United States v. Graham, No. 09-2819-cr (2d Cir. August 15, 2012) (Cabranes, Livingston, Carney, CJJ)

Title 18, U.S.C. § 844(h) makes it a separate offense to use “an explosive” to commit a federal felony. During an attempted extortion of one of his fellow-gang members - a dispute over some robbery proceeds - defendant Graham fired a cartridge from his 9-millimeter semi-automatic into the ground. A jury convicted defendant Graham under this section, amongst other offenses; his 50-year sentence included the ten-year mandatory consecutive sentence that the statute requires.

On appeal, however, the circuit agreed that the single cartridge in his semi-automatic handgun did not constitute an “explosive.” It reversed the conviction on the § 844(h) count and remanded the case for resentencing.

Superficially, it would seem like firing a bullet might well trigger the statute (bad pun, I know). Section 844(j) defines “explosive” for purposes of § 844(h) as, inter alia, “gunpowders, powders used for blasting, ... and any chemical compounds [and similar mechanical mixtures or devices] that fire, by friction, by concussion, by percussion, or by detonation of the compound [etc.]” and “may cause an explosion.”  And, at Graham’s trial, an ATF described the mechanics of firing a semi-automatic pistol as a “mini-explosion”: the gun’s hammer falls, causing the firing pin to strike the ammunition and ignite the “very volatile” primer, which lights a propellant that burns “very rapidly,” creating a lot of gas and heat. The gas, looking for an area to escape, causes the bullet to “exit the firearm down the barrel.”

Nevertheless, the circuit examining the statute’s plain meaning “by looking to the statutory scheme as a whole and placing the particular provision within the context of that statute,” held that the cartridge was not an “explosive.” 

First, the court, while noting that the gun here expelled bullets by the combustion of gunpowder, also noted that § 844(j) did not list single cartridges or ammunition generally as a form of “explosive.”  Instead, it used the phrase “gunpowders, powders use for blasting, al forms of high explosive,” and other more extreme terms. Since “words ... are known by their companions,” the circuit “deem[ed] it significant” that the word “gunpowders” was accompanied by other materials used in “detonation, a particularly fierce and explosive chemical reaction” that produces a “vigorous evolution of heat and spakrs or flame” moving through the material detonated. To the circuit, this meant things more like dynamite or TNT. And, even though, in quantity, gunpowder can also be a “powerful explosive” like those, the court concluded that “a person carrying a single unspent pistol cartridge in his pocket” is not, in “ordinary usage” thought to be “armed with gunpowder or an explosive,” even if the cartridge contains a small amount of gunpowder.

The circuit also rejected the argument that the cartridge was “device” containing ingredients “such that ignition could cause an explosion.”  The circuit was concerned that this would expand the statute beyond its intended reach, for example, to the unarmed getaway driver in a bank robbery, since the internal combustion engine of his car relies on a “mini-explosion” to run. 

Finally, the court noted that discharging a firearm in connection with a crime of violence, under 18 U.S.C. § 924(c), is a separate offense with a separate penalty. The circuit viewed § 844(h) as a “counterpart” to this - to cover cases not covered by § 924(c) - and did not see any congressional intent to heighten the penalty for the firearms offense merely because the gun  “happened to contain at least one cartridge.”