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,

Plaintiff-Appellee,

v.

ERIC A. CURTNER,

Defendant-Appellant.

Appeal from the United States District

Court for the Central District of Illinois

No. 06-20003-01

Michael P. McCuskey,

Chief Judge

O R D E R

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,

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance 

with Fed. R. App. P. 32.1
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 71⁄2-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.