United States Court of Appeals
For the First Circuit
No. 01-1162
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN BUNNELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Boudin, Chief Judge,
Coffin, Senior Circuit Judge,
and Torruella, Circuit Judge.
Robert A. Ratliff on brief for appellant.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for the United States.
February 15,2002
BOUDIN, Chief Judge. On August 25, 1998 Lisa Bunnell, the
defendant's ex-wife, applied for a state court order of protection
against the defendant Steven Bunnell. The final two-year order, issued
on September 11, 1998, and served on Bunnell, prohibited the use,
attempted use, or threatened use of physical force against Lisa
Bunnell. The order (issued after notice and an opportunity for Steven
Bunnell to participate) also warned in bold block print that possession
of a firearm by him would be a crime if a specific box were checked and
the box was checked. Another box directly banning the possession of
firearms without regard to other conditions in the order was not
checked.
On April 3, 2000, John Knoblach--serving in the National
Guard with Bunnell--told Officer Scot Bradeen of the Lewiston Police
Department that Bunnell had made comments about killing his ex-wife
while firing an M-60 machine gun during a training exercise. Knoblach
also said that he had seen Bunnell in possession of a Colt AR-15, the
civilian version of the M-16 assault rifle, and that Bunnell told
Knoblach he wanted to rent an apartment in which a previous tenant had
shot and killed his wife or girlfriend. Bradeen confirmed that there
existed a protective order that prohibited Bunnell from possessing a
firearm and that Bunnell was in fact living in an apartment where a
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woman had been shot a year earlier. On this basis, Bradeen applied for
an arrest warrant.
In the meantime, Lewiston Police Officers Bussiere, Cashman,
and Roberts confronted Bunnell in a local convenience store, and told
Bunnell that he was not under arrest but that the police were
investigating a claim that Bunnell had illegally possessed a weapon
while under a protective order. Bunnell admitted that there was a
protective order in force against him and that he did possess a Colt
AR-15 in his apartment, but he said he was unaware that the protective
order prohibited him from possessing a firearm and stated that he
wished to turn over the weapon to the police.
Bunnell returned to the apartment with Officer Cashman. When
the other officers arrived, Bunnell repeated that he wanted to turn
over the gun; he even offered to retrieve it himself, but was
instructed to remain seated in the kitchen. The officers proceeded to
search the apartment and, following Bunnell's verbal directions, found
the Colt AR-15, four taped-together loaded ammunition magazines, and a
copy of the protective order. At about the same time, two other
officers arrived with a consent-to-search form, which Bunnell signed.
Thereafter, Officer Bradeen arrived with the arrest warrant, questioned
Bunnell for a few minutes, placed him under arrest and then gave him
Miranda warnings. United States v. Bunnell, 106 F. Supp. 2d 60, 64 (D.
Me. 2000).
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Bunnell was indicted for possessing a firearm while being
subject to a protective order. 18 U.S.C. § 922(g)(8) (1994 & Supp. V
1999). The district court refused to suppress the physical evidence
but did suppress Bunnell's prearrest statements under Miranda v.
Arizona, 384 U.S. 436 (1966). See Bunnell, 106 F. Supp. 2d at 68-69.
Bunnell was convicted after a jury trial and sentenced to 37 months in
prison. He now appeals.
Bunnell first denies that he consented voluntarily to the
search that produced the physical evidence. Consent, if valid, made a
search warrant unnecessary. Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973). Whether in consenting Bunnell was unduly intimidated by
the presence and behavior of the officers was a factual question,
United States v. Mendenhall, 446 U.S. 544, 557-58 (1980), and the
district court's conclusion that consent was voluntarily given--made
after witness testimony at the suppression hearing--was not clearly
erroneous, see United States v. Zapata, 18 F.3d 971, 975 (1st Cir.
1994). Bunnell's initial offer at the store to turn over the weapon
and oral invitation to search made at the apartment even before the
consent form was tendered make this a straightforward case. There was
no automatic obligation to warn that evidence found could be used at
trial. See Schneckloth, 412 U.S. at 246-48.
