U.S. v. O'Looney

• Decision Date: 31 August 1976
• Docket Number: No. 75-2666,75-2666
• Citation: 544 F.2d 385
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael O'LOONEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 385

544 F.2d 385

UNITED STATES of America, Plaintiff-Appellee, v. Michael O'LOONEY, Defendant-Appellant.

No. 75-2666.

United States Court of Appeals, Ninth Circuit.

Aug. 31, 1976.

Certiorari Denied Dec. 13, 1976.

See 97 S.Ct. 692

David P. Schippers (argued), Chicago, Ill., for defendant-appellant.

Bruce R. Castetter, Asst. U. S. Atty. (argued), Terry J. Knoepp, U.S. Atty., Bruce R. Castetter, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Before HUFSTEDLER and WALLACE, Circuit Judges, and SMITH, ^* District Judge.

WALLACE, Circuit Judge:

O'Looney was involved in an alleged plot to export guns illegally to Ireland for use by the Irish Republican Army. He was indicted on five counts. One count was for conspiring to engage in the business of exporting arms without registering with the State Department and conspiring to make a false statement with respect to the information required to be kept in the records of a federally licensed firearms dealer, all in violation of 18 U.S.C. §§ 371 and 924(a) and 22 U.S.C. § 1934. The other four counts were for aiding and abetting the making of false statements in violation of 18 U.S.C. §§ 2 and 924(a). O'Looney was convicted by a jury on the part of the first count charging a conspiracy to engage in the business of exporting arms and acquitted of all other counts. We affirm.

O'Looney was born and raised in Ireland. He had lived in the United States for over 20 years and had been a naturalized citizen for about five years. He became interested in the movement to reunify Ireland. After a trip to his homeland, he agreed with co-defendant Harper ¹ to purchase weapons for the cause. O'Looney furnished the money and Harper, at times using false identification, purchased the weapons. At the time the plot first came to the attention of police, Harper had purchased at least six semi-automatic rifles at five different stores in the San Diego area and had paid a deposit on a seventh.

On appeal, O'Looney claims that evidence and statements obtained in violation of his Fourth and Fifth Amendment rights should have been suppressed, that the evidence was insufficient to support his conviction and that he was prejudiced by use of a special verdict form.

I. The Auto Search

On one of their gun-purchasing ventures, Harper's unusual behavior aroused the suspicion of the gun store owner. After Harper left the store he was observed talking to O'Looney. Harper returned to the store to place a cash deposit on a semi-automatic rifle and produced identification containing what the owner believed to be a false address. The owner sent a letter to Harper at that address; it was returned marked "no such address." Harper returned to the store about a week later to pick up the rifle he ordered. The owner called the police and the first officer to arrive questioned Harper and the owner. The owner directed the second officer, a policewoman, to a neighbor who had been keeping an eye on O'Looney. The neighbor pointed out O'Looney, walking along the sidewalk. O'Looney produced identification upon request and denied knowing the man in the store (Harper). He stated that he had a car a few blocks away and agreed to go there in a police car. He also agreed to allow his car to be searched and signed a statement to that effect. The search produced evidence connecting O'Looney with Harper and prompted the police to investigate further.

There is no doubt but that the policewoman properly detained O'Looney for the initial inquiry. The attempted purchase of firearms with false identification was a crime, 18 U.S.C. § 922(a)(6), and O'Looney had been identified as a possible accomplice. There was thus reasonable suspicion to support the preliminary investigation. Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 21-23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

O'Looney claims that the search was illegal, however, because it was made without a warrant. The government responds that O'Looney voluntarily consented to the search. This is a question of fact, Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), upon which the government had the burden of proof by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 177-78 & n.14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Lego v. Twomey, 404 U.S. 477, 488-89, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The trial judge found that the government met this burden. We will reverse such a finding only if in viewing the evidence in the light most favorable to the government, United States v. Sherman, 430 F.2d 1402, 1404 (9th Cir. 1970), cert. denied, 401 U.S. 908, 91 S.Ct. 865, 27 L.Ed.2d 805 (1971), we conclude that it is clearly erroneous, United States v. Rothman, 492 F.2d 1260, 1264 (9th Cir. 1973); United States v. Page,302 F.2d 81, 85 (9th Cir. 1962) (en banc).

