U.S. v. McConnel

• Decision Date: 25 September 2006
• Docket Number: No. 03-6345.,03-6345.
• Citation: 464 F.3d 1152
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Edward McCONNEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

464 F.3d 1152

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Edward McCONNEL, Defendant-Appellant.

No. 03-6345.

United States Court of Appeals, Tenth Circuit.

September 25, 2006.

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Edward J. Kumiega, Assistant United States Attorney, (Robert G. McCampbell, United States Attorney, and Mark A. Yancey, Assistant United States Attorney, with him on the brief) Oklahoma City, Oklahoma, for the Plaintiff-Appellee.

Michael Johnson, Oklahoma City, Oklahoma, for the Defendant-Appellant.

Before EBEL, HOLLOWAY and TYMKOVICH, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Joseph Edward McConnel was convicted by a jury of four counts arising from his sales of firearms. The indictment alleged these offenses: Count 1, dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A); Counts 2 and 3, selling firearms to a person previously convicted of a felony in violation of 18 U.S.C. § 922(d)(1) & (3); and Count 4, possession and transfer of semi-automatic assault weapons in violation of 18 U.S.C. § 922(v)(1).¹ Defendant was sentenced to 71 months' imprisonment, consisting of concurrent terms of 60 months on Count 1, 71 months on Count 2, 71 months on Count 3, and 60 months on Count 4. The district court also imposed a fine of ten thousand dollars and a special assessment of four hundred dollars.

Defendant McConnel now brings this direct appeal from his conviction and sentence. Jurisdiction in this court is granted by 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

I Background

Defendant, who had been an attorney before his license was suspended, was self-employed as a private investigator. One attorney for whom he worked regularly and with whom he had an especially close relationship was Charles Holdstock. One of Holdstock's clients was a motorcycle gang member named George Schuppan. Schuppan and defendant McConnel had been introduced by Holdstock sometime in December 2000. At trial, McConnel testified that Schuppan had been introduced as a friend, not a client. The government's evidence had at least suggested that McConnel may have known otherwise.

Schuppan, who had at least once previously been convicted of a felony, had been arrested for possession of a firearm and drugs in September 2000 in Caddo County, Oklahoma. In January 2001, officers served a federal search warrant at Schuppan's home, finding more guns and equipment for manufacture of methamphetamine. Schuppan agreed to cooperate with the authorities and said that defendant McConnel was one of his suppliers of guns.

Federal officers from the Bureau of Alcohol, Tobacco and Firearms (ATF) decided to pursue Schuppan's information about defendant McConnel and to use Schuppan to attempt to make undercover gun purchases from McConnel. The officers arranged to have Schuppan make a phone call to McConnel, which was recorded, in which he told defendant McConnel that he wanted to buy some more guns because he had some "brothers" (allegedly meaning fellow gang members) coming from out of town who had "to take care of a little situation." Schuppan told defendant that he, Schuppan, could not sign papers for gun purchases because he was a convicted felon. Defendant indicated that would be no problem, saying "I've got you covered in spades."

Later that day, Schuppan went to McConnel's office and purchased five guns and some ammunition for $1,750. Schuppan was wearing a recording device to tape record the conversation, but the attempt failed. Defendant testified at trial that in this personal meeting, before the guns were sold, Schuppan had told him that he was not a felon and that he had made the statements on the telephone just to impress someone else who had been listening to the conversation from Schuppan's end.

A second transaction occurred in February 2001. Schuppan again purchased several guns from defendant McConnel, using ATF money. Two of the guns involved in this sale were the illegal semi-automatic assault weapons that were the subject of Count 4 of the indictment. Later that month, another search warrant was served on Schuppan's residence, which resulted in discovery of a methamphetamine lab and ten more guns, including the two semiautomatic assault rifles. The government adduced evidence at trial that all of these guns had been supplied by defendant "on consignment" after the previous raid had resulted in seizure of all the guns Schuppan had earlier. Schuppan was taken into custody for violating his cooperation agreement by committing other crimes and remained in custody through trial of the instant matter.

