UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BOBBY RAY SIMMONS, Defendant-Appellant.
No. 95-5460
United States Court of Appeals for the Fourth Circuit
May 20, 1996
PUBLISHED. Argued: April 5, 1996. Decided: May 20, 1996. Before MURNAGHAN and LUTTIG, Circuit Judges, and JAMES H. MICHAEL, JR., Senior United States District Judge for the Western District of Virginia, sitting by dеsignation.
Affirmed by published opinion. Judge Luttig wrote the opinion, in which Judge Murnaghan and Senior Judge Michael concurred.
COUNSEL
ARGUED: Hunt L. Charach, Federal Public Defender, Charleston, West Virginia, for Appellant. Margaret Agnes Hickey, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: C. Cooper Fulton, Assistant Fеderal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Charleston, West Virginia, for Appellee.
OPINION
LUTTIG, Circuit Judge:
The sole question before the court in this case is whether a Molotov cocktail, comprising a glass bottle filled with gasoline and a cloth fuse, is a “destructive device” as that term is defined in
A grand jury indicted Simmons for possession of a destructive device in violation of
Title 26, section 5861(d) makes it unlawful to possess an unregistered “firearm,” defined in
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 incendiarycharge of more than one-quarter ounce, (E) mine, or (F) similar device.
Without ever as much as suggesting that a defendant must possess a means by which to ignite the device, courts have uniformly held that a fully-assembled Molotov cocktail -- defined as a device comprising a bottle, gasoline, and a rag -- constitutes an“incendiary . . . bomb” or “similar device” under section 5845(f). See, e.g., United States v. Neal, 692 F.2d 1296, 1303-04 (10th Cir. 1982) (affirming conviction for possession of a destructive device made from “a one gallon plastic jug, a flammable liquid, and a rag wick“); United States v. Campbell, 685 F.2d 131, 132 (5th Cir. 1982) (sustaining indictmеnt for possession of a destructive device “made from cloth rags, [and] flammable liquid with a fuse made of incense sticks“); United States v. Ross, 458 F.2d 1144, 1144-46, 1144 n.1 (5th Cir.) (affirming conviction for possession of “crude incendiary devices” consisting of “a quart glass bottle with cloth therein and containing a flammable liquid and having a cloth wick in the mouth оf said bottle“), cert. denied, 409 U.S. 868 (1972); United States v. Curtis, 520 F.2d 1300, 1304 (1st Cir. 1975) (“[W]hile gasoline, bottles and rags all may be legally possessed, their combination into the type of home-made incеndiary bomb commonly known as a Molotov cocktail creates a destructive device.“); United States v. Wilson, 546 F.2d 1175, 1177 (5th Cir.) (same), cert. dismissed, 431 U.S. 901 (1977). Similarly, without ever suggesting that a match or lighter is an essential part, courts have consistently held that the unassembled component parts of a Molotov cocktail (i.e., bottles, gasoline, and rаgs), constitute a destructive device under section 5845(f), when such parts are in the possession of one who intends to assemble an incendiary bomb. Sеe, e.g., United States v. Tankersley, 492 F.2d 962, 966 (7th Cir. 1974) (affirming conviction for possession of a “destructive device” which consisted of “a bottle, a firecracker and tape, and рaint remover: the components of a Molotov cocktail“); United States v. Davis, 313 F. Supp. 710, 711, 714 (D.Conn. 1970) (denying motion to dismiss indictment for possession of combination of parts that could be readily assembled into destructive device where defendant possessed “four empty bottles, a number of cloth strips and a two gallon can of gasoline“); United States v. Greer, 588 F.2d 1151, 1157 n.8 (6th Cir. 1978) (“[W]hile gasoline,bottles and rags all may be legally possessed, their combination into the type of home-made incendiary bomb commonly known as a Molotov cocktail creates a destructive device.” (internal quotation marks omitted)), cert. denied, 440 U.S. 983 (1979); United States v. Peterson, 475 F.2d 806, 811 (9th Cir.), cert. denied, 414 U.S. 846 (1973).
Against the weight оf this authority, Simmons asks us to hold that he cannot be convicted for possession of a destructive device unless he had in his physical possession mаtches, a lighter, or other means by which to light the Molotov cocktail. This, we decline to do. Every federal court addressing Molotov cocktails under section 5845(f) has appeared to assume, and we now hold, that a Molotov cocktail is a destructive device within the meaning of
Simmons contends that the common-sense conclusion that a fully assembled Molotov cocktail is an incendiary device, even absent a match, is foreclosed by our decision in United States v. Blackburn, 940 F.2d 107, 110 (4th Cir. 1991). We disagree. There, we held onlythat grenades lacking explosive material cannot constitute “destructive devicеs,” reasoning that “[a] defendant must possess every essential part necessary to construct a destructive device.” Here, of course, thе Molotov cocktail possessed by Simmons contained the requisite explosive material, the gasoline. Indeed, we even cited in Blackburn as authority for our holding, United States v. Davis, 313 F. Supp. 710 (D.Conn. 1970), a deсision which held that “cloth, gasoline and bottles” constitute “destructive devices” as that term is defined in section 5845(f), and which we had previously cited as сorrectly holding that component parts of Molotov cocktails -- “bottles, gasoline, and strips of cloth” -- constitute destructive devices under section 5845(f), United States v. Morningstar, 456 F.2d 278, 281 (4th Cir.), cert. denied, 409 U.S. 896 (1972) (citing Davis, 313 F. Supp. at 713).
The judgment of the district court is affirmed.
AFFIRMED.