[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12910 MAY 22, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-80136-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON SPOERKE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 22, 2009)
Before MARCUS and PRYOR, Circuit Judges, and EDENFIELD,* District Judge.
PRYOR, Circuit Judge:
*
Honorable B. Avant Edenfield, Senior United States District Judge for the
Southern District of Georgia, sitting by designation.
The main issue presented by this appeal is whether a homemade explosive
device made of polyvinyl chloride (PVC) pipe, which the defendant described as a
“pipe bomb” that could propel shrapnel and admitted was both illegal and
dangerous, is a “destructive device” under the National Firearms Act. 26 U.S.C.
§§ 5801 et seq. We conclude that it is. Aaron Spoerke was convicted of charges
related to the making and possession of unregistered destructive devices after pipe
bombs he made were discovered during a traffic stop and later search of the
apartment where he lived. Spoerke was sentenced to 44 months of imprisonment
and now challenges his convictions and sentence on numerous grounds, including
the constitutionality of the Firearms Act, the validity of the traffic stop and search,
and the reasonableness of his sentence, all of which are without merit. We affirm.
I. BACKGROUND
At 2:22 a.m. on August 15, 2006, Officer Vincent Haugh of the police
department of Boynton Beach, Florida, stopped a Nissan Sentra after observing an
occupant throw a “wrapper or possibly a piece of paper” from a window on the
driver’s side of the vehicle. Officer Haugh approached the stopped vehicle with
his gun drawn because it was late at night and he saw the occupants of the vehicle
“reaching down[ and] reaching around.” Officer Haugh identified himself to the
driver, Raymond Kramer, and asked Kramer for identification. Because Kramer
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did not have his driver’s license, Officer Haugh asked him to exit the vehicle.
When Kramer opened the driver’s door of the vehicle, Officer Haugh
observed a pair of gloves, a flashlight, and a pair of goggles with an attached face
mask, possibly a welding mask, on the floorboard. Officer Haugh frisked Kramer
and found no weapons, but Officer Haugh found a cell phone wrapped in plastic.
Officer Haugh then informed Kramer that he had been stopped for littering.
Kramer denied throwing anything from the vehicle and suggested that one of the
passengers had thrown the item.
Jonathan Geidel, the passenger riding in the backseat, stated that he had
stuck his hand out of the window to wipe away condensation on the window, but
Geidel denied having thrown anything from the vehicle. Officer Haugh asked
Geidel to exit the car, frisked him, and found a pair of gloves, which Geidel stated
that he used for work.
Officer Haugh then spoke to Spoerke, who was seated in the front passenger
seat. When Spoerke admitted that he was carrying a pocket knife, Officer Haugh
asked him to exit the car, frisked him, and found another knife, a pair of gloves, a
flashlight, and a cell phone wrapped in plastic. As Spoerke exited the vehicle,
Officer Haugh saw an open Taco Bell bag on the floorboard of the front passenger
seat that contained two duct-taped balls with a green string attached, which he
3
suspected to be improvised explosive devices. Officer Haugh then asked the final
passenger, Kyle Koehler, to exit the vehicle, frisked him, and found a pair of
gloves and a waterproofed cell phone.
Because he suspected that the four men were involved in a burglary based on
the gloves, masks, and tools present in the car and on their persons, Officer Haugh
conducted an investigation into the potential burglary and the homemade explosive
devices. Officer Haugh removed the devices from the vehicle, placed them on the
roof of the vehicle, and asked the four men what the devices were. Spoerke stated
that they were “pipe bombs” that they liked to “throw . . . in canals and watch . . .
explode.” Officer Haugh inquired about the materials used to make the bombs,
and Spoerke replied that they were made with PVC. Officer Haugh then searched
the remainder of the passenger compartment of the car and found a large knife
under the back seat, a “paintball type mask,” and a cigarette lighter. Officer Haugh
asked Kramer for the keys so that he could search the trunk, and Kramer complied.
Officer Haugh observed a number of tools inside the trunk that could have been
used for burglaries and two four-foot-long pieces of PVC pipe.
After the search of the vehicle was complete, Sergeant Michael Kelly,
Officer Haugh’s supervisor, arrived on the scene and requested the assistance of
the county bomb squad. Officer Haugh placed the bombs back in the vehicle,
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closed the trunk and doors, and sealed off the area. Spoerke and the other
occupants of the vehicle were placed in the back of a patrol car and detained for
possession of bombs. Officer Haugh issued Kramer a written warning for littering.
Special Agent Hugh O’Connor, an agent with the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, arrived at the scene at approximately 4:30 a.m., and after
the bomb squad photographed the devices, Agent O’Connor deactivated the
devices and took custody of the pieces of the bombs and samples of the explosive
powder inside the bombs.
