United States v. McLinn

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 24, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3083
EDWARD E. MCLINN,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:14-CR-20098-CM-1)
_________________________________
Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender and
Chekasha Ramsey, Assistant Federal Public Defender with him on the briefs) Office of
the Federal Public Defender, Kansas City, Kansas, appearing for the appellant.
Stephen R. McAllister, United States Attorney (Thomas E. Beall, United States Attorney
and Carrie N. Capwell, Assistant United States Attorney on the brief) Office of the
United States Attorney, Kansas City, Kansas, appearing for the appellee.
_________________________________
Before MATHESON, McKAY, and EBEL, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
In this criminal case Defendant Edward McLinn appeals the district court’s
denial of his motion to dismiss the indictment for failure to state an offense under
Fed. R. Crim. P. 12(b)(3)(B)(v). Because the district court mistakenly treated the
dispositive issue in this case as a fact question properly reserved for the jury, we
VACATE the district court’s order and REMAND for further proceedings consistent
with this opinion.
I. Background
On August 27, 2013, Lawrence, Kansas, police officers responded to a call at a
local gas station to find Mr. McLinn wandering the premises wrapped only in a
shower curtain. The officers observed that Mr. McLinn had “chemical burns on his
person, bloodshot eyes, and other minor injuries[,]” but when they initially asked
McLinn about drug use he responded that he had used methamphetamine
“approximately 3 ½ years” earlier, and that his symptoms were the result of having
been cleaning his house with heavy cleaners. R. Vol. I at 84
When the officers asked Mr. McLinn how he came to be at the gas station, he
indicated he had fled his residence through the window in his shower because he was
afraid the police were pumping “knock-out gas” into his home. Id. Worried about
his dogs and the effect of the gas on their well-being, McLinn “panicked and left the
residence by climbing out a window, only wearing the shower curtain.” Id. Mr.
McLinn “later admitted that he had used methamphetamine the night before,” at
which point he became “concerned the police were going to get a search warrant for
his house, so he began to clean the residence with industrial cleaner.” Id. Concerned
for Mr. McLinn’s own safety, the officers on the scene had him taken to a local
emergency room.
2
The same day Mr. McLinn arrived at the emergency room, Leah Hadl,
apparently a hospital employee, petitioned the district court for Douglas County,
Kansas, for a determination of mental illness. In a written petition, Ms. Hadl
indicated her belief that Mr. McLinn was “a mentally ill person subject to involuntary
commitment,” that he was “suffering from a severe mental disorder,” that he lacked
“the capacity to make an informed decision concerning treatment,” and that he was
“likely to cause harm to [him]self or others, if not immediately detained.” R. Vol. III
at 38. She explained that when he arrived at the emergency room, Mr. McLinn
exhibited “extreme psychosis with visual hallucinations . . . auditory hallucinations . .
. [and] paranoia.” Id. at 39. She ultimately requested that Mr. McLinn be placed in
protective custody, and ordered to undergo mental health evaluation at Osawatomie
State Hospital (“OSH”).
Two days later, on August 29, 2013, the state court convened a hearing to
determine whether there was probable cause to believe that Mr. McLinn should be
involuntarily committed. After the hearing, at which Mr. McLinn was represented by
counsel, the state court determined that “there [was] probable cause to believe that
Edward E. McLinn [was] suffering from a severe mental disorder, lacks the capacity
to make an informed decision concerning treatment and [was] likely to cause harm to
[him]self or others[.]” Id. at 44 (emphasis added). On the basis of this
determination, the state court ordered that Mr. McLinn would be detained at OSH
“until such time and date that the . . . County District Court sets the matter for trial,
3
but in no event later than 14 days from the filing of the application [for involuntary
commitment].” Id.
Under Kansas law, a mental health facility, such as OSH, is required to
discharge any patient who has been involuntarily committed to its care “when the
patient is no longer in need of treatment.” Kan. Stat. Ann. § 59-2973(a). Apparently
pursuant to this requirement, Mr. McLinn was discharged from OSH on September 3,
2013, less than a week after he had originally been admitted. As part of the discharge
process, Mr. McLinn was required to sign a document entitled “Discharge
Instructions,” which included language indicating that “it is a violation of the law for
any person who has been involuntarily civilly committed to possess a firearm. For
the restoration of the ability to legally possess a firearm, a petition must be filed in
the District court where treatment was ordered.” R. Vol. I at 54 (emphasis omitted).
