                                                                                      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                               NOT FOR PUBLICATION                                     MAY 07 2013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).




                                           3
      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).


                                          4
      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


                                           5
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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