Kramer admitted that they had constructed the bombs at his home and
consented to a search of his car. The agents seized a receipt from “Gator Guns and
Archery Center,” a container of explosive powder, and the Taco Bell bag from the
vehicle. Spoerke and the other detainees were transported to the Boynton Beach
Police Department. Kramer and Geidel consented to a search of their shared
residence. Agent O’Connor interviewed Spoerke after advising him of his rights
under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
Spoerke and Kramer were indicted on charges related to the explosive
devices: conspiracy to unlawfully make destructive devices, 18 U.S.C. § 371; 26
U.S.C. §§ 5822, 5845(a) & (f), 5861(f); unlawfully making one or more destructive
device, 26 U.S.C. §§ 5822, 5845(a) & (f), 5861(f), 5871; 18 U.S.C. § 2; and
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possessing unregistered destructive devices at two different locations, 26 U.S.C. §§
5845(a) & (f), 5861(d), 5871; 18 U.S.C. § 2. Spoerke and Kramer filed several
unsuccessful pretrial motions. Spoerke moved to suppress the physical evidence
and the statements obtained during the stop. Spoerke also adopted Kramer’s
motion to dismiss the indictment on the ground that the National Firearms Act is
unconstitutional facially and as applied. The district court adopted the report and
recommendation of a magistrate judge and denied both motions.
After the district court severed Kramer’s and Spoerke’s cases, Kramer was
placed in a pretrial diversion program, and Spoerke proceeded to trial. Officer
Haugh testified at trial about the stop and the evidence obtained as a result of the
searches of Spoerke and the vehicle. A recording of the traffic stop made by the
video camera in Officer Haugh’s patrol car was also introduced into evidence
during Officer Haugh’s testimony.
The government presented two witnesses who testified about the
composition of Spoerke’s devices. Detective Kenneth Udell, an officer with the
bomb squad of the Sheriff’s Office of Palm Beach County, testified that he had
examined the two pipe bombs removed from the Nissan and that both bombs
contained a black, explosive powder. Detective Udell also testified that he
searched an apartment leased by Kramer and Geidel and seized a pipe bomb that
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was identical to the bombs seized from the Nissan, a PVC pipe, a saw, shavings
from a PVC pipe, PVC pipe cement, a container of black powder, fuses, and duct
tape. Lloyd Erwin, a forensic chemist with the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, testified that he had examined the bomb debris from the
deactivated pipe bombs. He described the bombs as encased in cylinders of PVC
pipe, four inches in length, with an inside diameter of one inch, that contained
black powder, which consisted of potassium nitrate and ascorbic acid, and was
designed to explode in a confined space. He also testified that the fuses worked
properly.
The government introduced evidence about the destructive nature of
Spoerke’s devices. Agent O’Connor, an explosives expert, testified that he
constructed a pipe bomb similar to Spoerke’s devices to test Spoerke’s assertion
that the bombs sank in water. Agent O’Connor testified that his bomb did not sink
when placed in water; it floated. Agent O’Connor also constructed three identical
bombs and detonated them at a weapons range: one bomb was detonated standing
alone; another was strapped to a watermelon and detonated; and the third bomb
was placed inside a locked, plastic tool box and detonated. The watermelon was
destroyed, and the fragments of the tool box were propelled a distance of about 200
feet. The jury viewed videotape recordings of the explosions at three speeds: (1)
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real-time speed; (2) a speed 10 times slower than normal; and (3) a speed 20 times
slower than normal.
Walter Conklin, an explosives enforcement officer with the Bureau,
testified, as an expert, that Spoerke’s pipe bombs could not be legally
manufactured or sold because they did not have an industrial, commercial, or social
use. Conklin stated that Spoerke’s bombs were “weapons” because fragments of
the bomb could be projected in all directions and seriously injure people in the
area. Conklin opined that Spoerke’s pipe bombs were “destructive devices” under
federal law and could not be fireworks because the bombs were designed to project
fragments. According to Conklin, a device need not be lethal to be a destructive
device.
Agent O’Connor also testified about his interview of Spoerke, during which
Spoerke stated that he knew the devices were illegal under state and federal law
and that he knew that if the bomb exploded on land it would be dangerous and
could cause injury. According to Agent O’Connor, Spoerke first stated that he and
Kramer made the pipe bombs, but later stated that he had constructed the bombs
while Kramer “just watched.” Spoerke stated that he and Kramer had detonated
one pipe bomb underwater in a canal earlier in the day before the traffic stop.
According to Spoerke, the pipe bombs made “a good concussion” and he detonated
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them only for personal entertainment. Spoerke said that he did not detonate the
bombs on land because he did not want to be near shrapnel and that he was not
trying to hurt anyone and “just enjoyed seeing ‘a flash underwater’ and feeling a
‘concussion.’” A recording of the interview and a transcript of the recording were
admitted into evidence to corroborate Agent O’Connor’s testimony. Agent
O’Connor also testified that, after the interview, he determined that Spoerke had
not applied to manufacture destructive devices and had not registered the bombs
with the Bureau as provided by the National Firearms Act.
