author: GERARD E. LYNCH, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Daniel Patrick SHEEHAN Defendant-Appellant.
    Docket No. 15-1028-cr
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Submitted: April 21, 2016
    Decided: September 23, 2016

      Jonathan I. Edelstein, Edelstein & Grossman, New York, New York, for Defendant-Appellant Daniel Patrick Sheehan.
    Jo Ann M. Navickas and Lara Treinis Gatz, Assistant United States Attorneys (of counsel), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, New York.
    Before: WINTER, WESLEY, and LYNCH, Circuit Judges,
   GERARD E. LYNCH, Circuit Judge:

Daniel Patrick Sheehan' appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) after a jury found him guilty of extortion in violation of 18 U.S.C. § 1951, and use of a destructive device to commit extortion in violation of 18 U.S.C. § 924(c) (1) (B) (ii). The conviction arises from Sheehan’s plot to extort money from Home Depot by placing a device purporting tó be an inert “model” of a pipe bomb in a Home Depot store in Huntington Station, New York, and-threatening to plant bombs in other Home Depot locations.

Sheehan conceded his guilt'on the extortion count at trial; on appeal, he challenges only his conviction for use of a destructive device. The district court instructed the jury that it could find Sheehan guilty if the device, used by Sheehan during his crime was “an explosive -bomb” or “any combination of parts ... designed ... for use in converting any device into an explosive bomb and from which an explosive bomb may be readily assembled.” A. 176. Shee-han argues that the evidence was insufficient to establish that the device was an explosive bomb and that the jury should not have been given a combination-of-parts instruction. He also argues: that the district court’s combination-of-parts jury instruction was erroneous because it did not require subjective intent, failed to define the term “readily assembled,” and was misleading. Finally, he contends that he was denied a fair trial because of improper statements made by the prosecutor during summation.

We conclude that the evidence was,sufficient to establish that the device used by Sheehan was an “explosive bomb,” as contemplated by 18 U.S.C. § 921(a)(4), and that the district court did not err in instructing the jury on the combination-of-parts theory of guilt. We further conclude that the prosecutor’s comments during summation did not deprive Sheehan of a fair trial. Accordingly, we affirm the judgment of conviction.

BACKGROUND

On March 20,'2013, a federal grand jury in the Eastern District of New York returned a three-count indictment charging Sheehan with Hobbs Act extortion, 18 U.S.C. § 1951, use of a destructive device to ' commit extortion; - 18 U.S.C. § 924(c)(l)(B)(ii), and use of an explosive to commit extortion, 18 U.S.C. § 844(h)(1). The charges stemmed from Sheehan’s attempt to obtain money from Home Depot by threatening to ■ plant pipe bombs in Home Depot stores and placing a device purporting to be an inert “model” of a pipe bomb in a Home Depot in Huntington Station. At trial, only the first two charges were submitted to the jury. Sheehan conceded that he was guilty of extortion, but contended that the “pipe bomb” he left in the Home Depot was not functional and thus was not - a “destructive device” as defined by the statute. The jury Convicted Sheehan on both counts.

I. The Extortion Plot

Because the jury found Sheehan guilty of all charges relevant to this appeal, “we view the evidence in the light most favorable to the government.” United States v. Mergen, 764 F.3d 199, 202 (2d Cir. 2014) (internal quotation marks omitted). So viewed, the evidence established the following facts.

At some point prior to October .2012, Sheehan purchased a prepaid cell phone and the components necessary to create a pipe bomb. Using a pipe, end caps, powder from shotguns shells, and an igniter from a model rocket, Sheehan assembled and detonated a pipe bomb in a shed. The explosion left a hole in the floor. Thereafter, Sheehan assembled a similar device using powder from shotgun shells, a metal pipe and end caps, a nine-volt battery, a pull string and switch, and (per his subsequent confession) another model rocket igniter, and placed it in a cardboard light fixture box previously purchased from a Home Depot. Several days later, while wearing a disguise consisting of a wig, arm sling and make-up, he placed the cardboard box containing the device in the lighting department of the Huntington Station Home Depot. Sheehan, who is allergic to cats, also planted cat hair along with the device to throw off investigators, and further attempted to conceal his identity by changing a character on his license plate number with a marker. Sheehan did not initially connect the pull string to the shelf, but about a week to ten days later, Sheehan returned to the Home Depot and, using a construction adhesive transported in a ketchup packet, affixed the string extending from the device to the shelf “so that it would look like it would work.” G.A. 13.

In mid-October, approximately two weeks after he glued the pull string to the shelf, Sheehan sent a handwritten letter to the Huntington Station Home Depot. The letter states, in full:

To the store mgr:
There is a bomb in the light box in the lighting dept. SKU # 491-803. YOU’RE IN NO DANGER. The battery is not connected [and] igniter is separated. It cannot go off: I needed to prove I can make a device [and] get ’em in the stores undetected.
I want two million (1.5 in 100, .5 in 50) or I will shut down all your [Long Island] stores on Black Friday. I can detonate 3 devices in 3 different stores remotely via [cellular phone]. Then bomb threats will close the rest. Doing this on Thanksgiving will assure no one gets hurt, except your wallet.
I will give you until the week of Oct. 26th to notify the suits in Atlanta [and] to get the cash. If you go to the police or feds I will go to the media—then you risk scaring off way more than two million in sales, and copycat actions.
Pay me this one time and you have my word you will never hear from me again. I am going to a warm climate with thin brown girls and drink myself to death. I will also get a two million dollar] life insurance policy naming Home Depot beneficiary. So consider this an interest free loan.
The other devices are 2[.5]“ by 6” black pipe with 1 pound of roofing nails siliconed to them each.
If you do not pay employees will be the first then customers last. Please don’t let this happen.
I will call your store at noon on Oct. 17th extension 300 to see what you decide.
I will know if you go to the cops. I can see your store all day.
Pay me—end this—raise your prices 10 cents [and] break even.

G.A. 16-17.

The Home Depot was subsequently evacuated. Members of the Suffolk County bomb squad located what appeared to be an improvised explosive device (“IED”) in a cardboard light fixture box on a shelf in the lighting department. The device was x-rayed. Upon visual observation of the device and the x-ray images, the device appeared to be a pipe bomb consisting of a metal pipe and two metal end caps with wires and a nine-volt battery extending from the device. The device was affixed to the shelf via a string connected to a pull switch on the device and to a red carabiner glued to the shelf. The string appeared to be part of a triggering mechanism such that, when the device was picked up by a victim, the string attached to the shelf would pull the switch attached to the device (and, presumably, detonate it). The x-rays did not, however, provide the bomb squad with an image of the interior of the pipe.

Standard procedure for disarming a pipe bomb requires the removal of an end cap to prevent pressure from building up inside the pipe. Before attempting to remove an end cap, the bomb squad moved the device to the back of the store to prevent accidental detonation in the lighting department, which contained metal and glass. Next, the bomb squad used a robot equipped with a Percussion Actuated Nonelectric Disrupter to shoot a disintegrating projectile at the pipe bomb in order to knock off an end cap. The device exploded, however, damaging the ceiling, walls, and doors on either end of the area in which the bomb had been placed. Post-detonation testing revealed that the powder inside the pipe bomb was double-base smokeless powder.

Two days later, Andrew Salvoni, the Home Depot manager, received a phone call from Sheehan. That call was recorded. During the call, Sheehan reiterated his demand for money, but lowered the request to one million dollars. Sheehan subsequently sent a second, typed, letter addressed to Salvoni in which Sheehan apologized for the stress he was causing Salvoni and stated that his goal was “to get the money, get away ... [,] and not hurt anyone.” G.A. 28. He then wrote:

To achieve my goal I am going to be wired up like a Christmas tree. I have 2 devices strapped to a belt and 1 to a neck chain that I will be wearing, wired together and attached to a “deadman” switch in my hand. SO PLEASE tell authorities not to approach me[.] I do NOT want to be the cause of a fatherless child (they always have small children). To keep from being shot from a distance I am going to deposit in one of your stores the morning of the drop a new device I designed. I attached a 2" x 6" pipe w[ith] 1 lb. of roofing nails glued to outside, wired to a 6 volt battery w[ith] 2 igniters to one of your digital thermostats set for 68 degrees. I put a[n] ice pack in the box that should give me no less th[a]n 11 hours to get money, get away and buy back device. I will call you when all is clear. You have my word and my word is my bond.
If you guys try to screw me—You told me your company would pay. I have not lied to you or tried to hurt anyone, so if you lied or plan to trick me this whole thing will become personal. If you drop off ANYTHING besides US circulated currency I will end Black [F]riday and all following sales events until I am caught.

G.A. 28. Sheehan later called Salvoni again and expressed anger about the presence of the police.

