United States v. Andersen Rabel

USCA11 Case: 22-13854 Document: 55-1 Date Filed: 07/11/2024 Page: 1 of 18

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13854

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDERSEN RABEL,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:22-cr-20058-KMW-2

____________________

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2 Opinion of the Court 22-13854

Before JORDAN, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

Andersen Rabel appeals his conviction for possession of an

unregistered firearm in violation of 26 U.S.C. section 5861(d). After

review, we affirm.

FACTUAL BACKGROUND

On January 21, 2022, an undercover agent working for the

Miami-Dade Police Department visited Miami Gun Shops, a li-

censed firearms dealer the agent had reason to believe was selling

unregistered firearm silencers. As a federal firearms licensee

(“FFL”), Miami Gun Shops could manufacture and sell firearms,

including silencers, so long as it complied with federal law. Rabel

worked at Miami Gun Shops and was designated as a “responsible

person” at the store, meaning he could direct the business’s firearm

policies and practices.

The agent, who was wearing a concealed camera, ap-

proached Rabel and asked for the store’s owner, Manuel Reguiera.

Reguiera was not at the store, so Rabel called him. Rabel gave the

phone to the agent, and the agent asked Reguiera if he could pur-

chase “soda cans”—slang for silencers. After speaking with Regui-

era about the agent’s request, Rabel brought the agent to the back

of the store to complete the sale.

Once Rabel and the agent were in the back of the shop,

Rabel retrieved four packages labeled “9.5mm Monocore w[ith]

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Booster.” The agent bought four of these “kits” from Rabel. Each

of the kits contained four items. First, the kits contained a hollow

metal tube that had an open hole on one end and a closed end cap

on the other. These tubes contained monocore “baffling material”

that separated the inside of each tube into multiple small chambers.

Second, the kits contained a “Nielsen device,” also called a

“booster,” that was attached to the open end of the metal tube.

Third, the kits contained a replacement end cap with a hole drilled

through it that could be swapped with the closed cap attached to

the tube. And fourth, the kits contained an Allen wrench that al-

lowed the buyer to swap the caps. Before completing the sale, the

agent asked Rabel if all four kits came with the replacement end

cap. Rabel confirmed they did. The kits did not, however, have

serial numbers on them and were unregistered. Rabel did not per-

form a background check on the agent and did not record the sale.

PROCEDURAL HISTORY

A grand jury later indicted Rabel, Reguiera, and Miami Gun

Shops on several charges related to the unlawful possession and

sale of firearms. In short, the indictment alleged that the kits Rabel

sold to the agent were silencers, and therefore firearms, that were

1

subject to federal regulation. Relevant to this appeal, Rabel was

indicted on one count of possession of an unregistered firearm in

violation of 26 U.S.C. section 5861(d) (“Count Ten”); one count of

1 A “firearm” includes “any silencer . . . as defined in section 921 of title 18,

United States Code.” 26 USC § 5845(a).

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4 Opinion of the Court 22-13854

transfer of an unregistered firearm in violation of 26 U.S.C. section

5861(e) (“Count Eleven”); and one count of failure by a federally

licensed dealer to keep proper records in violation of 18 U.S.C. sec-

tion 922(b)(5) (“Count Twelve”).

Rabel moved to dismiss the indictment. As evidenced in his

motion, Rabel’s defense largely centered on his claim that the tubes

included with the kits were legal “solvent traps” used to “capture

cleaning solvent.” He conceded that once the closed end cap was

swapped for the replacement cap the tube operated as a silencer,

but he argued that the tubes were not silencers until a person

makes that swap. And building on this argument, he argued that

Count Ten had to be dismissed because his position as a responsi-

ble person at an FFL allowed him to possess solvent traps that, even

if they could be turned into silencers, weren’t converted yet. The

district court found that the issues raised by Rabel in the motion

presented factual questions for the jury and therefore denied it.

Both Rabel and the government filed motions in limine.

