United States v. Bolatete
| Decision Date | 29 September 2020 |
| Docket Number | No. 18-14184,18-14184 |
| Citation | 977 F.3d 1022 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bernandino Gawala BOLATETE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Germaine Seider, Peter J. Sholl, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.
Lynn Palmer Bailey, Federal Public Defender, Mark Rosenblum, Maurice C. Grant, II, Federal Public Defender's Office, Jacksonville, FL, Rosemary Cakmis, Federal Public Defender's Office, Orlando, FL, for Defendant-Appellant.
Before BRANCH, LUCK, and ED CARNES, Circuit Judges.
At 70 years old and in failing health, Bernandino Bolatete decided that his last act on this Earth would be one of hatred and violence. He made plans to climb to the top of a tower at a mosque in Florida and shoot innocent Muslims. He had an arsenal of rifles to carry out the attack and knew how to use them. Fortunately, someone overheard Bolatete talking about his plans and reported him to law enforcement. An undercover detective gained Bolatete's trust, confirmed that he planned to attack the mosque, and then sold him an unregistered firearm silencer. Because possessing an unregistered silencer is a federal crime, Bolatete was arrested, convicted, and sentenced to prison where he is today.
The district court rejected Bolatete's constitutional challenge to the statute making it a crime to receive or possess an unregistered firearm silencer. The court sentenced him to 60 months in prison. This is his appeal of his conviction and sentence.
In late 2017, the Jacksonville Sheriff's Office received a tip that Bolatete was planning to commit a mass shooting at a local mosque. The person who provided the tip said that Bolatete had just been given some "bad news" about the condition of his one remaining kidney and would have to start dialysis soon. She reported that Bolatete was going to time the mass murder for when he otherwise would have had to start dialysis; apparently, he did not plan on surviving his crime.
A Sheriff's Office detective with a long resumé of undercover work was assigned to investigate. The detective's plan was to take on an undercover persona as a Muslim-hating gun enthusiast named "Drew" and gain Bolatete's trust so he could find out if he was serious about killing Muslims at the mosque. The detective introduced himself as Drew at the liquor store where Bolatete worked, and the two of them bonded over their "shared" hatred of Muslims and love of guns.
Less than two weeks after the detective and Bolatete met, they went to a shooting range together. The detective drove Bolatete to the range in a car that had been wired to covertly record video and sound. Their route took them by the mosque that Bolatete had planned to attack, and as they drove by, the detective made a comment about the mosque. That passing comment was all it took to get Bolatete to start sharing his violent plans.
Bolatete pointed out a tower near the mosque and said that was where he was "planning to stay" after his kidney doctor told him it was time to start dialysis. By "stay," he meant that he would go up the tower and start "shooting those Muslims" until the police killed him. Bolatete said that he wanted to "try a Christian doing [a] terroristic ... act this time ... to the Muslims," because Muslims were "doing it all the time." The detective asked Bolatete: "You['re] just going to climb up in the tower and—" Bolatete answered that yes, he was just going to "go up to the tower and start shooting." He laughed and asked his new friend: "[I]t will be great, right?"
Even though Bolatete was laughing, his plan was no joke. He explained that he had already gone onto the mosque property to scope out the tower and make sure he could get in it. He had learned that the best day to carry out the attack would be a Friday, when Muslims attend religious services. And he had an arsenal of five rifles, including an AR-15 assault rifle, that he could use to carry out the attack. He told the detective that his next kidney appointment was less than a month away. Time was running out.
Over the next ten days, the detective and Bolatete exchanged text messages and spent more time together, and Bolatete twice steered their conversation toward firearm silencers.1 The first time he mentioned silencers was while the detective was driving him home from a second trip to the shooting range together. The two men were talking about the availability of automatic weapons in the United States compared to the Philippines, where Bolatete was born, when Bolatete said, unprompted: "You can even, uh, get the suppressors there." The detective had never mentioned suppressors or silencers (which are the same thing) when Bolatete brought up the subject.