Using telephone records, agents of the Federal Bureau of Investigation (“FBI”) were able to identify the number of Shee-han’s prepaid cellular phone and locate the phone, thereby enabling the agents to locate and arrest Sheehan. Upon arrest, Sheehan agreed to make a written statement. Sheehan’s written confession admitted to purchasing a prepaid cellular phone and materials for making a pipe bomb, and creating and detonating a test bomb in a shed. Sheehan further admitted to creating a similar device using smokeless powder (from shotgun shells), a pipe and end caps, a nine-volt battery and a pull string switch, and a model rocket igniter; planting that device in the Home Depot; and returning to the Home- Depot to attach the pull string to the shelf.

Sheehan also described his escape plan: Earlier this ' year, I ... was given a Yamaha Wavé-Runner which was hollow and motorless. I got this through a contact on [Craigslist].... I also purchased a cooler' at a K-Mart .,. which I was going to use with the Wave-Runner as part of my plan for the money drop. I modified both the Wave-Runner and the cooler by putting holes in them. The cooler is now attached to the seat of the Wave-Runner-My plan for the money drop was to put the Wave-Runner in Huntington Harbor, and to hide in the water under the Wave-Runner and have the extortion money placed into the cooler and I would retrieve it from beneath the Wave-Runner through the,holes I had cut into the cooler and the Wave-Runner. I planned to use an air tank so I could stay under water and swim away with the money.

G.A. 14-15. Prior to his arrest, Sheehan had purchased a wetsuit and an air tank.

II. The Nature of the Device

At trial, Sheehan conceded his guilt with respect to the extortion count. His sole defense was that he was not guilty of the enhanced charge of using a destructive device to commit extortion because the device he left in the Home Depot was not a “destructive device” (as it was not capable of detonation, in his view, absent extraordinary circumstances, such as being struck by a projectile), and could not be readily converted into such a device.

Among other witnesses, the government called Special Agent Christopher Rigopou-los, an FBI explosives and hazardous devices- examiner, as an explosives expert. Rigopoulos testified that a pipe bomb is an IED, meaning that it is not commercially made, and that the, typical ,IED will contain an explosive main charge, an electrical fuzing system, a main charge container, and a concealment chamber. Rigopoulos explained that Sheehan’s device included those items in the form of smokeless powder, the wires and nine-volt battery, pipe, and light fixture box. Rigopoulos clarified that “[t]he components of an electrical fuzing system are typically wires, conductors, a switch, a power source, which are generally batteries, and an initiator, or sometimes called a load.” A. 92. The initiator, also described as an “ignitor,” A. 96, is placed inside the pipe to ignite the explosive main charge. No ignitor was recovered from the device, possibly as a result of the explosion.

Rigopoulos acknowledged that several wires did not appear to be attached to anything and that the.battery was not attached to the fuzing system, which would prevent the fuzing system from functioning in its current condition. Rigopoulos opined, however, that the battery could be attached easily with tape or epoxy (rendering the device functional) within “ten minutes or less.” .A. 145. Rigopoulos further concluded that the device as planted constituted a “pipe bomb,” notwithstanding the non-functional fuzing system, because it could be detonated by means other than the fuzing system, including by heat, shock, or friction that could be generated by dropping the device or unscrewing an end cap. A. 96. Rigopoulos testified that it was dangerous to disarm a pipe bomb by unscrewing an end cap, as that could generate- a spark and cause the device to detonate.

Following Rigopoulos’s testimony, the government rested and the defense moved under Fed. R. Crim. P. 29 for acquittal on the use of a destructive device chargé on the ground that there was no evidence that the device contained an' igniter and the battery was not hooked up to the fuzing system. The court reserved decision, and ultimately denied the motion post-trial.

During the defense’s case, Sheehan presented his own expert, Warren Parker, a retired Bureau of Alcohol, Tobacco, Firearms and Explosives agent. Parker testified that there was no way, based on the x-rays and recovered portions of the device, to determine whether it contained an igniter, and that, if Sheehan needed to connect an igniter, he would need to unscrew the end cap to do so. Parker further opined that the possibility of the device exploding accidentally was “[s]o remote .-.. as to be not practical at all,” A. Ill, as smokeless powder is stable and ignites, at 600 degrees, a temperature that will not be generated by unscrewing an end cap or dropping the device. Parker concluded that the device was not an explosive bomb because it “was assembled in a manner that could not be exploded electrically or accidentally by touching some other electrical component.” A. 110.

On rebuttal, the government called a second expert witness, Kirk Yeager, a forensic scientist. Yeager, opined that smokeless powder could ignite at a temperature of 400 to 451 degrees, and that, if smokeless powder was in the screw threads, the friction caused by unscrewing an end cap could create sufficient heat for detonation.

In summation, defense counsel again conceded Sheehan’s guilt on the extortion count, but argued that. Sheehan could not be guilty of using a destructive device because the device was designed to be incomplete. The government argued repeatedly that the device was a “real bomb,” see, e,g., A. 158, 167, or could be readily converted into one. Sheehan did not object to any statements made during the government’s summation.

III. Jury Instructions and Judgment

Over Sheehan’s objection, the district court instructed the jury that it.could convict Sheehan of using a destructive device if it found that the device was either “an explosive pipe bomb” or “any combination of parts either- designed or intended for use in converting any device into an explosive bomb and from which an explosive bomb may be readily assembled.” A. 176. The district court ■ denied Sheehan’s request for a jury instruction defining the term “readily assembled” to mean that he concurrently possessed all of the necessary components.

The jury convicted Sheehan on both the extortion and destructive device counts. The district court imposed a sentence of thirty years’ imprisonment on the destructive device charge, to run consecutive to a one-month sentence for extortion.

DISCUSSION

Sheehan challenges only his conviction under 18 U.S.C. § 924(c)(l)(B)(ii), which provides a thirty-year mandatory minimum sentence for use of a “destructive device” during a violent crime. In relevant part, a destructive device is defined alternatively as either an “explosive ... bomb,” id. § 921(a)(4)(A)(i), or “any combination of parts either designed or intended for use in converting any device into any destructive device [listed in the statute] and from which a destructive device may be readily assembled,” id. § 921(a)(4)(C). Under either definition, a device “which is neither designed nor redesigned for use as a weapon,” id. § 921(a)(4), does not constitute a “destructive device.” Sheehan argues that there was insufficient evidence to establish that the device planted in the Home Depot was an “explosive bomb” within the meaning of § 921(a)(4)(A)(I).

Sheehan further contends that the jury should not have been instructed at all on the combination-of-parts theory of guilt because that" theory is inapplicable to completed devices, and that, even if an instruction on that theory was permissible, the charge given was erroneous because it (1) did not include an instruction on subjective intent or define the term “readily assembled,” and (2) misleadingly included a reference to an inapplicable portion of the statute. Finally, Sheehan argues that the prosecutor’s summation deprived him of a fair trial.

I. “Explosive Bomb”

Sheehan first contends that there was insufficient evidence to establish that his device was an “explosive bomb” within the meaning of the statute. In challenging the factual sufficiency of the government’s case, defendants face a “heavy burden, as the standard of review is exceedingly deferential.” United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2016) (internal quotation marks omitted). We analyze the sufficiency of the evidence “in the light most favorable to the government, crediting every inference that could have been drawn in the government’s favor, and deferring to the jury’s assessment of witness credibility and its assessment of the weight of the evidence,” and will uphold the conviction “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Chavez, 549 F.3d 119, 124 (2d Cir. 2008) (alteration, citations, and internal quotation marks omitted).

The design of the device suggested that it was intended to be “victim actuated,” A. 93, meaning that when the concealed device was moved by a potential victim, the string attached to the device and the shelf would pull a switch, complete a circuit, and cause the device to explode. It was undisputed at trial that the device’s electrical fuzing system was not fully connected when the device was found and disarmed by the bomb squad. Therefore, the device could not have been detonated via the electrical fuzing system.

The experts at trial disagreed, however, as to whether the device could be detonated by other.means, for example, by unscrewing, an end cap or by dropping the device.. Because we must draw all inferences in the government’s favor, we must assume that the jury credited the.testimony of Rigopoulos and Yeager that the device could be detonated in some manner, such as by dropping the device or by unscrewing an end cap, even though the fuzing system was disconnected.

