FILED
                                                                        United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                          Tenth Circuit

                              FOR THE TENTH CIRCUIT                          December 5, 2019
                          _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                         No. 18-1365
                                                    (D.C. No. 1:15-CR-00353-WJM-1)
    KATHERINE O'NEAL,                                           (D. Colo.)

         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before BACHARACH, KELLY, and CARSON, Circuit Judges.
                 _________________________________

         Defendant-Appellant Katherine O’Neal was convicted by a jury of export of

firearms without a Department of State export license and other written authorization

required by 22 U.S.C. § 2278, in violation of 18 U.S.C. § 554(a). She was sentenced to

three years of imprisonment followed by 36 months of supervised release. Prior to trial,

the district court, in an oral ruling, declined to suppress statements Ms. O’Neal made to a

federal officer without Miranda warnings. After trial, the court issued a written ruling

concluding that it should not have admitted those statements, but that the error was

harmless beyond a reasonable doubt. On appeal, the sole issue is whether the admission



*
  This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
of Ms. O’Neil’s unmirandized statements was harmless beyond a reasonable doubt. Our

jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

                                      Background

      Ms. O’Neal is a naturalized citizen who served in the United States Army for more

than a decade. On June 6, 2015, she traveled to the Dominican Republic, her country of

birth, on a Delta Airlines flight. Ms. O’Neal was transporting 11 handguns and

ammunition in her luggage. She declared these items to the airline. Upon arrival in

Santiago, Ms. O’Neal learned that her bags had not arrived with her. When she returned

to retrieve her bags the next day, she was met by a Dominican official, Major Jorge

Novas-Madrano. Major Novas-Madrano arrested Ms. O’Neal and took her to

government offices for questioning by other officials.

      During questioning, Ms. O’Neal was interviewed by Special Agent Matthew

Larko of the United States Department of Homeland Security, who was posted to the

American Embassy. Agent Larko questioned Ms. O’Neal about what permission she had

to travel with the firearms. At the time, Ms. O’Neal was being held for suspected

violations of Dominican law and no American charges were anticipated. Neither the

Dominican officials nor Agent Larko read Ms. O’Neal her Miranda rights. See 

 (1966).

      The United States government later brought criminal charges against Ms. O’Neal.

A second superseding indictment charged 17 counts related to the Dominican Republic




                                            2
incident. 1 R. 267–76. She was convicted of the first count charging unlicensed export

of firearms and acquitted of the others. Id. at 622–27.

       At trial, the jury heard Agent Larko’s testimony, in which he recounted statements

made by Ms. O’Neal during questioning. The following excerpt was relevant to the

count of conviction:

       [Counsel for the United States]: Did you discuss with [Ms. O’Neal] any
       conversations she had with an individual at Fort Carson regarding what she
       would need to take firearms to the Dominican Republic?

       [Agent Larko]: Yes. I asked her to explain if she . . . received permission.
       She said that she spoke with her Sergeant Lane out of Fort Carson, I
       believe, and he said that all that’s required was a conceal[ed] carry permit
       and that she reported the weapons to the airline.

.

       Just before Agent Larko took the stand, the government had called Sergeant

Brandon Lane of Fort Carson to deny that Ms. O’Neal had ever consulted him about the

requirements for transporting firearms across international borders. Id. at 735. Sergeant

Lane testified that he was “the guy to know” on the base if you had a question about

guns. Id. at 734.

       The only element of the export charge disputed at trial was whether Ms. O’Neal

knew that exporting firearms was contrary to law or regulation. The government bore the

burden of proving that Ms. O’Neal “generally understood that her actions were




                                             3
unlawful.” Id. at 1262. The jury was instructed on the knowledge requirement including

deliberate ignorance. Id. at 1262, 1266.

