          Case: 14-13956   Date Filed: 07/22/2015     Page: 1 of 3


                                                         [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-13956
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 2:13-cr-00456-RDP-JHE-1



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

                                versus

JAMES DAVID KIRCUS,

                                               Defendant - Appellant.

                     ________________________

              Appeals from the United States District Court
                 for the Northern District of Alabama
                     ________________________

                             (July 22, 2015)
              Case: 14-13956     Date Filed: 07/22/2015   Page: 2 of 3


Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:

      James Kircus appeals his conviction for knowing possession of a destructive

device, in violation of 26 U.S.C. § 5861(d). Kircus contends the district court

erred in denying his motion for a judgment of acquittal because the Government

failed to prove Kircus’s modified airbag cylinder was a “destructive device.” We

affirm.

      A “destructive device” is statutorily defined as “any explosive, incendiary,

or poison gas (A) bomb” but not including “any device which is neither designed

nor redesigned for use as a weapon.” 26 U.S.C. § 5845(f). This section requires

proof that the device was both (1) “an explosive” and (2) “designed as a weapon.”

United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004). In determining

whether a device was designed as a weapon, “the critical inquiry is whether the

device, as designed, has any value other than as a weapon.” Id. at 781.

      On appeal, Kircus does not argue the modified airbag cylinder was not an

explosive. Rather, he contends the evidence does not support a finding that the

device was designed or redesigned as a weapon. We disagree. The Government’s

experts testified the device as modified had no social, industrial, or commercial use

and was, in their opinion, designed to be an improvised explosive bomb. The

Government’s experts also testified the device would fragment into pieces moving


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at a high enough rate of speed to seriously injure anyone in the vicinity of the blast.

This testimony, along with other record evidence, provides a sufficient basis for

concluding the device was designed as a weapon. See, e.g., United States v.

Spoerke, 568 F.3d 1236, 1247 (11th Cir. 2009) (explaining the Government’s

expert testimony “established that [defendant’s] pipe bombs were designed as

weapons” when the expert testified the pipe bombs “had no social or entertainment

use, they propelled fragments, and the fragments were capable of causing severe

injury to people in the vicinity”). Therefore, the district court did not err in

denying Kircus’s motion for a judgment of acquittal.

      AFFIRMED.




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