Accordingly, the question presented is whether a jury could reasonably find that a device that is incapable of detonating in its ordinary or intended manner (because,, for example,, it lacks a particular component ordinarily present in such, a device), but is nonetheless capable of detonating, is an “explosive bomb” within the meaning of the statute. We have little difficulty concluding that it is. Although this Court has not previously had occasion to address the question, our sister circuits that have done so have .held that the touchstone of whether a device is an “explosive bomb” is simply whether the bomb is capable of exploding, and have affirmed convictions on the theory that a device that is capable of exploding is an “explosive bomb” within the meaning of the statute. See, e.g., United States v. Uzenski, 434 F.3d 690, 702 (4th Cir. 2006) (affirming conviction where evidence established “at the very least, that the device was capable of exploding”); United States v. Langan, 263 F.3d 613, 625 (6th Cir. 2001) (“[T]he government need not establish that any particular component be present for a device to qualify as a destructive device. The only requirement is that the device be capable of exploding—”). That the bomb could not explode in the way its maker.might have assumed was the ordinary or even only way in- which it could be detonated—i.e,, via the fuzing system—because it lacked a particular component of which such a device is ordinarily composed, is irrelevant. As we have held, whether the defendant intends the device to detonate is irrelevant 'when the assembled device constitutes an “explosive bomb” within the meaning of the statute. United States v. Posnjak, 457 F.2d 1110, 1119 (2d Cir. 1972).

Notwithstanding the testimony of the government’s expert witnesses, Sheehan argues that the device cannot be -considered a completed bomb because such testimony “is so contrary to human experience that no reasonable person would believe it beyond a reasonable doubt.” Appellant’s Reply Br. 8. That argument, however, is essentially premised on the testimony of Sheehan’s expert, which the jury was free to disregard in favor of the contrary éx-pert testimony offered by the government. Although there may be rare circumstances where an expert’s testimony is so incredible that no rational factfinder could believe it beyond a reasonable doubt, the testimony of Rigopoulos and Yeager does not fall into that category. Their testimony is not so illogical or contrary to common sense that no rational jury could accept it. Drawing all inferences in favor of the govemment,-we must conclude that the jury credited their testimony that the device could be detonated over the contrary testimony of the defense expert.

Sheehan additionally argues that, even if the “device was an explosive bomb, [his] conviction must still be reversed because, measured objectively, it was neither designed nor redesigned for use as a weapon.” Appellant Br. 35. In light of the objective features of the device—which was built to look like an IED, contained an explosive, and was capable of detonating— the jury could rationally find that the device was objectively designed as a weapon even if it was missing a component required to enable it to explode in a specific way. Cf. Langan, 263 F.3d at 625. To the extent that the lack of a functional fuzing system may indicate that Sheehan did not subjectively intend for the device to be capable of detonation, or did not know such detonation was possible, Sheehan’s belief is irrelevant, since, when it is clear that the assembled device constitutes an explosive bomb as defined in the statute, “intent is irrelevant.” Posnjak, 457 F.2d at 1119.

II. “Combination of Parts”

With respect to the alternative combination-of-parts theory of guilt, Sheehan primarily argues that the jury was improperly instructed. Sheehan contends that the jury should not have been instructed on the combination-of-parts theory at all, because it is inapplicable to completed devices. Sheehan also argues that, to the extent it was appropriate to submit the charge to the jury, the jury charge was erroneous because it did not instruct the jury to acquit Sheehan if it found that he did not subjectively intend to build an explosive bomb and because it did not define the term “readily assembled.” Shee-han further contends that the charge was misleading because it mistakenly included a reference to an inapplicable portion of the statute.

“We review a claim of error in jury instructions de novo, reversing only where, viewing the charge as a whole, there was a prejudicial error.” United States v. Aina-Marshall, 336 F.3d 167, 170 (2d Cir. 2003). In conducting that review, we examine the charge “as a whole to see if the entire charge delivered a correct interpretation of the law.” United States v. Bala, 236 F,3d 87, 94-95 (2d Cir. 2000) (internal quotation marks omitted). “An erroneous instruction, unless harmless, requires a new trial.” Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994). Am error is harmless only if it is “clear beyond a reasonable doubt that a rational jury would have found .the defendant guilty absent the error.” Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

A. Completed Devices

Sheehan argues on appeal, as he did at the- charge conference below, that the combination-of-parts theory is inapplicable to this case as -a matter of law. “Where a jury is presented with multiple theories of conviction, one of which is invalid, the.-jury’s verdict must be overturned if it is impossible to tell which theory formed the basis for conviction.” United States v. Szur, 289 F.3d 200, 208 (2d Cir. 2002). In such circumstances, our task is to “ascertain whether a flawed instruction had a substantial -and injurious effect or influence in determining the jury’s verdict.” United States v. Ferguson, 676 F.3d 260, 276 (2d Cir. 2011) (internal quotation marks omitted). A defendant is not prejudiced by an “infirm instruction” if “the jury would have - necessarily found [him] guilty on one of the properly in: structed theories of liability.” Id. at 277.

Sheehan argues that the district court erred in instructing the jury that it could convict him if it found that thé device was an explosive bomb or a “combination of parts ... designed ... for use in converting any device into , an[ ] [explosive bomb],” 18 U.S.C. § 921(a)(4)(C), because the latter theory applies only to incomplete devices, and not to devices that are fully assembled but missing key components. That argument lacks merit.

First, the text of § 921(a)(4)(C) does not limit itself solely to disassembled devices, as it encompasses “any combination of parts” that can be converted into an explosive bomb. The phase “any combination of parts” naturally extends, at a minimum, to both fully disassembled and partially completed devices. There is no meaningful way to distinguish objectively between, a “partially assembled” device to which critical additional parts have yet to be added, and an identical configuration of assembled and missing parts which is “fully assembled” in the sense that its maker believes he has completed his project. Even where a device appears to be fully assembled-, but is defective in some way because not all of the parts are in place, the text of the statute is satisfied if the device has been designed (in an objective sense) in such a way that it can be easily converted into an effective explosive. See United States v. Johnson, 152 F.3d 618, 627 & n.8 (7th Cir. 1998) (observing that a defendant who possesses “an assembled combination of parts that is less clearly” a completed destructive device will generally be charged under the combination-of-parts theory, and noting that homemade bombs are likely to be charged under the combination-of-parts theory “because that allows the government a more flexible method of proving [its] case”).

Second, even assuming arguendo that the combination-of-parts theory is categorically inapplicable to “fully assembled” devices, the question of whether a device was “fully assembled” is a question of fact for the jury. Thus, a combination-of-parts instruction would be appropriate as long as a rational jury could find that the device was at least, partially disassembled. See id. at 627 (finding that the trial court had acted within its discretion in giving a combination-of-parts instruction based on the defendant’s argument that- the device was “not sufficiently assembled to detonate”). The jury in this case heard expert testimony that the device could have quickly and easily been rendered functional with materials readily available within a Home Depot store. A rational jury could conclude that Sheehan’s device—-which indisputably lacked a functional fuzing system—-was a partially completed device designed in such a way that with readily available materials it could have been converted into a functional explosive device.

Accordingly, the district court did not err in instructing the jury that it could convict if it found beyond a reasonable doubt that the device qualified either as a “destructive device” or as a “combination of parts” designed so that it could readily be assembled into a listed destructive device.

B. Subjective Intent

Sheehan next argues that the jury instructions were erroneous because they did not include an instruction indicating that he could not be convicted of possessing a “destructive device” if he lacked the subjective intent to build such a device. The government elected to proceed solely on a theory of “objective design” and successfully moved in limine to preclude evidence of Sheehan’s subjective intent, which, Sheehan contends, was to create a “model” or “prototype” of a pipe bomb. Def.’s Br. 27, 42. Following a post-trial motion for a new trial pursuant to Fed. R. Crim. P. 38, the district court affirmed its ruling. Upon consideration of the statutory text and relevant case law, we conclude that the district court correctly declined to give a subjective intent instruction.

The relevant portion of the statute provides that a destructive device includes “any combination of parts either designed or intended for use in converting any device into [an explosive bomb] and from which [an explosive bomb] may be readily assembled,” and further exempts from its coverage any “device which is neither designed nor redesigned for use as a weapon....” 18 U.S.C. § 921(a)(4)(C) (emphasis added). The text of the statute, which lists “designed” and “intended” in the alternative, thus indicates that the word “designed” in this context means something other than “intended.”

In United States v. Posnjak, we parsed the distinction between “intent” and “design” in considering whether commercial dynamite qualified as a destructive device. Concluding that it did not, we explained that “[t]he legislative history indicates that ‘designed’ in [the context of the phrase ‘designed or redesigned for use as a weapon’] refers to objective, physical structure or method of operation and not to [the] intent or schemes of the possessor,” Posnjak, 457 F.2d at 1116, and further explained that the inclusion of the words “or intended” in the statute indicated that in some instances “intention to convert a device into a[ ] [listed device] will be relevant,” id. at 1120. We then clarified that:

When it is clear that the assembled device created by combining the components [would be a device listed in the statute], intent is irrelevant, for the parts are clearly “designed” to convert the device into a destructive device. When it is equally clear that the end product [would not be a listed device], the same is true. When, however, the components are capable of conversion into both such a device and another object not covered by the statute, intention to convert the components into the “destructive device” may be important.

Id. at Í119. Posnjak thus clarifies the only situations in which subjective intent is relevant: when the unassembled components are capable of being ássembled either into an object listed in the statute as a destruc-five device (such as an explosive bomb) or into an object that is not otherwise covered by the statute.