       Agent Larko’s testimony was not the only evidence relevant to this issue. The

government also pointed to warnings on both the Delta website1 and on Bureau of

Alcohol, Tobacco, and Firearms (ATF) forms filled out by Ms. O’Neal when she

purchased the firearms.2 In addition, the government presented testimony from border

patrol agents about a June 2005 incident involving another attempt by Ms. O’Neal to

bring firearms over international borders. Ms. O’Neal was denied entry to Canada and

returned to Port Huron, Michigan because she did not have the proper permit to take a

firearm into Canada.3 Agent Ian Wilbur testified that he had informed Ms. O’Neal that

“ATF statutes” set out certain guidelines for firearm export and failure to comply could

lead to fines or other criminal penalties. Id. at 1073. Agent David Fletcher testified that

there were warning signs regarding firearms posted on the way to the border and that he

had asked Ms. O’Neal whether she had obtained the “proper paperwork” to transport a

firearm, which she had not. Id. at 1078, 1080. Finally, the government presented

testimony from several individuals, including Agent Larko, about differing explanations

Ms. O’Neal had given for her purchase and transportation of the firearms. Id. at 749

(informing Agent Larko that she planned to give the guns to her uncle who lives in the


1
  The website warning stated that passengers are “responsible for knowledge of and
compliance with all Federal, State or local laws regarding the possession and
transportation of firearms.” Aplt. Br. at 35 (citing 

).
2
  Form ATF-4473 contains the following statement: “The state or commerce
department may require you to obtain a license prior to export.” 

.
3
  We will refer to this as the “Port Huron evidence.”
                                             4
Dominican Republic); id. at 418, 524, 864, 929 (informing firearms dealers that she

needed the guns because she is a competitive shooter); id. at 651 (informing Major

Novas-Madrano that she was a gun collector); id. at 667 (informing a Dominican official

that she meant to “open a business with these weapons”); id. at 711 (informing a

Dominican official that she “purchased the weapons to protect herself”); id. at 716

(informing a Dominican official that she “represented the Army in several [shooting]

contests”).

       In its written order, the district court concluded that Agent Larko only testified to

one statement with “arguable relevance” to the export count. Id. at 701. That statement

— about consulting Sergeant Lane regarding firearm exports — was contradicted by the

Sergeant’s own testimony. The district court recognized that the evidence could support

different inferences about Ms. O’Neal’s state of mind ranging from fabrication due to a

guilty conscience to actual knowledge that the law forbade her actions. Id. at 702. Be

that as it may, the district court concluded that “whatever inference the jury drew from

comparing Lane and Larko’s testimony, it was insignificant compared to what the jury

learned from other witnesses.” Id. at 702. The court noted that three border agents

provided detailed testimony (for which there was no cross-examination) about Ms.

O’Neal’s 2005 experience at the Canadian border that was highly probative and alone

would have supported a conviction. Id. at 703. Accordingly, it held the error harmless.

                                        Discussion

       This court reviews the record de novo to determine whether a district court’s

constitutional error was harmless. United States v. Perdue, 

, 1469 (10th Cir.

                                              5
1993). The test for harmlessness is “whether it appears ‘beyond a reasonable doubt that

the error complained of did not contribute to the verdict obtained.’” Yates v. Evatt, 

, 403 (1991) (quoting Chapman v. California, 

, 24 (1967)), overruled

in part on other grounds by Estelle v. McGuire, 

, 72 n.4 (1991). This

standard does not require that “the jury was totally unaware of that feature of the trial

later held to have been erroneous.” Id. at 403. Rather, we must “find that error

unimportant in relation to everything else the jury considered on the issue in question, as

revealed in the record.” Id.

       Evidence admitted as a result of constitutional error must be “assessed in the

context of other evidence presented in order to determine whether its admission was

harmless beyond a reasonable doubt.” Arizona v. Fulminante, 

, 308 (1991).

The government bears the burden of making a harmlessness showing. United States v.

Mullikin, 

, 1211 (10th Cir. 2014). The government may meet its burden by

showing “otherwise strong” or “overwhelming” evidence on the disputed issue. United

States v. Mikolon, 

, 1189 (10th Cir. 2013), accord Mullikin, 758 F.3d at

1214. This test is distinct from a sufficiency inquiry. United States v. Irvin, 

, 1264 (10th Cir. 2012). The properly admitted evidence may be legally sufficient to

support the jury’s verdict without being so substantial that it renders wrongful admission

harmless beyond a reasonable doubt. See id.

