United States v. Michael O'LOOney

544 F.2d 385
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 13, 1976
Docket75-2666
StatusPublished
Cited by80 cases

This text of 544 F.2d 385 (United States v. Michael O'LOOney) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael O'LOOney, 544 F.2d 385 (9th Cir. 1976).

Opinions

WALLACE, Circuit Judge:

O’Looney was involved in an alleged plot to export guns illegally to Ireland for use by the Irish Republican Army. He was indicted on five counts. One count was for conspiring to engage in the business of exporting arms without registering with the State Department and conspiring to make a false statement with respect to the information required to be kept in the records of a federally licensed firearms dealer, all in violation of 18 U.S.C. §§ 371 and 924(a) and 22 U.S.C. § 1934. The other four counts were for aiding and abetting the making of false statements in violation of 18 U.S.C. §§ 2 and 924(a). O’Looney was convicted by a jury on the part of the first count charging a conspiracy to engage in the business of exporting arms and acquitted of all other counts. We affirm.

O’Looney was born and raised in Ireland. He had lived in the United States for over 20 years and had been a naturalized citizen for about five years. He became interested in the movement to reunify Ireland. After a trip to his homeland, he agreed with co-defendant Harper1 to purchase weapons for the cause. O’Looney furnished the money and Harper, at times using false identification, purchased the weapons. At the time the plot first came to the attention of police, Harper had purchased at least six semi-automatic rifles at five different stores in the San Diego area and had paid a deposit on a seventh.

On appeal, O’Looney claims that evidence and statements obtained in violation of his Fourth and Fifth Amendment rights should have been suppressed, that the evidence was insufficient to support his conviction and that he was prejudiced by use of a special verdict form.

I. The Auto Search

On one of their gun-purchasing ventures, Harper’s unusual behavior aroused the suspicion of the gun store owner. After Harper left the store he was observed talking to O’Looney. Harper returned to the store to place a cash deposit on a semi-automatic rifle and produced identification containing what the owner believed to be a false address. The owner sent a letter to Harper at that address; it was returned marked “no such address.” Harper returned to the store about a week later to pick up the rifle he ordered. The owner called the police and the first officer to arrive questioned Harper and the owner. The owner directed the second officer, a policewoman, to a neighbor who had been keeping an eye on O’Looney. The neighbor pointed out O’Looney, walking along the sidewalk. O’Looney produced identification upon request and denied knowing the man in the [388]*388store (Harper). He stated that he had a car a few blocks away and agreed to go there in a police car. He also agreed to allow his car to be searched and signed a statement to that effect. The search produced evidence connecting O’Looney with Harper and prompted the police to investigate further.

There is no doubt but that the policewoman properly detained O’Looney for the initial inquiry. The attempted purchase of firearms with false identification was a crime, 18 U.S.C. § 922(a)(6), and O’Looney had been identified as a possible accomplice. There was thus reasonable suspicion to support the preliminary investigation. Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 21-23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

O’Looney claims that the search was illegal, however, because it was made without a warrant. The government responds that O’Looney voluntarily consented to the search. This is a question of fact, Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), upon which the government had the burden of proof by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 177-78 & n.14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Lego v. Twomey, 404 U.S. 477, 488-89, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The trial judge found that the government met this burden. We will reverse such a finding only if in viewing the evidence in the light most favorable to the government, United States v. Sherman, 430 F.2d 1402, 1404 (9th Cir. 1970), cert. denied, 401 U.S. 908, 91 S.Ct. 865, 27 L.Ed.2d 805 (1971), we conclude that it is clearly erroneous, United States v. Rothman, 492 F.2d 1260, 1264 (9th Cir. 1973); United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962) (en banc).

We cannot conclude that the trial court’s finding was clearly erroneous. The Supreme Court has noted that there is “no talismanic definition of ‘voluntariness,’ mechanically applicable to the host of situations where the question has arisen.” Schneckloth v. Bustamonte, supra, 412 U.S. at 224, 93 S.Ct. at 2046. Instead, the Court has stated that the issue is one “of fact to be determined from all the circumstances.” Id. at 248-49, 93 S.Ct. at 2059.

O’Looney submitted an affidavit alleging that he consented only because he was in custody, frightened and totally out of his element and because he was misled into believing that he must consent to allay police suspicion. However, the evidence was to the contrary. O’Looney was not especially vulnerable to coercion because of youth, lack of education or low intelligence. See, e. g., Payne v. Arkansas, 356 U.S. 560, 562 & n.4, 567, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); Fikes v. Alabama, 352 U.S. 191, 193, 197-98, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 92 L.Ed. 224 (1948). It appears that he was a sophisticated businessman with interests in California, Illinois and Ireland and that he had often sought legal advice in business affairs. Indeed he had consulted his attorney about the -legality of the arms purchasing scheme itself.

Nor was O’Looney subjected to a lengthy detention, prolonged interrogation or physical punishment. See, e. g., Ashcraft v. Tennessee, 322 U.S. 143, 153-54, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Chambers v. Florida, 309 U.S. 227, 239, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Brown v. Mississippi,

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Bluebook (online)
544 F.2d 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-olooney-ca9-1976.