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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10473
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:15-cr-00158-GKS-TBS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CARL JOSEPH THOMAS PISA,

                                                         Defendant-Appellant.

                       ________________________

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

                               (July 5, 2017)

Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      After a jury trial, Carl Pisa appeals his conviction for possessing firearms,

that is, destructive devices as defined by 26 U.S.C. § 5845(a)(8) and (f), that were

not registered in the National Firearms Registration and Transfer Record, in

violation of 26 U.S.C. §§ 5861(d) and 5871. At trial, the government presented

evidence that Pisa sold to an undercover law enforcement agent twelve

professional-grade mortars that had been altered by cementing metal BB pellets to

the outside and wrapping the pellets with tape. On appeal, Pisa challenges: (1) the

sufficiency of the government’s evidence; and (2) the trial court’s denial of his

request for an entrapment jury instruction. After review, we affirm Pisa’s

conviction.1

                         I. SUFFICIENCY OF THE EVIDENCE

      A person is prohibited from receiving or possessing a firearm that is not

registered to him in the National Firearms Registration and Transfer Record. 26

U.S.C. § 5861(d). The term “firearm” is defined broadly and includes a

“destructive device.” Id. § 5845(a)(8). The term “destructive device” includes

“any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket

having a propellant charge of more than four ounces, (D) missile having an

explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F)

similar device.” Id. § 5845 (f)(1). The definition of “destructive device” excludes


      1
          Pisa does not appeal his sentence.
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“any device which is neither designed nor redesigned for use as a weapon.” Id.

§ 5845(f). Thus, to sustain a conviction under § 5861(d) where the firearm is a

destructive device, the government must prove both that the device was an

explosive and that it was designed as a weapon. United States v. Hammond, 371

F.3d 776, 780 (11th Cir. 2004). “[T]he critical inquiry is whether the device, as

designed, has any value other than as a weapon.” Id. at 781. The presence of

design features that eliminate any claimed benign value supports a finding that the

device was designed as a weapon. Id.

      With respect to mens rea, the government need not establish that the

defendant knew the firearm in his possession had to be registered. United States v.

Owens, 103 F.3d 953, 956 (11th Cir. 1997). Instead, the government must prove

that the defendant knew that the device 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). In other words, the government must prove that

the defendant was aware of the features that subjected the device to registration,

but the government is not required to prove that the defendant knew what features

meet the statutory definition of a “firearm.” United States v. Ruiz, 253 F.3d 634,

638 & n.4 (11th Cir. 2001).

      Here, the government’s evidence showed that the twelve altered mortars

were “destructive devices” and therefore firearms that were required to be


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registered.2 Specifically, the government presented evidence that the mortars were

originally commercial aerial shells used in higher-end fireworks displays like those

seen at Disney theme parks. The evidence also showed that a person would need

both state and federal permits to possess this type of commercial pyrotechnic. The

inside of the mortars contained two components—flash powder, an explosive that

creates a flash of light and loud noise, and black powder, an explosive that is

generally used as a propellant. Aside from the regular pyrotechnic mortar, the

devices had copper-coated steel BB pellets glued to their surfaces and then covered

with multiple layers of blue masking tape.

       The Consumer Product Safety Commission and the American Pyrotechnics

Association prohibit the use of metal in the production of fireworks as a safety

hazard. The mortars had been modified by the presence of the metal BBs and no

longer functioned as designed. The metal BBs attached to the outside of the

mortars were a form of shrapnel that, when the device was detonated, would travel

at the speed of 2,500 to 3,500 feet per second and would be able to penetrate a

human body.

       Pisa asserts that the government never tested the devices to determine

whether they were “anything but fireworks to which ball bearings had been


       2
        We review the sufficiency of the evidence de novo, viewing the evidence in the light
most favorable to the government and drawing all inferences in favor of the jury’s verdict.
United States v. Ramirez, 426 F.3d 1344, 1351 (11th Cir. 2005).
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cemented.” To the contrary, the government presented evidence that investigators

sent several of the devices to a laboratory to determine how they functioned. Two

devices were detonated to observe the effects, which included BBs penetrating

through quarter-inch drywall and destroying a concrete block. Further, an

explosives expert with the Bureau of Alcohol, Tobacco, Firearms, and Explosives

who disassembled some of the shells testified that the attached BB pellets meant

that the fireworks had no value other than as a weapon and that the altered mortars

fit the characterization of an explosive bomb.

      As to mens rea, Pisa argues that the government failed to prove he knew of

the specific features that made the mortars destructive devices. We conclude that

the government presented ample evidence from which the jury could find that Pisa

knew about features of the mortars that made them explosives that were designed

as weapons—the attached metal BB pellets. See Hammond, 371 F.3d at 780.

      At the time of the sale, Pisa told the undercover agent in a recorded

conversation that he made the devices, explaining, among other things, that he

attached the metal BBs with cement and then wrapped the devices in tape and that

he had to “glove up” and discharge static electricity from his body before making

them so they would not blow up in his face. Moreover, Pisa knew that the BBs

could cause substantial damage to persons or property, as he explained to the

undercover agent that he had detonated one of the devices and that the BBs had


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blasted out in a perfect cone, causing significant damage to a “heavy-duty”

dumpster. Pisa also assured the undercover agent that the devices could kill a

person, explained that the devices could be set up as booby traps using a trip wire,

and offered to text the undercover agent written instructions on how to do so.

       Pisa contends that he did not know precisely what was inside the mortars

because he did not make them. Before the sale, however, Pisa informed the

undercover agent that the mortars were “professional-grade report mortars” used

for fireworks displays, that he could not “crack them open” to add shrapnel to them

because it was too dangerous, but that “[t]hings can be hot glued to the outside like

nails and ball bearings.” This is exactly what Pisa told the undercover agent he did

to the mortars when they met two days later to conduct the sale. The government’s

evidence was more than sufficient to show that Pisa was aware of the features of

the altered mortars that made them “destructive devices” within the meaning of 26

U.S.C. § 5845(f)(1).