The relevance of intent is that in some instances, parts that could be used to build a listed device could also be used to construct some other type of device with a legitimate purpose. Because the National Firearms Act (which defines the term “destructive device” identically as 18 U.S.C. § 921(a)(4), see 26 U.S.C § 5846(f)) criminalizes mere possession of an unregistered destructive device, absent some requirement of subjective intent,, a person could be convicted under federal law of the unauthorized possession of a destructive device simply because she possessed, for legitimate reasons, a variety of ordinary items that could be used either to build bombs or to build something quite innocent. Intent to convert those items into a destructive device is thus necessary to prevent persons from being subject to criminal penalties for harmless, legitimate acts. That policy concern is not implicated, however, where the assembled device lacks any legitimate purpose.

There is no evidence in this record that would permit an inference that the combination of parts assembled by Sheehan could have been made into any kind of product or device other than a bomb, even assuming that it was not already an explosive bomb capable of detonating. Here, Sheehan’s argument'that the parts in question could be assembled into somer thing other than a bomb rests on the proposition that the device he planted at the Huntington Home Depot could be converted into either a functioning pipe bomb or an inert “model” of a pipe bomb; thus, by-Sheehan’s reasoning, a subjective intent instruction is required because an inert “model” is not a listed device. But this theory falls of its own weight.

First, the combination of materials installed in the lighting department, again assuming it was not yet a functional bomb, already was an inert “model,” and Sheehan has not even hypothesized, let alone offered any evidence at trial, that the parts could have been made into anything of a legitimate nature, or indeed, into anything other than a bomb or model of a bomb. Therefore, policy concerns about criminalizing possession of legitimate items are not implicated because Sheehan’s device was indisputably illegitimate. Second, any combination-of parts capable of being assembled into a functional bomb could always be assembled in such a way as to render the device non-functional. If a bomb-maker could argue that the parts he had assembled were theoretically capable of being assembled into either a functional or a non-functional bomb, simply because the parts could either be connected properly or left, in some respect, unconnected, then a subjective intent instruction would be required in essentially every combination of parts case, thereby rendering the objective “designed” alternative in 18 U.S.C. § 921(a)(4) superfluous. That conclusion is at odds with both Posnjak and with ordinary canons of statutory construction. See State St. Bank & Trust Co. v. Salovaara, 326 F.3d 130, 139 (2d Cir. 2003) (“It is well-settled that courts should avoid statutory interpretations that render provisions superfluous_”). We therefore hold that where a device is capable of being assembled only into a listed device, or a non-functioning version of that same device, it does not fall into the exception outlined in Posnjak requiring a subjective intent instruction. Rather, the government may properly proceed on an “objective design” theory.

Because Sheehan’s device could only be assembled into an explosive bomb, or a non-functioning version of an explosive bomb, the district court did not err in declining to give a' subjective intent instruction.

C. “Readily Assembled”

Sheehan next argues that the district court erred in declining to define the term “readily assembled” in its instructions on the combination-of-parts theory.

A trial court’s decision not to include a requested jury instruction may be overturned “only if the instruction that was sought accurately represented the law in every respect and only if viewing as a whole the charge actually given, the defendant was prejudiced.” United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) (alteration and internal quotation marks omitted). Prejudice may result where a requested instruction.“represents a theory of defense with basis in the record that would lead to acquittal, and the theory is not effectively presented elsewhere in the charge.” United States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006) (internal quotation marks omitted).

Sheehan requested, and was denied, a jury instruction stating that in order for the device to be capable of being “readily assembled,” the defendant must possess all necessary components without “going shopping.” A. 135. The district court instead instructed the jury that it should interpret “readily” and “assembled” “consistent with their everyday ordinary meanings.” A. 176.

Turning to the question of whether the requested charge correctly stated that law, we note that Posnjak mentioned, in describing the combination-of-parts theory, that “[a]ll of the necessary components from which a destructive device may be readily assembled must be possessed in order to possess a destructive device.” Posnjak, 457 F.2d at 1116 (internal quotation marks omitted). Posnjak, however, primarily addressed the question of whether commercial dynamite, which has a legitimate purpose independent of its destructive one, could, constitute a destructive device and, apart from that single passing reference, did not analyze what components must actually be possessed. We do not think that the statement in Posnjak was intended to require the government to prove that the defendant possessed every single item, including ordinary household items, that would be necessary to assemble a destructive device.

■ In this case, based on Rigopoulos’s testimony, the only-item necessary to convert the device on the Home Depot shelf (if not already functional) into a fully functional bomb was a piece of adhesive tape to connect the wires to the battery. Such an ordinary household item is not only present in virtually every American household—it was also readily available within the Home Depot outlet where the device was installed. Indeed, Sheehan’s own expert acknowledged that there was tape around the device that could have been used to attach one of the wires from the pipe to the .top of the battery. The language in Posnjak on which.Sheehan relies makes sense when read to require that a “combination of parts” cannot be considered a destructive device based on the hypothetical possibility that the parts could be “readily” made into a bomb only if the defendant could obtain some crucial component that he did not possess and could not acquire without. a “shopping trip.” See, e.g., United States v. Malone, 546 F.2d 1182, 1184 (5th Cir. 1977) (holding that the defendant could not be convicted for possessing a combination of parts that could be readily assembled into a bomb where the defendant did not possess any explosive material, a key element required for the creation of a bomb). Posn-jak cannot sensibly be read to require proof that the defendant already owned such a mundane and readily accessible “component” to be used in attaching the functional parts of the device to each other.

We therefore hold that the government need not offer evidence that the defendant possessed commonly available materials—such as tape—if the defendant otherwise possesses all of the key components necessary to assemble a destructive device. See United States v. Simmons, 83 F.3d 686, 687 (4th Cir. 1996) (observing that possession of a'method of ignition, such as a match, is not typically required to find that the defendant possessed the components necessary to assemble a Molotov cocktail); United States v. Crocker, 260 Fed.Appx. 794, 797 (6th Cir. 2008) (“Although the government did not introduce evidence that the defendant possessed tape, this Court does not require showing possession of all commonly available materials when'determining whether- a destructive device could have been readily assembled.”); Langan, 263 F.3d at 626 (holding that a reasonable jury could find the device to be readily convertible into an explosive bomb where wires could be quickly stripped and re-crimped 'to a pager that was part of the detonating mechanism).

As Sheehan could be convicted of possessing a combination of parts that may be readily assembled into an explosive bomb even absent evidence that he possessed tape, the district court did not err in declining to give the requested instruction.

D. Mistaken Inclusion of “Or Intended” Language

Sheehan further argues that the jury charge was misleading because it mistakenly included a reference to an inapplicable portion of the statute. The government proceeded solely'on a theory of objective design, and the court excluded in limine evidence related to Sheehan’s subjective intent. In instructing the jury, the district court stated':

A destructive device has several meanings under the statute. But for the purpose of this case, the . only • relevant meaning is an explosive bomb. And this would include, A, an explosive pipe bomb or; B, any combination of parts either designed or intended, for use in converting any device into an explosive bomb and from which an explosive bomb may be readily assembled.

A. 176 (emphasis added). The court additionally explained that, in considering whether the device was “designed for use as a weapon,” the jury’s analysis “must be objective” and “focus solely on the physical structure and operational characteristics of the device in determining its purpose.” A. 176-77.

Sheehan did not object to the jury instruction. As the district court acknowledged, and the government concedes, it was error to include the phrase “or intended,” as the evidence was limited to that concerning objective design. Sheehan contends that the inclusion of the phrase “or intended” is plain error as it would allow the jury to convict Sheehan if it found that the device was objectively designed to be an inert prototype, but that Sheehan subjectively intended to create a destructive device.

Because Sheehan did not object to the jury instruction, we review for plain error, which requires him to establish “(1) error (2) that is plain and (3) affects substantial rights.” United States v. Villafuerte, 602 F.3d 204, 209 (2d Cir. 2007). If those requirements are met, we then “consider whether to exercise our discretion :to correct it, which is appropriate only if the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Id. (internal quotation marks omitted). The district court found that the mistaken inclusion of the words “or intended” benefitted the defendant as “it suggested, albeit erroneously, that his intent ... might somehow be germane,” A. 276, and further concluded that the error was harmless. We disagree with the conclusion that the erroneous instruction necessarily benefitted the defendant since, read literally, it would provide an alternative theory (intent to create a bomb) under which the jury could convict Sheehan. Nevertheless, we agree that on the facts of this case, the error did not affect Sheehan’s substantial rights or undermine the fairness of the trial.

