FILED
NOT FOR PUBLICATION MAY 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50352
Plaintiff - Appellee, D.C. No. 3:10-cr-00725-L-1
v.
MEMORANDUM *
DELBERT LENNARD HOLLEY,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted March 8, 2013
Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and WOLF, Senior District
Judge.**
Delbert Holley appeals his conviction for making false statements in the
acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm Holley’s conviction.
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Mark L. Wolf, Senior District Judge for the U.S. District Court for
the District of Massachusetts, sitting by designation.
The district court properly denied Holley’s motion to suppress his January 6,
2010, statements to San Diego County sheriff’s detectives because Holley was not
then in custody as is necessary to require warnings under Miranda v. Arizona, 384
U.S. 436 (1966). See United States v. Craighead, 539 F.3d 1073, 1083–84 (9th
Cir. 2008). There was ample evidence to prove that only two detectives were
present for the interrogation in Holley’s home, Holley was not restrained, and he
was not isolated from the members of his family, who were in the room when he
was questioned. In the totality of the circumstances, Holley was not questioned in
the “police-dominated atmosphere” that makes an interrogation in a person’s home
custodial and, therefore, requires Miranda warnings. See Craighead, 539 F.3d at
1083–84.
Because Holley was not in custody for the purpose of Miranda when he
made statements to the detectives on January 6, 2010, the questioning of him on
February 4, 2010, does not implicate the two-step interrogation process for persons
in custody that is discussed in Missouri v. Seibert, 542 U.S. 600, 604 (2004). See
United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006).
The district court did not err in denying Holley’s motion for a judgment of
acquittal under Federal Rule of Criminal Procedure 29. Holley was charged with a
single count of making false statements in the acquisition of a firearm in violation
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of 18 U.S.C. § 922(a)(6). That single count alleged two, discrete material false
statements made by Holley on Form 4473 of the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”): (1) that Holley was not an unlawful user of
controlled substances; and (2) that Holley was the actual purchaser of the firearm.
18 U.S.C. § 922(d)(3) makes it unlawful to sell a firearm to a user of a controlled
substance. The jury was informed of this prohibition by the testimony of ATF
Special Agent Matthew Beals. The district judge, rather than the witness, should
have instructed the jury on § 922(d)(3), the requirements of which are a matter of
law not fact. See Aguilar v. Int’l Longshoremen’s Union Local No. 10, 966 F.2d
443, 447 (9th Cir. 1992). However, Beals’s testimony was an accurate statement
of the law concerning § 922(d)(3). The district judge correctly instructed the jury
that the government had to prove that any false statement was material. See Neder
v. United States, 527 U.S. 1, 16 (1999); United States v. Gaudin, 515 U.S. 506,
512–19 (1995); United States v. Moore, 109 F.3d 1456, 1463–66 (9th Cir. 1997).
The district judge also properly instructed the jury that a statement was material if
it had a “natural tendency to influence, or [was] capable of influencing” the dealer
in deciding whether the firearm could lawfully be sold to Holley. Neder, 527 U.S.
at 16 (quoting Gaudin, 515 U.S. at 509).
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Viewed in the light most favorable to the government, United States v. H.B.,
695 F.3d 931, 935 (9th Cir. 2012), the evidence was sufficient to prove that
Holley’s statement on ATF Form 4473 that he was not an unlawful user of
controlled substances was false. The evidence also was sufficient for the jury to
find that this false statement was material. The government was only required to
prove one of the two alleged material false statements to obtain Holley’s
conviction. See United States v. Portac, Inc., 869 F.2d 1288, 1296 (9th Cir. 1989);
United States v. Vuckson, 354 F.2d 918, 920 (9th Cir. 1966). Therefore, it is not
necessary to decide the merit of Holley’s contention that any false statement
concerning whether he was the actual purchaser of the shotgun was not material to
the lawfulness of the sale because the government had not introduced sufficient
evidence to prove that Donnell Roberts, the person for whom Holley bought the
firearm, was legally prohibited from purchasing it. Compare United States v. Polk,
118 F.3d 286, 294–95 (5th Cir. 1997) (no liability under § 922(a)(6) where true
purchaser can legally purchase firearms), with United States v. Abramski, 706 F.3d
307, 316 (4th Cir. 2013) (quoting United States v. Frazier, 605 F.3d 1271, 1280
(11th Cir. 2010)) (government need not prove that true purchaser is legally
prohibited from purchasing firearms because identity of purchaser is always
material to lawfulness of firearms purchase).
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Nor do Holley’s claims of prosecutorial misconduct justify relief. It was not
misconduct for the prosecutor to ask Detective Mark Palmer how Palmer “would
describe [Holley]” when Holley answered certain questions. In any event,
Palmer’s unsolicited description of Holley as “untruthful” did not materially affect
the fairness of the trial, see United States v. Reyes, 660 F.3d 454, 461 (9th Cir.
2011), in part because the judge sustained defense counsel’s objection, granted his
motion to strike that statement, and later instructed the jury to disregard any
testimony that had been stricken. It is presumed that a jury follows the court’s
instructions. See Richardson v. Marsh, 481 U.S. 200, 206 (1987); United States v.
Kalin, 50 F.3d 689, 694 (9th Cir. 1995).
Assuming, without deciding, that the prosecutor engaged in misconduct by
eliciting references to the issuance of a warrant for Holley’s arrest based on
probable cause, those references too did not materially affect the fairness of the
trial. See Reyes, 660 F.3d at 461. There were several such references. Defense
counsel objected only to some of them. The district judge instructed the jury to
“disregard what a federal judge found.” Once again, the jury is presumed to have
followed this instruction. See Richardson, 481 U.S. at 206.
Holley did not object to the prosecutor’s reference in closing argument to the
fact that the shotgun Holley bought was used by Roberts to commit a murder and
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kill himself. That reference did not constitute plain error. See Reyes, 660 F.3d at
461. The murder and suicide were discussed by witnesses throughout the trial
without objection. In closing arguments “prosecutors are free to argue reasonable
inferences from the evidence.” United States v. Gray, 876 F.2d 1411, 1417 (9th
Cir. 1989); accord United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir.
2002). Moreover, to the extent the prosecutor’s single statement was arguably an
improper appeal to emotion, see United States v. Weatherspoon, 410 F.3d 1142,
1149 (9th Cir. 2005), in the context of all of the other evidence that the jury was
entitled to credit, that statement did not “seriously affect[] the fairness, integrity, or
public reputation of judicial proceedings” or cause a miscarriage of justice. See
Reyes, 660 F.3d at 461 (quoting United States v. Geston, 299 F.3d 1130, 1135 (9th
Cir. 2002)).
AFFIRMED.
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