                                 Harmless Error Analysis

       We conclude that the government has carried its burden and the district court’s

error was harmless beyond a reasonable doubt. The government presented substantial

                                              6
evidence on knowledge, as defined by the instructions, that went beyond Ms. O’Neal’s

statements to Agent Larko and Sergeant Lane’s denial. We are persuaded that the

improperly admitted statements were a “small piece” of the government’s case and the

district court’s error was therefore harmless. Mikolon, 719 F.3d at 1189.

       Ms. O’Neal’s statements, as recounted by Agent Larko, were immediately

preceded by Sergeant Lane’s denial. Presented in concert, these statements were

circumstantial evidence that Ms. O’Neal knew her actions were unlawful and concocted a

story to instead suggest innocent mistake. Or, alternatively, that Ms. O’Neal invented a

story without knowing her actions to be unlawful. Ms. O’Neal urges that her improperly

admitted statements, followed by Sergeant Lane’s denial, were powerful evidence as to

her knowledge or deliberate ignorance of the unlawfulness of her actions.

       But even without these statements, the evidence is overwhelming. The Port Huron

evidence tended to show that Ms. O’Neal had unsuccessfully tried to export firearms

before and either knew that she needed to take certain steps to do so legally in the future

or was willfully blind to that fact. Indeed, the agents testified that they had warned Ms.

O’Neal that she could be held criminally liable if she tried to export firearms without

proper permission. The government also introduced evidence of warnings contained on

both ATF forms and the Delta website, that Ms. O’Neal was a long-time gun owner who

understood that possession of firearms is governed by complex rules, and testimony

about Ms. O’Neal’s shifting, and sometimes contradictory, explanations for her actions.

The strength of this other evidence of Ms. O’Neal’s knowledge or deliberate ignorance of



                                             7
the unlawfulness of her actions leads us to “declare a belief” that the erroneous admission

of her statements was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24.

       We briefly address Ms. O’Neal’s arguments regarding the Port Huron evidence

because they bear on the proper approach to harmless error analysis. Ms. O’Neal claims

that the prosecution’s lack of focus on the Port Huron evidence in its closing argument

shows that this evidence was unpersuasive or unimportant. Conversely, she argues that

the prosecution’s reliance on her erroneously admitted statements “belie[] [the

government’s] assertions of harmlessness on appeal.” Aplt. Br. at 19 (quoting Irvin, 682

F.3d at 1264).

       We are not persuaded. Closing arguments are not evidence, and the jury was so

instructed. 

 (“The lawyers’ statements and arguments are not evidence.”). That

instruction is not challenged here, and we presume that juries follow their instructions.

See United States v. Rogers, 

, 1141 (10th Cir. 2009). Prosecutorial

reliance on evidence may be one indicator of importance to the jury, but it is not

dispositive of the harmlessness inquiry. It does not help where, as here, we are persuaded

that the rest of the record contains overwhelming evidence on the disputed issue.4

       On these points, Ms. O’Neal places more weight on Irvin than it can reasonably

bear. See 682 F.3d at 1254. Irvin does not stand for the proposition that a prosecutor’s



4
  Ms. O’Neal also points out that Agent Wilbur mistakenly identified ATF as the agency
that promulgated firearm export rules, rather than the Department of State. Ms. O’Neal
contends that this misidentification might “have caused the jury to doubt their
testimony.” Aplt. Reply Br. at 12. Ms. O’Neal does not specify what type of doubt this
mistake might have aroused and we do not see how it bore on Agent Wilbur’s ability to
                                             8
reliance on evidence in closing conclusively establishes that the evidence contributed to

the jury’s verdict. Nor does it stand for the inverse rule that failure to emphasize, or even

mention, evidence in closing conclusively establishes that the evidence did not contribute

to the jury’s verdict. Rather, it makes the point that the government’s emphasis of a piece

of evidence’s particular importance may well undercut its assertions of unimportance on

appeal. See id. at 1264–65; cf. United States v. Jackson, 

, 697 (5th Cir.