The second time Bolatete brought up silencers was at the liquor store when the detective visited him on November 20. As part of his undercover story, the detective told Bolatete that he and his boss had done some electrical work for a Muslim client who had refused to pay them, costing his boss $30,000. Bolatete responded that the "only thing to do is, uh, shoot him somewhere." He recounted that there had been "one asshole like that in, um, in the Philippines," and he had settled their differences by shooting the man with a .22 caliber pistol equipped with a silencer. Bolatete suggested that the detective and his boss could do something similar to deal with their problem client. He advised that they should "study [the client's] movements" and "hit" him in a rough part of town. He also recommended taking the client's wallet after the hit so that it looked like a robbery gone wrong.
Because Bolatete had mentioned silencers twice, the detective decided to gauge his interest in buying one. The next time they went to the shooting range, on November 24, the detective brought a rifle that had a silencer attached. His story was that he had borrowed the rifle and silencer from a friend who was in financial trouble and needed to sell all of his guns. He told Bolatete that his friend was selling the rifle for $300 or $400.
After they shot the rifle together, Bolatete told the detective that $300 would be a good price, especially if it included the silencer. The detective offered to buy the silencer from his friend and sell it to Bolatete. Bolatete did not say anything in response to that offer but he nodded and, according to the detective, appeared interested. Bolatete also commented that the silencer was not very silent, that it was much louder than the one that he had on his .22 caliber pistol in the Philippines, and he added that it was louder than it should have been even considering the bigger powder load of a rifle round. His appraisal was not all criticism, though. He did offer his view that the silencer was attached to the rifle very well. Bolatete knew a thing or two about silencers.
During the drive home, Bolatete called a friend of his—another gun enthusiast—and spoke with him in a language that the detective couldn't understand. Then he told the detective that according to his friend, $300 for the rifle was a "giveaway price" and if the silencer were included it would be even better. But, Bolatete noted, there was no need for the silencer because they were not going hunting (where a silencer would be useful to avoid scaring off the animals). He also warned the detective that the police were "very hot" on silencers.
During the same drive, the detective offered to help Bolatete with the mosque shooting. That offer, it seems, went too far. Bolatete immediately downplayed the seriousness of his plan, saying that it was just "wishful thinking." He refused the detective's offer of assistance, explaining that the reason he was turning him down was that the detective was healthy, young, and had a child. Bolatete then started talking about his own family. He said that his eldest son, who had cerebral palsy, had always wanted to see this country, and he wanted to bring him to the United States and let him see it "before I [unintelligible]."2
After arriving at Bolatete's house, the two men talked outside the car. Bolatete said that the detective could use the silencer on the troublesome Muslim client who had refused to pay for his electrical work. When the detective suggested that Bolatete could use the silencer at the mosque, Bolatete said there was "[n]o need for a suppressor there" and that he "[didn't] need the suppressor." They parted ways without a goodbye, which made the detective think that Bolatete no longer trusted him.
The detective feared that he had offered too much help too fast and had blown his cover as a result. Frustrated, he called his supervisor. He told him that Bolatete had "no desire to own a silencer," and that the timeline for the mosque attack had changed because Bolatete wanted to bring his son to the United States first. The detective commented that the only angle they had left was to start sending Bolatete more anti-Muslim rhetoric by text message, "since he says he doesn't need a silencer or a rifle or anything like that."
The detective gave up on selling Bolatete a silencer, but he kept up contact with Bolatete, hoping to learn more about his plans for mass murder. Over the next few days, Bolatete texted the detective twice asking whether he had bought the rifle from his friend. The detective said that his friend was asking $300 for the rifle or $400 for the rifle and silencer, and he was looking into the licensing rules for the silencer.
On November 27 the detective visited Bolatete again at the liquor store. He didn't plan to mention the silencer. And he didn't have to because Bolatete brought it up, asking the detective if there was "[a]ny solution" yet to the problem of the Muslim client who hadn't paid his bill. When the detective said there wasn't, Bolatete suggested: "[Y]ou can use the silencer for that guy." Then Bolatete asked about the rifle. The...
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