We cannot conclude that the trial court's finding was clearly erroneous. The Supreme Court has noted that there is "no talismanic definition of 'voluntariness,' mechanically applicable to the host of situations where the question has arisen." Schneckloth v. Bustamonte, supra, 412 U.S. at 224, 93 S.Ct. at 2046. Instead, the Court has stated that the issue is one "of fact to be determined from all the circumstances." Id. at 248-49, 93 S.Ct. at 2059.

O'Looney submitted an affidavit alleging that he consented only because he was in custody, frightened and totally out of his element and because he was misled into believing that he must consent to allay police suspicion. However, the evidence was to the contrary. O'Looney was not especially vulnerable to coercion because of youth, lack of education or low intelligence. See, e. g., Payne v. Arkansas, 356 U.S. 560, 562 & n.4, 567, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); Fikes v. Alabama, 352 U.S. 191, 193, 197-98, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 92 L.Ed. 224 (1948). It appears that he was a sophisticated businessman with interests in California, Illinois and Ireland and that he had often sought legal advice in business affairs. Indeed he had consulted his attorney about the legality of the arms purchasing scheme itself.

Nor was O'Looney subjected to a lengthy detention, prolonged interrogation or physical punishment. See, e. g., Ashcraft v. Tennessee, 322 U.S. 143, 153-54, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Chambers v. Florida, 309 U.S. 227, 239, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Brown v. Mississippi, 297 U.S. 278, 281-83, 56 S.Ct. 461, 80 L.Ed. 682 (1936). O'Looney agreed to take the police to his car after only a few minutes of questioning on a public sidewalk. There were no drawn weapons, no evidence of handcuffs, no overt force and no threats. The trial judge found that the policewoman who obtained O'Looney's consent was not "an overpowering woman and would (not) have scared Mr. O'Looney into doing anything he didn't voluntarily want to do." O'Looney makes much of the fact that he was locked in the back of the police car for the short ride from the gun store to the car and during the search. He agreed to ride in the police car, however, while standing on the sidewalk. He was also out of the car and on the sidewalk when he agreed to the search. Although the police did not specifically tell O'Looney of his right to refuse consent, they were not required to do so. Schneckloth v. Bustamonte, supra. O'Looney was not misled by the police into believing he had no such right. See, e. g., Bumper v. North Carolina, 391 U.S. 543, 548-50, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

We conclude from the totality of the circumstances that the trial court's finding of voluntary consent is not clearly erroneous. In fact, it appears that O'Looney freely consented to the search in a voluntary effort to allay police suspicion. Indeed, O'Looney's attorney argued to the jury that O'Looney "freely and fully signed a consent, and permitted them to search his car."

II. The Statement

The car search produced evidence that O'Looney was connected with Harper. He was transported to the San Diego Police Station where, after Miranda warnings were given, he again denied he knew Harper. Federal Alcohol, Tobacco & Firearms (ATF) agents had been called. When they arrived, they again gave O'Looney his Miranda warnings and he then signed a statement in which he swore that he and Harper had decided to obtain guns for Ireland.

O'Looney first contends that the statement was involuntary. The government must demonstrate voluntariness by a preponderance of the evidence. Lego v. Twomey, supra, 404 U.S. at 488-89, 92 S.Ct. 619; United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972). The district court found the statement voluntary and admissible. We cannot reverse that finding in the absence of clear error. Id. at 754. We find no clear error here.

As pointed out earlier, O'Looney was a sophisticated businessman and had a regular attorney whom he had previously consulted about his rights. Full Miranda warnings were given twice, yet O'Looney without hesitation waived his rights to silence and the presence of his attorney. He was not subject to lengthy interrogation. He was not questioned on the way to the police station from the gun store. When he arrived at the station, a detective informed him of his rights and questioned him for ten to fifteen minutes about his connection with Harper and their reasons for purchasing guns. The detective later talked to him for five or ten minutes more. Then, satisfied that no violation of local law had been committed, he placed O'Looney in an interrogation room to await the arrival of ATF agents. Within an hour after the agents' arrival, O'Looney had given a complete statement, waited for it to be written up and signed it. We find nothing in the record to suggest clear error in the trial judge's finding that the statement was voluntary.

O'Looney's second contention is that the...