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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10473
Non-Argument Calendar
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D.C. Docket No. 6:15-cr-00158-GKS-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL JOSEPH THOMAS PISA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 5, 2017)
Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
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After a jury trial, Carl Pisa appeals his conviction for possessing firearms,
that is, destructive devices as defined by 26 U.S.C. § 5845(a)(8) and (f), that were
not registered in the National Firearms Registration and Transfer Record, in
violation of 26 U.S.C. §§ 5861(d) and 5871. At trial, the government presented
evidence that Pisa sold to an undercover law enforcement agent twelve
professional-grade mortars that had been altered by cementing metal BB pellets to
the outside and wrapping the pellets with tape. On appeal, Pisa challenges: (1) the
sufficiency of the government’s evidence; and (2) the trial court’s denial of his
request for an entrapment jury instruction. After review, we affirm Pisa’s
conviction.1
I. SUFFICIENCY OF THE EVIDENCE
A person is prohibited from receiving or possessing a firearm that is not
registered to him in the National Firearms Registration and Transfer Record. 26
U.S.C. § 5861(d). The term “firearm” is defined broadly and includes a
“destructive device.” Id. § 5845(a)(8). The term “destructive device” includes
“any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket
having a propellant charge of more than four ounces, (D) missile having an
explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F)
similar device.” Id. § 5845 (f)(1). The definition of “destructive device” excludes
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Pisa does not appeal his sentence.
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“any device which is neither designed nor redesigned for use as a weapon.” Id.
§ 5845(f). Thus, to sustain a conviction under § 5861(d) where the firearm is a
destructive device, the government must prove both that the device was an
explosive and that it was designed as a weapon. United States v. Hammond, 371
F.3d 776, 780 (11th Cir. 2004). “[T]he critical inquiry is whether the device, as
designed, has any value other than as a weapon.” Id. at 781. The presence of
design features that eliminate any claimed benign value supports a finding that the
device was designed as a weapon. Id.
With respect to mens rea, the government need not establish that the
defendant knew the firearm in his possession had to be registered. United States v.
Owens, 103 F.3d 953, 956 (11th Cir. 1997). Instead, the government must prove
that the defendant knew that the device he possessed had the characteristics that
brought it within the statutory definition of a firearm. United States v. Miller, 255
F.3d 1282, 1286 (11th Cir. 2001). In other words, the government must prove that
the defendant was aware of the features that subjected the device to registration,
but the government is not required to prove that the defendant knew what features
meet the statutory definition of a “firearm.” United States v. Ruiz, 253 F.3d 634,
638 & n.4 (11th Cir. 2001).
Here, the government’s evidence showed that the twelve altered mortars
were “destructive devices” and therefore firearms that were required to be
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registered.2 Specifically, the government presented evidence that the mortars were
originally commercial aerial shells used in higher-end fireworks displays like those
seen at Disney theme parks. The evidence also showed that a person would need
both state and federal permits to possess this type of commercial pyrotechnic. The
inside of the mortars contained two components—flash powder, an explosive that
creates a flash of light and loud noise, and black powder, an explosive that is
generally used as a propellant. Aside from the regular pyrotechnic mortar, the
devices had copper-coated steel BB pellets glued to their surfaces and then covered
with multiple layers of blue masking tape.
The Consumer Product Safety Commission and the American Pyrotechnics
Association prohibit the use of metal in the production of fireworks as a safety
hazard. The mortars had been modified by the presence of the metal BBs and no
longer functioned as designed. The metal BBs attached to the outside of the
mortars were a form of shrapnel that, when the device was detonated, would travel
at the speed of 2,500 to 3,500 feet per second and would be able to penetrate a
human body.
Pisa asserts that the government never tested the devices to determine
whether they were “anything but fireworks to which ball bearings had been
2
We review the sufficiency of the evidence de novo, viewing the evidence in the light
most favorable to the government and drawing all inferences in favor of the jury’s verdict.