2011) (placing “great importance” on improperly admitted statements in the case in chief

and closing undercut government’s argument for harmlessness). The cases do not

establish that prosecutorial reliance on erroneously admitted evidence in its closing

means that the admission was harmful per se.5

                                           The Dissent

       The dissent sees the evidence differently, arguing that Agent Larko’s

testimony played a “vital” role at Ms. O’Neal’s trial. The dissent recognizes that we


recall the incident. In addition, the jury was charged to determine whether Ms. O’Neal
knew or generally understood that her actions were unlawful, not which agency
promulgated the specific regulations she violated. 

. The jury was specifically
instructed that the government need not prove that Ms. O’Neal “knew the exportation or
sending was contrary to any specific statute or specific regulation.” Id. (emphasis added).
We think it unlikely that such a minor mistake would have caused the jury to seriously
doubt the whole account and the effect it had on Ms. O’Neal’s awareness of rules
regarding firearm export.
5
  We are not sure that accepting, arguendo, Ms. O’Neal’s contention that we should
take the prosecution’s focus — or lack thereof — on evidence as a conclusive
demonstration of its importance or non-importance to the jury is helpful to her case.
The government pointed to several pieces of evidence in its closing argument. The
government referred to the fact that Ms. O’Neal had a concealed carry permit (

), filled out at least 11 ATF forms containing warnings about firearm exporting
(id.), was a member of the U.S. Army and aware of its various rules (id. at 1279),
purchased a ticket from an airline that posted a warning about firearm transportation
                                              9
are faced with a “cold record” that makes it difficult to assess the impact of witness

testimony, but also asserts that it is clear that Agent Larko’s testimony about Ms.

O’Neal’s unmirandized statements carried great weight. The dissent describes his

testimony as a “devastating broadside” before which other evidence “paled in

comparison” because it allowed the government to “shatter[] Ms. O’Neal’s

credibility” and “pulverize [her] defense.” Agent Larko’s testimony is said to have

“proved [Ms. O’Neal’s] undoing” and “led to [her] conviction.”

      We respectfully disagree with the dissent’s view of the evidence. Initially, it

asks: “how can we know what the jury would have decided if Ms. O’Neal’s statement

to Agent Larko hadn’t been wrongfully admitted?” We agree that this can be a

difficult question to answer, but our task is to determine whether the government has

carried its burden to show that the error was “unimportant in relation to everything

else the jury considered on the issue in question, as revealed in the record.” Yates,

500 U.S. at 403.

      The dissent is correct that, if the jury credited Sergeant Lane over Ms. O’Neal,

it might have doubted her general credibility. But the jury could already have

reached that conclusion based on her shifting explanations for why she was

attempting to take guns out of the country, an issue the dissent does not discuss in


requirements (id. at 1280), and told shifting stories about her reasons for purchasing
and transporting the firearms (id. at 1281–83). By contrast, only three paragraphs of
the five pages of trial transcript comprising the government’s closing argument on
the export charge pertain to the Agent Larko/Sergeant Lane statements. Accepting
Ms. O’Neal’s logic would suggest that these statements are relatively unimportant
compared to the balance of the evidence on this count.
                                          10
depth. Like Ms. O’Neal, the dissent also fails to convincingly account for the force

of the Port Huron evidence. In attempting to better explain the purported flaws with

this evidence, the dissent claims it left the jury with three questions: (1) how the

border patrol agents recalled the specifics of the incident 13 years later (never an

issue), (2) how certain it was that Ms. O’Neal actually understood when the agents

explained restrictions on taking firearms across borders, and (3) whether Ms. O’Neal

could “accurately recall the content of this conversation roughly ten years later.”

