United States v. Crooker

United States Court of Appeals
For the First Circuit

No. 07-1964

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL CROOKER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before
Boudin, Gibson* and Howard,
Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.

June 18, 2010

*
John R. Gibson, of the Eighth Circuit, sitting by
designation.
 Per Curiam. Michael Crooker was indicted, tried and

convicted for transporting a firearm in interstate commerce as a

convicted felon, 18 U.S.C. § 922(g) (2006), and sentenced to 262

months' imprisonment. The "firearm" was a device designed to

muffle the sound of an airgun. The decisive issue on this appeal

is whether such a silencer could, on the facts of this case,

qualify as a "firearm" within the meaning of the statutory

definition. Id. § 921(a)(3)(C), (24). The raw facts are

essentially undisputed.

In April 2004, Crooker--who had previously been convicted

of a felony--was engaged in offering chemicals for sale, and a

potential buyer in Wisconsin notified the Postal Inspection Service

of a suspicious e-mail statement sent to the buyer by Crooker. The

buyer had asked for a list of chemicals and inquired how they would

be packaged. Crooker responded by stating:

Most are repackaged. In fact, most come that
way to me. Of course I combine shipping costs
and I don't fart around with regulations
either. I usually just send them Parcel Post
(even things like nitric[] acid that I just
sold).

An investigation led authorities to inspect a package

deposited by Crooker at a Massachusetts post office for interstate

shipment on June 7, 2004. The package proved to contain a large

caliber airgun and a cylinder made of black metal with a hole

running through it, threading that allowed attachment to the muzzle

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of the airgun and baffles inside.1 Further inquiry revealed that

the device had been made for Crooker by another individual.

The government arranged a controlled delivery of the

package to its recipient in Ohio, and that day Crooker was arrested

and his apartment searched. The search revealed explosives and

chemicals which resulted in a separate indictment of Crooker. Also

seized were books and other materials evidencing Crooker's interest

in firearms and airguns and a laptop containing relevant e-mail

messages.

A separate search of Crooker's brother's residence

resulted in the seizure of a number of firearms and an article

titled "Federal Law Definition of a Silencer" that bore a name

(mgmike) used by Crooker. The article noted that it might be

argued that an airgun silencer, if it could be "put to use on a

powder burning firearm . . . might be a silencer" under federal

law; the article argued that such a device would not be a silencer

because not intended for firearm use even though it "could probably

be adapted for use as a silencer on a powder burner."

1
Commercial silencers--more accurately described as
suppressors since they do not nullify all noise, Wikipedia,
"Suppressor," http://en.wikipedia.org/wiki/Suppressor (last visited
June 1, 2010)--come in various forms, but in general they are
crafted metal cylinders that attach to the barrel of a gun and
possess various internal apparatus and/or materials for dispersing
more quietly the gas generated by the discharge (in the case of a
firearm, the gas resulting from ignited powder).

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 In pre-trial proceedings, Crooker sought to suppress the

airgun and airgun silencer as products of an unlawful search, but

the district court denied the several motions addressed to the

searches. Although the lawfulness of the searches, as well as

Crooker's request for suppression of letters he sent while in pre-

trial detention, are extensively briefed on this appeal, we need

not describe these issues in detail, or certain other claims made

by Crooker as to the admission of evidence and the length of his

sentence, because a more fundamental flaw exists in the

government's case.

At trial, the government offered evidence as to the

seizure of the airgun device, evidence of Crooker's knowledge of

firearms and technical skill, the above quoted article referring to

the possibility of adaptation of the airgun silencer for use on a

powder bearing firearm, and--of special interest--testimony of a

government expert who had tested the cylindrical device seized from

the package. There was other evidence of Crooker's interest in

silencers and their lawfulness, but nothing that alters the thrust

of the government's case.

The government's expert testified that the seized device

could be used to muffle the sound of an ordinary firearm in various

ways, including the holding of the device against the barrel of the

firearm with one's hand so that the bullet would pass through the

device; but the witness admitted that this would be quite

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dangerous, and his own test was conducted only by threading an

"adapter" onto both the barrel of an ordinary gun and the silencer

to connect the two implements, because the silencer did not fit

directly to the testing pistol.