Rabel moved to prevent the government from utilizing text mes-

sages and a video it retrieved from his cellphone. The video, which

was sent to Rabel over text message, showed an unidentified per-

son firing a gun with a silencer attached. Rabel responded to the

video by saying that the “solvent trap” in it was “real quiet.”

Rabel argued the text messages and video were unfairly prej-

udicial and could confuse the jury because they would lead the jury

to believe that solvent traps didn’t have to be modified to work as

silencers. Further, he argued that he was not disputing that solvent

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traps could be turned into silencers, and, to the contrary, that it was

legal to do so if they were properly registered. He also argued that

the probative value of this evidence was weakened by the fact that

the jury would not know whether the silencer in the video was le-

gally converted into a silencer. And he argued that a video showing

someone shooting a firearm with a silencer attached would preju-

dice the jury. The government argued that the video and text mes-

sages were admissible under Federal Rule of Evidence 404(b) be-

cause Rabel’s use of the term “solvent trap” to refer to a silencer

was relevant to whether he knew the kits were in fact silencers.

The government’s motion sought to prevent Rabel from in-

troducing evidence, including expert testimony, that the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”) supposedly

changed its enforcement practices and legal position on silencer

conversion kits—including kits that allow buyers to convert sol-

vent traps into silencers. This evidence included a letter issued by

ATF to an unidentified individual about a month before Rabel

made his sale that indicated ATF determined silencer conversion

kits themselves qualify as silencers. It also included two letters that

groups of Senators sent to ATF asking about ATF’s perceived pol-

icy change. The government argued that Rabel did not allege he

relied on this evidence and that it was irrelevant to whether Rabel

knew that the kits he sold were in fact silencers. Rabel responded

that this evidence would show that ATF’s apparent policy change

left the public confused about the legal status of solvent traps and

conversion kits and that this confusion was relevant to whether

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6 Opinion of the Court 22-13854

Rabel knew that ATF considered conversion kits and solvent traps

to be firearms.

At a status conference before trial, the district court denied

Rabel’s motion to exclude the government’s rule 404(b) evidence.

As to the government’s motion in limine, the district court found

that the evidence related to ATF’s perceived policy change on con-

version kits was not relevant and granted the motion.

At trial, the government offered the video recording of the

sale through the testimony of the agent who visited Miami Gun

Shops. The agent testified about his visit to the store, his conver-

sation with Reguiera over the phone, and his transaction with

Rabel. He also testified about a previous visit to Miami Gun Shops

during which he discussed buying silencers from Reguiera. During

this visit, Rabel walked in on the meeting between the two while

Reguiera was disassembling a silencer to show the agent.

The government also offered the testimony of Special Agent

Andrea Randou, who extracted data from Rabel’s cellphone. Ran-

dou testified about a text message conversation between Rabel and

another employee of Miami Gun Shops. As part of this exchange,

Rabel described the contents of a package Miami Gun Shops re-

ceived as “definitely smaller in diameter but [with] loads [of] stag-

gered expansion chambers.” The other employee responded that

his “can” was “bored at past that.” Randou testified that in her ex-

perience “can” is often used to refer to a silencer. She also testified

about the text message exchange in which Rabel reacted to the

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video of the individual firing a silenced firearm and referred to the

silencer as a “solvent trap.”

Next, the government presented testimony from Cody Toy,

an ATF firearms enforcement officer, who the government offered

as an expert witness on firearm identification and silencer design

and theory. Toy testified that silencers commonly consist of an

outer body, a set of end caps, an expansion chamber, and baffles.

He explained that baffling material reduces the sound created

when a firearm is discharged. Toy was “not . . . aware of” any pur-

pose baffles serve other than silencing the sound of a firearm. He

also explained that the Nielsen device included in the kit is used to

counteract the weight a silencer adds to a firearm’s barrel and al-

lows a firearm to operate normally when a silencer is attached.