Spoerke did not testify in his own defense and presented one witness, David
Keen, an expert on explosives and pyrotechnics. Keen testified that Spoerke’s
devices were not bombs because, in his opinion, they were not lethal. Keen
testified that Spoerke’s devices were not designed to produce a lethal blast or
fragmentation and were like firecrackers, not weapons. Keen acknowledged that
Spoerke’s devices were not commercially or legally available and that
commercially available fireworks could not be made with plastic pipe. Although
Keen performed no tests of his own, he opined that a device like Spoerke’s would
send sharp plastic fragments only a few inches or feet through the air.
The jury convicted Spoerke on all charges, and the district court sentenced
him to a term of 44 months of imprisonment and three years of supervised release
9
and ordered him to pay a special assessment. The presentence investigation report
assigned a base offense level of 18, which was increased based on specific offense
characteristics to an adjusted offense level of 22, and a criminal history category of
I. The guidelines provided a sentencing range between 41 and 51 months of
imprisonment. Spoerke objected to the report and guidelines range and argued that
he was entitled to a reduction for acceptance of responsibility because he went to
trial only to preserve the constitutional challenge and had not contested the factual
basis of his indictment. The district court determined that Spoerke was not entitled
to the reduction because he had contested a factual element of the case. Spoerke
then argued for a sentence “somewhere between the pretrial diversion [Kramer] got
and 50 months under the guidelines” to avoid unwarranted sentence disparities.
The district court determined that a sentence below the guidelines was not
warranted because a preponderance of the evidence established that Spoerke had
been involved in burglaries in the past.
II. STANDARDS OF REVIEW
Several standards of review govern this appeal. When a motion to dismiss
challenges the constitutionality of a statute, we review de novo the interpretation of
the statute by the district court. United States v. Evans, 476 F.3d 1176, 1178 (11th
Cir. 2007); United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir. 2004). “The
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inquiry into the sufficiency of the government’s evidence produced at trial is a
question of law subject to de novo review.” United States v. Keller, 916 F.2d 628,
632 (11th Cir. 1990). “The court . . . views the evidence in the light most favorable
to the government, with all reasonable inferences and credibility choices made in
the government’s favor.” Id. We will affirm the denial of a motion to acquit if “a
reasonable factfinder could conclude that the evidence establishes the defendant’s
guilt beyond a reasonable doubt.” Id. We review the denial of a motion to
suppress as a mixed question of law and fact; “rulings of law [are] reviewed de
novo and findings of fact [are] reviewed for clear error, in the light most favorable
to [the government,] the prevailing party in district court.” United States v.
Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007). Evidentiary rulings by the district
court are reviewed for an abuse of discretion, United States v. Malol, 476 F.3d
1283, 1291 (11th Cir. 2007), and we will “not reverse an evidentiary decision of a
district court unless the ruling is manifestly erroneous,” United States v. Frazier,
387 F.3d 1244, 1258 (11th Cir. 2004) (en banc) (internal quotation marks omitted).
“We review the denial of a motion for a new trial for abuse of discretion.” United
States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). “A challenge to a jury
instruction presents a question of law subject to de novo review.” United States v.
Ndiaye, 434 F.3d 1270, 1280 (11th Cir. 2006). “[T]he district court has broad
11
discretion in formulating its charge as long as the charge accurately reflects the law
and the facts.” United States v. Chastain, 198 F.3d 1338, 1350 (11th Cir. 1999)
(internal quotation marks omitted). An issue raised for the first time on appeal is
reviewed for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005). “Plain error occurs where (1) there is an error; (2) that is plain or
obvious; (3) affecting the defendant's substantial rights in that it was prejudicial
and not harmless; and (4) that seriously affects the fairness, integrity or public
reputation of the judicial proceedings.” United States v. Hall, 314 F.3d 565, 566
(11th Cir. 2002).
We review de novo the application of the Sentencing Guidelines, United
States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008), and review a criminal
sentence for reasonableness, United States v. Booker, 543 U.S. 220, 261, 125 S. Ct.
738, 765–66 (2005). “The reasonableness of a final sentence is reviewed only for
an abuse of discretion.” United States v. Williams, 526 F.3d 1312, 1321 (11th Cir.
2008) (per curiam). “Review for reasonableness is deferential.” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam). “‘The district court is in a
unique position to evaluate whether a defendant has accepted responsibility for his
acts, and this determination is entitled to great deference on review. Unless the
court’s determination is without foundation, it should not be overturned on
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appeal.’” United States v. De La Rosa, 922 F.2d 675, 680 (11th Cir. 1991)
(quoting United States v. Campbell, 888 F.2d 76, 78 (11th Cir. 1989)).
