U.S. v. Spoerke, No. 08-12910.

Decision Date22 May 2009
Docket NumberNo. 08-12910.
Citation568 F.3d 1236
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Aaron SPOERKE, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS and PRYOR, Circuit Judges, and EDENFIELD,* District Judge.

PRYOR, Circuit Judge:

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 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 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, 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, 16 L.Ed.2d 694 (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 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 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) 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...

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