Like his testimony about the baffling material, Toy was “[n]ot . . .

aware of” any purpose a Nielsen device serves other than allowing

a silenced firearm to shoot properly. Finally, Toy explained that he

tested one of the kits Rabel sold to the agent. The completed de-

vice reduced the sound a firearm made by about fourteen decibels.

Rabel moved for judgment of acquittal at the close of the

government’s case and argued that the government didn’t present

sufficient evidence to prove he knew the kits he sold were silencers.

The district court found that there was sufficient evidence to allow

the jury to infer Rabel’s knowledge that the kits were silencers and

denied the motion.

Then, Rabel presented his defense. Rabel presented the tes-

timony of Christopher Robinson, who he offered as an expert

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8 Opinion of the Court 22-13854

witness on firearms, silencers, and firearm cleaning. Looking at

one of the kits Rabel sold, Robinson opined that the device was a

solvent trap and that the monocore baffle in the tube was used to

catch debris when cleaning a firearm barrel. To support his con-

clusion that the kits were solvent traps, Robinson noted the tubes

did not have certain features, like foam or holes within the tube,

that many silencers have. Robinson conceded, however, that once

the end caps within the kit were swapped the device operated as a

silencer.

The jury found Rabel guilty of possessing an unregistered

silencer, and not guilty of the other counts. Rabel appeals his con-

viction.

STANDARD OF REVIEW

We review a district court’s ruling on a motion in limine for

an abuse of discretion. United States v. Estrada, 969 F.3d 1245, 1261

(11th Cir. 2020). We generally review de novo the denial of a mo-

tion for judgment of acquittal based on the sufficiency of the evi-

dence. United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir.

2005). “[W]e review the evidence presented at trial in the light

most favorable to the government, and we draw all reasonable fac-

tual inferences in favor of the jury’s verdict.” United States v. Berg-

man, 852 F.3d 1046, 1060 (11th Cir. 2017).

DISCUSSION

Rabel challenges his conviction by arguing: (1) the district

court erred in denying his motion in limine and granting the gov-

ernment’s; (2) the district court erred in denying his motion for

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22-13854 Opinion of the Court 9

judgment of acquittal; and (3) the district court should have en-

tered a judgment of acquittal because he could not be convicted of

unlawfully possessing a firearm as the designated responsible per-

son for his licensed firearms dealer. We address each argument in

turn.

The District Court’s Evidentiary Rulings

Rabel argues that he should have been allowed to offer evi-

dence about the ATF’s supposed policy change on the legality of

solvent traps and silencer conversion kits. He contends that this

evidence would have shown a “change in the law” about which he

and the public were given insufficient notice. The ATF evidence,

he says, would show that he lacked the requisite mens rea when he

made the sale. We disagree.

Relevant evidence is generally admissible. Fed. R. Evid. 402.

Evidence is relevant if “it has any tendency to make a fact more or

less probable than it would be without the evidence” and “the fact

is of consequence in determining the action.” Fed. R. Evid. 401.

“Irrelevant evidence is not admissible.” Fed. R. Evid. 402.

It is unlawful “to receive or possess a firearm which is not

registered to [the person] in the National Firearms Registration and

Transfer Record.” 26 U.S.C. § 5861(d). The term “firearm” in-

cludes “any silencer []as defined in” 18 U.S.C. section 921. Id.

§ 5845(a). Under section 921, “any device for silencing, muffling,

or diminishing the report of a portable firearm, including any com-

bination of parts, designed or redesigned, and intended for use in

assembling or fabricating a firearm silencer or firearm muffler, and

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10 Opinion of the Court 22-13854

any part intended only for use in such assembly or fabrication” is a

“firearm silencer.” 18 U.S.C. § 921(a)(25).

To prove a violation of section 5861(d), the government

must show that: (1) the defendant “possessed a ‘firearm’ within the

meaning of 26 U.S.C. [section] 5845(a) of the National Firearms

Act”; (2) he “knew the features of the firearm that brought it within

the scope of the Act”; and (3) “the firearm was not registered to the

defendant.” United States v. Wilson, 979 F.3d 889, 903–04 (11th Cir.