On the record of this case, there was no meaningful possibility that the jurors could have misunderstood the position of the parties or the theory on which the case was put before them. In light of the evidence, the summations, and the instructions taken as a whole, it was made clear to the jury that the government’s case rested on the alternative arguments that the device, based on its objective design, either was an explosive bomb or was a combination of parts that could be assembled into one, without reference to Shee-han’s intentions. It was undisputed at trial that the device planted in the Home Depot was, at the very least, missing a functional electrical fuzing system and Parker testified that the device had been deliberately rendered inoperable. Sheehan additionally argued in his opening statement and summation that the device was designed to be a “model” or “prototype” of an actual pipe bomb. A. 21; A. 160. The government presented no evidence, and made no argument, that Sheehan actually intended to make further alterations to the device; it offered testimony, and argued to the jury, only that such alterations were theoretically possible. On the record, to the extent that the jury had a reasonable doubt about whether the device was objectively designed to be, or capable of ready conversion into, an explosive bomb, it could not rationally have then found that Sheehan intended to build an explosive bomb absent some evidence of his future plans for the device. The district court’s erroneous inclusion of the statutory phrase “or intended” thus did not affect Sheehan’s substantial rights or adversely affect the fairness of the proceedings. See United States v. Tomkins, 782 F.3d 338, 347 (7th Cir. 2015) (“[A]ny error with the jury instructions’ definition of ‘destructive device’ was harmless because there was ample evidence to prove beyond a reasonable doubt that the devices were destructive devices.”).

Accordingly, we conclude that the district court appropriately instructed the jury on the combination-of-parts theory, was not required to give a subjective intent instruction or definition of the term “readily assembled,” and that the jury charge, taken as a whole, was not misleading. We reject Sheehan’s challenges to the combination-of-parts theory of guilt and, because the evidence was sufficient to convict him of possessing'an explosive bomb, we need not address the sufficiency of the evidence with respect to the combination-of-parts theory.

III. Summation

Sheehan also argues that the government’s closing arguments, in particular, its rebuttal summation, deprived him of a fair trial, citing a number of examples of purported misconduct. “[A] defendant who seeks to overturn his conviction based on alleged prosecutorial misconduct in summation bears a heavy burden.” United States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011) (internal quotation marks omitted). “The defendant must show not simply that a particular summation comment was improper, but that the comment, viewed against the entire argument to the jury, and in the context of the entire trial, was so severe and significant as to have substantially prejudiced him, such that the resulting conviction was a denial of due process.” United States v. Williams, 690 F.3d 70, 74-75 (2d Cir. 2012) (internal quotation marks omitted). As Sheehan did not raise this objection at trial, we will not reverse “absent flagrant abuse.” United States v. Zichettello, 208 F.3d 72, 103 (2d Cir. 2000) (internal quotation marks omitted).

Although we do not include a full recitation of the statements claimed to be improper, they can be broken down into roughly three categories: statements that allegedly mischaracterized the evidence, statements that allegedly reflected the prosecutor’s personal beliefs about defense counsel, and statements that allegedly denigrated the defense expert. Upon careful review of the record as a whole, we find that most of the comments were permissible arguments about the merits of the defendant’s theory of the case or made in response to defense counsel’s own summation comments, which impugned the integrity of the government’s case. See United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) (“[T]he government is allowed to respond to an argument that impugns its integrity or the integrity of the case, and when the defense counsel have attacked the prosecutor’s credibility or the credibility of the government agents, the prosecutor is entitled to reply with rebutting language suitable to the occasion.” (internal quotation marks omitted)). In any event, even assuming that some of the statements made by the prosecutor were improper, they certainly cannot be considered to amount to “flagrant abuse.” See Farhane, 634 F.3d at 167 (“The law has long recognized that summations—and particularly rebuttal summations—are not detached expositions, with every word carefully constructed before the event.” (alterations and internal quotation marks omitted)). As the district court observed, although some of the prosecutor’s statements “were not as nuanced as the power of hindsight in a non-summation context would permit,” A, 252-53, none of the statements were so egregious that, even when taken cumulatively, they could have undermined .the fairness of the trial.

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . The government did not argue at trial, and does not argue here, that Sheehan’s actions in building and testing this unquestionably explosive device constituted the possession of an explosive bomb in furtherance of his extortion plot. We therefore do not consider whether those actions themselves violated 18 U.S.C. § 924(c)(2)(B)(ii).

      . On appeal as at trial, Sheehan contends that the device he created was not capable of detonation in the ordinary course of handling. He further contends that there was insufficient evidence to find that the device included an igniter, notwithstanding his written confession that it did.

      .The letter was accidentally delivered to another business in the same shopping complex, which then forwarded the letter to the Suffolk County police.

      . The original handwritten letter contained misspellings and random capitalizations that have not been reproduced here. According to Sheehan's written confession, he wrote in block letters to disguise his handwriting' and purposely misspelled words.

      . In his PowerPoint presentation accompanying his testimony, Rigopoulos used the term "fuze,” rather than "fuse.” Both terms generally refer to a device that initiates an explosion after a delay. See Fuse, Encyclopaedia Britannica (online edition), www.britannica.com/ technology/fuse-ignition-device. The United States military and the North Atlantic Treaty Organization, however, have adopted the term “fuze” rather than "fuse.” Id; see also NATO Standardization Agency, NATO Glossary of Terms and Definitions 2-F-8 (2008), https://fas.org/irp/doddir/other/nato2008.pdf. In keeping with the expert’s usage, we use the spelling "fuze” throughout this opinion.

      . At trial, the parties disputed the significance of the failure to recover an igniter. Sheehan argued that the evidence was insufficient to establish that an igniter was even present while the government argued that the explosion could have destroyed the igniter, and pointed to Sheehan’s confession—wherein he described the device as including an igniter— as evidence that an igniter was present prior to the ’explosion. Given the conflicting evidence, the jury was entitled to find that an igniter was present in the device when planted.

      . That time estimate assumed that an igniter was in the pipe, and that the only thing that would need to be done to finish the fuzing system was to connect the wires on the exteri- or of the pipe.

      .Parker also noted that smokeless powder "is a military explosive ... designed to live ... under battlefield conditions without accidentally going off,” A. 112, that it is also used by hunters (who are not careful about dropping ammunition), and that a previous incident in which a police officer was killed when a pipe bomb detonated after an end cap was unscrewed involved the less-stable black powder.

      . The statute reads, in relevant part:
      (4) The term "destructive device” means— (A) any explosive, incendiary, or poison gas-
      Ci) bomb, [or]

      (C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) ... and from which a destructive device may be readily assembled.
      The term "destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon....
      18 U.S.C. § 921(a)(4).

      . Many cases interpreting the term “destructive device,” including Uzenski, have done so in the context of the National Firearms Act, 26 U.S.C. § 5801 et seq., which makes it a crime to receive or possess an unregistered firearm, id. § 5861(d), with the term "firearm” being defined to include a "destructive device,” id. § 5845(a). The National Firearms Act, 26 U.S.C § 5845(f), arid the statute at issue here, 18 U.S.C. § 921(a)(4), define the term "destructive device” identically.
      Although the term "destructive device” is defined identically in the two statutes, and thus must be given a similar construction, United States v. Posnjdk, 457 F.2d 1110, 1114 (2d Cir. 1972), -we pause to note that different policy considerations are implicated by each statutory scheme. Under the National Firearms Act, the only “act” required to incur criminal liability is the failure to register a destructive device, whereas a person can be guilty under 18 U.S.C. § 924(c) only if she uses a "destructive device” in furtherance of some other crime of violence. Thus, in Posn-jak, we held that possession of unregistered dynamite does not violate the National Firearms Act because dynamite has a legitimate social purpose; reading the term "destructive device” expansively in that context could impose criminal liability on persons possessing certain items for perfectly legitimate purposes. See Posnjak, 457 F.2d at 1118. But § 924(c) requires that the device, i.e,, dynamite, be used or carried in furtherance of a crime of violence. In that context, the fact that dynamite also has a legitimate purpose would seem less significant. Thus, while the meaning of the definition is the same in both statutes, caution should be applied in translating broad dictum or policy concerns from National Firearms Act possession cases to extortion cases under § 924(c).

      . Sheehan largely presents these arguments as challenges to the sufficiency of the evidence under the combination-of-parts theory. His arguments, however, challenge the appropriateness of the theory as presented to the jury and are thus properly framed as challenges to the jury instructions.

      . As discussed in note 9, supra, Posnjak analyzed the definition of "destructive device” under the National Firearms Act.

      . That conclusion is very similar, though not identical, to the approach taken by several of our sister circuits that have held that subjective intent is relevant only when the device could have legitimate commercial or social value. See, e.g., United States v. Tomkins, 782 F.3d 338, 345-46 (7th Cir. 2015); United States v. Urban, 140 F.3d 229, 234 (3d Cir. 1998). But we also note that other circuit courts appear to have reached the conclusion that any conviction under the combination-of-parts theory requires subjective intent. See Uzenski, 434 F.3d at 701 n.4 (collecting cases). Because the plain language of the statute contemplates the possibility that a combination of parts can qualify as a destructive device where it is objectively designed—as well as when it is subjectively intended—to be converted into an explosive bomb, we do not find those cases persuasive insofar as they may be read to require intent.

