United States v. McNeal

• Decision Date: 10 July 2017
• Docket Number: No. 16-1054,16-1054
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ann Marie MCNEAL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

862 F.3d 1057

UNITED STATES of America, Plaintiff–Appellee,

v.Ann Marie MCNEAL, Defendant–Appellant.

No. 16-1054

United States Court of Appeals, Tenth Circuit.

FILED July 10, 2017

Robert T. Fishman, Ridley, McGreevy & Winocur, PC, Denver, Colorado, for Defendant–Appellant.

Paul Farley, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Office of the United States Attorney, Denver, Colorado, for Plaintiff–Appellee.

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

A jury convicted Defendant Ann Marie McNeal under 18 U.S.C. § 922(d)(1) for disposing of a firearm to a convicted felon, her son Phinehas McNeal. Her principal claim on appeal is that evidence seized from her home under a search warrant should have been suppressed. The affidavit supporting the warrant was based largely on statements she made when interviewed by law-enforcement officers. She contends that some of what she said was improperly coerced by the officers and that the affidavit included false descriptions of her statements. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

The officers did not coerce Defendant when they told her of their reasonable belief that she could be prosecuted for providing false information to them. We need not address her false-description claim because the search-warrant affidavit established probable cause even if we exclude the allegedly false portions of the affidavit. We also briefly dispose of Defendant's two other issues on appeal. The district court did not commit plain error by failing to dismiss the indictment on the ground that the statute with which she was charged exceeds congressional power under the Constitution's Commerce Clause. And the evidence at trial did not support her requested momentary-possession jury instruction.

I. BACKGROUND

In the late summer of 2014, the McNeals visited a sporting-goods store in Colorado Springs, Colorado. Phinehas, on parole at the time, pointed to a small pistol for Defendant to inspect. Although they left without making a purchase, Defendant returned on October 1 to purchase a .22– caliber revolver (the pistol). Phinehas was waiting in her car in the parking lot.

On November 22, Defendant purchased from a local pawnshop a second gun—a .22–caliber rifle. A week later the McNeals returned to the sporting-goods store, where Phinehas purchased two boxes of ammunition and shoplifted other items. Store personnel confronted Phinehas, struggled with him, and called the police. The McNeals were taken to the local police station about 8:30 p.m. Phinehas was arrested for shoplifting and Defendant was arrested for misdemeanor obstruction of police.

Colorado Springs police learned that Phinehas was a convicted felon and that Defendant had purchased a pistol similar to the one Phinehas had previously pointed out to her at the sporting-goods store. Colorado Springs detective Roy Ditzler, who had been assigned to a gun task force of the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives, was called in to question Defendant.

Defendant was given her Miranda warnings shortly after 11 p.m. and was reminded of them, without repetition of the warnings, 53 minutes into the interview. She was questioned until 2:52 a.m., interrupted by two or three short breaks.

When asked about her visit to the sporting-goods store to look at firearms, Defendant acknowledged that she had purchased the pistol, that Phinehas knew of the purchase, that he had seen the gun, and that he "might have" fired a gun at her residence, Gov't Ex. 86, Tr. of Interview (Tr.) at 38.¹ Defendant also volunteered that Phinehas had "show[n]" her how to use the pistol on a shooting trip in Fountain, Colorado. Id. at 53.

At 1:36 a.m. Ditzler asked whether Defendant knew of any guns in her home other than the pistol. She twice denied that there were any others. When asked a third time, Defendant hesitated before saying, "I have to think. No, I don't think so." Id . Suspecting that she was covering for her son, Ditzler warned Defendant against lying:

DITZLER: So do you or don't you? Because I see where you're going with this, and you're going to get yourself in a lot of trouble, because I think you're thinking if we go over there and find some guns, you're going to think that you're going to come back and say that that was your gun too, to try to take some blame from—from Phiny.... [Y]ou protecting him or lying is not going to be—not going to bode well for you.

DEFENDANT: Either way I'm going to federal prison too?

DITZLER: Well, not right now. Right now your case is state, for obstructing.

DEFENDANT: So I'm going to prison?

DITZLER: For obstructing? No. You'll get booked into jail. You'll get a bond. But if you're lying, on Phinehas's behalf, like you were getting ready to do, thinking about what other guns might be at your place that you can claim as yours so Phinehas doesn't get in trouble, yes. We would look at indicting you on that.