2020). “The Supreme Court and this Court consistently have held

that, although the requisite mens rea to prove a violation of [sec-

tion] 5861(d) is ‘knowledge,’ that mens rea does not attach to each

element of that offense.” Id. at 904. “[T]he government . . . need

not prove that the defendant knew the weapon was unregis-

tered[,] . . . . that the defendant knew his possession of the weapon

was unlawful[,] or that he knew ‘what features define a “firearm”

under 26 U.S.C. [section] 5845(a).’” Id. (emphases omitted) (quot-

ing United States v. Ruiz, 253 F.3d 634, 638 n.4 (11th Cir. 2001)). The

government only needs to “prove that the defendant was ‘aware

that his weapon possess[ed] any of the features detailed in 26 U.S.C.

[section] 5845(a).’” Id. at 904–05 (first alteration in original) (quot-

ing Ruiz, 253 F.3d at 638).

Here, the district court properly concluded that Rabel’s evi-

dence relating to ATF’s alleged policy change was irrelevant. Even

if this evidence would have shown ATF changed its position on the

legality of kits like the ones Rabel sold, causing confusion about

the legality of the kits among the public, the evidence would still

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be irrelevant to the mens rea our precedent requires. The govern-

ment did not need to prove that Rabel “knew his possession of the

[kits] was unlawful.” Id. at 904. It only needed to prove that Rabel

knew that the kits had the features that made them silencers under

the statute. Id. at 904–05. So, while Rabel maintains the evidence

would have shown that he and the public did not have notice that

the kits were illegal under the statute, that argument doesn’t help

him here. The district court properly excluded the evidence.

Rabel’s challenge to the district court’s denial of his motion

in limine also fails. He argues that the district court should have

excluded the text messages and video pulled from his phone be-

cause they were not relevant to an issue at trial. As Rabel frames

the issue, the government only used this evidence to prove that

Rabel knew that solvent traps could be converted into silencers,

which he has never disputed. And he argues that the video preju-

diced the jury against him, and that any unfair prejudice is under-

scored by the fact that silencers can be legally obtained, the silencer

in the video might have been legal, and the government did not

present evidence showing that Rabel was involved in the event de-

picted in the video. We find no error in the admission of this evi-

dence.

Under Federal Rule of Evidence 404(b), “[e]vidence of any

other crime, wrong, or act is not admissible to prove a person’s

character in order to show that on a particular occasion the person

acted in accordance with the character.” Fed. R. Evid. 404(b)(1).

But rule 404(b) evidence can be used “for another purpose, such as

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proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” Fed. R. Evid.

404(b)(2). “The rule is ‘one of inclusion which allows extrinsic ev-

idence unless it tends to prove only criminal propensity.’” United

States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008) (alteration ac-

cepted) (quoting United States v. Stephens, 365 F.3d 967, 975 (11th

Cir. 2004)).

“We employ a three-part test to determine whether a district

court abused its discretion by admitting evidence of prior bad acts

under Federal Rule of Evidence 404(b)[.]” United States v. Phakni-

kone, 605 F.3d 1099, 1107 (11th Cir. 2010). “First, the evidence must

be relevant to an issue other than the defendant’s character. Sec-

ond, as part of the relevance analysis, there must be sufficient proof

so that a jury could find that the defendant committed the extrinsic

act.” Id. (quoting United States v. Miller, 959 F.2d 1535, 1538 (11th

Cir. 1992) (en banc)). And “[t]hird, the probative value of the evi-

dence must not be ‘substantially outweighed by its undue preju-

dice, and the evidence must meet the other requirements of [r]ule

403.’” Id. (quoting Miller, 959 F.2d at 1538). “In reviewing issues

under [r]ule 403, we look at the evidence in a light most favorable

to its admission, maximizing its probative value and minimizing its

undue prejudicial impact.” United States v. Brown, 441 F.3d 1330,

1362 (11th Cir. 2006).

