United States v. Shawn Harvey ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-3948
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UNITED STATES OF AMERICA
v.
SHAWN K. HARVEY,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-17-cr-0183-001)
District Judge: Hon. Noel L. Hillman
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Submitted Under Third Circuit LAR 34.1(a)
September 25, 2020
Before: McKEE, JORDAN, and RENDELL, Circuit Judges.
(Filed: October 1, 2020)
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OPINION
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
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
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JORDAN, Circuit Judge.
Defendant Shawn K. Harvey sold firearms to a confidential informant (“CI”) and
was indicted for dealing in firearms without a license and for conspiracy to commit that
crime. He proceeded to trial. During the trial, the prosecutor asked closed-ended
questions of some witnesses. Harvey’s attorney objected, arguing that the questions were
leading, and the District Court sustained the objections. The jury found Harvey guilty.
Harvey now appeals, arguing that the government substantially relied on those leading
questions and, but for its reliance on those questions, the record would not have contained
sufficient evidence for the jury to find him guilty beyond a reasonable doubt. We
disagree and will affirm.
I. BACKGROUND
In 2016, a CI in New Jersey bought 35 guns during 11 monitored transactions.
Harvey and his son and co-defendant Shawn M. Harvey, also known as “Munchy,”
participated in three of the transactions together, and Munchy participated in the other
transactions by himself. Harvey and Munchy were each charged with one count of
conspiracy to deal in firearms without a license in violation of 18 U.S.C. § 371, and,
based on the same three transactions, three counts of dealing in firearms without a
license, in violation of 18 U.S.C. §§ 2 and 922(a)(1)(A). Munchy was also charged with
eight additional counts of dealing in firearms without a license. Munchy pled guilty to
one count of conspiracy to deal in firearms without a license and testified against his
father at trial.
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During trial, the Assistant United States Attorney (“AUSA”) asked closed-ended
questions of certain witnesses. First, during the direct examination of an ATF special
agent, the AUSA inquired how the CI first got in contact with Harvey and Munchy,
asking “[d]id the ATF direct this informant to place consensually recorded telephone
calls[?]” (Supp. App. at 52.) Defense counsel objected to the question as leading, and
the District Court sustained the objection. The witness did not answer the question. The
Court held a sidebar and instructed the government to just ask “what happened next.”
(Supp. App. at 53.) The AUSA then asked non-leading questions of the agent, who
explained the CI’s cooperation and laid the foundation for the admission of the guns that
Harvey sold.
Second, the AUSA asked a closed-ended question of the supervisor at the Federal
Firearms Licensing Center. That witness was testifying as a custodian of records and laid
the foundation for the admission of a document demonstrating that Harvey was not a
licensed firearms dealer. When asking about the search the supervisor ran to determine if
Harvey was a licensed firearms dealer, the AUSA asked, “did that search take into
account identifiers not just Mr. Harvey, that is, Shawn K. Harvey’s name, but also his
date of birth, his Social Security Number?” (Supp. App. at 313.) Defense counsel
objected that the question was leading, and the Court sustained the objection. The
prosecutor then proceeded to ask non-leading questions.
Finally, the AUSA questioned the CI regarding the CI’s prior criminal history, his
motivation to cooperate with the government, and how he first began communicating
with Munchy. During that questioning, defense counsel objected to three questions as
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leading, the District Court sustained each of those objections, and the AUSA rephrased
the questions.
The jury found Harvey guilty on all counts. This timely appeal followed.
II. DISCUSSION1
Harvey’s sole argument on appeal is that the government relied on leading
questions and that, absent the testimony elicited by those leading questions, the jury
could not have found him guilty beyond a reasonable doubt. That is plainly not so.
A. No Inappropriate Evidence Was Admitted as a Result of Leading
Questions2
“[A] leading question suggests to the witness the answer sought by the
questioner.” 28 Fed. Prac. & Proc. Evid. § 6168 (c) (2d ed.). Federal Rule of Evidence
611(c) provides that “[l]eading questions should not be used on direct examination except
as necessary to develop the witness’s testimony.”