Id. at 79–80 (emphasis added). Defendant promptly changed her answer and revealed that there was another gun—a rifle she had purchased from a pawnshop "[n]ot that long ago." Id. at 81. After complaining that Defendant had lied about almost everything, Ditzler asked why she bought the rifle. She responded, "There's a reason why. I was shot three times in the leg." Id. at 84. Ditzler briefly questioned her about whether Phinehas was the one who shot her and then brought in his supervisor, Sergeant Rafael Chanza. Chanza asked to look at Defendant's leg to see if "we need to get medical to take a look at you" and to "make sure that you're okay." Id. at 87. No skin was broken and Defendant did not appear to have any injuries resembling bullet wounds. After Chanza left the room, Ditzler asked Defendant several times whether Phinehas had shot her or was threatening her. Defendant did not answer.

Ditzler stepped out for a few minutes and brought Chanza back into the room at 2:26 a.m. Chanza spoke to Defendant for about two minutes, telling her "you're doing the right thing by talking to [Ditzler]" but warning that she could be charged with a felony—attempting to influence a public official² —if she tried "to take the fall" for her son. Tr. at 93. He asked, "So are you going to do the right thing? Are you going to talk to the detective?" Id. at 94. She said, "I'll talk." Id.

After Chanza left the room Ditzler said, "Do you understand what the sergeant was saying? I mean, it's completely up to you if you want to keep talking. Nobody wants to force you to do anything you don't want to do." Id. He then gave her another opportunity to explain whether she had been coerced into purchasing the guns:

Believe it or not, it's our job to—to exonerate someone if they're not guilty of something. So I can see that you wanted to tell me things and you're hesitant. I think it's more because you're trying to protect Phiny. But, you know, the ball's completely in your court.

Id. Defendant then provided additional details about the rifle, admitting that she bought it for Phinehas and that he had access to it. She also informed Ditzler of a third gun at her trailer that belonged to Phinehas, one later discovered to be a shotgun.

The officers prepared a search-warrant affidavit describing Defendant's statements about the three guns: (1) her purchase of the pistol from the sporting-goods store, and her trip to Fountain, Colorado, with Phinehas to shoot it; (2) her purchase of the rifle from the pawnshop; and (3) Phinehas's keeping a shotgun in her trailer. The affidavit was used to obtain a search warrant for Defendant's trailer about two and a half hours later. Officers discovered the three firearms next to personal items that appeared to belong to Phinehas.

Defendant was charged with knowingly disposing of a firearm to Phinehas, in violation of 18 U.S.C. § 922(d)(1). She moved to suppress the evidence on the ground that the search-warrant affidavit was tainted by statements that were false or coerced. After an evidentiary hearing the United States District Court for the District of Colorado denied her motion. It found that Defendant's statements were voluntary and that the affidavit was adequately supported by the interview video. After the jury found Defendant guilty, she was sentenced to three years' probation.

II. DISCUSSION

A. Issues Summarily Decided

We quickly dispose of two of Defendant's challenges on appeal. First, she contends that Congress lacked power under the Commerce Clause to enact 18 U.S.C. § 922(d)(1), the statute she violated. She concedes, however, that she did not raise this issue in district court. Our review is therefore only for plain error. See United States v. Howard , 784 F.3d 745, 748 (10th Cir. 2015). For her to prevail, she must show that the validity of her argument is "obvious under current well-settled law." Id. But, as she acknowledges, her position is not supported by existing precedent of any federal appellate court. She is not entitled to relief on this claim.

Second, Defendant argues that the district court improperly refused to grant her a momentary-possession jury instruction, contending that the jury could have found that Phinehas possessed a firearm only briefly. This court has never endorsed a momentary-possession defense to a charge based on the unlawful possession of contraband. We have not needed to decide the matter because no case has presented facts that would justify the defense. As we have explained, if we were to adopt the defense, it would "only appl[y] if the defendant (1) momentarily possessed contraband and (2) either lacked knowledge that he possessed contraband or had a legally justifiable reason to possess it temporarily." United States v. Washington , 596 F.3d 777, 782 (10th Cir. 2010). As in Washington , the evidence here would not satisfy these conditions. In the present context, there would need to be evidence that Phinehas had a legally justifiable reason to possess the firearm for a brief...