A former Cass County resident is on trial in Marshall’s federal court this week, facing charges of possessing a homemade bomb, described as a firearm, which is unregistered in the National Firearms Registration and Transfer Record.

According to prosecutors representing the United States, Department of Public Safety troopers found the defendant, 57-year-old Thomas Asa Harbarger, in possession of what looked like a pipe bomb during a search of his vehicle on Aug. 2, 2019.

The jury trial kicked off on Monday at the Sam B. Hall Jr. Federal Building and United States Courthouse with US District Chief Judge Rodney Gilstrap presiding.

Harbarger has pleaded not guilty, contending that he wasn’t aware that the homemade bomb was illegal and that an unidentified person manufactured it for him for the purpose of blowing up a beaver dam.

“I thought it was a flashbang…an M-80 or M-100, (like) back when we were kids. That was the thing,” the defendant told the jury. “To me, an M-80 or M-100 is a firecracker.”

Background

DPS Sgt. Wayne Johnson told jurors Monday that he was patrolling the Atlanta, Texas, area the day in question, about 10:40 p.m., when he encountered what appeared to be a broken down pickup truck on the northbound side of State Highway 43, with the driver possibly in need of assistance.

“I stopped to check on him,” said Johnson.

The officer noted the first issue he ran into with the driver and sole occupant, who was later identified as Harbarger, was that a run on the vehicle registration information revealed that the vehicle had been reported stolen.

Harbarger maintained that the vehicle wasn’t stolen, and told the officer that he had bought the truck from someone, but was behind on the payments.

Sgt. Johnson said when he attempted to gain more information about Harbarger, the defendant first falsely identified himself as being Mark Dewayne Whitley. He further lied about his age, telling the officer that he was born in 1980.

“I knew that wasn’t right,” Johnson told the jury. “It was obvious he wasn’t being honest about his date of birth.”

Johnson said Harbarger further claimed that he didn’t have an ID. He also told the officer he couldn’t remember his Social Security number and that he didn’t have a cell phone.

The state trooper said he ended up detaining Harbarger while DPS Corporal David Stewart arrived on the scene to assist him.

Upon a search of Harbarger’s truck, Corporal Stewart ultimately found a wallet, containing the true identification of Harbarger. The wallet consisted of two Texas Department of Criminal Justice identification cards, revealing the defendant’s age and date of birth as Aug. 28, 1963.

After running his information through the system, Trooper Johnson discovered that Harbarger had a parole violation warrant, out of Austin as well as out of Dallas County.

Upon a further search of the vehicle, Corporal Stewart saw what appeared to be a pipe bomb with a fuse, located in the driver’s side door panel pocket.

“Is that a pipe bomb? What the heck is that? It’s got a fuse on it. It may be an explosive,” Corporal Stewart is heard saying on his body cam as he beckons Trooper Johnson to come check it out.

“That looks like some sort of homemade explosive device to me,” Stewart is heard saying as Johnson concurred.

Stewart told jurors Monday that his suspicions prompted him to call the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives). The officer said it didn’t take him to be an expert to know he didn’t need to be handling the device any further.

“I picked it up, looked at it. It had a fuse to it,” he said.

He said he transported the device to be stored at the Atlanta Police Department after calling ATF Special Agent Curt Collins to report that it did not have a trigger switch.

Expert Witnesses

Agent Collins testified Monday that he retrieved the potential destructive device, at the Atlanta PD, placed it inside an explosives day box and transported it to the ATF explosives evidence bunker for safekeeping.

Collins said he ultimately met with ATF Bomb Technician Randall Dockens and Explosives Enforcement Officer Gary Smith, who performed a render safe procedure on the device. The officials ending up doing a burn test on a small sample of the black colored powder found inside of the device.

“It burned, what I thought, vigorously,” Agent Collins said.

Collins then submitted an inquiry to the National Firearms Registration and Transfer Record that indicated Harbarger did not have any firearms registered to him.

The FTA agent subsequently interviewed the defendant, Harbarger, about the pipe bomb found in the door panel of his vehicle. Harbarger told him their county road flooded when it rained; thus he used the devices to “blow up” beaver dams.

“I did it twice, maybe two or three times,” he’s heard saying in the interview video, noting he’d be acting alone.

When asked in the interview if the device worked, Harbarger said: “Not really. It could’ve been more powerful.”

Harbarger further noted that his friend built the explosives, but declined to give a name. On Monday, he still refused, when asked on the stand, to reveal a name.

Collins noted that the destructive device was made of bamboo with pennies on the side.

When asked by attorney Jeffrey Scott Harrelson, representing the defendant, if he had any evidence to dispute the defendant’s claims that he didn’t make the device, the FTA agent said no.

Harrelson argued that his client couldn’t register it even if he wanted to because only manufacturers could register the device.

Collins agreed, but said he’d have to get permission to lawfully possess it, too.

“It has to be legally registered for it to be legally possessed,” said Collins.

The chemist who analyzed the powder inside of the device also testified, saying he concluded that it was a black powder substitute registered to a company called Pyrodex.

“It burned energetically,” the chemist said.

FTA Explosives Enforcement Officer Gary Smith also took the stand Monday, explaining that he disassembled and examined the device to determine whether it met the definition of a destructive device, according to statute.

In his report, Smith opined that it was an improvised explosive bomb, which is defined as a destructive device.

Describing the device, he said the bamboo tube was about eight inches long. It boasted metal caps on each side that were fused in place, a plastic bottle cap to seal the end, and two pennies on the opposite side of the fuse end. It was completely filled with black colored powder.

“It performed as we assumed it would, a very energetic burn,” said Smith. “It fluttered like setting a piece of paper on fire.”

Smith noted that the metal ends and pennies were there to create more fragmentation. Smith further opined that the characteristics of the device would not be consistent with a commercial device, such as what’s found at a firework stand. It had more explosive fillers.

He said the metal caps would not be consistent with a commercial explosive, but would be consistent with a weapon.

Defendant Testimony

Taking the stand, the defendant, Harbarger, told jurors he lied to state troopers about his name and age because he had a parole warrant out for his arrest for not reporting to his parole officer. He said he didn’t realize his ID was in his truck.

He said it was at a Fourth of July picnic party at a barn he was living in when he mentioned to a friend his need to get rid of the beaver dams.

“Now, I’m’ a felon. I’m not allowed to have a firearm,” Harbarger said.

Thus, he said his friend suggested taking the rest of his fireworks to make some devices to get rid of the beavers. He said the unidentified friend dropped the devices on top of the water, and it made a burping vibration.

“All it did was burp. It was just a big bubble that came out of the water, like someone farted under water,” Harbarger told jurors, stressing that it wasn’t explosive.

“I’ve never set one off,” he claimed in court. “To be frank, I didn’t know it was wrong. I’m a city boy. I never lived in the country. He just said this would work. I was gullible.”

Harbarger said it was never his intent to hurt anyone or damage any property.

Questioning Harbarger, US Attorney James Noble, representing the government, asked the defendant if he expects them to believe him now after all the lies he initially told police when they encountered him.

“Isn’t it true you tell lies when it’s in your interest. Isn’t that what you were doing on August 2?” Noble asked Harbarger.

“Yes,” the defendant said.

When asked by his lawyer, Harrelson was he trying to lie to get himself out of trouble now, Harbarger said no.

“No, I am not,” he said, looking at the jury.

Closing arguments continues today in US District Chief Judge Rodney Gilstrap’s courtroom.