III. DISCUSSION
Our discussion is divided in four parts. First, we address Spoerke’s
challenge to the constitutionality of the National Firearms Act. Next, we discuss
the sufficiency of the evidence to sustain the finding that Spoerke’s devices were
destructive devices within the meaning of the Act. We then discuss Spoerke’s
remaining challenges to his convictions. Finally, we address Spoerke’s challenges
to his sentence.
A. The National Firearms Act Is Constitutional.
Spoerke argues that the district court erred when it denied his motion to
dismiss his indictment because the National Firearms Act is unconstitutional.
Spoerke argues that the Act is both facially unconstitutional and unconstitutional as
applied to him. The district court rejected both arguments, and so do we.
The National Firearms Act is facially constitutional. The Act, 26 U.S.C. §§
5801 et seq., regulates firearms, including “destructive device[s],” id. § 5845(a)(8),
and requires the taxation and registration of firearms by manufacturers, possessors,
transferors, dealers, importers, and sellers. See United States v. Aiken, 974 F.2d
446, 447 (4th Cir. 1992). The Supreme Court has upheld the Act based on the
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taxation power of Congress, Sonzinsky v. United States, 300 U.S. 506, 514, 57 S.
Ct. 554, 556 (1937), and we have upheld the Act in a decision involving a
“destructive device.” United States v. Ross, 458 F.2d 1144, 1145 (5th Cir. 1972).
“Congress under the taxing power may reasonably impose a penalty on possession
of unregistered weapons.” Id.; see also United States v. Gresham, 118 F.3d 258,
262 (5th Cir. 1997) (“[I]t is well-settled that [the Firearms Act] is constitutional
because it is ‘part of the web of regulation aiding enforcement of the transfer tax
provision in [the Act].’” (quoting Ross, 118 F.2d at 1145)).
Spoerke’s argument that the Act is unconstitutional as applied to him
because pipe bombs are unlawful and cannot be taxed fails. “[T]he unlawfulness
of an activity does not prevent its taxation.” Dep’t of Revenue of Mont. v. Kurth
Ranch, 511 U.S. 767, 778, 114 S. Ct. 1937, 1945 (1994). “A statute does not cease
to be a valid tax measure because it deters the activity taxed, because the revenue
obtained is negligible, or because the activity is otherwise illegal.” Minor v.
United States, 396 U.S. 87, 98 n.13, 90 S. Ct. 284, 289 n.13 (1969). The
constitutionality of the Act as applied to Spoerke does not depend on whether he is
legally permitted to possess the pipe bombs. Gresham, 118 F.3d at 263.
Spoerke’s argument is also based on a false premise: “No federal statute
completely outlaws the possession of pipe bombs . . . ; therefore, their registration
14
is not legally impossible.” Id.; United States v. Eaton, 260 F.3d 1232, 1236 (10th
Cir. 2001) (prosecution for possession of unregistered pipe bombs under the Act
was not unconstitutional because registration of a pipe bomb is not a legal
impossibility). Because Spoerke conceivably could have registered and paid taxes
on his pipe bombs, “the registration requirement governing pipe bombs . . . is part
of the web of regulation aiding enforcement of the transfer tax provision in [the
Act]” and is “plainly constitutional.” Gresham, 118 F.3d at 263 (internal quotation
marks omitted).
We also have rejected an argument by a defendant that his “firearms
conviction violate[d] due process because it punishes him for possessing an
unregistered firearm when registration to [the defendant], a convicted felon, is
precluded by law.” United States v. Rivera, 58 F.3d 600, 601 (11th Cir. 1995).
We explained that, because the defendant could comply with the Act “by declining
to possess firearms[,] . . . his conviction under [the Act] does not violate due
process.” Id. at 602. The same is true for Spoerke and his pipe bombs. Because
Spoerke could have declined to manufacture and possess the pipe bombs, his
indictment and conviction do not violate his right to due process.
B. The Evidence Was Sufficient To Support the Finding That Spoerke’s Devices
Were Destructive Devices Under the Act.
Spoerke argues that the district court erred when it denied his motion for a
15
judgment of acquittal because the evidence was insufficient to convict him.
Spoerke challenges the sufficiency of the evidence as to one element that is
common to each conviction: whether the pipe bombs were destructive devices
within the meaning of the Act. A “destructive device” is defined as an explosive
device that is “designed . . . for use as a weapon.” 26 U.S.C. § 5845(f). Spoerke
argues that the United States failed to prove that the devices were designed to be
used as weapons.