The adapter was described as one of a collection taken

from the witness' office in the Bureau of Alcohol, Tobacco and

Firearms in the Department of the Treasury. With the adapter, the

sound of the weapon was significantly reduced. The witness

suggested a makeshift adapter could be assembled from hardware

store materials, but did not say he had ever tried it or seen it

done. The government does not press on appeal any suggestion that

the device could realistically be used to silence a firearm unless

an adapter were used.

The federal statute under which Crooker was charged

defines "firearm" in pertinent part as a weapon that expels a

projectile "by the action of an explosive," 18 U.S.C. §

921(a)(3)(A), and this self-evidently does not include an air rifle

such as that in Crooker's package which operates by compressed air.

See ATF Rul. 2005-4 (paintball gun, which uses compressed air to

expel a projectile, is not a "firearm" under the statute). But

under the statute "firearm" includes "any firearm muffler or

firearm silencer," 18 U.S.C. § 921(a)(3)(C), defined as follows:

The terms "firearm silencer" and "firearm
muffler" mean any device for silencing,
muffling, or diminishing the report of a
portable firearm, including any combination of

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 parts, designed or redesigned, and intended
for use in assembling or fabricating a firearm
silencer or firearm muffler, and any part
intended only for use in such assembly or
fabrication.

Id. § 921(a)(24).

In the course of developing jury instructions and

considering Crooker's motion for judgment of acquittal, the

construction of this provision was a central issue; and the court

ultimately rejected Crooker's argument that the statute included

only a device "designed or intended to be used" with a firearm,

concluding instead that the word "for" in the statute meant

"capable of" silencing a firearm. In fact, the judge's instruction

effectively ruled out Crooker's reading of the statute:

You may consider evidence of intent in
determining whether the government has proved
knowledge. Keep in mind, however, that the
government need not prove Mr. Crooker or
anyone else actually ever used Exhibit 9 as a
firearm silencer or ever intended it to be
used as a firearm silencer.

In the ordinary criminal case, the device charged as a

silencer is one manufactured for use with a firearm and is easily

connected (e.g., by threading one onto the other); and the

possessor knows perfectly well the intended function of the device.

E.g., United States v. Hall, 171 F.3d 1133, 1152 (8th Cir. 1999),

cert. denied, 529 U.S. 1027 (2000). But where, as here, the device

was created for a different use--to silence an airgun--and requires

some modification or adaptation to fit a firearm, problems arise in

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two different dimensions: its capability for use as a silencer and,

separately, the defendant's knowledge, purpose or both with respect

to the device.

If the statute said that a device "capable" of being used

as a silencer was a firearm prohibited to a felon, there would be

problems at least of degree in determining what "capable" meant as

to a device usable only with an adapter; apparently, a potato or a

soda bottle may, with varying efficacy and varying risk, be used to

muffle a firearm shot. But taking the word "capable" in the

abstract, a jury could rationally conclude from the evidence

admitted at trial, including the government expert's testimony,

that Crooker's device fitted with an adapter would be objectively

capable of functioning as a silencer for a firearm.

And, given Crooker's demonstrated expertise and also

documents showing that he knew that airgun silencers could in some

instances be so adapted, the jury could rationally infer that he

knew that an adapter--little more than a properly constructed

cylinder adjusted for size and with threading at each end--could be

built that would allow this device to muffle or silence a firearm.

We conclude, however, that the statute by its terms

requires something more than a potential for adaptation and

knowledge of it. The statute does not refer either to capability

or adaptation; it speaks of a device "for" silencing or muffling.

The ordinary connotation of the word is one of purpose. See The

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Random House Dictionary of the English Language 747 (2d ed. unabr.

1987) (providing a first definition of "for" as "with the object or

purpose of"). The government does not argue that the evidence

proved that either Crooker or the maker of the airgun silencer

intended that it be used to silence a firearm, but rather that

"for" does not entail purpose but only knowledge of capability.

