U.S. v. Harvey

• Decision Date: 04 August 2011
• Docket Number: No. 09–4261.,09–4261.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Aaron HARVEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

653 F.3d 388

UNITED STATES of America, Plaintiff–Appellee,

v.Aaron HARVEY, Defendant–Appellant.

No. 09–4261.

United States Court of Appeals, Sixth Circuit.

Argued: June 2, 2011.Decided and Filed: Aug. 4, 2011.

ARGUED: Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Jennifer C. Barry, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant. Jennifer C. Barry, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.Before: ROGERS and KETHLEDGE, Circuit Judges; RUSSELL, Chief District Judge.^*

OPINION

ROGERS, Circuit Judge.

A jury convicted Aaron Harvey of making a false statement during the purchase of firearms in violation of 18 U.S.C. § 922(a)(6). Essentially, Harvey had purchased firearms for other persons while stating that he was the actual purchaser. Harvey appeals his conviction, challenging the district court's evidentiary rulings, jury instructions, response to jury questions, and the overall sufficiency of the evidence. Harvey also argues that the district court erred in applying a four-level sentencing enhancement for transferring a firearm with reason to believe that it would be used in connection with another felony. See U.S.S.G. § 2K2.1(b)(6). Harvey's claims do not require reversal.

I.

Harvey purchased five handguns in Cincinnati between January and August 2007. He first went to Costello's Gun Shop on January 6 and purchased a HiPoint .38 caliber pistol. One week later, he bought a Smith & Wesson 9 mm at Arms & Accessories, Inc. On August 7, he went back to Costello's with two teenagers, James Perkins and Monsanna Torbet (known as “Suki”), and purchased three more firearms: an Intratec 9 mm and two Taurus .40 caliber pistols. Each time, Harvey filled out Alcohol Tobacco & Firearms (ATF) Form 4473 representing that he was the actual purchaser of the firearms and was not purchasing them on behalf of someone else.

One by one, the guns turned up on the streets of a high-crime neighborhood in Cincinnati. On June 18, 2007, Cincinnati police recovered the HiPoint in an abandoned building. Then on August 24, the police arrested Perkins, a convicted felon who was carrying one of the Taurus pistols. On December 24, the police arrested Robert Mitchell for drug trafficking and for being a felon in possession of a firearm that turned out to be the Intratec 9 mm. And on July 10, 2008, the police found the Smith & Wesson in a trash can while investigating a double homicide.

Because the ATF forms identified Harvey as the last known purchaser of the guns, ATF Special Agent Eric Miller and Task Force Officer Michael Drexelius interviewed Harvey in March 2008. Harvey initially told them the guns were stolen. But after the agents showed him a photograph of Perkins and offered to help him prepare a police report, Harvey admitted purchasing the guns at Costello's for himself, Perkins, and Suki. Harvey further admitted that immediately after they left Costello's on August 7, Perkins gave Harvey $340 for one of the Taurus pistols; that Harvey had seen Suki with the other Taurus and the Intratec 9 mm while Suki was selling crack cocaine; and that Suki had later “tossed” those guns while being chased by the police.

In December 2008, after the Smith & Wesson was recovered, the agents interviewed Harvey a second time. The interview was secretly recorded, and Harvey changed his story again. This time, Harvey claimed that the guns were taken from him without his knowledge while he was staying at the home of Suki's mother, and that Suki actually sold the guns rather than “tossed” them. Harvey stated that Suki and Perkins were like “brothers” to him, admitted recognizing Mitchell as one of “Suki's boys,” and identified Mitchell as the person to whom Suki had sold the Intratec and one of the Taurus pistols.

Harvey was indicted on two counts of making a false statement in connection with the purchase of a firearm: one for the Smith & Wesson purchase, and one for the August purchases at Costello's. After a dispute over whether the recording of the second interview would be played for the jury, the district court ruled that three aspects of the recording were not admissible: (1) statements referring to the HiPoint (for which no charges were filed); (2) statements referring to a double homicide involving the Smith & Wesson; and (3) Harvey's exculpatory statements in which he claimed that Suki had taken the guns without his knowledge. The recorded interview was laced with this inadmissible evidence, and both sides objected to certain portions of the tape. As a compromise, the court excluded the whole tape, but warned that if any part of the recording was introduced by either party, the entire recording would be admitted under the rule of completeness.

