NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 18-30162 Plaintiff-Appellee, D.C. No. 2:16-cr-00320-RSM-1 v.
ROBERT STANARD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted September 4, 2020 Seattle, Washington
Before: BYBEE and COLLINS, Circuit Judges, and SOTO,** District Judge.
Robert Stanard appeals his conviction, after a jury trial, for being a felon in
possession of a firearm (Count One), 18 U.S.C. § 922(g)(1); being a felon in
possession of ammunition (Count Two), id.; possessing an unregistered silencer
(Count Three), 26 U.S.C. §§ 5841, 5861(d), 5871; and conspiring to obstruct
justice (Count Four), 18 U.S.C. §§ 371, 1503. We affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Alan Soto, United States District Judge for the District of Arizona, sitting by designation. 1. We reject Stanard’s argument that the district court erred in denying his
motion to suppress the evidence of the firearms and ammunition found in his house
and garage. Reviewing for clear error and drawing all inferences in favor of the
court’s decision, see United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir.
2004), we conclude that the district court properly found that Stanard’s wife Anna
had voluntarily consented to show an officer, who was responding to a domestic
violence report against Stanard, the loaded pistol in the lockbox in the Stanards’
bedroom and the firearms and ammunition in the safe in their garage.
As the district court specifically found after considering the testimony at the
suppression hearing, Anna was treated by the officers as a victim rather than a
suspect; she was never in custody or handcuffed or threatened with arrest; and the
officers never drew their weapons on her. See United States v. Brown, 563 F.3d
410, 416 (9th Cir. 2009); Patayan Soriano, 361 F.3d at 504. Further, the officer
never told Anna that he “could obtain a search warrant if [she] refused to consent.”
United States v. Russell, 664 F.3d 1279, 1282 (9th Cir. 2012); see also Patayan
Soriano, 361 F.3d at 504. The court also noted that Anna was very cooperative
with the officers, leading them to the gun in the bedroom and then to the gun safe
in the garage and opening it. Although no Miranda warnings were given and Anna
was never expressly told that she could refuse to consent, those considerations do
not weigh against voluntariness in light of the officers’ treatment of her as a victim
2 and her own cooperative attitude. While the district court recognized that Anna
was obviously emotional at the time, that was understandable given the
immediately preceding events, and the court reasonably concluded that,
considering all of the circumstances, that did not render her consent involuntary.
There was no clear error. See Patayan Soriano, 361 F.3d at 501.
2. Stanard also argues, for the first time on appeal, that the statutes
underlying Counts One through Three, see 18 U.S.C. § 922(g)(1) and 26 U.S.C.
§ 5861(d), exceed the scope of Congress’s Commerce Clause authority under
United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529
U.S. 598 (2000). We have held, however, after the Supreme Court rendered its
decisions in Lopez and Morrison, that the prohibitions in 18 U.S.C. § 922(g) are a
valid exercise of Congress’s authority under the Commerce Clause. United States
v. Latu, 479 F.3d 1153, 1156–57 (9th Cir. 2007). After Lopez, but before
Morrison, we also held that 26 U.S.C. § 5861(d) is a valid exercise of Congress’s
taxing power. Hunter v. United States, 73 F.3d 260, 262 (9th Cir. 1996); cf.
National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 567 (2012) (noting that
the Court had upheld, under the taxing power, “such obviously regulatory
measures as taxes on . . . sawed-off shotguns” in Sonzinsky v. United States, 300
U.S. 506, 513 (1937)). In support of his contention that Latu and Hunter were
wrongly decided, Stanard points to the various dissents in United States v.
3 Alderman, 565 F.3d 641 (9th Cir. 2009) (rejecting challenge under Lopez and
Morrison to 18 U.S.C. § 931, which criminalizes possession of body armor), reh’g
en banc denied, 593 F.3d 1141 (9th Cir. 2010), cert. denied, 562 U.S. 1163 (2011).
We are, of course, bound by the majority opinion in Alderman, whose reasoning
only further underscores that this three-judge panel lacks authority to reconsider
Latu or Hunter. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc).
