from the United States District Court for the District of
Colorado (D.C. No. 1:15-CR-00054-RM-2)
T. Fishman, Ridley, McGreevy & Winocur, PC, Denver,
Colorado, for Defendant-Appellant.
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
HARTZ, BALDOCK, and HOLMES, Circuit Judges.
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.
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
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.
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
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.
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.
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
Defendant also volunteered that Phinehas had
"show[n]" her how to use the pistol on a shooting
trip in Fountain, Colorado. Id. at 53.
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,
DEFENDANT: So I'm going to prison?
DITZLER: For obstructing? No. You'll get booked into