United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-40098 FILED April 12, 2024 ____________ Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus Elden Don Brannan,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:22-CR-184-1 ______________________________ Before Elrod, Willett, and Duncan, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: A federal jury found Elden Don Brannan guilty of possessing an unregistered “destructive device” in violation of 26 U.S.C. § 5861(d). On appeal, Brannan contends the evidence failed to support his conviction because the Government did not prove that the device—a sealed metal pipe containing pyrotechnic material harvested from fireworks—was “designed for use as a weapon.” See id. § 5845(f). We disagree. Under our binding precedent, this exception to § 5861(d) is an affirmative defense, not an element of the crime. We therefore affirm Brannan’s conviction. Case: 23-40098 Document: 78-1 Page: 2 Date Filed: 04/12/2024

No. 23-40098

I. Brannan lived with his sister and her three children in Corpus Christi, Texas. In 2022, Brannan’s sister called 911 to report that Brannan had assaulted her boyfriend and was threatening suicide. When police arrived, she told them Brannan had a “pipe bomb” in his bedroom closet. A bomb squad came and removed the device. Brannan was arrested and later indicted by a grand jury for possessing an unregistered “destructive device” in violation of 26 U.S.C. § 5861(d). His sister testified at trial that, weeks before the 911 call, Brannan built the device at their kitchen table from disassembled fireworks. Various Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) personnel testified about the device’s features. 1 It was a fused metal pipe wrapped in tape, six inches long and one inch in diameter. Its top was sealed with a cardboard and clay plug; its bottom with a waxy material, five dimes, and a plastic bottle cap. Inside was another clay plug along with a powder containing pyrotechnic stars harvested from fireworks, a common feature of pipe bombs. Once the fuse was lit, the powder would burn, generate gas, and—because the pipe was sealed—eventually explode. Metal pieces and the dimes would fly out as shrapnel. Given these characteristics, ATF Agent and Explosive Enforcement Officer Scott McCullough “determined it was an explosive or improvised explosive bomb.” Brannan’s defense was that the device was not an explosive but rather a “makeshift roman-candle or fountain firework” that was “designed to emit a pyrotechnic display.” His expert witness, Michael Hefti, testified the device would not have exploded because its non-metallic plugs could not

_____________________ 1 There was testimony from two ATF agents, an ATF chemist, and an ATF explosives officer.

2 Case: 23-40098 Document: 78-1 Page: 3 Date Filed: 04/12/2024

No. 23-40098

have contained the expanding gas. 2 At the same time, Hefti admitted the device’s metal st