Roughly a year later, a number of City Commissioners in Lawrence began to
receive a series of bizarre emails. The emails referred to firearms and explained that
police were surveilling the author using “see-thru-walls surveillance” technology. Id.
at 85. Police launched an investigation into the emails, which ultimately led them to
Mr. McLinn’s public Instagram account, on which he had posted several photos of
himself with firearms.
Using this account, police obtained and executed a search warrant for Mr.
McLinn’s residence. There they recovered “a .45 caliber Sig Sauer pistol,” “a fully
constructed .223 caliber Stag Arms rifle,” and “a camouflage tactical vest with
plates.” Id. at 86. Police then arrested Mr. McLinn and charged him with, among
4
other offenses, possession of a firearm by an individual who has been adjudicated as
a mental defective and committed to a mental institution in violation of 18 U.S.C.
§§ 922(g), 924(a)(2). 1
Mr. McLinn moved to dismiss this count of the indictment for failure to state
an offense. See Fed R. Crim. P. 12(b)(3)(B)(v). The basis for his motion relevant on
appeal was that “the government will be incapable of proving that a Kansas court’s
temporary custody order authorizing Mr. McLinn’s short-term detention in a state
hospital pending trial on a civil commitment petition was a qualifying adjudication or
commitment for 18 U.S.C. § 922(g)(4) purposes.” R. Vol. III at 21–22. The district
court denied Mr. McLinn’s motion “without prejudice.” R. Vol. II at 64.
Following this adverse ruling, Mr. McLinn entered a conditional guilty plea to
this count of the indictment, reserving the right to appeal the denial of his motion to
dismiss. Under the terms of this agreement the government agreed to dismiss the
remaining counts of Mr. McLinn’s indictment. Mr. McLinn was subsequently
sentenced to time-served followed by a three-year term of supervised release. He
timely appealed, perfecting our jurisdiction under 28 U.S.C. § 1291.
II. Discussion
Federal law makes it unlawful for any person “who has been adjudicated as a
mental defective or who has been committed to a mental institution” to possess a
1
Mr. McLinn and his father were also charged with several additional firearm
violations involving illegally purchasing firearms on behalf of—or illegally
transferring firearms to—a person who is prohibited by law from possessing such
firearms.
5
firearm. 18 U.S.C. § 922(g)(4) (emphasis added). However, these two qualifying
events are not as clear as they might initially seem. Under the “adjudication” test, we
will have to determine whether a finding of “probable cause” that a defendant is a
mental defective is an “adjudication” of that condition. The second test—whether a
defendant has been “committed to a mental institution”—on its face does not appear
ambiguous. But this terminology may have been rendered more ambiguous because
of its interpretation in 27 C.F.R. § 478.11, which concludes that “the term
[committed to a mental institution] does not include a person in a mental institution
for observation . . . .”
Mr. McLinn does not challenge the government’s contention that he possessed
firearms, but instead moved to dismiss the indictment on the grounds that he had
been neither (1) adjudicated a mental defective, nor (2) committed to a mental
institution. The district court denied Mr. McLinn’s motion.
A. The District Court’s Order
We review orders granting or denying a motion to dismiss an indictment for
abuse of discretion, but we review any statutory interpretation issues in the ruling de
novo. United States v. Theis, 853 F.3d 1178, 1181 (10th Cir. 2017).
It is this latter circumstance which is in play in this appeal. The threshold
question presented in this case is whether the issue of whether the defendant has been
adjudicated a mental defective or committed to a mental institution (as defined by 27
C.F.R. § 478.11) is a question of law to be determined by the court or a question of
fact to be determined by the jury.
6
It seems clear that these are questions of law properly determined by the court.
First and foremost, it is a question of statutory interpretation, and we have always
considered such questions quintessentially legal in nature. See, e.g., United States v.
Lynch, 881 F.3d 812, 815 (10th Cir. 2018). Furthermore, in 1982, we held—
apparently as a matter of law—that a predecessor statute to § 922(g)(4) outlawing
possession of a firearm by anyone who had been “adjudged by a court of the United
States or of a state or any political subdivision thereof of being mentally
incompetent” “applie[d] to persons who have been found not guilty by reason of
insanity.” Redford v. U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco &
Firearms, 691 F.2d 471, 473, 473 n.1 (10th Cir. 1982) (interpreting 18 U.S.C. § 1202
(1976)).