In United States v. Hammond, we ruled that a cardboard explosive device
was not a “destructive device” under the Act because the evidence did not establish
that the device was designed as a weapon. 371 F.3d 776, 782 (11th Cir. 2004).
The device was “a cardboard tube, approximately thirteen inches long and one-
and-one half inches in diameter,” filled with an explosive powder, with the ends
“crimped and dipped in liquid candle wax[,]” three layers of tape wrapped around
the tube, and a fuse attached to the device. Id. at 778. The government argued that
“Hammond’s device came within the statute’s proscriptions because it was an
explosive device,” id. at 780, but we required additional evidence that the device
was designed as a weapon:
Although the statute does define a “destructive device” to include
explosive devices, such as Hammond’s, it also explicitly excludes
from coverage any explosive device not designed for use as a weapon.
Thus, a device that explodes is not covered by the statute merely
16
because it explodes. Statutory coverage depends upon proof that a
device is an explosive plus proof that it was designed as a weapon.
No explosive can constitute a destructive device within the meaning
of the statute unless it has this “plus” factor.
Id. (citation omitted). Because “[t]he government . . . offered no proof of this
required ‘plus’ factor[,]” the evidence was insufficient to prove that the device was
a “destructive device” prohibited by the Act. Id. at 780, 782. An expert for the
government testified that Hammond’s device “was constructed as a ‘weapon,’ [but]
he offered no insight as to how he arrived at this conclusion other than that the
device would explode and cause damage.” Id. at 780. This testimony was
insufficient to prove that the device was designed to be used as a weapon. Id.
Spoerke argues that his pipe bombs were not designed as weapons under
Hammond because “nothing [was] added to [the pipe bombs] to cause harm, such
as tacks, nails, BBs or other small metal pieces which would serve as projectiles or
other items contained in the PVC, such as radioactive material, poison gas, [or]
deadly germs,” but we disagree. Although the Hammond Court, in dicta, provided
a non-exhaustive list of “examples of design features that would support a jury
finding that an explosive device was designed as a weapon,” id., we acknowledged
that a device need not contain projectiles or fit into one of the categories described
in Hammond to be a destructive device under the Act because “the critical inquiry
is whether the device, as designed, has any value other than as a weapon.” Id. at
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781. “[T]he presence of design features that eliminate any claimed entertainment
or other benign value supports a finding that the device was designed as a
weapon.” Id. Spoerke’s devices may be “destructive device[s],” even if they
contained no additional projectiles, because they have no social value.
Spoerke’s admissions alone established that his pipe bombs were designed
as weapons. During the traffic stop, Spoerke described the devices as “pipe
bombs,” and during his interview following his arrest, he described the fragments
from the device as “shrapnel” and stated that they could hurt people nearby. See
id. at 780 (mentioning a device that consisted of pipe that, when detonated, could
propel fragments “like shrapnel against the bodies of those in the vicinity” as a
weapon under the Act). Spoerke distinguished his pipe bombs made of PVC from
devices, like the one in Hammond, made of cardboard, which he described as a
“firecracker.” See id.
The expert testimony introduced by the government also established that
Spoerke’s pipe bombs were designed as weapons. Agent Conklin testified that
Spoerke’s pipe bombs had no social or entertainment use, they propelled
fragments, and the fragments were capable of causing severe injury to people in the
vicinity. The government also introduced a video demonstration of similar pipe
bombs decimating a watermelon, propelling shards of PVC pipe 30 feet, and
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propelling shards of plastic 200 feet when the device was detonated inside a tool
box. Although Spoerke attempted to undercut this evidence with expert testimony,
Spoerke’s expert did not conduct any independent tests. The jury was free to credit
the testimony of the government’s expert and discredit the testimony of Spoerke’s
expert. See United States v. Moore, 525 F.3d 1033, 1040 (11th Cir. 2008).
Spoerke asserts that the pipe bombs were intended for social enjoyment, he
detonated them only underwater, and he enjoyed the concussion of the device
when detonated. Our sister circuits are split over whether the court should consider
the subjective intent of the defendant when determining whether the device was
designed as a weapon. Compare United States v. Oba, 448 F.2d 892, 894 (9th Cir.
1971) (considering the defendant’s subjective intent), with United States v.
Posnjak, 457 F.2d 1110, 1118–20 (2d Cir. 1972) (applying an objective standard to
determine whether the device falls within the reach of the Firearms Act), and
United States v. Johnson, 152 F.3d 618, 628 (7th Cir. 1998) (adopting a mixed
standard). Although the district court instructed the jury on the mixed standard, we
decline to adopt a standard because the evidence of Spoerke’s intent, under any
standard, is sufficient to sustain his conviction.
