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United States v. McNeal

United States Court of Appeals, Tenth Circuit

July 10, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ANN MARIE MCNEAL, Defendant-Appellant.

         Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CR-00054-RM-2)

          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. ...

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