United States v. Curtner, Eric A. , 260 F. App'x 907 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 18, 2008
Decided January 18, 2008
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 07-2007
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois
v. No. 06-20003-01
ERIC A. CURTNER, Michael P. McCuskey,
Defendant-Appellant. Chief Judge
ORDER
Police in Matoon, Illinois, stopped a car driven by Eric Curtner and
discovered a pipe bomb in the glove box. A federal jury found him guilty of
possessing an unregistered destructive device, see 26 U.S.C. §§ 5861(d),
5845(a)(8), (f), and the district court sentenced him to 120 months’ imprisonment.
Curtner filed a timely notice of appeal, but his newly appointed lawyer moves to
withdraw because she cannot discern a nonfrivolous basis for the appeal. See
Anders v. California, 386 U.S. 738, 744 (1967). Curtner opposes that motion.
See CIR. R. 51(b). Counsel’s supporting brief is facially adequate, and we limit our
review to the potential issues discussed by counsel and Curtner. See United States
v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
On December 13, 2005, Matoon police officer Jeff Branson observed a Pontiac
Grand Prix pass his patrol car at normal speed. Branson did not recognize the car,
No. 07-2007 Page 2
but he thought he recognized the bearded driver as Charlie Cowger. Branson knew
that Cowger did not have a valid driver’s license, so he signaled for the Grand Prix
to stop while he and his partner confirmed over the radio that Cowger did not have
a valid license.
When Branson approached the car, he was surprised to find that it was not
Cowger behind the wheel but Curtner. Curtner also had a beard, though his was
trimmed closer than Cowger’s, and his hair was darker than Cowger’s. But
Branson also knew Curtner from previous contacts and suspected that he, too,
lacked a valid driver’s license, so he asked Curtner whether that was the case.
Curtner replied that his license was suspended, and Branson arrested him.
Branson then found the seven-inch pipe bomb while searching the Grand Prix. He
showed it to Curtner and asked what it was, and Curtner said it was a “fire bomb”
that belonged to him, not his girlfriend, who owned the car. Later, after being read
the Miranda warnings, Curtner again admitted that the device was his.
After the matter was referred to federal authorities for prosecution, Curtner
wrote the district court complaining that his appointed lawyer would not move to
suppress the pipe bomb or his incriminating statements. The court construed that
letter as a motion to suppress, and convened an evidentiary hearing. At the hearing
counsel told the court that he “would have to concede” that “clearly there were
grounds for a Terry stop,” but he argued that Branson nonetheless should have
allowed Curtner to leave when he realized the driver was not Cowger. The court
rejected this theory, and the jury rejected Curtner’s defense that he didn’t know the
device constituted an illegal destructive device.
Counsel and Curtner first consider whether Curtner could argue that the
district court should have suppressed the pipe bomb and his statements on grounds
that both the mistaken traffic stop and subsequent detention were unlawful. Any
challenge to the initial stop, however, would be frivolous because during the
suppression hearing trial counsel waived any claim about the stop when he
explicitly conceded that it was supported by reasonable suspicion. See United
States v. Murdock, 491 F.3d 694, 698 (7th Cir. 2007) (“[A]n argument that has been
waived is unreviewable on appeal.”); United States v. Cooper, 243 F.3d 411, 415-16
(7th Cir. 2001) (explaining that waiver occurs “where either a defendant or his
attorney expressly declined to press a right or to make an objection”). But Curtner
still could argue, as he did in the district court, that it was unlawful for Branson to
prolong his detention after realizing that Curtner was not the man he intended to
stop.
We agree with appellate counsel, however, that any challenge to the
continued detention would be frivolous. When evaluating a ruling on a motion to
suppress, we review the district court’s legal conclusions de novo and its findings of
No. 07-2007 Page 3
fact for clear error. United States v. Barnett, 505 F.3d 637, 639 (7th Cir. 2007).
Here, as noted by the district court, Branson’s brief and immediate inquiry about
the status of Curtner’s license was reasonable; Curtner conceded that he already
had been lawfully stopped, and Branson’s inquiry did not itself prolong the stop.
See United States v. Muriel, 418 F.3d 720, 725-26 (7th Cir. 2005) (explaining that
police may ask questions unrelated to purpose of traffic stop so long as they do not
unreasonably prolong the detention); United States v. Childs, 277 F.3d 947, 949 (7th
Cir. 2002) (en banc) (“[Q]uestions that do not increase the length of detention (or
that extend it by only a brief time) do not make the custody itself unreasonable or
require suppression of evidence found as a result of the answers.”). It was Curtner’s
answer that caused his further detention, but of course Branson had probable cause
to make an arrest as soon as Curtner acknowledged that his license was suspended.