United States v. Ramirez, 426 F.3d 1344, 1351 (11th Cir. 2005).
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cemented.” To the contrary, the government presented evidence that investigators
sent several of the devices to a laboratory to determine how they functioned. Two
devices were detonated to observe the effects, which included BBs penetrating
through quarter-inch drywall and destroying a concrete block. Further, an
explosives expert with the Bureau of Alcohol, Tobacco, Firearms, and Explosives
who disassembled some of the shells testified that the attached BB pellets meant
that the fireworks had no value other than as a weapon and that the altered mortars
fit the characterization of an explosive bomb.
As to mens rea, Pisa argues that the government failed to prove he knew of
the specific features that made the mortars destructive devices. We conclude that
the government presented ample evidence from which the jury could find that Pisa
knew about features of the mortars that made them explosives that were designed
as weapons—the attached metal BB pellets. See Hammond, 371 F.3d at 780.
At the time of the sale, Pisa told the undercover agent in a recorded
conversation that he made the devices, explaining, among other things, that he
attached the metal BBs with cement and then wrapped the devices in tape and that
he had to “glove up” and discharge static electricity from his body before making
them so they would not blow up in his face. Moreover, Pisa knew that the BBs
could cause substantial damage to persons or property, as he explained to the
undercover agent that he had detonated one of the devices and that the BBs had
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blasted out in a perfect cone, causing significant damage to a “heavy-duty”
dumpster. Pisa also assured the undercover agent that the devices could kill a
person, explained that the devices could be set up as booby traps using a trip wire,
and offered to text the undercover agent written instructions on how to do so.
Pisa contends that he did not know precisely what was inside the mortars
because he did not make them. Before the sale, however, Pisa informed the
undercover agent that the mortars were “professional-grade report mortars” used
for fireworks displays, that he could not “crack them open” to add shrapnel to them
because it was too dangerous, but that “[t]hings can be hot glued to the outside like
nails and ball bearings.” This is exactly what Pisa told the undercover agent he did
to the mortars when they met two days later to conduct the sale. The government’s
evidence was more than sufficient to show that Pisa was aware of the features of
the altered mortars that made them “destructive devices” within the meaning of 26
U.S.C. § 5845(f)(1).
II. ENTRAPMENT INSTRUCTION
Pisa argues that the district court erred when it denied Pisa’s requested jury
instruction on entrapment. We find no error because, given the evidence presented
at trial, Pisa was not entitled to an entrapment instruction.3
3
Although this Court typically reviews a district court’s refusal to give a requested jury
instruction for an abuse of discretion, it is unclear whether we review a district court’s decision
not to give an entrapment instruction based on the defendant’s failure to produce sufficient
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The defense of entrapment has two elements: (1) the government’s
inducement of the crime; and (2) the defendant’s lack of predisposition to commit
the crime before the inducement. United States v. Orisnord, 483 F.3d 1169, 1178
(11th Cir. 2007). To be entitled to present an entrapment defense to the jury, the
defendant bears the initial burden of production as to the element of governmental
inducement. United States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010). If
the defendant meets his initial burden of production, the burden shifts to the
government to prove beyond a reasonable doubt that the defendant was
predisposed to commit the crime. Id. The sufficiency of the defendant’s evidence
of governmental inducement is a legal issue to be decided by the trial court. Id. at
1332-33.
A defendant can show inducement by producing evidence sufficient to
create a jury issue “that the government’s conduct created a substantial risk that the
offense would be committed by a person other than one ready to commit it.”
United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995) (quotation marks
omitted). The defendant meets this burden if he produces evidence that the
government’s conduct included some form of persuasion or mild coercion. Id. For
example, the defendant may show persuasion with evidence that he “had not
evidence of governmental inducement de novo or for an abuse of discretion. See United States
v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010) (collecting cases). We need not decide the
issue here because, under either standard, the district court properly denied the instruction.