The jury could have credited the testimony of Agent O’Connor and other
evidence and discredited Spoerke’s evidence that the device was made for social
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enjoyment. See Moore, 525 F.3d at 1040. Spoerke’s assertion that he designed the
pipe bombs for fun and always exploded them underwater is contradicted by Agent
O’Connor’s testimony that the pipe bombs did not sink in water. Although
Spoerke alleges that he made the pipe bombs around only New Year’s Eve and the
Fourth of July, the evidence also established that Spoerke’s pipe bombs were made
in mid-August. The testimony of Agent Conklin and the other evidence presented
by the prosecution, if credited by the jury, were sufficient to establish that
Spoerke’s pipe bombs were designed as weapons and had no social value. See also
United States v. Dempsey, 957 F.2d 831, 834 (11th Cir. 1992) (“We again stress
the indiscriminate and uniquely dangerous propensity of pipe bombs and
grenades.”). The district court did not err when it denied Spoerke’s motion for a
judgment of acquittal.
C. Spoerke’s Remaining Challenges to His Convictions Are Without Merit.
Spoerke challenges his convictions on three remaining grounds: (1) that the
district court should have suppressed physical evidence seized from Kramer’s
vehicle and statements made by Spoerke during the traffic stop; (2) that admission
of evidence against Spoerke was an abuse of discretion; and (3) that the district
court abused its discretion when it denied his motion for a new trial. We discuss
each argument in turn.
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1. The District Court Did Not Err When It Refused To Suppress the Physical
Evidence and Statements from the Traffic Stop.
Spoerke argues that the district court erred when it refused to suppress
physical evidence obtained during the traffic stop, but we disagree. A traffic stop,
which “is a seizure within the meaning of the Fourth Amendment,” United States
v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001), “is constitutional if it is either
based upon probable cause to believe a traffic violation has occurred or justified by
reasonable suspicion in accordance with Terry[v. Ohio], 392 U.S. 1, 88 S. Ct. 1868
[(1968)].” United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008) (per
curiam). Officer Haugh had probable cause, based on the littering violation, to
stop the vehicle. United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998)
(“[L]aw enforcement may stop a vehicle when there is probable cause to believe
that the driver is violating any one of the multitude of applicable traffic and
equipment regulations relating to the operation of motor vehicles.”) (internal
quotation marks omitted); Fla. Stat. §§ 403.413(2)(a), (g), (4) (prohibiting
littering). During a lawful traffic stop, officers also may take steps that are
reasonably necessary to protect their personal safety, Purcell, 236 F.3d at 1277,
including requiring the driver and passengers to exit the vehicle “as a matter of
course.” Maryland v. Wilson, 519 U.S. 408, 410, 117 S. Ct. 882, 884 (1997);
Pennsylvania v. Mimms, 434 U.S. 106, 110–12, 98 S. Ct. 330, 333–34 (1977).
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Officer Haugh was permitted to extend the stop and search the vehicle based
on an objectively reasonable and articulable suspicion that illegal activity had
occurred or was occurring. United States v. Boyce, 351 F.3d 1102, 1106 (11th Cir.
2003) (quoting Purcell, 236 F.3d at 1277). Officer Haugh reasonably suspected
that illegal activity had occurred or was occurring based on his observation of
gloves, goggles, a face mask, and a flashlight in plain view on the floorboard of the
vehicle. His suspicions were heightened by the fact that it was about 2:30 a.m.,
none of the occupants of the vehicle were carrying identification, all of the
occupants had gloves, and Kramer, Koehler, and Spoerke were carrying
waterproofed cell phones. Because Officer Haugh had an articulable suspicion that
Spoerke and the other occupants of the vehicle could have been engaged in a
burglary, he acted reasonably when he prolonged the traffic stop to investigate
further.
Officer Haugh also had probable cause to seize the pipe bombs, which were
in plain view on the floorboard of the vehicle, and search the vehicle for other
contraband. Officer Haugh testified that he observed the bag and the bombs on the
floorboard of the passenger seat when Spoerke exited the vehicle and Haugh
recognized the items as improvised explosive devices. Spoerke argues that “the
video of the traffic stop belies that assertion,” because Officer Haugh “clearly
22
handled the items in the Taco Bell bag as if he was completely unaware they were
explosives . . . .” This interpretation by Spoerke does not make the factual finding
by the district court that Officer Haugh observed the devices and recognized them
as explosives clearly erroneous. Because Officer Haugh observed the contraband
in plain view, he was entitled to seize it. Purcell, 236 F.3d at 1277. The presence
of the pipe bombs also provided probable cause that the vehicle contained
additional contraband or other evidence of a crime and permitted Officer Haugh to
conduct a warrantless search of the vehicle. United States v. Tamari, 454 F.3d
1259, 1261–62 (11th Cir. 2006).