      . The construction of a device to resemble a bomb, but not actually detonate, is, of course, relevant to the question of, whether it was “designed or redesigned for use as a weapon.” 18 IhS.C. § 921(a)(4). Thus, in some instances, "the construction of a device, objectively assessed, [may] raise[] the reasonable possibility that it was designed as something other than a destructive device.” Johnson, 152 F.3d at 627. That inquiry, however, is for the jury to answer and concerns the objective design and construction of the device—not the defendant’s subjective intent.

      . The court later instructed the jury that "[a]n act is done intentionally when the defendant acted deliberately and purposefully. That is, defendant's acts must have been the product of defendant’s conscious objective rather than the product of a mistake or accident." A. 177.

      . ‘‘[W]hen divergent theories of criminal liability are submitted to the jury and the jury renders a general guilty verdict, on a challenge to the sufficiency of the evidence, if the evidence amply supports one of the theories presented the verdict must be affirmed.” United States v. Delano, 55 F,3d 720, 730 (2d Cir. 1995). However, if one of the theories is based on an erroneous view of the law, remand is appropriate even if the evidence is sufficient to prove the other theory. Id. at 730-31. Because the evidence was sufficient to sustain Sheehan’s conviction under § 921(a)(4)(A)(I), we need not address the sufficiency of the evidence with respect to the alternative combination-of-parts theory of guilt.

      . For example, Sheehan claims that the statement, "[p]ipe bombs, if you unscrew them and there is any smokeless powder in the threading, it's going to explode,” A. 157, misstated the evidence which shows only that pipe bombs may explode in that circumstance.

      , These challenged statements largely emphasized the point that defense counsel was "a good lawyer” but “not a bomb tech” and “not a mind reader," A. 167, and contended that defense counsel "has a fundamental misunderstanding of the evidence,” A. 168, and had presented irrelevant arguments,

      .The challenged statements characterized Parker as a "hired gun[]” who “flipped flopped,” A. 159, and compared Parker unfavorably to the members of the bomb squad who disarmed the bomb.


source: Caselaw Access Project

author: SACK, Circuit Judge:

license: Public Domain

text:
    Cory R. FOUNTAIN, Plaintiff-Appellant, v. Anwar M. KARIM, Defendant-Cross Claimant-Consolidated Plaintiff-Appellee, v. United States of America, Consolidated Cross Defendant-Appellee, United States Department of Agriculture, Cross Defendant-Appellee, Tom Vilsack, as Secretary of U.S. Department of Agriculture, Consolidated Defendant.

    Docket Nos. 15-3429, 15-3529
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: June 6, 2016
    Decided: September 23, 2016

      ROBERT Brusohini, Martin, Harding & Mazzotti, LLP, Albany, NY, for Plaintiff-Appellant.
    James T. Towne, Jr. (Susan F. Bartkow-ski & Christopher W. Rust, on the briefs), Towne, Ryan & Partners, P.C., Albany, NY, for Defendant-Cross Claimant-Consolidated Plaintiff-Appellee.
    Karen Folster Lesperance, Assistant United States Attorney, of Counsel, for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, NY, for Consolidated Cross Defendant-Appellee, Cross Defendant-Ap-pellee, and Consolidated Defendant.
    Before: SACK and LYNCH, Circuit Judges, and MURTHA, District Judge.

       The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.

         Hon. J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation.

   SACK, Circuit Judge:

At all relevant times, Anwar M. Karim was a conservationist with the United States Department of Agriculture (“USDA”). One night in August 2010, he decided to drive a government vehicle from the office to which he had been temporarily assigned back to the local hotel at which he was staying and where he planned to park the vehicle overnight ahead of a business trip the following morning. He submitted a request for permission to his superior to do so, but left in the vehicle before he obtained a response. He apparently expected to receive retroactive approval of his request the following day. While en route to his hotel, though, his vehicle collided with that of the plaintiff, Cory R. Fountain, causing Fountain serious bodily injuries. Karim has admitted that his negligence caused the accident.

Fountain brought suit against Karim and his employer, the government, and the U.S. Secretary of Agriculture, asserting claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80; New York’s permissive-use statute, N.Y. Veh. & Traf. Law § 388 (“VTL § 388”); and New York’s common law of negligence. The district court dismissed all claims against the government for lack of subject matter jurisdiction, and declined to exercise supplemental jurisdiction over the remaining state-law claims against Karim, after finding that he was not acting within the scope of his employment at the time of the accident. We conclude that, although such a finding properly made would warrant dismissal in an FTCA action, dismissal in this case was premature in light of an unresolved factual dispute over whether Karim used the vehicle with his employer’s implied permission. Accordingly, we vacate the district court’s decision and remand for an evidentiary hearing and further proceedings.

BACKGROUND

Karim’s permanent USDA duty station is in Rochester, New York, the city in which he lives with his family. In August 2010, Karim was assigned to a temporary detail at the USDA office in Walton, New York. Because Walton is about 175 miles and several hours away by car from Kar-im’s home in Rochester, the USDA provided Karim with housing at a Holiday Inn in nearby Oneonta, New York. His practice was to reside at the hotel from Monday through Friday, returning to Rochester for the weekend.

Karim’s life while assigned to the Walton detail thus required a substantial amount of driving—between Rochester and Walton, between the Oneonta Holiday Inn and the Walton USDA office, and between the Walton USDA office and other USDA offices or locations in the field. While commuting between the Rochester and Walton areas and between the Holiday Inn and the Walton office, Karim was generally expected to drive—and usually did drive—his privately owned automobile. During working hours, however, the USDA gave Karim access to a government-owned 2009 Ford. Explorer. This pattern of vehicle use followed the general policy and practice at the USDA at the time.

This is not to say, however, that Karim was forbidden from ever using the government-owned vehicle outside of normal working hours. Pursuant to an official USDA policy, he was permitted to take the vehicle home overnight so long as he first obtained his supervisor’s signature on Form AD-728, which is titled “Request and Authorization For Home to Work Transportation.” And in a departure from that policy, Karim’s supervisor in Rochester, Bruce Hopkins, had previously permitted him on several occasions to use a government-owned vehicle overnight without first obtaining a signature on Form AD-728. Karim claims that this happened at least five times over the course of two or three years; that he received retroactive written approval from Hopkins in each instance; and that he sometimes, but not always, obtained prior oral approval from Hopkins to borrow a vehicle. Hopkins, for his part, asserts that he would approve Karim’s overnight use of the vehicle without a final signed Form AD-728 only if Karim obtained his prior oral approval. Three other USDA employees in positions similar to Karim’s who were also supervised by Hopkins stated during internal USDA interviews that they knew they were supposed to obtain written authorization before using a government-owned vehicle, and that in no case could they or did they actually use a government-owned vehicle without first obtaining at least oral authorization. There is no evidence in the record, however, that Karim or any other USDA employee was ever denied a request to take a government-owned vehicle overnight.

Karim was scheduled to make a trip to the USDA field office in Highland, New York, which is about 100 miles to the southeast of Walton, on Wednesday, September 1, 2010. At the end of the workday on Tuesday, August 31, 2010, the day before his scheduled trip, Karim decided to take the government-owned vehicle back to the Holiday Inn. At 5:57 p.m., he sent a Form AD-728, requesting permission to take the vehicle. His supervisor in the Walton office, Ashton Boozer, had not responded to the request by the time Karim left in the government-owned vehicle about three minutes later. Karim then collided (negligently, he conceded) with Fountain’s vehicle while en route to the Holiday Inn. According to Karim, shortly after the accident, he called Boozer, who told Karim that he had received, the Form AD-728 before he left the office but had not yet printed or signed it. Boozer denies that the phone call occurred.

And then came the paperwork. Following the accident, Boozer completed a Form SF-91 “Motor Vehicle Accident Report” on which he stated that Karim was not authorized to take the government-owned vehicle overnight, was not acting within the scope of his duties as an employee, when the accident occurred, and would not have been given permission to take the government-owned vehicle because his request was “not advantageous” to the government. See Joint Appendix (“J.A.”) 508-11. Karim, on the other hand, submitted Optional Form 26, “Data Bearing Upon Scope of Employment of Motor Vehicle Operator,” on which he checked a box indicating that he had been given written permission to take the government-owned vehicle, and wrote, “submitted request AD-728 prior to leaving office via email.” J.A. 37, 512. Boozer signed this form and verified that the information contained in it was true and correct to the best of his knowledge and belief. Id. In later deposition testimony and in a written declaration, however, he stated that he had overlooked that the “written” box was checked in the authorization section, and that he had not intended to certify that Karim had authorization to take the government-owned vehicle overnight.