3. Stanard contends that, under Rehaif v. United States, 139 S. Ct. 2191
(2019), the indictment in this case was deficient because it did not allege that he
had knowledge of his status as a felon, which is what made it unlawful for him to
possess the firearms and ammunition. Because Stanard did not raise this challenge
below, we review only for plain error, which requires Stanard to “show that
(1) there was an error, (2) the error is clear or obvious, (3) the error affected his
substantial rights, and (4) the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Johnson, 979 F.3d 632,
636 (9th Cir. 2020). Stanard cannot establish the third and fourth prongs of plain
error review because he cannot show that an error-free indictment would have led
to a different outcome here. See United States v. Benamor, 937 F.3d 1182, 1189
(9th Cir. 2019). Stanard stipulated that he had been previously convicted of a
felony, and the jury heard overwhelming testimony from the Stanards’ roommate,
4 Anna, Anna’s mother, and Stanard himself that Stanard knew he was not permitted
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 18-30162 Plaintiff-Appellee, D.C. No. 2:16-cr-00320-RSM-1 v.
ROBERT STANARD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted September 4, 2020 Seattle, Washington
Before: BYBEE and COLLINS, Circuit Judges, and SOTO,** District Judge.
Robert Stanard appeals his conviction, after a jury trial, for being a felon in
possession of a firearm (Count One), 18 U.S.C. § 922(g)(1); being a felon in
possession of ammunition (Count Two), id.; possessing an unregistered silencer
(Count Three), 26 U.S.C. §§ 5841, 5861(d), 5871; and conspiring to obstruct
justice (Count Four), 18 U.S.C. §§ 371, 1503. We affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Alan Soto, United States District Judge for the District of Arizona, sitting by designation. 1. We reject Stanard’s argument that the district court erred in denying his
motion to suppress the evidence of the firearms and ammunition found in his house
and garage. Reviewing for clear error and drawing all inferences in favor of the
court’s decision, see United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir.
2004), we conclude that the district court properly found that Stanard’s wife Anna
had voluntarily consented to show an officer, who was responding to a domestic
violence report against Stanard, the loaded pistol in the lockbox in the Stanards’
bedroom and the firearms and ammunition in the safe in their garage.
As the district court specifically found after considering the testimony at the
suppression hearing, Anna was treated by the officers as a victim rather than a
suspect; she was never in custody or handcuffed or threatened with arrest; and the
officers never drew their weapons on her. See United States v. Brown, 563 F.3d
410, 416 (9th Cir. 2009); Patayan Soriano, 361 F.3d at 504. Further, the officer
never told Anna that he “could obtain a search warrant if [she] refused to consent.”
United States v. Russell, 664 F.3d 1279, 1282 (9th Cir. 2012); see also Patayan
Soriano, 361 F.3d at 504. The court also noted that Anna was very cooperative
with the officers, leading them to the gun in the bedroom and then to the gun safe
in the garage and opening it. Although no Miranda warnings were given and Anna
was never expressly told that she could refuse to consent, those considerations do
not weigh against voluntariness in light of the officers’ treatment of her as a victim
2 and her own cooperative attitude. While the district court recognized that Anna
was obviously emotional at the time, that was understandable given the
immediately preceding events, and the court reasonably concluded that,
considering all of the circumstances, that did not render her consent involuntary.
There was no clear error. See Patayan Soriano, 361 F.3d at 501.
2. Stanard also argues, for the first time on appeal, that the statutes
underlying Counts One through Three, see 18 U.S.C. § 922(g)(1) and 26 U.S.C.
§ 5861(d), exceed the scope of Congress’s Commerce Clause authority under
United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529
U.S. 598 (2000). We have held, however, after the Supreme Court rendered its
decisions in Lopez and Morrison, that the prohibitions in 18 U.S.C. § 922(g) are a
valid exercise of Congress’s authority under the Commerce Clause. United States
v. Latu, 479 F.3d 1153, 1156–57 (9th Cir. 2007). After Lopez, but before
Morrison, we also held that 26 U.S.C. § 5861(d) is a valid exercise of Congress’s
taxing power. Hunter v. United States, 73 F.3d 260, 262 (9th Cir. 1996); cf.
National Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 567 (2012) (noting that
the Court had upheld, under the taxing power, “such obviously regulatory
measures as taxes on . . . sawed-off shotguns” in Sonzinsky v. United States, 300
U.S. 506, 513 (1937)). In support of his contention that Latu and Hunter were
wrongly decided, Stanard points to the various dissents in United States v.
3 Alderman, 565 F.3d 641 (9th Cir. 2009) (rejecting challenge under Lopez and
Morrison to 18 U.S.C. § 931, which criminalizes possession of body armor), reh’g
en banc denied, 593 F.3d 1141 (9th Cir. 2010), cert. denied, 562 U.S. 1163 (2011).
We are, of course, bound by the majority opinion in Alderman, whose reasoning
only further underscores that this three-judge panel lacks authority to reconsider
Latu or Hunter. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc).
3. Stanard contends that, under Rehaif v. United States, 139 S. Ct. 2191
(2019), the indictment in this case was deficient because it did not allege that he
had knowledge of his status as a felon, which is what made it unlawful for him to
possess the firearms and ammunition. Because Stanard did not raise this challenge
below, we review only for plain error, which requires Stanard to “show that
(1) there was an error, (2) the error is clear or obvious, (3) the error affected his
substantial rights, and (4) the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Johnson, 979 F.3d 632,
636 (9th Cir. 2020). Stanard cannot establish the third and fourth prongs of plain
error review because he cannot show that an error-free indictment would have led
to a different outcome here. See United States v. Benamor, 937 F.3d 1182, 1189
(9th Cir. 2019). Stanard stipulated that he had been previously convicted of a
felony, and the jury heard overwhelming testimony from the Stanards’ roommate,
4 Anna, Anna’s mother, and Stanard himself that Stanard knew he was not permitted
to possess firearms or ammunition due to his prior felony conviction. There is no
reasonable probability that, but for the error, the outcome would have been any
different. Johnson, 979 F.3d at 638.
4. Finally, Stanard argues, for the first time on appeal, that his convictions
for being a felon in possession of a firearm and for being a felon in possession of
ammunition are multiplicitous. Reviewing for plain error, United States v. Zalapa,
509 F.3d 1060, 1064 (9th Cir. 2007), we reject this contention.
In United States v. Keen, 104 F.3d 1111 (9th Cir. 1996), we held that a
defendant may not be convicted and sentenced for multiple violations of 18 U.S.C.
§ 922(g)(1) based on the simultaneous possession of a firearm and its
accompanying ammunition. Id. at 1118–20. In a footnote, we reserved the
question whether the same rule would apply when a gun and its ammunition are
held in physically separate places. Id. at 1118 & n.11. The record in this case
makes it highly unlikely that Keen’s rule was violated here. Using a special verdict
form for Count One, the jury concluded that Stanard possessed two different
firearms, an AR-15-style rifle and a .380 caliber pistol. On a general verdict form
for Count Two, the jury concluded that Stanard possessed ammunition. The
uncontroverted evidence at trial established that the .380 pistol was stored in a
lockbox in the Stanards’ bedroom and the rifle was stored in the Stanards’ garage,
5 which was a separate building that was freestanding from the house. The
uncontroverted evidence also established that ammunition for both weapons was
stored in the garage and that ammunition for the .380 pistol was stored with that
pistol in the house. Thus, regardless of whether the ammunition that was the basis
of the jury’s finding on Count Two related to the rifle or the .380 pistol, the jury
necessarily found that Stanard also possessed the other firearm. Therefore,
Stanard’s convictions for possession of a firearm and possession of ammunition
involve two different and separately chargeable violations of § 922(g)(1). See
Keen, 104 F.3d at 1118 n.11; United States v. Szalkiewicz, 944 F.2d 653, 653 (9th
Cir. 1991); United States v. Gann, 732 F.2d 714, 717, 721 (9th Cir. 1984). At a
minimum, there was no plain error that affected substantial rights and undermined
the fairness, integrity, or public reputation of the proceedings. Johnson, 979 F.3d
at 636.
AFFIRMED.