Spoerke’s argument that his statements to Officer Haugh during the traffic
stop should have been suppressed based on a violation of his rights under Miranda,
384 U.S. 436, 86 S. Ct. 1602, fails because Spoerke’s statements fall within the
public safety exception. The “‘public safety’ exception to the requirement that
Miranda warnings be given before a suspect’s answers may be admitted into
evidence,” which the Supreme Court established in New York v. Quarles, 467 U.S.
649, 655, 104 S. Ct. 2626, 2631 (1984), “allows officers to question a suspect
without first [providing Miranda warnings] when necessary to protect either
themselves or the general public.” United States v. Newsome, 475 F.3d 1221,
1224 (11th Cir. 2007) (per curiam). “The exception to Miranda also applies where
23
there is a threat to the officers rather than the public.” Id. at 1225. Officer
Haugh’s questions were designed to discern the threat the bombs presented to the
officer and the nearby public. The threat posed by two pipe bombs in a vehicle on
a city street “outweighs the need for the prophylactic rule protecting the Fifth
Amendment’s privilege against self-incrimination.” Quarles, 467 U.S. at 657, 104
S. Ct. at 2632.
2. The Evidentiary Rulings by the District Court Were Not an Abuse of
Discretion.
Spoerke challenges two evidentiary rulings: (1) the admission of video
recordings of pipe bombs exploding; and (2) the admission of evidence of other
crimes discovered at Spoerke’s arrest. The challenges are without merit. We
address each in turn.
Spoerke argues that the district court abused its discretion when it admitted
evidence of video recordings of pipe bombs exploding because “the devices in the
video did not accurately reflect the devices attributed to” Spoerke, “the
demonstration did not go to an essential element of the crime,” and the prejudicial
nature of the recording outweighed its probative value. We disagree. “As a
general rule, the district court has wide discretion to admit evidence of experiments
conducted under substantially similar conditions.” Barnes v. Gen. Motors Corp.,
547 F.2d 275, 277 (5th Cir. 1977). “Although the conditions of the demonstration
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need not be identical to the event at issue, ‘they must be so nearly the same in
substantial particulars as to afford a fair comparison in respect to the particular
issue to which the test is directed.’” United States v. Gaskell, 985 F.2d 1056, 1060
(11th Cir. 1993) (quoting Barnes, 547 F.2d at 277). Demonstrative evidence is
subject to Federal Rule of Evidence 403 and “should be excluded ‘if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury.’” Id. (quoting Fed. R. Evid. 403).
Spoerke asserts that “the devices in the video did not accurately reflect the
devices attributed to” him, but he fails to support this bare allegation by explaining
the differences between the devices in the demonstration and the devices he
constructed and used. The district court was entitled to credit testimony by Agent
O’Connor that the devices used in the video were constructed to be virtually
identical in almost every aspect to Spoerke’s devices. The parties did not stipulate
to certain facts or issues, and the government had the burden to prove every
element of Spoerke’s crime at trial, including that the devices were “destructive
devices” under the Firearms Act, 26 U.S.C. § 5845(a)(8), and that they were
designed to be weapons, id. § 5845(f). See United States v. Laroche, 723 F.2d
1541, 1543 (11th Cir. 1984). The video demonstration was relevant to prove the
nature of the devices Spoerke constructed and the characteristics of those devices,
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which supported the charge that the devices were designed as weapons. See
United States v. Jones, 124 F.3d 781, 787 (6th Cir. 1997) (“The videotaped
explosion of the replica bomb served as evidence to establish that the bomb was a
destructive device[, and] the district court did not abuse its discretion when it
permitted the United States to show a videotaped explosion of the bomb.”).
Because Spoerke has failed to establish that the probative value of the
demonstration was “substantially outweighed by the danger of unfair prejudice[ or]
confusion of the issues,” Fed. R. Evid. 403, the district court did not abuse its
discretion when it admitted the demonstration video.
Spoerke also argues that the district court erroneously permitted the
government to introduce “[e]vidence which implied other criminal activity,”
including references to the items seized from the vehicle, in violation of Federal
Rules of Evidence 404(b) and 403. We disagree. Although Rule 404(b) prohibits
the admission of “[e]vidence of other crimes, wrongs, or acts . . . to prove the
character of a person in order to show action in conformity therewith,” Rule 404(b)
is a rule of inclusion that allows the admission of evidence of other crimes when
that evidence is “for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R.
Evid. 404(b). Evidence of other criminal activity “falls outside the scope of the
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Rule, when it is ‘(1) an uncharged offense which arose out of the same transaction
or series of transactions as the charged offense, (2) necessary to complete the story
of the crime, or (3) inextricably intertwined with the evidence regarding the
charged offense.’” United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007)
(quoting United States v. Baker, 432 F.3d 1189, 1205 n.9 (11th Cir. 2005)).
