# 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 convicte d of illegally possessing an unregistered firearm, specifically a “d estructive device,” under the National Firearms Act (“NFA”). See, e.g., 26 U.S.C. §§ 845(a), 5861(d). Appealing his conviction, Harbarger argues that th e NFA is unconstitu tionally 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 Case: 21-40332 Document: 00516437827 Page: 1 Date Filed: 08/18/2022No. 21-40332

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 forgo tten that one remained in the truck.

After he was indicted for knowin gly 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 witn esses included three Bureau of Alcohol, Tobacco, Firearms and Ex plosives (“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 Harbarge r 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 wi th a green bottle cap and “two U.S. pennies on that end also, all glued together to basically seal that end up.” Case: 21-40332 Document: 00516437827 Page: 2 Date Filed: 08/18/2022No. 21-40332

3 analyzed the stick of bamboo. They test ified 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 Federa l Rule of Criminal Procedure 29 on the basis of
insufficient evidence. The district cour t denied the motion. Harbarger then testified in his own defense. Desp ite his earlier statements, Harbarger testified that an acquaintance had built and ignited the other bamboo sticks. Further, he considered th e devices to be like firecr ackers, and they made a popping sound. At the conclusion of his case, Harbarger unsuccessfully renewed his motion for a judgment of ac quittal. The jury returned a guilty verdict, and the court sentenced Harbar ger to 72 months of imprisonment. Harbarger timely appealed.
II. Discussion When a defendant moves for a judgmen t 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 di d not admit into evidence the amount of pyrodex that was found within the bamboo stic k, the thickness of the wall of the bamboo stick, nor an explanation of the extent of da mage that the bamboo stick could cause. The government sought to establish that the ba mboo stick contained incendiaries, that the bamboo could splinter or “create shrapnel,” and that with a fuse, the stick became a “pipe bomb.” Case: 21-40332 Document: 00516437827 Page: 3 Date Filed: 08/18/2022No. 21-40332

4 The determinative issue in this appeal is whether an explosivecontaining device falls within the NFA wh en it is susceptible of both innocent
and destructive uses and not clearl y designed as a weapon. The NFA criminalizes the possession of an unregi stered 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 road map. For example, in United States v. Johnson the Seventh Circuit aptly describe d 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 natu re of the devices or of the component parts is obvious becaus e 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, cons equently, 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 th e exclusion of subjective intent evidence is Case: 21-40332 Document: 00516437827 Page: 4 Date Filed: 08/18/2022No. 21-40332

5 of explosives, such as commercial blac k 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 scie nter 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 Elev enth 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 ba mboo 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). Case: 21-40332 Document: 00516437827 Page: 5 Date Filed: 08/18/2022No. 21-40332

6 grenades and violently dispersed fragmentation. Id. at 356-57. At trial, the expert who tested Charles’s devices op ined that they were not noisemakers but in fact improvised explosive grenades. Id. Just as “one would hardly be surprised to learn that possession of ha nd 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 wa s no excuse for p ossessing a grenade given its obvious nature as a likel y regulated instrument of war).
Similarly, in United States v. Spoerke , the defendant was prosecuted for possessing plastic pipes filled with ex plosives. 568 F.3d at 1248. He had admitted to police that the devices were illegal but claimed he had produced them for entertainment purpose s. The pipe bombs, he testified, would sink when thrown into water, produce a flash, and create a concussive effect on observers. To rebut this descriptio n, 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 disper se 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 diffe rent 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)). Th e 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 th ere could explode and cause damage. Id. Spoerke’s devices, however, could be deemed to be Case: 21-40332 Document: 00516437827 Page: 6 Date Filed: 08/18/2022No. 21-40332

7 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 ev en at that) was the conclusional testimony of an ATF expert. 7 The expert’s opinion, however, consisted of his saying that the device would frag ment 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 “c ommercial application,” he testified, it must be illegal. But breaking up a beaver dam ca nnot 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 prov ide 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 pur pose of an explosive device. 568 F.3d at 1247-48 (citing cases). Although the admi ssibility 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 explos ive 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. Case: 21-40332 Document: 00516437827 Page: 7 Date Filed: 08/18/2022No. 21-40332

8 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 rega rding 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 canno t stand. The evidence was insufficient to prove that the bamboo stick was an illegal explosi ve device “designe d” 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 crim inal 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 potent ial issue until his truck had been searched. Case: 21-40332 Document: 00516437827 Page: 8 Date Filed: 08/18/2022