To this end, the government contrasts "for" with two

further portions of the silencer definition (quoted above) dealing

with a combination of parts and with an individual part that could

be used in fashioning a silencer. For these cases, respectively,

the statute uses the phrases "intended for use" and "intended only

for use," 18 U.S.C. § 921(a)(24), so the government says that the

use of "for" must mean "capable" and that knowledge alone is

enough. Still, it is as easy (perhaps easier) to view all three

tests as gradations of purpose made more rigorous as the statute

extends from a self-sufficient device to a collection of parts to

a single part.

But even if "for" were read as the government urges--

which is perhaps possible as a matter of language (as in "a stone

may serve for a hammer")--the airgun silencer in this case required

a further "part" (the adapter), arguably making the case fall

within one of the "parts" definitions that require intent. Worse

still for the government, the use of a "capability" and "knowledge"

definition--as applied to a home-made silencer--could also extend

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to a soda bottle or even a potato. The peculiar problem of

silencers is that many objects, including relatively innocent ones,

have some capacity to muffle the sound of a shot.

The problem is illustrated by considering the

government's own further argument that the silencer provision

should be treated like the machine-gun provision, 26 U.S.C. §

5845(b) (2006). That provision was modified by the same Act that

added the silencer provision, Firearms Owners' Protection Act of

1986 ("FOPA"), Pub. L. No. 99-308, §§ 101, 109(a), (b), 100 Stat.

449, 449-51, 460, and conviction for possessing a machine gun

requires only knowledge of the gun's capability to operate

automatically rather than any purpose for the gun to be used as an

automatic weapon, Staples v. United States, 511 U.S. 600, 619

(1994).

But the machine-gun provision, by contrast to the

silencer definition, explicitly adopts a test of objective

capability: it covers any weapon "which shoots, is designed to

shoot, or can be readily restored to shoot" automatically multiple

shots with a single trigger pull.2 26 U.S.C. § 5845(b) (emphasis

added). Nor is the difference in language difficult to explain:

2
The government makes a similar argument comparing the
silencer provision to the destructive device provision, but that
provision poses the same kind of language difference problem. 18
U.S.C. § 921(a)(4) (stating that "destructive device" means, inter
alia, "any type of weapon . . . which will, or which may be readily
converted to" expel a projectile by action of an explosive and
which has a barrel of greater than a specified size).

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something is or is not an automatic weapon, but the range of

physical objects that can muffle a firearm is so large and of so

many alternative uses that some filtering restriction is needed to

prevent overbreadth and possibly vagueness.

Nor is the government much helped by legislative history

references to the amendment which say that the machine-gun and

silencer provision resemble one another, see H.R. Rep. 99-495, at

4 (1986) (declaring that an early version of FOPA "prohibited the

transfer and possession of silencers . . . in the same manner as

the section on machine guns"), because certain other clauses in the

two provisions are phrased similarly--the clauses regarding parts

of a machine-gun or silencer, 26 U.S.C. § 5845(b); 18 U.S.C. §

921(a)(24); see H.R. Rep. 99-495, at 21, 28 (highlighting the Act's

statutory amendments respecting parts of machine-guns and

silencers).

Turning to case law, several circuit cases support

Crooker's position that intent or purpose is an element of the

initial silencer definition under which Crooker was charged--as it

plainly is for the parts definitions;3 these statements are

3
E.g., United States v. Carter, 465 F.3d 658, 667 (6th Cir.
2006) (per curiam) (the silencer provision "focuses on the intended
application of a silencer, not its actual demonstrated operation"
and "indicates a concern for the purpose of the mechanism . . . not
the function" (first emphasis added)), cert. denied, 550 U.S. 964
(2007); United States v. Syverson, 90 F.3d 227, 232 (7th Cir. 1996)
(reading the silencer provision language to require the government
to "prove that the cylinder was made for the purpose of silencing
a firearm, not that this purpose was realized," because "Congress

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explicit and helpful to Crooker but usually occur in cases where

the courts found such a purpose sufficient even where the silencer

was possibly inoperable. Yet at least one case involving a home-

made device, United States v. Klebig, 600 F.3d 700, 703-04 (7th

Cir. 2010) (alleged silencer was oil filter found taped to the

barrel of a rifle), uses the language of intentionality.

