Criminal Defense of Immigrants


§ 23.12 D. Listed Firearms and Destructive Devices

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The firearms conviction ground of deportation covers a person who is convicted of a listed offense of possessing, etc. “any weapon, part, or accessory which is a firearm or destructive device” as defined in 18 U.S.C. § 921(a).[64]  If the object is not on the list contained in the statute, this ground of deportation does not apply.


The term “firearm,” is defined under 18 U.S.C. § 921(a)(3), as follows:


(A)              any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;

(B)              the frame or receiver of any such weapon;

(C)              any firearm muffler or firearm silencer; or

(D)              any destructive device.


“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 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.”[65]


Federal criminal cases defining “firearm” may be persuasive on whether a given conviction falls within the firearm deportation ground.  For criminal purposes, the firearm need not be operable to fall within the definition.[66]  Similarly, a silencer need not be operable to fall within the statute.[67] Moreover, a firearm need not be loaded to constitute a firearm for federal criminal purposes.[68] 


Some firearm components fall within the definition of “firearm” and “ammunition.”[69]  A “derringer” pistol constitutes a “firearm” for federal criminal purposes.[70]   There is no “sporting use” exception to this definition, since a derringer pistol is not a “rifle.”[71]  Starter guns which can be modified within 12 minutes to shoot live ammunition constitute firearms within the statutory definition.[72]  Machine gun conversion kits also constitute “firearms” under the federal statute.[73]  The term “firearm” “does not include an antique firearm.”[74]

                Destructive Devices.  The term “firearm” includes “destructive devices.”[75]  The statute[76] defines “destructive device”[77] as follows:


(A)            any explosive, incendiary, or poison gas--
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;


(B)            any type of weapon (other than a shotgun or a shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and


(C)            any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled.[78] 


The statute defines certain exceptions to this definition:

The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10; or any other device which the Secretary of the Treasury finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes. [79]


10 U.S.C. § 4684(2) allows the Secretary of the Army to sell “surplus obsolete brass or bronze cannons, carriages, and cannon balls, for public parks, public buildings, and soldiers’ monuments.”


10 U.S.C. § 4685 provides the Secretary of the Army “may lend obsolete ordnance and ordnance stores” to various institutions.


10 U.S.C. 4686 provides the Secretary of the Army may give not more than two “obsolete bronze or iron cannons suitable for firing salutes to any home for soldiers or sailors established and maintained under State authority.”


“The term “shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.”  18 U.S.C. 921(a)(5).

“The term “rifle” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to fire only a single projectile through a rifled bore for each single pull of the trigger.”  18 U.S.C. 921(a)(7).

                Judicial decisions define the term “destructive device” broadly.[80] 
The statutory definition of “destructive device” excludes devices that are not designed or redesigned or used or intended for use as a weapon, such as construction tools using explosives when used for such purposes.[81] This constitutes an affirmative defense which, if asserted, must be disproved beyond a reasonable doubt by the prosecution.  If the defendant pleads guilty, however, the plea relieves the government of this burden.[82]

[64] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C) (emphasis supplied).

[65] 18 U.S.C. § 921(a)(24).

[66] See United States v. Maddix, 96 F.3d 311 (8th Cir. 1996); United States v. Yannott, 42 F.3d 999 (6th Cir. 1994), cert. denied, 513 U.S. 1182 (sawed-off shotgun with broken firing pin constituted “firearm” for purposes of conviction for possession of firearm by felon and possession of unregistered firearm), denial of post-conviction relief affirmed, 86 F.3d 1157 (6th Cir. 1996); United States v. Munoz, 15 F.3d 395 (5th Cir. 1994), cert. denied, 511 U.S. 1134 (1194); United States v. Ruiz, 986 F.2d 905 (5th Cir. 1993), cert. denied, 510 U.S. 848 (1993)(filed-down hammer was a mere temporary alteration which did not alter the fact the weapon was designed to expel a projectile and thus fell within statutory definition of firearm, and could be made operable); United States v. York, 830 F.2d 885 (8th Cir. 1987), cert. denied, 484 U.S. 1074 (1988); United States v. Harris, 792 F.2d 866 (9th Cir. 1986). 

[67] See United States v. Syverson, 90 F.3d 227 (7th Cir. 1996), cert. denied, 519 U.S. 982 (1996)(silencer falls within definition of firearm even though it does not actually work to silence firearms, since statute shows congressional intent to regulate all devices purporting to serve as silencers).

[68] United States v. Gutierrez-Silva, 983 F.2d 123 (8th Cir. 1993)(unloaded handgun constituted firearm since it was designed to expel a projectile by means of an explosive). 

[69] United States v. Mosby, 60 F.3d 454 (8th Cir. 1995), cert. denied, 516 U.S. 1125 (1996). 

[70] United States v. Morris, 904 F.2d 518 (9th Cir. 1990).

[71] United States v. Meldish, 722 F.2d 26 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984).  See § 23.15, infra.

[72] United States v. 16,179 Molso Italian .22 Caliber Winlee Derringer Convertible Starter Guns, 443 F.2d 463 (2d Cir. 1971). 

[73] United States v. Hunger, 863 F.Supp. 462 (E.D. Mich. 1994); United States v. Stewart, 451 F.3d 1071 (9th Cir. June 30, 2006).

[74] 18 U.S.C. § 921(a)(3).  See § 23.14, infra.

[75] 18 U.S.C. § 921(a)(3)(D).

[76] 18 U.S.C. § 921(a)(4).

[77] See generally Annot., Validity, construction, and application of provisions of National Firearms Act (26 USCA § 5845(f)) and Omnibus Crime Control and Safe Streets Act (18 USCA § 921(a)(4)) defining ‘destructive device,’ 25 ALR Fed. 344 (1975), 126 ALR Fed. 597 (1995).

[78] 18 U.S.C. § 921(a)(4).

[79]  18 U.S.C. § 921(a)(4).

[80] See, e.g., United States v. Hedgcorth, 873 F.3d 1307 (9th Cir.), cert. denied, 493 U.S. 857 (1989), denial of habeas corpus affirmed, 977 F.2d 587 (9th Cir. 1992) (Table) (homemade napalm firebombs constituted “firearms,” overruling claim the device did not fall within the statute unless it could be thrown, aimed, or wielded); United States v. Morningstar, 456 F.2d 278 (4th Cir.), cert. denied, 409 U.S. 896 (1972) (four sticks of black powder pellet explosive, together with unattached blasting caps, could constitute “destructive device” as combination of parts intended for use as bomb and from which bomb could be readily assembled).

[81] United States v. Greer, 588 F.2d 1151 (6th Cir. 1978), cert. denied, 440 U.S. 983 (1979). 

[82] United States v. Oba, 448 F.2d 892 (9th Cir. 1971), cert. denied, 405 U.S. 935 (1972).




Poison gas is a destructive device for purposes of "firearm" deportability under 8 U.S.C. 1227(a)(2)(C) because it is included in the definition under 18 U.S.C. 921(a)(4). California Penal Code 16460(a)(6) lists dry gas (co2) as a destructive device for state purposes. Other Penal Code sections make it a crime to possess a destructive device unlawfully. California Penal Code 18710, 18715. This apparently means that if co2 is a poison gas under federal law, then a person could be deported as a firearm offender for having a California conviction for unlawfully possessing dry gas. Thanks to Dan Kesselbrenner.