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favorably received the government plan, and the government had to ‘push it’ on
him, or that several attempts at setting up an illicit deal had failed and on at least
one occasion he had directly refused to participate.” United States v. Ryan, 289
F.3d 1339, 1344 (11th Cir. 2002). The government’s mere suggestion of a crime
or initiation of contact is insufficient to demonstrate inducement. Brown, 43 F.3d
at 623.
Here, the district court did not err in refusing to give Pisa’s requested
entrapment instruction because Pisa failed to carry his initial burden to show
government inducement. Pisa did not present any evidence at trial and instead
relies on the government’s evidence to meet his burden. Pisa emphasizes that the
undercover agent initiated contact with him, but government initiation of contact
does not show inducement. See id. Furthermore, the undercover agent contacted
Pisa only after finding Pisa’s Facebook advertisement offering to sell a military
ground simulator, an explosive device normally used by the military in training.
When Pisa met with the undercover agent to sell the simulator, Pisa explained to
the agent how the simulator could be used as a booby trap by wiring the device to a
trip board. Pisa also stated that he would be able to obtain additional explosive
devices for the undercover agent. Moreover, when Pisa next met with the
undercover agent, Pisa explained that he could attach flechettes or other shrapnel to
the explosive devices. Pisa further explained that putting the flechettes inside the
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devices could help the undercover agent avoid arrest if he was pulled over, because
the devices would look like ordinary fireworks. Pisa did not express any hesitancy
to sell the explosive devices to the undercover agent, despite the agent’s repeated
insinuation that he and his “brothers” wanted to use the devices to set up booby
traps that could harm people. To the contrary, Pisa confirmed that the devices
could kill a person, explained to the undercover agent how to set up the device as a
booby trap, and offered to send the agent instructions.
Pisa asserts that he expressed hesitancy when he at one point told the agent
to seek explosive devices from another source. Specifically, at their first meeting,
the undercover agent told Pisa he was looking for explosive devices to use as
booby traps that could do damage to people. Pisa discussed possible options with
the agent and agreed to try to find something for the agent. When Pisa had no
success after about a month, the undercover agent texted Pisa stating that he
needed the explosive devices soon and asked whether he should look elsewhere.
Pisa responded: “Yea[h] man, see what you can find around besides me. I’ve been
traveling around hard and haven’t had the time to get together with my guy [who
makes explosive devices] for anything I ordered. I’m all the way in Miami for the
next week and won’t be back around Orlando until next week.”
During this exchange, as with all of their interactions, Pisa did not express
any discomfort with the criminal activity; instead, Pisa merely advised the agent
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that because of his travel plans, he could not deliver the devices to the agent
quickly. Furthermore, when they communicated again a few weeks later, Pisa
readily told the agent he now had some explosives to sell, and the two arranged to
meet. Viewed in context, Pisa’s suggestion that the agent find another source did
not indicate reluctance by Pisa to engage in the criminal conduct. See United
States v. Parr, 716 F.2d 796, 803 (11th Cir. 1983) (rejecting defendant’s argument
that his statement to “forget the whole thing” showed his hesitancy to engage in the
criminal scheme because the statement appeared to have been made in frustration
in response to a codefendant’s erratic behavior).
Finally, as the government notes, Pisa was charged here only with
possessing the unregistered destructive devices, not selling them. The undercover
agent did not direct Pisa to find professional-grade mortars; Pisa first obtained the
mortars and then reached out to the agent to determine if he had any interest in
purchasing them. Moreover, when the undercover agent asked about attaching
shrapnel to the mortars, Pisa readily agreed and never expressed any hesitancy to
alter the mortars. Thus, Pisa failed to show that the government induced him to
commit the crime, and an entrapment instruction was not warranted.
Accordingly, for these reasons we affirm Pisa’s conviction for possessing
unregistered firearms.
AFFIRMED.
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