                          II. ENTRAPMENT INSTRUCTION

       Pisa argues that the district court erred when it denied Pisa’s requested jury

instruction on entrapment. We find no error because, given the evidence presented

at trial, Pisa was not entitled to an entrapment instruction.3


       3
         Although this Court typically reviews a district court’s refusal to give a requested jury
instruction for an abuse of discretion, it is unclear whether we review a district court’s decision
not to give an entrapment instruction based on the defendant’s failure to produce sufficient
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       The defense of entrapment has two elements: (1) the government’s

inducement of the crime; and (2) the defendant’s lack of predisposition to commit

the crime before the inducement. United States v. Orisnord, 483 F.3d 1169, 1178

(11th Cir. 2007). To be entitled to present an entrapment defense to the jury, the

defendant bears the initial burden of production as to the element of governmental

inducement. United States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010). If

the defendant meets his initial burden of production, the burden shifts to the

government to prove beyond a reasonable doubt that the defendant was

predisposed to commit the crime. Id. The sufficiency of the defendant’s evidence

of governmental inducement is a legal issue to be decided by the trial court. Id. at

1332-33.

       A defendant can show inducement by producing evidence sufficient to

create a jury issue “that the government’s conduct created a substantial risk that the

offense would be committed by a person other than one ready to commit it.”

United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995) (quotation marks

omitted). The defendant meets this burden if he produces evidence that the

government’s conduct included some form of persuasion or mild coercion. Id. For

example, the defendant may show persuasion with evidence that he “had not



evidence of governmental inducement de novo or for an abuse of discretion. See United States
v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010) (collecting cases). We need not decide the
issue here because, under either standard, the district court properly denied the instruction.
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favorably received the government plan, and the government had to ‘push it’ on

him, or that several attempts at setting up an illicit deal had failed and on at least

one occasion he had directly refused to participate.” United States v. Ryan, 289

F.3d 1339, 1344 (11th Cir. 2002). The government’s mere suggestion of a crime

or initiation of contact is insufficient to demonstrate inducement. Brown, 43 F.3d

at 623.

      Here, the district court did not err in refusing to give Pisa’s requested

entrapment instruction because Pisa failed to carry his initial burden to show

government inducement. Pisa did not present any evidence at trial and instead

relies on the government’s evidence to meet his burden. Pisa emphasizes that the

undercover agent initiated contact with him, but government initiation of contact

does not show inducement. See id. Furthermore, the undercover agent contacted

Pisa only after finding Pisa’s Facebook advertisement offering to sell a military

ground simulator, an explosive device normally used by the military in training.

When Pisa met with the undercover agent to sell the simulator, Pisa explained to

the agent how the simulator could be used as a booby trap by wiring the device to a

trip board. Pisa also stated that he would be able to obtain additional explosive

devices for the undercover agent. Moreover, when Pisa next met with the

undercover agent, Pisa explained that he could attach flechettes or other shrapnel to

the explosive devices. Pisa further explained that putting the flechettes inside the


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devices could help the undercover agent avoid arrest if he was pulled over, because

the devices would look like ordinary fireworks. Pisa did not express any hesitancy

to sell the explosive devices to the undercover agent, despite the agent’s repeated

insinuation that he and his “brothers” wanted to use the devices to set up booby

traps that could harm people. To the contrary, Pisa confirmed that the devices

could kill a person, explained to the undercover agent how to set up the device as a

booby trap, and offered to send the agent instructions.

      Pisa asserts that he expressed hesitancy when he at one point told the agent

to seek explosive devices from another source. Specifically, at their first meeting,

the undercover agent told Pisa he was looking for explosive devices to use as

booby traps that could do damage to people. Pisa discussed possible options with

the agent and agreed to try to find something for the agent. When Pisa had no

success after about a month, the undercover agent texted Pisa stating that he

needed the explosive devices soon and asked whether he should look elsewhere.

Pisa responded: “Yea[h] man, see what you can find around besides me. I’ve been

traveling around hard and haven’t had the time to get together with my guy [who

makes explosive devices] for anything I ordered. I’m all the way in Miami for the

next week and won’t be back around Orlando until next week.”

      During this exchange, as with all of their interactions, Pisa did not express

any discomfort with the criminal activity; instead, Pisa merely advised the agent


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that because of his travel plans, he could not deliver the devices to the agent

quickly. Furthermore, when they communicated again a few weeks later, Pisa

readily told the agent he now had some explosives to sell, and the two arranged to

meet. Viewed in context, Pisa’s suggestion that the agent find another source did

not indicate reluctance by Pisa to engage in the criminal conduct. See United

States v. Parr, 716 F.2d 796, 803 (11th Cir. 1983) (rejecting defendant’s argument

that his statement to “forget the whole thing” showed his hesitancy to engage in the

criminal scheme because the statement appeared to have been made in frustration

in response to a codefendant’s erratic behavior).

      Finally, as the government notes, Pisa was charged here only with

possessing the unregistered destructive devices, not selling them. The undercover

agent did not direct Pisa to find professional-grade mortars; Pisa first obtained the

mortars and then reached out to the agent to determine if he had any interest in

purchasing them. Moreover, when the undercover agent asked about attaching

shrapnel to the mortars, Pisa readily agreed and never expressed any hesitancy to

alter the mortars. Thus, Pisa failed to show that the government induced him to

commit the crime, and an entrapment instruction was not warranted.

      Accordingly, for these reasons we affirm Pisa’s conviction for possessing

unregistered firearms.

      AFFIRMED.


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