Looking beyond our own borders only bolsters this conclusion. At this point,
every court of appeals to have addressed the issue has held that whether a defendant’s
adjudication or commitment qualifies under the current version of § 922(g)(4) is a
question of law to be determined by a judge rather than a question of fact reserved for
the jury. See, e.g., United States v. McIlwain, 772 F.3d 688, 693 (11th Cir. 2014);
United States v. Rehlander, 666 F.3d 45, 47 (1st Cir. 2012); United States v. Dorsch,
363 F.3d 784, 785 (8th Cir. 2004); United States v. Vertz, 40 F. App’x 69, 76 (6th
Cir. 2002) (unpublished); United States v. Midgett, 198 F.3d 143, 145–46 (4th Cir.
1999); United States v. Waters, 23 F.3d 29, 36 (2d Cir. 1994).
We therefore conclude that whether a defendant has been adjudicated a mental
defective or committed to a mental institution for the purposes of § 922(g)(4) is a
7
question of law to be determined by the court rather than a question of fact to be
reserved for the jury.
We do not believe that the district court treated this issue as a question of law.
While the court’s statements could be construed as ambiguous, a review of the
parties’ pleadings demonstrates that the court was primed to consider this question as
one appropriate for the jury. In the “Introduction and Argument Summary” of his
motion to dismiss, Mr. McLinn seems to suggest that the question is whether the
government will be able to prove to a jury that Mr. McLinn had been committed or
adjudicated a mental defective. R. Vol. III at 21–22. (“More specifically, . . . the
government will be incapable of proving that a Kansas court’s temporary custody
order authorizing Mr. McLinn’s short-term detention in a state hospital pending trial
on a civil commitment petition was a qualifying adjudication or commitment for 18
U.S.C. § 922(g)(4) purposes.”).
The government picked up on this suggestion. The opening line of the
relevant section in its response argued that McLinn “is in essence seeking a pre-trial
determination of his guilt by this Court.” R. Vol. I at 46. The government then
described Mr. McLinn’s argument as “not legal, but [] instead factual – that he is
innocent under the law.” Id. at 47. It then cited the “incapable of proving” line from
Defendant’s motion mentioned above, before explicitly arguing that the issues
presented by Mr. McLinn’s motion “are strictly jury questions.” Id.
Against this backdrop it seems clear the district court accepted both parties’
invitation to treat this as an issue of fact. The district court denied Mr. McLinn’s
8
motion “without prejudice,” and noted that “[g]enerally, the sufficiency of the
government’s evidence to support a charge may not be challenged by a pretrial
motion.” R. Vol. II at 64. In light of the suggestions contained in both parties’
pleadings, this is sufficient for us to conclude that the district court erred by not
ruling on Mr. McLinn’s motion to dismiss as a matter of law, but instead treating the
issue of Mr. McLinn’s adjudication or commitment as one properly determined by a
jury. 2
B. Remedy
That conclusion leaves us with the difficult question of what remedy is
appropriate. At oral argument, the government suggested that we could rule on the
record before us that Mr. McLinn’s commitment satisfied one or both of the
§ 922(g)(4) requirements as a matter of law.
We are not so persuaded. The operative legal question under the first test of
§ 922(g)(4) presents the legal question of whether the state court’s determination that
there was “probable cause to believe that Edward E. McLinn [was] suffering from a
severe mental disorder, [that he] lack[ed] the capacity to make an informed decision
concerning treatment and [was] likely to cause harm to [him]self or others,” R. Vol.
III at 44, was a sufficient “adjudication” under the statute. Under the second
qualifying criteria, the question is whether Mr. McLinn was “involuntarily
committed” to a mental institution given that this term has been defined in 27 C.F.R
§ 478.11 to exclude commitment “for observation.”
2
Harmless error was not raised in this case, and accordingly we do not address it.
9
Despite these being legal questions, we simply do not have enough
information in the record before us to make these determinations. Not only was the
question of whether the defendant qualifies under either the “adjudicated” or
“committed” clauses of § 922(g) not briefed, but we generally do not decide
questions not fully addressed by the district court. See United States v Ladeaux, 454
F.3d 1107, 1110 (10th Cir. 2006) (citing United States v. Foote, 413 F.3d 1250
1251–52 (10th Cir. 2005)).
Furthermore, based on the ancillary charges that could be reinstated should
Defendant prevail in his legal argument, we are convinced it would be prudent to
defer our review until the parties and the district court have had a chance to consider
fully the merits and equities at issue. Accordingly, we hereby VACATE the denial of
the motion to dismiss and REMAND to the district court to determine as a matter of
law whether Mr. McLinn was (1) adjudicated as a mental defective or (2) committed
to any mental institution as those terms are used in 18 U.S.C. § 922(g)(4).
10