The district court appropriately admitted the text messages

and video. First, the evidence was clearly relevant to whether

Rabel knew the kits were silencers. Throughout his trial and

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appeal, Rabel has consistently maintained that he believed that the

kits were solvent traps. Evidence of Rabel referring to an apparent

silencer as a solvent trap was directly relevant to whether Rabel’s

belief was sincere. Rabel appears to concede this much in his reply

brief, stating that he does not argue the evidence wasn’t relevant.

He also doesn’t dispute that he sent the message, so there was suf-

ficient evidence that he sent it.

Finally, viewing this evidence in the light most favorable to

its admission, its probative value as to Rabel’s knowledge was not

substantially outweighed by whatever prejudicial effect it had in de-

picting an individual discharging a firearm. Notably, Rabel was ac-

quitted of more charges than he was convicted, showing that any

possible prejudicial effect did not influence the jury. Cf. United

States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985) (noting that

a partial acquittal “is telling proof that [the defendant] was not prej-

udiced by the prosecutor’s [improper] remarks” (quotation omit-

ted)). The district court therefore did not abuse its discretion when

it allowed this evidence to be presented.

Motion for Judgment of Acquittal

Rabel next argues that the district court erred in denying his

motion for judgment of acquittal because there was insufficient ev-

idence that he knew the silencers were firearms under the National

Firearms Act, and he continues to argue that the devices were legal

solvent traps that only became silencers once the end caps were

swapped. The government responds that it presented sufficient

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14 Opinion of the Court 22-13854

evidence that Rabel knew the kits had the features that allowed

them to suppress the sound of a firearm. We agree with the gov-

ernment.

As discussed, the government only needed to prove that

Rabel “knew the features of the firearm that brought it within the

scope of the Act.” Wilson, 979 F.3d at 903–04. It did not need to

prove that Rabel knew what defines a firearm under the statute.

Id. A “firearm silencer” is “any device for silencing, muffling, or

diminishing the report of a portable firearm, including any combi-

nation of parts, designed or redesigned, and intended for use in as-

sembling or fabricating a firearm silencer or firearm muffler, and

any part intended only for use in such assembly or fabrication.” 18

U.S.C. § 921(a)(25) (emphasis added).

A district court must deny a motion for judgment of acquit-

tal based on the sufficiency of the evidence “if ‘a reasonable fact-

finder could conclude that the evidence established the defendant’s

guilt beyond a reasonable doubt.’” United States v. Thompson, 610

F.3d 1335, 1337 (11th Cir. 2010) (quoting United States v. Descent,

292 F.3d 703, 706 (11th Cir. 2002)). Because Rabel was found guilty,

we view the evidence in the light most favorable to the govern-

ment and the jury’s verdict. Bergman, 852 F.3d at 1060.

First, there was sufficient evidence that the kits were a “com-

bination of parts, designed or redesigned, and intended for use in

assembling or fabricating a firearm silencer” to “silenc[e], muffl[e],

or diminish[] the report of a portable firearm.” 18 U.S.C.

§ 921(a)(25). The government offered evidence that multiple

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features of the kits—the baffles and the Nielsen device—only

served to muffle the sound of a firearm discharge and allow a fire-

arm to operate normally with a silencer attached. It also offered

evidence that once the end caps were swapped the device could

reduce the sound of a firearm by about fourteen decibels. And

Rabel’s own expert testified that once the end caps were swapped

the kit operated as a silencer. Finally, the government presented

testimony that Rabel had previously witnessed the agent buying

silencers from Reguiera. The jury therefore had more than enough

evidence before it to determine that the kit was a silencer beyond

a reasonable doubt.