See 625 ILL. COMP. STAT. 5/6-303.
In her Anders brief counsel also considers whether Curtner could pursue
additional suppression claims that were never raised or discussed in the district
court. Counsel first evaluates whether Curtner might contend that the search of
the glove box was not incident to his arrest because he already was detained in
Branson’s police cruiser when the search was conducted. Counsel also discusses
whether Curtner might claim that the district court should have suppressed his
initial admission that the object in the glove box was a “fire bomb” belonging to him,
since Branson asked about it before administering Miranda warnings. Counsel
concludes that both contentions would be frivolous on the merits, but we cannot
review a forfeited suppression claim, not even for plain error, without a prior
showing of “good cause” for the forfeiture. See FED. R. CRIM. P. 12(e); United States
v. Johnson, 415 F.3d 728, 730-31 (7th Cir. 2005). Counsel, though, has not
articulated any cause for Curtner’s forfeiture of these new claims, and for that
reason alone it would be frivolous to present them on appeal. See United States v.
Brodie, 507 F.3d 527, 531 (7th Cir. 2007) (“This court has repeatedly held that there
is no good cause to excuse a Rule 12 forfeiture where a defendant files a timely
motion to suppress on one ground, and later seeks to assert a new ground for
suppression for the first time on appeal.”).
Next, counsel and Curtner explore whether Curtner could challenge the
sufficiency of the evidence underlying his conviction. We agree with counsel that
this, too, would be a frivolous argument. Section 5861(d) makes it unlawful “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). Firearms requiring
registration include “destructive devices.” Id. § 5845(a)(8), (f). At trial Curtner
conceded that the government’s expert testimony established that the pipe bomb,
which was not registered to Curtner, qualified as a “destructive device” requiring
registration. And Curtner’s admissions that it was his device established knowing
possession. The only issue for the jury, then, was whether the government had
No. 07-2007 Page 4
proved that Curtner knew his “fire bomb” had the “particular characteristics that
brought this weapon within the scope” of the registration requirement. See United
States v. Jones, 222 F.3d 349, 352 (7th Cir. 2000); see also Staples v. United States,
511 U.S. 600, 619 (1994).
There is ample evidence for a rational jury to have concluded that Curtner
did, in fact, know that the device was within the scope of the statute. We have held
that the knowledge element is met when the defendant is aware that the features of
the device brought it within the realm of regulation. See United States v. Edwards,
90 F.3d 199, 205 (7th Cir. 1996). Branson testified that Curtner referred to the
device as a “fire bomb” which he planned to explode for recreational purposes.
Branson noted, however, that the device did not resemble a commercially
manufactured firecracker, and was completely wrapped in tape and sealed.
Branson’s partner testified that Curtner told him a buddy made it for him.
Moreover, an ATF agent testified that Curtner’s device contained an explosive
combination of potassium perchlorate, potassium nitrate, and sulfur packed in a
solid casing that would project shrapnel at high velocity and could cause serious
bodily injury or death. The nature and design of the 7½-inch bomb could lead a
rational jury to conclude that Curtner knew it was a type of explosive that one must
register to legally possess, and no ordinary firecracker.
Counsel concludes by considering whether Curtner might challenge the
district court’s application of the sentencing guidelines, or the reasonableness of his
prison sentence. We agree with counsel, however, that any sentencing challenge
would be frivolous because Curtner withdrew his objections to the guidelines
calculations, and because his prison term was capped at the 10-year statutory
maximum, well below the otherwise-applicable guidelines range of 140 to 175
months. We note, though, that in his Rule 51(b) response Curtner contends for the
first time that his base offense level of 26 is overstated because, he insists, his two
state convictions for unlawful possession of chemicals used in the manufacture of
methamphetamine are not “controlled substance offenses” as defined in U.S.S.G.
4B1.2(b), and thus should not have triggered the enhanced offense level in U.S.S.G.
§ 2K.2.1(a)(1) applicable to a defendant who violates § 5861(d) after twice being
convicted of a controlled substance offense. Curtner cites as support United States
v. Wagner, 994 F.2d 1467 (10th Cir. 1993), but that decision preceded a 1997
amendment which expressly rejected Wagner and clarified that “unlawfully
possessing a listed chemical with intent to manufacture a controlled substance . . .
is a ‘controlled substance offense.’” U.S.S.G. App. C, vol. 1, Amend. 568, p. 529.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.