The government's case law is weaker still. It cites

cases and legislative history suggesting that Congress in the

silencer statute aimed at expansive coverage, e.g., United States

v. Thompson/Ctr. Arms. Co., 504 U.S. 505, 515 (1992); but the

proposition is too general to be useful. It also points to a

plurality opinion in a Supreme Court decision, dismissing a writ of

certiorari as improvidently granted, Rogers v. United States, 522

U.S. 252 (1998) (plurality opinion); but Rogers' language does not

remotely help the government, because the Court was concerned with

a defendant's knowledge of a device that everyone assumed was

purposely made as a firearm silencer.

has indicated that it intends to regulate all devices purporting to
serve as silencers, not just those devices that actually work to
silence firearms" (emphases added)), cert. denied, 519 U.S. 982
(1996). But see United States v. Kavoukian, 354 F.3d 117, 120 (2d
Cir. 2003) (per curiam) (suggesting that a silencer is "defined by
its functionality" (emphasis added)); Hall, 171 F.3d at 1151
(stating that the crime of possession of an unregistered silencer
"require[s] a finding that the defendant knew that the relevant
item could in fact function to diminish the sound of a gun"
(emphasis added)).

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 To read the statute literally, as we do, is conventional

with criminal statutes in order to provide fair notice, United

States v. Lanier, 520 U.S. 259, 266 (1997), and in this instance

tempers problems of overbreadth and vagueness created by the

multiple legitimate objects that can be used to silence a firearm.

Conversely, the fact that a possessor does have a purpose to use,

or to pass on the device to someone to use, as a silencer for a

firearm increases the danger of such a use and makes it precisely

the threat against which the statute means to guard.

Of course, this literal construction poses no barrier to

prosecuting anyone who knowingly possesses a commercial silencer.

In such a case, it would be suitable to charge that the jury need

only find that the defendant knowingly possessed a device designed

to be used as silencer for firearm. The defendant's purpose

becomes a pivotal issue only for a device not so designed, but that

is the case before us; or at least the government's evidence and

arguments leave it in that posture.4

As a practical matter, this leaves a loophole for other

devices not so designed which we do not mean to minimize. Congress

might well think that there are devices like airgun silencers that

4
The device was apparently home-made at Crooker's request and
made to fit to an airgun that Crooker also possessed. The evidence
is very thin--and anyway the government did not try to prove--that
Crooker expected this device to be fitted with an adapter or used
in any way except as a muffler for the airgun with which it was
shipped.

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can be so readily adapted to use with conventional firearms that

their possession by felons ought to be prohibited without regard to

purpose. A conventional solution is to provide that the Attorney

General can make regulations defining objectively the devices that

pose enough of a danger to warrant banning. Cf. 18 U.S.C. §§

841(d), 921(a)(4)(B), (17)(C).

The misinstruction in this case would justify a new

trial, rather than acquittal, if the government had offered

evidence that could allow the jury to find beyond a reasonable

doubt that Crooker had a purpose to have the device function as

firearm silencer. But it had an incentive to develop such evidence

--it would have been relevant evidence both of Crooker's knowledge

and the device's capabilities (and the judge so instructed the

jury)--and even on appeal the government does not claim that it

could show illicit purpose. Thus, Crooker is entitled to an

acquittal. United States v. Godin, 534 F.3d 51, 61 (1st Cir.

2008); see Burks v. United States, 437 U.S. 1 (1977).

Needless to say, Crooker is in the process of doing

neither himself nor society any good. His attitude toward shipping

chemicals shows an indifference to law, and (quite apart from

silencers) even more disturbing is his professed interest as a

convicted felon in airguns that could be as powerful as firearms.

He deliberately skated close to the edge of the law and took his

chances with a prosecution that the government was entitled to

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attempt. But, given the statute's wording, the answer is not to

stretch the present statute beyond its language but to amend it--if

the government is so minded--to deal more effectively with home-

made or adaptable devices.

The conviction is reversed and the case remanded for the

entry of a judgment of acquittal.

It is so ordered.

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