Second, the government also presented extensive evidence

that Rabel knew that the kits were silencers. The evidence showed

that Rabel sold the kits after the agent asked to buy “soda cans” and

that “soda can” is known slang for silencers. One text message

string presented at trial showed another individual using the term

“can” to Rabel before he made the sale to the agent, which demon-

strated that he was familiar with the term at the time. The evi-

dence also showed that Rabel knew the contents of each kit. The

package for each indicated that they contained a “[m]onocore

w[ith] booster,” so a jury could find that Rabel knew they con-

tained silencers given that these two components were used as

parts for a silencer. And Rabel clearly knew each package con-

tained the swappable end caps that allowed the buyer to make a

fully functioning silencer—he assured the agent who purchased the

kits that they did. Finally, while Rabel argued that he thought the

packages contained solvent traps, the government’s rule 404(b)

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16 Opinion of the Court 22-13854

evidence called the sincerity of that belief into question. Given this

evidence, the district court correctly denied Rabel’s motion for

judgment of acquittal.

Rabel’s counterarguments don’t compel a different conclu-

sion. He repeats his contention that the government had to prove

he knew the tubes were “in fact firearms that come within the am-

bit” of the statute and implies that the statute contains a scienter

requirement. But, as we’ve already explained, under the posses-

sion-of-an-unregistered-silencer statute, he only needed to know

the kits had the features that made them silencers. See Wilson, 979

F.3d at 904.

Rabel also argues that the swappable end caps don’t make

the kits silencers because, as he sees it, the tubes aren’t silencers

until the end caps are actually swapped. But that argument is con-

trary to the statute’s language, which defines the term “silencer” to

mean “any combination of parts, designed or redesigned, and in-

tended for use in assembling or fabricating a firearm silencer”—and

not just the assembled product. 18 U.S.C. § 921(a)(25).

Because a jury could find beyond a reasonable doubt that

Rabel knew the kits had the features that made them silencers, the

district court properly denied Rabel’s motion for a judgment of ac-

quittal.

Rabel’s Status as a Responsible Person

Finally, Rabel argues that the district court should have en-

tered a judgment of acquittal because Miami Gun Shops has a li-

cense to manufacture and distribute firearms. He contends that,

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22-13854 Opinion of the Court 17

because Miami Gun Shops has an FFL license and he was a desig-

nated responsible person, he could possess solvent traps and

weapon parts that were used to make firearms and could not ille-

gally possess the kits he sold. Rabel also makes passing reference

to the fact that he was acquitted of the other two counts he faced

at trial and argues his acquittals are inconsistent with his guilty ver-

dict.

The problem for Rabel, as he recognizes in his reply brief, is

that an unregistered silencer cannot be legally possessed even by a

manufacturer. See 27 C.F.R. § 479.101 (“Each manufacturer, im-

porter, and maker shall register each firearm he manufac-

tures . . . .”). Rabel’s entire challenge relies on his argument that

the kits were not themselves firearms subject to regulation. But,

as we’ve already explained, a silencer is a firearm under the statute,

26 U.S.C. § 5845(a), and there was sufficient evidence at trial show-

ing that the kits were in fact silencers. Because Rabel hasn’t

demonstrated that Miami Gun Shops was entitled to possess these

silencers, we are unpersuaded that his status as the store’s respon-

sible person has any bearing on his conviction.

Rabel’s reference to the fact that he was acquitted of the

other counts at trial doesn’t convince us otherwise. “[I]nconsistent

jury verdicts are generally insulated from review because a jury

may reach conflicting verdicts through mistake, compromise, or

lenity[.]” United States v. Green, 981 F.3d 945, 960–61 (11th Cir.

2020) (quotation omitted). “[A]s long as the guilty verdict is sup-

ported by sufficient evidence, it must stand, even in the face of an

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18 Opinion of the Court 22-13854

inconsistent verdict on another count.” Id. (quoting United States

v. Mitchell, 146 F.3d 1338, 1345 (11th Cir. 1998)). Therefore, even

assuming the verdicts are inconsistent, they do not compel us to

vacate Rabel’s conviction, and we find no error.

AFFIRMED.