The government was permitted to refer to the chain of events, including the
search of the vehicle and arrest of Spoerke, that was an integral and natural part of
the account of the crime, completed the story for the jury, and supported a finding
that the devices found in the vehicle were designed as weapons. See id. at 1346.
“[I]n a criminal trial relevant evidence is inherently prejudicial; it is only when
unfair prejudice substantially outweighs probative value that the rule permits
exclusion.” United States v. King, 713 F.2d 627, 631 (11th Cir. 1983). Spoerke
has not established that the evidence caused him unfair prejudice sufficient to
outweigh its probative value. The district court twice gave a limiting instruction
that instructed the jury that the other items seized from the vehicle were admissible
to prove only whether the pipe bombs were designed as weapons. Any possible
unfair prejudice was cured by the limiting instruction. United States v. Chirinos,
112 F.3d 1089, 1098 (11th Cir. 1997).
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3. The District Court Did Not Abuse Its Discretion When It Denied Spoerke’s
Motion for a New Trial.
Spoerke argues that the district court erred when it denied his motion for a
new trial, and he cites a laundry list of alleged errors by the district court. The only
issue about which Spoerke develops an argument that we have not already
addressed is that the jury instructions were erroneous. That argument fails.
In the district court, Spoerke contested the jury instruction on the ground
that it included ambiguous terms, but on appeal Spoerke argues that the instruction
improperly shifted the burden of proof from the government to him. Because
Spoerke first raises this issue on appeal, we review it for plain error. Rodriguez,
398 F.3d at 1298. “[T]he plain error test is difficult to meet,” id. (internal
quotation marks omitted), and no error, plain or otherwise, occurred here. The jury
instruction was based on our decision in Hammond and accurately stated the law.
The district court also instructed the jury several times that the government had the
burden of proving each element of the crime beyond a reasonable doubt. The
district court did not abuse its discretion when it denied Spoerke’s motion for a
new trial.
D. Spoerke’s Sentence Is Reasonable.
Spoerke challenges the calculation of his guidelines range and the
reasonableness of his sentence. Both arguments fail, and we address each in turn.
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1. The District Court Did Not Clearly Err When It Found that Spoerke Was Not
Entitled to a Sentence Reduction for Acceptance of Responsibility.
Spoerke argues that he was entitled to a three-level reduction of his offense
level based on his acceptance of responsibility because he challenged only the
constitutionality of the Firearms Act, not the factual elements of the offense, but
this argument fails. The Sentencing Guidelines provide a two-level reduction “[i]f
the defendant clearly demonstrates acceptance of responsibility for his offense.”
United States Sentencing Guidelines § 3E1.1(a) (Nov. 2008). The reduction may
be available, in a rare case, even when the defendant proceeds to trial:
Conviction by trial, however, does not automatically preclude a
defendant from consideration for such a reduction. In rare situations a
defendant may clearly demonstrate an acceptance of responsibility for
his criminal conduct even though he exercises his constitutional right
to a trial. This may occur, for example, where a defendant goes to trial
to assert and preserve issues that do not relate to factual guilt (e.g., to
make a constitutional challenge to a statute or a challenge to the
applicability of a statute to his conduct).
Id. § 3E1.1 cmt. n.2. But where “a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse,” he has not accepted
responsibility and is not entitled to a reduction. Id. Spoerke was not entitled to
this reduction because, in addition to his challenge to the constitutionality of the
Firearms Act, he contested that the pipe bombs were destructive devices. See id.;
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United States v. Brenson, 104 F.3d 1267, 1289 (11th Cir. 1997). Spoerke also
attempted to exclude evidence of his guilt. See United States v. Gonzalez, 70 F.3d
1236, 1239–40 (11th Cir. 1995) (per curiam); U.S.S.G. § 3E1.1 cmt. n.2.
2. Spoerke’s Sentence Is Substantively Reasonable.
Spoerke argues that his sentence is substantively unreasonable because of
unwarranted disparities between his sentence of 44 months of imprisonment and
Kramer’s enrollment in a pretrial diversion program, but we disagree. When
imposing a sentence, the district court is required “to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct,” 18 U.S.C. § 3553(a)(6), but Spoerke and Kramer are not
similarly situated. Kramer was never prosecuted or convicted of any conduct, he
was not sentenced, and he is not similarly situated to Spoerke. No unwarranted
disparity exists.
Spoerke’s sentence, which was in the middle of the guidelines range, is also
reasonable. “[T]here is a range of reasonable sentences from which the district
court may choose, and when the district court imposes a sentence within the
advisory Guidelines range, we ordinarily will expect that choice to be a reasonable
one.” Talley, 431 F.3d at 788. The district court did not abuse its discretion.
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IV. CONCLUSION
Spoerke’s convictions and sentence are AFFIRMED.
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