At trial, the Government adhered to the court's ruling, but Harvey did not. During cross-examination, defense counsel attacked Agent Miller's credibility regarding what Harvey had told the agents about the Smith & Wesson during their initial encounter in March 2008. The defense pointed to statements made during the second interview to impeach Agent Miller's testimony that Harvey had not disclosed the Smith & Wesson during the March interview. Consistent with its pretrial order, the district court then admitted almost the entire recorded statement, including the references to the HiPoint, the recovery of the Smith & Wesson, and Harvey's exculpatory statements.

At the close of the evidence, Harvey did not object to the district court's jury instructions, which included an instruction that the Government was not required to present all the evidence it had, and an instruction on the difference between motive and intent. The jury asked several fact-specific questions during deliberations. The district court responded by reading portions of the record to the jury, and also instructed the jurors to focus on their recollection of the evidence as a whole. The jury acquitted Harvey on the first count but convicted him on the second. At sentencing, the court overruled Harvey's objection to a four-level upward adjustment under U.S.S.G. § 2K2.1(b)(6) for transferring a firearm with reason to believe that it would be used in connection with another felony. The district court then sentenced Harvey to 32 months in prison.

II.

On appeal, Harvey challenges (1) the sufficiency of the evidence supporting his conviction, (2) the district court's admission of the previously excluded evidence, (3) the jury instructions on motive and the amount of evidence required by the Government, (4) the court's response to the jury's questions, and (5) application of the sentencing enhancement. All of Harvey's claims lack merit.

A.

Harvey's conviction is supported by sufficient evidence. The jury convicted Harvey of making a false statement during the purchase of a firearm in violation of 18 U.S.C. § 922(a)(6). That section provides:

It shall be unlawful ... for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.

18 U.S.C. § 922(a)(6). To sustain a conviction in this case under § 922(a)(6), the Government had to prove beyond a reasonable doubt that: (1) the defendant knowingly made (2) a false or fictitious oral or written statement that was (3) material to the lawfulness of the sale or disposition of a firearm, and was (4) intended to deceive or likely to deceive a firearms dealer.

Contrary to Harvey's argument, there was sufficient evidence to find that, at the time he purchased the three weapons on August 7, he knew that his statement on Form 4473—that he was the actual purchaser—was false. Harvey claims that when he filled out the ATF form at Costello's, he intended to keep the Taurus for himself, and the idea of selling the gun to Perkins only occurred to him later. But a jury could reasonably see things differently. Agent Miller and Officer Drexelius testified that Harvey admitted purchasing the guns at Costello's for Perkins and Suki and taking $340 from Perkins in exchange for one of the Taurus pistols when they left Costello's. A jury could infer from the exchange of money immediately after the purchase, together with Harvey's admissions to the ATF agents, that Harvey purchased the guns for Perkins and Suki, not for himself as he told the firearms dealer. Drawing all inferences in the Government's favor, see Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the jury's determination that the false statement was knowingly made was reasonable.

The false statement was also “material to the lawfulness of the sale,” 18 U.S.C. § 922(a)(6), because, as of August 2007, Perkins and Suki—the true purchasers under the Government's “straw purchase” theory—were under the age of 21 and could not legally purchase a handgun. During the August visit to Costello's, Perkins purchased a rifle and filled out an ATF form indicating that his birth date was January 1989, making him 18 at the time. And during his December 2008 interview with the ATF agents, Harvey admitted that Suki had only just turned 19. Thus, the Government proved that Perkins and Suki could not lawfully possess handguns, and Harvey's false statement was therefore clearly material. We need not decide whether the materiality requirement could have been met without such proof.¹

Harvey protests that his later, recorded statements—that the guns were stolen while he...