U.S. v. Tagg, No. 08-16860 Non-Argument Calendar.

• Decision Date: 30 June 2009
• Docket Number: No. 08-16860 Non-Argument Calendar.
• Citation: 572 F.3d 1320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Allen TAGG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

572 F.3d 1320

UNITED STATES of America, Plaintiff-Appellee, v. David Allen TAGG, Defendant-Appellant.

No. 08-16860 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 30, 2009.

Rick L. Jancha, NeJame, LaFay, Jancha, et al., Orlando, FL, for Tagg.

Patricia D. Barksdale, Jacksonville, FL, Roberta Josephina Bodnar, Orlando, FL, for U.S.

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

Before HULL, PRYOR and FAY, Circuit Judges.

FAY, Circuit Judge:

David Allen Tagg appeals his conviction for aiding and abetting the unlawful possession of firearms, specifically, unregistered pipe bombs. On appeal, he argues that the evidence was insufficient to support his conviction and that the possession of the pipe bombs was protected by the Second Amendment of the United States Constitution. For the reasons set forth below, we affirm Tagg's conviction.

I.

A federal grand jury returned a single-count indictment against Tagg, Brandon Woll, and Michael Morgan, charging them with aiding and abetting one another in the unlawful possession of a firearm, specifically, an unregistered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871, and 18 U.S.C. § 2. Woll and Morgan pled guilty pursuant to written plea agreements, and Tagg proceeded to trial.

At trial, the government called Kelly Boaz, a bomb technician with the Orange County Sheriff's Office. He testified, inter alia, that on July 2, 2007, he was called to investigate an explosive device that detonated inside a trash receptacle in downtown Walt Disney World. Boaz determined that the explosive device had been a pipe bomb, as there were pieces of galvanized pipe found in and around the trash receptacle. The investigation "went cold" until September 2007, at which time Boaz received an anonymous tip, informing him that Woll, Morgan, and a woman named Sarah Folsom were responsible for the pipe bomb. Boaz subsequently interviewed Tagg, whose name had come up during the investigation, and Tagg informed him that, although he had driven Woll and Morgan to the Bass Pro Shop, where he had purchased cashew nuts, he did not recall purchasing gunpowder there. Morgan informed Boaz during the investigation that the devices had been manufactured in Tagg's garage, and, upon searching Tagg's garage with his consent, Boaz found a drill, a vice grip, and PVC pipe that Morgan indicated were used to manufacture the pipe bombs.

The government called Morgan, who testified that he and Woll built three pipe bombs on July 1, 2007, using galvanized steel pipe, gunpowder, a vice grip, and a drill. Because Woll and Morgan were only 20 years old—and they believed that they had to be 21 to purchase gunpowder—they asked Tagg to buy it for them so that they could make pipe bombs. Tagg reluctantly agreed, drove them to the Bass Pro Shop, and purchased gunpowder and cashews. Morgan and Woll made the pipe bombs in Tagg's garage, during which time Tagg sat in his chair seven or eight feet away, read the newspaper, and looked over at them occasionally. After Morgan and Woll finished constructing the pipe bombs and showed one to Tagg, Morgan expressed an interest in lighting one right there, but Tagg said, "No. Go off somewhere else." As a result, Morgan and Woll left Tagg's house and lit two of the pipe bombs, only the first of which exploded. They then went to see a movie at Disney World, after which time, at around midnight, Morgan, Woll, and Folsom detonated the third pipe bomb in the trash receptacle at Disney World.

The government called Agent Lori McLaughlin of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), the lead investigator in the case. She testified, inter alia, that she went to the Bass Pro Shop, where the store manager provided a receipt indicating that, on July 1, 2007, someone purchased cashew nuts and gunpowder. Although the customer paid in cash, the manager was able to retrieve the telephone number provided by the customer, which McLaughlin later discovered to be Tagg's home phone number.¹ McLaughlin, like Boaz, later discovered in Tagg's basement the drill and vice grip that Morgan indicated he used to make the pipe bombs.

After the government rested, the defense called Tagg and Woll, who were stepfather and stepson. They both testified that, although Tagg drove Woll and Morgan to the Bass Pro Shop, Tagg did not purchase the gunpowder, did not know that Woll and Morgan planned to build pipe bombs, and did not see them build the pipe bombs in his garage.

