On Appeal from the United States District Court for the Western District of Pennsylvania District Court No.: 03-cr-00228 District Judge: The Honorable Donetta W. Ambrose.
The opinion of the court was delivered by: Smith, Circuit Judge.
Before: SMITH, BECKER, and NYGAARD, Circuit Judges
Appellant Carl McBane challenges jury verdicts convicting him of one count of selling a stolen firearm in violation of 18 U.S.C. § 922(j) and one count of making a materially false statement to a federal agency in violation of 18 U.S.C. § 1001. McBane also seeks resentencing in light of the Supreme Court's decision in United States v. Booker, 125 S.Ct. 738 (2005). For the reasons set out below, we will uphold the jury verdicts on both the firearm and false statement charges, and we will remand the case to the District Court for resentencing.
Carl McBane was employed as a full-time police officer, with the rank of sergeant, for the borough of McKees Rocks in Allegheny County, Pennsylvania at all times relevant to the events described herein.On July 11, 1999, three members of the McKees Rocks Police Department arrested Mark Suchoza. Suchoza was booked and his personal belongings confiscated. Among those belongings was a Henry Model Survival .22 caliber rifle. Though Suchoza was not charged with any crime in connection with owning or possessing the rifle, it was not returned to him when he was released from custody after paying a fine for public intoxication.*fn1 At the time, McBane was one of two weapons specialists in the department who dealt with firearms brought into the station as evidence or as confiscated personal items.
Gerald Smith was a local constable for McKees Rocks and adjacent municipalities. He was also an informant for the Federal Bureau of Investigation ("FBI") who was cooperating in investigations into public corruption in the municipalities in which he worked. Smith testified that he was "good friends" with McBane, and that the two both worked security at bingo events held at a local booster club. One night during the summer of 2001, while the two were working together, McBane showed Smith Suchoza's rifle. Smith testified that when asked by Smith where he got it, McBane referred to Suchoza, then "[h]e said, well, this [rifle] was his. He said, we didn't give it back. I said, what are you going to do with it. He said, I am going to sell it." McBane then sold the rifle to Smith for $80. Smith notified the FBI that he had purchased the rifle from McBane, and the FBI initiated an investigation.
At the time Smith informed the FBI about the rifle, federal agents had already received information from a dispatcher at the McKees Rocks Police Department that McBane had sold the rifle. The FBI received the information from both sources in June of 2002. Thereafter, McBane attempted to cover-up his removal and sale of the rifle and another gun, a .22 caliber handgun.*fn2 He told Smith that the FBI was asking questions about the guns and that he needed to get them back and return them to his office at the department.
Smith agreed to give the guns back to McBane, but first, and without McBane's knowledge, Smith gave them to FBI Special Agents who photographed them as part of the investigation. The agents then arranged to electronically surveil Smith returning the guns to McBane. In the meantime, McBane reimbursed Smith for the price of the guns.
On August 26, 2002, Smith met McBane and returned the guns to him while wearing a recording device and under surveillance by the FBI. During that encounter, McBane made the comment to Smith that he could now let the FBI come into his office and see the guns.
On September 9, 2002, the same two FBI Special Agents who had been dealing with Smith went to McBane's house and asked him a series of questions focused on the guns McBane had sold to Smith. McBane told the Agents that the guns had never been sold and had remained in the physical custody of the department. McBane further stated that the guns were stored in his office and that he could show them to the Agents. Later that day, McBane showed the Agents the guns in his office at the department. That evening, in another recorded conversation with Smith, McBane told Smith that he had spoken to the Agents and "told them that [the guns] had never left . . . his office." McBane eventually admitted selling both guns to Smith and orchestrating the return of the guns to the office. He also admitted to lying to the Agents about the sale of the guns.
McBane claims that he first became aware of the rifle in late summer 1999 and that, weeks later, he removed it from the "filing cabinet" on which it was sitting and put it in his office. He also contends that he asked several individuals about the rifle's origins but got no knowledgeable response and that, sometime later, he ran a computer check on the rifle to determine if it had been stolen and found that the rifle was not in the system. McBane kept the rifle in his office for two years and removed it in the summer of 2001 in order to sell it to Smith.
McBane was charged in a three-count indictment returned on September 10, 2003. Counts One and Two charged McBane with selling stolen firearms in violation of 18 U.S.C. §§ 922(j)*fn3 and 924(a)(2),*fn4 and Count Three charged him with making a materially false statement in violation of 18 U.S.C. § 1001(a)(2).*fn5 A superseding indictment was filed on March 24, 2004. McBane pled not guilty, and a jury trial ensued which lasted from April 12 to April 16, 2004.*fn6 A jury convicted McBane on Count One for selling the rifle to Smith and on Count Three for making the materially false statements to the FBI. He was acquitted of selling the handgun.
The District Court denied McBane's post-verdict motion for judgment of acquittal on April 27, 2004. On July 30, 2004, under the pre-Booker, mandatory regime of the United States Sentencing Guidelines (hereinafter "Guidelines"), McBane was sentenced to 21 months for each count, to run concurrently, followed by two years of supervised release. McBane's offense level under the Guidelines included enhancements for his role in the offense and for the fact ...