ct. 1754 (2021) (case involved 

an illegal silencer, not a pipe bomb); United Sates v. Barefoot, 754 F.3d 226 (4th Cir. 2014) 

(the destructive device was a 30 lbs. bomb); United States v. McNeil, 106 F. App’x 294 (6th 

Cir. 2004) (the accused used a pipe bomb to rob a bank). 

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grenades and violently dispersed fragmentation. Id. at 356-57. At trial, the 

expert who tested Charles’s devices opined that they were not noisemakers 

but in fact improvised explosive grenades. Id. Just as “one would hardly be 

surprised to learn that possession of hand grenades is not an innocent act,” 

Charles was found guilty for possessing improvised pipe bombs that actually 

worked like grenades. United States v. Freed, 401 U.S. 601, 609, 91 S. Ct. 

1112, 1118 (1971) (finding that there was no excuse for possessing a grenade 

given its obvious nature as a likely regulated instrument of war). 

 Similarly, in United States v. Spoerke, the defendant was prosecuted 

for possessing plastic pipes filled with explosives. 568 F.3d at 1248. He had 

admitted to police that the devices were illegal but claimed he had produced 

them for entertainment purposes. The pipe bombs, he testified, would sink 

when thrown into water, produce a flash, and create a concussive effect on 

observers. To rebut this description, the government constructed identical 

devices and detonated them in the water and on land. Contrary to Spoerke’s 

testimony, the devices did not sink, they floated. Id. at 1243. Further, when 

exploded they sent plastic fragments flying. Id. In fact, when attached to a 

watermelon or placed within a toolbox, the bombs’ detonation would 

obliterate the attached object and disperse fragments up to 200 feet away. Id. 

As the court explained, given this and other evidence, the conviction easily 

withstood a sufficiency challenge. 

 The Spoerke court also explained significant distinctions between that 

case and an earlier case in which a different explosive device was held not to 

be proscribed by the NFA. Id. at 1246-47 (discussing United States v. 

Hammond, 371 F.3d 776 (11th Cir. 2004)). The court made clear that a device 

is not illegal simply because it explodes; it must also be designed for use as a 

weapon. Hammond, 371 F.3d at 780. The government’s expert in Hammond 

testified only that the paper-encased explosive device there could explode 

and cause damage. Id. Spoerke’s devices, however, could be deemed to be 

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designed as weapons because they had “design features that eliminate any 

claimed entertainment or other benign value . . . .” Spoerke, 568 F.3d at 1247 

(quoting Hammond, 371 F.3d at 781). 

 In this case, the government’s only evidence challenging Harbarger’s 

testimony that his bamboo stick device was used to scare beavers and destroy 

their dams (and wasn’t very good even at that) was the conclusional 

testimony of an ATF expert.7

 The expert’s opinion, however, consisted of 

his saying that the device would fragment on being ignited, and the eruption 

of two pennies and a plastic bottle cap, along with the bamboo, could destroy 

property. Because the device had no “commercial application,” he testified, 

it must be illegal. But breaking up a beaver dam cannot alone sustain a finding 

that a flimsy explosive device is designed as a weapon, and these fragments do 

not resemble in dangerousness the relevant fragmentation in other cases.8

 

The deficiency of proof in this case resembles that in Hammond and cannot 

compare with the evidence offered in Spoerke and Charles. Here, a 

government agent merely burned off an unknown amount of the powder 

contained in the bamboo stick. The government did not test the device 

beyond ascertaining that it contained pyrodex; the government did not create 

replicas and test those devices; nor did it provide any other meaningful 

evidence from which the design to create weaponry could be inferred. For 

example, the government did not establish the amount of powder in the 

7

 The Spoerke court noted a circuit conflict concerning the admissibility of a 

defendant’s subjective intent concerning the purpose of an explosive device. 568 F.3d at 

1247-48 (citing cases). Although the admissibility of Harbarger’s testimony was not 

debated here, such testimony was offered in Charles, and it can fairly be concluded that in 

this circuit, when the illegal nature of an explosive device is at issue, such testimony should 

be allowed. 

8

 Another government witness essentially conceded, from his description of the 

device, that the explosive potential of the bamboo stick was small. 

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device, the thickness of the bamboo’s bore, the thickness of its wall, 

testimony of personal experience with other similar bamboo devices, expert 

testimony describing reports regarding similar bamboo devices, or 

Harbarger’s knowledge of any of the above information. The government 

accordingly failed to provide proof that the device was “suited only for a 

proscribed purpose” or contradicting Harbarger’s expressed “intent of the 

possessor.” Johnson, 152 F.3d at 627.9

 In light of the government’s wholly conclusionary case that the 

bamboo device was designed as a weapon or that it had no benign or social 

value, the conviction cannot stand. The evidence was insufficient to prove 

that the bamboo stick was an illegal explosive device “designed” as a weapon. 

Unlike cases involving Molotov cocktails or improvised grenades (e.g. metal, 

PVC, or ceramic pipe bombs designed to fragment and violently disperse 

shrapnel or metal fragmentation), no published case has held that a small 

bamboo device like the one at issue here is prima facie a proscribed destructive 

device. 

 Accordingly, the judgment of conviction is REVERSED. 

9

 Harbarger was cross-examined on his criminal record and attempt to mislead the 

police about his identity when the trooper first encountered him. It’s too much of a stretch 

from these facts to draw inferences of his guilty mens rea concerning illegal weapons 

possession, which did not even become a potential issue until his truck had been searched. 

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