The jury ultimately returned a guilty verdict against Tagg on the sole count of the indictment. At no time did the defense move for a judgment of acquittal. The court subsequently sentenced Tagg to two years' imprisonment.

II.

"We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government and accepting all reasonable inferences in favor of the verdict." United States v. Mendez, 528 F.3d 811, 814 (11th Cir.) (emphasis added), cert. denied, ___ U.S. ___, 129 S.Ct. 292, 172 L.Ed.2d 150 (2008). As the government points out, our standard of review is even more deferential here because Tagg did not move for a judgment of acquittal in the district court. As a result, "we may reverse the conviction only to prevent a manifest miscarriage of justice. This standard requires the appellate court to find that the evidence on a key element of the offense is so tenuous that a conviction would be shocking." United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (citation omitted). As discussed below, Tagg cannot show that upholding his conviction would result in a miscarriage of justice because, even applying our traditional sufficiency standard of review, he would not be entitled to relief.

The National Firearms Act ("NFA") makes it unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record[.]" 26 U.S.C. § 5861(d); see id. § 5841(a) (establishing the central registry). The statute defines the term "firearm" as, inter alia, a "destructive device," id. § 5845(a)(8), which, in turn, is defined as, inter alia, "any explosive ... bomb," id. § 5845(f)(1)(A). "Although § 5861(d) contains no express mens rea requirement, the Supreme Court has held that the government must prove beyond a reasonable doubt that the defendant knew that the weapon 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) (citing Staples v. United States, 511 U.S 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)). In other words, the government must prove that the defendant was aware of the features subjecting the firearm to registration; however, the government does not have to prove that the defendant knew "what features define a `firearm' under 26 U.S.C. § 5845(a)." United States v. Ruiz, 253 F.3d 634, 638 & n. 4 (11th Cir. 2001). Nor is the government required to prove "that the defendant knew that his possession was unlawful, or that the firearm was unregistered." Miller, 255 F.3d at 1286 n. 3 (citing United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971)).

In this case, it is undisputed that Tagg was not convicted of actually possessing an unregistered firearm, but was rather convicted of aiding and abetting such unlawful possession by Woll and Morgan. See 18 U.S.C. § 2(a) ("Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."). "To prove guilt under a theory of aiding and abetting, the Government must prove: (1) the substantive offense was committed by someone; (2) the defendant committed an act which contributed to and furthered the offense; and (3) the defendant intended to aid in its commission." United States v. Camacho, 233 F.3d 1308, 1317 (11th Cir.2000).

The first element above is not at issue in this case, as both Woll and Morgan, who actually possessed the pipe bombs, pled guilty to violations of § 5861(d).² Instead, Tagg's primary argument on appeal is that he was a "mere spectator" and, thus, did not intentionally facilitate Woll and Morgan's possession of the pipe bombs. However, there was substantial evidence introduced at trial that could have allowed a reasonable jury to reach a contrary conclusion. Most significantly, Morgan testified that Tagg drove Woll and Morgan to the Bass Pro Shop, purchased gunpowder for them with the understanding that they planned to use it to build pipe bombs, observed Woll and Morgan build the pipe bombs in his garage with his tools, saw the finished product, and told them to go light the pipe bombs somewhere else. Morgan's testimony was corroborated in part by Officer Boaz and Agent McLaughlin, who discovered in Tagg's garage the tools that Woll and Morgan used to build the pipe bombs. McLaughlin also testified that, in investigating the gunpowder transaction, she discovered that the purchaser provided the Bass Pro Shop with Tagg's home telephone number.

The defense introduced conflicting testimony through both Tagg and Woll, namely, that Tagg did not purchase the gunpowder and was unaware that Woll and Morgan planned to, and, in fact, did, build pipe bombs in his garage. However, the jury clearly did not believe their testimony, and Tagg offers no reason on appeal why we should disturb the jury's credibility determination.³ See United States v. Siegelman, 561 F.3d 1215, 1219 (11th Cir. 2009) (explaining that we defer to the jury's credibility determinations); United States v. Pearson, 746 F.2d 787, 794 (11th Cir.1984) ("Although there was substantial conflicting defense testimony, all conflicts in the evidence must defer to the jury's resolution of the weight of the evidence and the credibility of the witnesses."). Thus, in light of the testimony given by...