Fountain brought suit against Karim and the government in the United States District Court for the Northern District of New York, asserting claims under the FTCA and New York law, specifically VTL § 388 and the common law of negligence. Karim, in turn, asked the government to defend and indemnify him. Following an internal accident investigation, the government denied his request. Karim then cross-claimed in the lead case and filed a separate indemnification action against the government and Thomas Vilsack as Secretary of the USDA. The district court consolidated the two actions for purposes of dispositive motion practice.

After completion of discovery, the government moved for summary judgment or dismissal of Fountain’s, complaint on the ground that Karim was acting outside the scope of his employment at the time of the accident. Karim moved for a declaratory judgment ordering the United States to defend and indemnify him, and Fountain cross-moved for summary judgment in both actions.

The district court (Norman A. Mor-due, Judge) concluded that Karim was not acting within the scope of his employment at the time of the accident on the ground that the USDA could not have exercised control over Karim because it had not granted him explicit permission to use the government-owned vehicle overnight. The court therefore dismissed all claims against the government and Secretary Vil-sack in Fountain’s tort action for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The court then dismissed Karim’s indemnification action for lack of subject-matter jurisdiction, denied Karim’s motion for a declaratory judgment in both actions, denied Fountain’s motion for partial summary judgment in both actions, and declined to exercise supplemental jurisdiction over Fountain’s state-law claims against Karim, dismissing them without prejudice.

Fountain and Karim now challenge the district court’s dismissal on two grounds. First, they contend that the court’s finding regarding the scope of employment was premature because it overlooked a genuine dispute of material fact as to whether Kar-im used the vehicle with his employer’s permission. Second, Fountain and Karim argue that the court erroneously treated as dispositive its finding that Karim operated the vehicle outside the scope of his employment. In their view, the government might nonetheless be held liable for Karim’s negligent driving under the FTCA and VTL ,§ 388.

DISCUSSION

I. Standard of Review

On appeal from a judgment dismissing an, FTCA suit for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we review the district court’s factual findings for clear error- and legal conclusions de novo. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). “[T]he court may resolve the disputed jurisdictional fact issues by referring to evidence outside-, of the pleadings, such as affidavits, and if necessary, hold an eviden-tiary hearing.” Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).

We review legal determinations in declaratory judgment actions de novo. Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 63-64 & n.5 (2d Cir. 2012). “We review a district court’s decision to decline supplemental jurisdiction over pendent state law claims for abuse of discretion.” WWBITV, Inc. v. Vill. of Rouses Point, 589 F.3d 46, 49 (2d Cir. 2009).

II. Analysis

It seems clear from the record in the district court that, on the date of the accident, no official or other person at the USDA gave Karim explicit permission— either in writing or orally—to borrow the government-owned Ford Explorer. But the fact that Karim lacked explicit permission does not end the inquiry; if it did, the government could escape liability for its employees’ torts by failing to complete necessary paperwork or by miscommuni-cating messages to its employees. We must therefore inquire as to whether Karim had implied permission.

The material in the record does not establish as a matter of law whether Kar-im had such permission. Supporting Kar-im’s side of the argument, there is (1) the evidence of his past practice at the Rochester duty station of taking a government-owned vehicle overnight and receiving retroactive approval from his supervisor there. Karim argues that he followed this practice on the night of the accident. And there is (2) the signature of Boozer, his Walton-office supervisor, on Karim’s Optional Form 26, which could be interpreted as an endorsement of Karim’s claim on that form that he had authorization to use the vehicle because he submitted a Form AD-728 prior to leaving the office.

Supporting the government’s side of the argument, there is (1) the government’s written policy requiring prior written approval before taking a government-owned vehicle overnight; (2) a statement by Hopkins, the Rochester-office supervisor, and statements from other USDA employees that, at a minimum, prior oral approval from a supervisor was required before a government-owned vehicle could be taken overnight; and (3) Boozer’s Form SF-91, on which he wrote that Karim lacked authorization to take the government-owned vehicle overnight and would not have been given permission if Karim had asked ahead of time.

This dispute over the absence or presence of implicit permission bears directly on the scope-of-employment analysis. The FTCA waives the government’s sovereign immunity in actions for money damages arising out of injury, loss of property, personal injury or death caused by the “negligent or wrongful” act or omission of a government employee “while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). We interpret the FTCA’s “scope of employment” requirement in accordance with the respondeat superior law of the jurisdiction where the tort occurred, see Hamm v. United States, 483 F.3d 135, 138 (2d Cir. 2007)—here, New York. Under New York law, an employee acts within the scope of his employment when (1) “ ‘the employer is, or could be, exercising some control, directly or indirectly, over the employee’s activities,’” and (2) “‘[the employee] is doing something in furtherance of the duties he owes to his employer.’” Id. (quoting Lundberg v. State, 25 N.Y.2d 467, 470, 306 N.Y.S.2d 947, 950, 255 N.E.2d 177, 179 (1969)). Whether Karim had implied permission to take the government-owned vehicle on the night of the accident could influence the outcome of either or both prongs of the scope-of-employment test.

A. ■ Control

First, the absence or presence of implied permission could shed light on whether Karim’s employer exercised control over his use of the vehicle. Without such permission, Karim would not have been acting within the scope of his employment at the time of the accident. Under New York law, it is “clear” that, “as a general rule, an employee driving to and from work is not acting in the scope of his employment, because although such activity is work motivated, the element of control is lacking.” Id. (brackets and internal quotation marks omitted) (citing Lundberg, 25 N.Y.2d at 471, 306 N.Y.S.2d at 950, 255 N.E.2d at 179).

Hamm and Lundberg are the leading judicial authority for us in this regard. Each involved a government employee who caused an automobile accident while driving from his residence to a place of work, and in each case, the court concluded that the government employee in question was acting outside the scope of his employment at the time of the accident. In Hamm, we explained that a military employee was acting outside the scope of his employment when he caused a car accident because

[t]he military [employer] did not require [the employee] to drive between these locations; he had voluntarily chosen to drive. Nor did the military instruct [the employee] on the route to take between [his home] and [the destination] or implicitly direct the route by providing him with a limited amount of time to make the journey.

Id. (internal quotation marks and citation omitted). The employee’s drive to the destination was therefore “not based on -the military’s requirements or orders,” but rather “done purely on his own time in order to commute to his place of employment.” Id. Similarly, in Lundberg, the New York Court of Appeals held that a New York State employee was not acting within the scope of his employment when he caused an automobile accident while driving to a work site eighty miles from his home at the beginning of his work week: At the time of the accident, he was commuting to work and thus was “engaged in an independent personal activity over which the State had no control.” 25 N.Y.2d at 471, 306 N.Y.S.2d at 951, 255 N.E.2d at 179.

In each case, though, there was no question but that the employee was driving his own car from his home to a designated workplace in a manner not controlled by his employer, and the case was decided on the essentially undisputed lack of such control. Here, by contrast, the element of control is very much in dispute. To be sure, no evidence reflects that the time Karim spent driving from Walton to the Holiday Inn was considered to be on the clock or otherwise reimbursable; indeed, the evidence in the record is to the contrary inasmuch as Karim was neither paid nor reimbursed on a per mile basis for time spent commuting to work from his hotel and back. J.A. 164-65, 388, 839-41. But unlike the employees in Hamm and Lundberg, Karim was not driving his own vehicle at the time of the accident; he was driving one owned by the government. And it appears that the government imposes restrictions on employees who drive its vehicles. In the AD-728 form that Karim submitted to his supervisor Boozer prior to driving the government-owned vehicle on the night of the accident, for example, Karim certified:

I will not use this vehicle at any time for my personal convenience or permit others to do so. When parked at or near residence, vehicle will be kept locked and evex-y precaution taken to guard it against damage or theft, etc. I understand that use of this vehicle for other 'than official purposes makes me subject to suspension without pay for a period of not less than one month or to removal summarily from office....

J.A. 394. If Karim operated the vehicle with implied permission, he may have done so subject to those or similar restrictions, which could in turn demonstrate a measure of control by his employer.

Moreover, unlike the employees in Hamm and Lundberg, who were each Simply driving from his home to his place of work, Karim was at least in one sense driving from one place of work (the Walton office) to another (the Highland office), with a stop in between (the Oneonta Holiday Inn). That Karim was at least arguably driving from one place of work to another could add support to a contention that the drive was controlled to a significant extent by his employer, the government. Indeed, in Lundberg, the New York Couid of Appeals recognized an exception to the general rule that an employee is considered to be outside the scope of employment while commuting:

[A]n employee who uses his car in furtherance of his work is acting in the scope of his employment while driving home from his last business appointment, since such a person is working, and is under his employer’s control, from the time he leaves the house in the morning until he returns at night.