The District Court sustained the objections to the leading questions, and no
testimony was given in response to them. Even so, the questions about which Harvey
now complains pertained primarily to preliminary matters that were not in dispute. The
prosecutor’s questions of the CI were not suggestive and did not evoke a false memory.
See United States v. Templeman, 965 F.2d 617, 619 (8th Cir. 1992) (stating that the
1
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291.
2
“Evidentiary rulings are reviewed for abuse of discretion, but even erroneous
rulings only require a new trial if the ruling affects a substantial right of the party[.]”
United States v. Friedman, 658 F.3d 342, 352 (3d Cir. 2011) (citations and internal
quotation marks omitted).
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leading questions to which defendant’s objections were sustained “were not so numerous,
nor were they so suggestive, that they crossed the fine line between stimulating an
accurate memory and implanting a false one. Nor did those questions deprive the jury of
the ability to weigh the witnesses’ testimony and credibility.” (citations and internal
quotation marks omitted)). And none of the questions now complained of affected the
proceedings in any material way. As detailed herein, the evidence against Harvey was
overwhelming.
B. There Was More Than Sufficient Evidence for Harvey’s Conviction3
Even if the AUSA had elicited testimony using leading questions, Harvey would
not be entitled to the new trial that he seeks because the other evidence against Harvey
was more than sufficient for a reasonable jury to find him guilty beyond a reasonable
doubt.
The jury was instructed that to prove a conspiracy to traffic in illegal firearms, the
government must show beyond a reasonable doubt that (1) two or more people agreed to
commit an offense against the United States, that is, firearms trafficking without a federal
Harvey’s evidentiary complaints amount to an argument that, but for the leading
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questions, there would have been insufficient evidence for a conviction. But he did not
challenge the sufficiency of the evidence in the District Court by filing a motion for
judgment of acquittal. Accordingly, we review for plain error. United States v.
Pawlowski, 682 F.3d 205, 211 (3d Cir. 2012). “A plain error is clear or obvious and
affects substantial rights, meaning it was prejudicial in that it affected the outcome of the
District Court proceedings.” Id. at 210 (internal quotation marks and citation omitted).
In reviewing challenges to the sufficiency of the evidence, “[w]e view the evidence in the
light most favorable to the government and must sustain a jury’s verdict if a reasonable
jury believing the government’s evidence could find beyond a reasonable doubt that the
government proved all the elements of the offenses.” Id. at 211 (internal quotation marks
and citation omitted).
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firearms license; (2) Harvey was a party to that agreement; (3) Harvey joined the
agreement knowing of its objective to commit an offense against the United States and
shared a unity of purpose with at least one other alleged conspirator with intent to achieve
a common goal; and (4) that at some time during the existence of the agreement, at least
one of its members performed an overt act in order to further the objectives of the
agreement. The jury was instructed that to prove the substantive counts of trafficking in
firearms without a license, the government had to prove beyond a reasonable doubt that
(1) on February 17, 24, and March 21, 2016, Harvey engaged in the business of dealing
in firearms; (2) he did not have a license as a dealer in firearms; and (3) he acted
knowingly and willfully.
Here, there was overwhelming evidence upon which a jury could find Harvey
guilty beyond a reasonable doubt. The CI and Munchy testified that Harvey arranged for
the sale of the firearms to the CI, including negotiating the prices and types of firearms.
Text messages corroborated that testimony. The CI and Munchy were present for the
three occasions when Harvey sold the firearms to the CI, and they testified about those
transactions. The ATF agents who observed the transactions testified too. And the Court
also admitted video and audio recordings of the transactions. It was undisputed that
Harvey and Munchy are not licensed firearms dealers. Given all of that evidence, a
reasonable jury could obviously find Harvey guilty beyond a reasonable doubt.
III. Conclusion
For the foregoing reasons, we will affirm the order of the District Court.
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