On the same day that the second search warrant had been executed at Schuppan's residence and while he was in custody, Schuppan made a second recorded call to defendant McConnel in which he discussed making payment arrangements for the guns he had bought. Prices for specific guns, including the assault rifles, were discussed. The two agreed that Schuppan's girlfriend, Emma Jean Moore, would bring payment to defendant. Two days later, March 1, 2001, Moore made a recorded call to defendant to set up a meeting. Soon afterward, defendant came to Moore's residence (where Schuppan had also been living prior to being taken into custody). With an agent hiding in another room, defendant sold Moore three more guns. About two weeks later, Moore went to defendant's office accompanied by an undercover agent posing as her cousin. Moore paid defendant over $2,000 as the balance Schuppan owed on previous purchases. As directed by the ATF agents, Moore requested a list of weapons that Schuppan had obtained from defendant, and defendant complied, giving Moore a handwritten list.

Almost two months later, authorities executed search warrants on defendant's home, car and office. At the home, agents recovered notebooks and other papers about gun sales and seven guns with price tags on them. Defendant's car, which was parked outside the home, contained ten more guns, some with price tags, and magazines about guns, a "Bluebook of Gun Values," and other evidence.

Defense evidence included the admission by the government's evidence custodian that none of the guns seized from defendant's home or car was illegal; that much of the evidence was consistent with gun collecting; and that no license is necessary to participate in gun shows. Defendant testified that he was merely a collector; that he had met Schuppan through attorney Holdstock, who introduced Schuppan as a friend, not a client; and (as already mentioned) that after the recorded telephone conversation in which Schuppan had said that he was a convicted felon, Schuppan had later said otherwise.

II

Alleged juror dishonesty during voir dire

During voir dire all jurors were asked if they had "ever been involved in any court, in any criminal matter" concerning themselves or close relatives in which they had been a defendant, witness or victim. The person who later became foreman of the jury, J.L., did not respond, although he once had been charged with several felonies. After trial defendant learned of the jury foreman's previous indictment for fraud and moved for a new trial. Defendant now argues on appeal that the district judge abused her discretion in denying the motion.

In his motion for a new trial, defendant pointed out that J.L. had been indicted in state court on three counts of fraud and one count of perjury in 1987. The indictment against J.L. had been dismissed, and he had then been charged by information with five counts based on basically the same allegations. Those charges were dismissed at preliminary hearing and no other charges were filed. Defendant alleged that J.L. had intentionally failed to disclose these facts.

The trial court held a hearing on defendant's motion for a new trial, at which jury foreman J.L. testified. He testified that he did not specifically remember the above quoted question having been asked during voir dire, but if asked again he would not respond, explaining that his thinking was that he had not been "involved in any court" because the charges had been dismissed before trial. The district judge found that the juror was credible and candid. Not only did she find that the juror sincerely believed that the voir dire question applied only to matters that went to trial, but she further found that this belief was reasonable, even though mistaken. The court concluded that the juror had not actually been biased. The judge also concluded that she could not find implied bias, citing the very different circumstances of the charges against defendant and the fraud charges that had once been brought against the juror.

Our standard of review for the denial of a motion for a new trial is abuse of discretion. See, e.g., Skaggs v. Otis Elevator Co., 164 F.3d 511, 514 (10th Cir.1998). The district court's finding that the juror testified credibly about the matter is reviewed only for clear error. See Gonzales v. Thomas, 99 F.3d 978, 985 (10th Cir.1996). Our analysis will consider whether the facts show that the juror had an implicit bias, which we review de novo. See Skaggs, 164 F.3d at 517.

Defendant is entitled to a new trial if he can show that the juror failed to honestly answer a material question on voir dire and that a correct response would have provided a valid basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).² We conclude that defendant cannot establish either of these two prerequisites for the relief he seeks.

First, as noted the district judge found that the juror's answer (or non-answer), although mistaken, was not dishonest. Defendant attempts to show that this finding was clearly erroneous by arguing that the question was unambiguous and that the juror was an educated man who had formerly held an important position in Oklahoma higher education. Therefore, defendant contends, the juror's failure to answer the clear question by...