25 N.Y,2d at 471, 306 N.Y.S.2d at 950, 255 N.E.2d at 179 (citations omitted). This exception was applied in the pre-Lundberg case of a traveling insurance salesman and premium collector who caused a vehicle accident while traveling to his company’s office for a meeting at the end of his workday, Cooke v. Drigant, 289 N.Y. 313, 317, 45 N.E.2d 815, 817 (1942), and in the pre-Lundberg case of a motor repairman who was returning home in his own vehicle following a day of repair appointments but was still on call at the time he caused the accident in question, see Shauntz v. Schwegler Bros., 259 A.D. 446, 447-50, 20 N.Y.S.2d 198, 198-201 (4th Dep’t 1940) (collecting cases). Karim used a vehicle in furtherance of his work- in order to, among other things, visit other USDA offices and to make field visits. If Karim had implied permission to use the government-owned vehicle for the purpose of facilitating his trip to the Highland office, then like the employees in Cooke and Shauntz, his trip from the Walton office to his hotel could be said to be work-related, and not solely a personal commute.

In order to decide whether Karim’s employer exerted control over his use of the vehicle, the district court thus must-first resolve the factual dispute concerning the implied permission issue.

B. In Furtherance of Duties Owed

If the “control” issue were decided against the government, the district court would then be required to address the second prong of the scope-of-employment test under New York law: whether Karim was acting “in furtherance of’ the duties he owed to the government, as his employer, at the time.of the accident. That question cannot be resolved on the facts in the record before us. Accordingly,' the district court should not have dismissed these actions for lack of subject-matter jurisdiction under Rule 12(b)(1) without first holding an evidentiary hearing.

Karim and Fountain both argue (it being in the interest of both, of course, that the government bear the liability for Fountain’s injuries) that Karim’s taking of the government-owned vehicle on the date of the accident was in furtherance of his duties to the USDA because he was scheduled to travel to the Highland USDA office the following morning, and he drove- the vehicle to the hotel to facilitate that trip. In response, the government argues that Karim drove the vehicle back to the hotel not for any business reason, but in order to take a milder, less steep, and less winding route to the Highland office the next day. According to the government, Karim’s use of the government-owned vehicle was purely for his personal convenience, -and could not have been advantageous to the government, because it “would have resulted in the [government-owned vehicle] being stored offsite unnecessarily ... and driven 97.2 miles more than if Karim had simply picked [the vehicle] up at the Walton office on his way to Highland that morning.” Appellee’s Br. 21. Thus, in the government’s view, the issue boils down to a simple question of geography: Was Kar-im’s- planned route shorter and therefore less costly than the route he would have taken if he had to pick up the government-owned vehicle the following morning?,

But the question whether Karim was acting “in furtherance of the duties he owes to his employer” is more fact-intensive than the government suggests. The New York Court of Appeals has explained that “among the factors to be weighed are”:

the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act' is one commonly done by such an employee; the extent of departure from normal methods of performánce; and whether the specific act was one that the employer could reasonably have anticipated.

Riviello v. Waldron, 47 N.Y.2d 297, 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979) (citation omitted). The question whether an employee was acting “in furtherance of’ the employer’s interests may therefore turn on any number of factors, not a single consideration such as geography or fuel savings. And we can see several potential bases for a conclusion that, by taking the government-owned vehicle overnight, Kar-im was acting in furtherance of his duties to the USDA. For instance, taking the vehicle may have allowed Karim to maximize his time at the Highland office the following day. Or, Karim’s route may have in fact been safer and posed less of a risk of an accident involving the vehicle. Thus, on the facts of this case, if Karim had implied permission to take the government-owned vehicle on the date of the accident, this might in turn imply that his taking of the vehicle was to the USDA’s benefit, and thus in furtherance of his duties to the USDA.

Thus, if Karim’s fateful drive is found as a matter of fact to have fulfilled the first prong of the scope of employment test— the government was or could have been “exercising some control, directly or indirectly, over [Karim’s] activities,” Hamm, 483 F.3d at 138 (quoting Lundberg, 25 N.Y.2d at 470, 306 N.Y.S.2d at 950, 255 N.E.2d at 179)—then there is a reasonable possibility that he could also succeed on the second prong by demonstrating that he was “doing something in furtherance of the duties he owe[d] to his employer,” id. We do not see how the district court, on the record before it, could have conclusively decided whether either of these prongs was or was not satisfied so as to justify dismissing this action as it did.

In sum, we conclude that in light of the genuine dispute among the parties, the district court should not have dismissed these cases for lack of subject-matter jurisdiction without first conducting an evi-dentiary hearing on whether Karim had implied permission to take the government-owned vehicle. We therefore vacate the district court’s decision as to Fountain’s FTCA claim and Karim’s declaratory-judgment action against the government. Having revived the federal claims,- at least for now, we also reinstate Fountain’s state-law claims, as to which the district court declined to exercise supplemental jurisdiction because all federal claims had been dismissed. See Rogoz v. City of Hartford, 796 F.3d 236, 251 (2d Cir. 2015); Velez v. Levy, 401 F.3d 75, 102 (2d Cir: 2005). At a later stage of the proceedings, it may, of course, become appropriate for the district court to determine that there are sufficient grounds to decline to exercise supplemental jurisdiction over the reinstated state-law claims.

Having concluded that the district court’s decision must be vacated in its entirety, we leave it to the district court to address in the first instance Fountain’s and Karim’s arguments concerning VTL § 388, which it did not address in its prior decision.

CONCLUSION

For the foregoing reasons, we VACATE the district court’s judgment dismissing this action for lack of subject-matter jurisdiction, reinstate all claims, and REMAND for further proceedings.

      . Where not otherwise attributed, distances and geographic locations noted in this opinion were calculated using Google Maps, https://www.google.com/maps (last visited Sept. 7, 2016). They are employed for the purpose of providing some geographic orientation for the reader. We do not, of course, treat them as findings of fact.

      . Oneonta is some twenty-five miles north of Walton by road.

      . The FTCA provides that upon certification by the Attorney General that an employee was acting within the scope of his office or employment when he committed the allegedly negligent act, the United States shall be substituted as the defendant in place of the employee, and the FTCA shall be the exclusive remedy for any action or claim arising out of the negligent act. 28 U.S.C. § 2679(b)(1), (d)(1). If the Attorney General refuses to certify that the employee was acting within the scope of his employment, the employee may at any time before trial petition a federal district court for a certification that he was acting within the scope of his employment, 28 U.S.C. § 2679(d)(3), as Karim did in this case.

      . The government’s notice of motion states that it sought a "[s]ummary [¡judgment [dismissing [cjomplaint,” J.A. 640, and the government’s memorandum of law in support of its motion states that it sought a “summary judgment, pursuant to Fed. R. Civ. P. 56, on the ground that Karim was acting outside the scope of employment at the time of the accident," 13-cv-255 N.D.N.Y. Dkt. No. 75-1 at 2.

      . Although the government moved for summary judgment dismissing the complaint in Karim’s indemnification action, not Fountain's tort action, a district court can dismiss an action for lack of subject-matter jurisdiction under Rule 12(b)(1) sua sponte. See Fed. R. Civ. P. 12(h)(3); Digitel, Inc. v. MCI Worldcom, Inc., 239 F.3d 187, 190 (2d Cir. 2001).

      . The district court also purported to dismiss the indemnification action "in its entirety on the merits.” Special Appendix ("S.A.”) 22-23. However, the district court had already dismissed the action “for lack of subject-matter jurisdiction,” S.A. 22, which would seem to have precluded the district court from effecting a merits dismissal.

      . Although Fountain filed a cross-motion for partial summary judgment in both- actions, S.A. 3, the district court’s opinion explicitly denied only the cross-motion in Fountain's tort action, see S.A. 23. Nevertheless, the judgment states that Fountain’s cross-motion was denied without differentiating between the two actions, S.A. 24, which makes clear that it was in fact denied in both actions.

      . This is not to say that implied permission is by itself necessary or sufficient to support a finding that Karim acted within the scope of his employment when he drove to the Holiday Inn. Nonetheless, the district court must resolve this question because the presence or absence of implied permission is a significant factor in determining whether Karim acted under government control and in furtherance of his duties to the government.

      . Our perusal of a map of the area suggests that a direct route between Oneonta, in or near where Karim's hotel was located, and the USDA office in Highland, where Karim had his first appointment on the following day, did not pass through Walton and that a stop in Walton to change vehicles would therefore have added unnecessary time to Karim's trip; Whether that is so (and if so, whether that matters) is of course something to be decided by the district court in the first instance.

      . This accords with one of the grounds for home-to-work transportation listed on Form AD-728: "Compelling operation considerations make the provision of home-to-work transportation essential to the conduct of official business or would substantially increase the agency's efficiency or economy.” See J.A. 394. Indeed, the Form AD-728 that Karim submitted reflects that Karim checked a box indicating that this ground was a proposed basis for receiving official permission to take the vehicle overnight. See id.