Bunnell objects to the district court's admission at trial
of the Colt AR-15 on the ground that he had stipulated to possessing
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it, and that its appearance in the courtroom unfairly prejudiced the
jury. See Fed. R. Evid. 403. Such evidentiary rulings are generally
reviewed for abuse of discretion, Larch v. Mansfield Mun. Elec. Dep't,
272 F.3d 63, 72 (1st Cir. 2001), and this is hardly an egregious case.
Further, the government still had to prove that the gun had traveled in
interstate commerce under the statute, and the government's expert
permissibly used the gun in explaining how this requirement had been
satisfied.
Although Bunnell also argues that Officer Bradeen's testimony
about the history of Bunnell's apartment was unduly prejudicial and
should not have been admitted at trial without a limiting instruction,
that testimony was admitted only at a pre-trial suppression hearing
with no jury present. The Federal Rules of Evidence, apart from
testimonial privileges, do not apply at suppression hearings, United
States v. Schaefer, 87 F.3d 562, 570 (1st Cir. 1996). The testimony
was admitted only to show Officer Bradeen's state of mind when he first
approached Bunnell; it was not an abuse of discretion to admit the
statement for this limited purpose.
Bunnell also says that the district court erred in denying
his request to instruct the jury on a defense of entrapment by
estoppel. In a voir dire hearing, Bunnell testified that he had had a
conversation with a National Guard sergeant recruiter about moving from
inactive to active status. Bunnell said that he had told the recruiter
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that a protection from abuse order had been entered against him, but
that the recruiter said that reenlistment was still permitted so long
as there was no conviction for domestic violence.1 Bunnell conceded
that the recruiter had said nothing about Bunnell's right to possess a
weapon, but Bunnell said that he inferred that the protective order was
no bar because his duties in the National Guard would have required him
to carry a rifle and the box on the order directly prohibiting
possession of firearms had not been checked.
A defense of entrapment by estoppel would require Bunnell to
show that he had been told by a government official that his behavior
was legal and that he reasonably relied on that advice. United States
v. Ellis, 168 F.3d 558, 561 (1st Cir. 1999). In this case, Bunnell
never claimed that the recruit sergeant told him that he could possess
any weapon, let alone a private weapon in his home; and the protective
order stated that Bunnell was prohibited from possessing a weapon.
Under these circumstances, we agree with the district court that there
was no basis for a finding of reasonable reliance. Absent a basis on
which a jury could find an estoppel claim, no instruction was required.
United States v. Angiulo, 897 F.2d 1169, 1204-05 (1st Cir. 1990).
1
The recruiter testified that no such discussion had
occurred and, if it had, policy would have required that
Bunnell's application not be processed until the order expired
or was vacated. Although the district judge credited the
recruiter's version of the events, we will assume arguendo that
a jury might have believed Bunnell.
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Bunnell's claim in the district court that the unchecked box on the
order supported an estoppel claim is not renewed on appeal.
As to his sentence, Bunnell objects that he was denied a
downward adjustment for acceptance of responsibility, U.S.S.G. §
3E1.1(a) (2000). But the district court explained at sentencing that
Bunnell's own statements at sentencing showed that he did not accept
responsibility, and we find no clear error in this determination.
United States v. Talladino, 38 F.3d 1255, 1263 (1st Cir. 1994).
Because Bunnell did not accept responsibility, his further request for
a one-level adjustment based on assisting the authorities was
foreclosed. See U.S.S.G. § 3E1.1(b). Bunnell's further claim that the
district court erred by refusing to depart downward based on lesser
harms, see U.S.S.G. § 5K2.11, is unreviewable unless based on a mistake
of law. United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994).
The district court's statements give no indication that it
misunderstood its authority.2
Finally, Bunnell argues that the prosecutor inaccurately and
unfairly asserted that Bunnell had more than once "visualized shooting
his wife." Bunnell does not deny that he had spoken of killing his
wife while firing his machine gun during a training exercise, but
2
Bunnell's claim that the court erred in applying an
obstruction of justice enhancement under U.S.S.G. § 3C1.1 for
cutting his home monitoring bracelet is baseless; the court, in
fact, declined to impose the enhancement.
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contends that no one could know what he actually "visualized." This
phrasing was used not at trial but only at sentencing. The sentencing
judge, who had heard the testimony as to what Bunnell said at the
firing range, was capable of making an independent evaluation as to
the intention behind the remarks.
Affirmed.
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