                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10300

                Plaintiff-Appellee,             D.C. No.
                                                2:12-cr-00207-TLN-1
 v.

RYAN MCGOWAN,                                   MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                           Submitted August 16, 2018**
                            San Francisco, California

Before: O'SCANNLAIN and BEA, Circuit Judges, and McLAUGHLIN,***
District Judge.

      Ryan McGowan appeals his conviction for (1) engaging in the business of

dealing firearms without a license, in violation of 18 U.S.C. § 922(a)(1), and (2)


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Mary A. McLaughlin, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
conspiracy to make a false statement on ATF Form 4473, in violation of 18 U.S.C.

§ 371. Because the facts are known to the parties, we repeat them only as necessary

to explain our decision.

                                          I

      Sufficient evidence supports both counts of McGowan’s conviction.

                                          A

      Count One. To prove that McGowan was “engage[d] in the business of . . .

dealing in firearms,” the government had to show that McGowan “devote[d] time,

attention, and labor to dealing in firearms as a regular course of trade or business

with the principal objective of livelihood and profit through the repetitive purchase

and resale of firearms.” 18 U.S.C. §§ 922(a)(1)(A), 921(21)(C). Selling firearms

need not have been McGowan’s primary source of income. See United States v.

Ibarra, 581 F. App’x 687, 690 (9th Cir. 2014).

      The jury had before it ample evidence to conclude that McGowan purchased

and sold firearms with the principal objective of livelihood and profit. McGowan

purchased eight Desert Eagle handguns in the span of a few years, selling six of

them, despite claiming that they were not “a fun gun to shoot.” He also told a

firearms dealer that he could acquire more Desert Eagles if the dealer knew of

anyone who was interested. More generally, McGowan would frequently post guns

for sale immediately after picking them up from the dealer, or at times before he


                                          2
had even picked up the gun. McGowan also flatly admitted to detectives that he

was “in [the] business of selling guns for profit.”

                                          B

      Count Two. The government had to prove that McGowan conspired with

Snellings “knowingly [to] make[] any false statement or representation with

respect to the information required by [Chapter 44 of Title 18] to be kept in the

records of a [federally licensed firearms dealer].” 18 U.S.C. § 924(a)(1)(A).

      Sufficient evidence supports the jury’s conclusion that McGowan conspired

knowingly falsely to answer question 11.a. on ATF Form 4473, which is

information required to be kept by Chapter 44 of Title 18. Abramski v. United

States, 134 S. Ct. 2259, 2274 (2014). McGowan indicated that he was the “actual

transferee/buyer” of a Ruger LCP on such form, but he never paid for or picked up

the firearm. He instead transferred the firearm to Snellings just one day after the

expiration of the 10-day waiting period. The jury could thus conclude that he

acquired the firearm on behalf of Snellings, rendering his answer to question 11.a.

false. And McGowan was aware that it was false, later admitting to detectives that

he “didn’t buy the gun.” That McGowan and the Ruger’s ultimate recipient,

Preparos, did not know of each other is irrelevant, because McGowan purchased

the firearm on behalf of Snellings, not Preparos.

      There was also sufficient evidence that Snellings’ Firearms was a federally


                                           3
licensed firearms dealer at the time McGowan made the false statement: the ATF

Form on which he lied itself shows the store’s license number.1

                                           II

      The district court did not abuse its discretion in denying the motion for a

new trial on account of prosecutorial misconduct.

                                           A

      Even if the prosecutor at times crossed the line by arguing defense counsel

had “distorted” the evidence or the law, see United States v. Frederick, 78 F.3d

1370, 1379–80 (9th Cir. 1996), it cannot be said that “the prosecutor’s improper

conduct so affected the jury’s ability to consider the totality of the evidence fairly

that it tainted the verdict and deprived [McGowan] of a fair trial,” United States v.

Sanchez, 659 F.3d 1252, 1257 (9th Cir. 2011) (internal quotation marks omitted).

The district court often emphasized to the jury that arguments of counsel are not

evidence. See United States v. Freter, 31 F.3d 783, 787 (9th Cir. 1994). And

McGowan’s guilt did not turn on subtle credibility determinations, where “the

possibility of prejudicial effect grows,” United States v. Weatherspoon, 410 F.3d

1142, 1151 (9th Cir. 2005); rather, objective evidence of McGowan’s purchasing



      1
         The jury instructions were not deficient on this point, because they required
the jury to find that McGowan made a false statement pertaining to “information
that the law requires a federal firearms licensee to keep,” mirroring the
requirements of § 924(a)(1)(A).

                                           4
and selling pattern strongly supported the jury’s verdict. Finally, to the extent the

prosecutor argued that defense counsel had “distorted” the law, he did so only after

defense counsel had, in fact, repeatedly misstated the law to the jury. See United

States v. Young, 470 U.S. 1, 12 (1985). Specifically, defense counsel often argued

that McGowan could be convicted on Count One only if he intended selling guns

to be his primary source of income.

                                          B

      Neither reference to Halcon’s testimony from McGowan’s first trial required

a new trial. Halcon reaffirmed “Statement One” during the second trial, so the

prosecutor was free to reference it in closing. Nor was it improper for the

prosecutor to emphasize that Halcon did not limit his definition of straw purchase

in “Statement One” to purchasing firearms for “a prohibited person.” “Statement

Two” was not reaffirmed in the second trial, but the district court’s specific

instruction to disregard the statement was sufficient to dispel any prejudice that

might have arisen from the prosecutor’s reference to it in rebuttal. The possibility

of prejudice was limited because the substance of “Statement Two” was otherwise

in evidence. See Freter, 31 F.3d at 786–87.

                                          III

      The judgment of the district court is AFFIRMED.




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