      None of these questions effectively undercuts the considerable force of the

Port Huron evidence. First, the dissent elides the fact that border patrol agents

explained why they remembered this particular incident — because border

turnarounds were highly unusual and the event was so remarkable that it led to a

change in policy. Ms. O’Neal also did not need to recall the exact content of the

conversation. The jury was being asked to conclude that Ms. O’Neal remembered

being turned around and infer that she understood there were steps she needed to take

to legally export a firearm. An incident like this would likely be particularly

memorable for a member of the armed services, who was entrusted with weapons as a

function of her service and trained on how to properly use and handle them. None of

the points raised by Ms. O’Neal and echoed by the dissent can change the fact that

the jury heard that a similar event had occurred before and Ms. O’Neal was refused

entry into another country at the border as a result. This evidence was highly

probative of Ms. O’Neal’s knowledge or absence of mistake upon attempting another

border crossing with weapons in tow.

                                           11
      The dissent concedes, as it must, that given the various incriminating facts, “a

jury might reasonably infer that Ms. O’Neal had known that bringing guns into the

Dominican Republic would be illegal.” Though the dissent contends that proving

actual knowledge is difficult, it is surely not impossible. According to the dissent,

“the government had a problem” in convincing the jury to draw various inferences

and find actual knowledge. Though we think the dissent overstates the complexity of

this case given the many facts that were uncontroverted, the jury also was instructed

that Ms. O’Neal’s deliberate ignorance could support knowledge. 

. At a

minimum, the evidence showed that Ms. O’Neal was aware that her understanding of

the law was erroneous and she consciously sought to avoid obtaining actual

knowledge.

      The dissent also argues that we should consider that the jury acquitted Ms.

O’Neal on sixteen of the seventeen charges brought against her. But those sixteen

charges involved different elements that had nothing to do with Ms. O’Neal’s

knowledge about firearm export laws. Indeed, 12 of the 16 counts were related to her

use of the name Katherine O’Neal rather than her birth name on applications to

purchase firearms.6 Moreover, the jury was instructed to consider each count

separately.7 Our harmless error analysis must focus primarily on the evidence


6
  Even if we assume the jury’s decision on other charges can help us deduce its view
of the evidence, it does not necessarily follow that Agent Larko’s testimony made the
difference between charges. The jury’s decision is equally consistent with a belief
that Ms. O’Neal was overcharged.
7
  The dissent observes that “a jury might have parsed the counts as the majority
does.” Parsing the counts to view them separately was mandated by the jury
                                          12
supporting the count of conviction, and we should not attempt to make apples to

oranges comparisons with the other charges in order to guess the general feelings of

the jury about the case.

      This was simply not a case like Velarde v. Shulsen, cited by the dissent, where

the only evidence on the disputed issue was opposing accounts from the defendant

and a government witness. 

, 1096 (10th Cir. 1985). We believe that

the evidence of Ms. O’Neal’s knowledge of export requirements, other than Agent

Larko’s testimony, was overwhelming.

                                         Conclusion

      In her briefs, Ms. O’Neal marshals several other arguments against the

strength and relevance of various parts of the government’s evidence. We decline the

invitation to parse further the significance of individual pieces of evidence in

isolation, shorn of their proper context. See Fulminante, 499 U.S. at 308. The proper

inquiry is whether, after considering the record as a whole, we are satisfied that the

improperly admitted statements were unimportant in relation to the government’s

otherwise strong evidence. See Yates, 500 U.S. at 404; Mikolon, 719 F.3d at 1189.

The government’s showing, and our review of the record as a whole, leads us to




instructions. See 

 (“A separate crime is charged in each count of the second
superseding indictment. You must separately consider the evidence on each count
and return a separate verdict. Your verdict as to any one count, whether guilty or not
guilty, should not influence your verdict as to any other count.”). We presume that
juries follow their instructions. See Rogers, 556 F.3d at 1141.
                                           13
conclude that the error was harmless beyond a reasonable doubt. See Chapman, 386

U.S. at 24.


      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                       14
United States v. O’Neal, No. 18-1365
BACHARACH, J., dissenting.

      This case crystallizes the danger of relying on a cold record to assess

harmlessness based on the credibility of witnesses. Without an opportunity

to see the witnesses testify, we’re ordinarily ill-suited to decide who is

telling the truth. Our precedent thus teaches that “where the case comes

down to a one-on-one situation, i.e., the word of the defendant against the

word of the key prosecution witness, and there is no corroboration on

either side, the importance of the defendant’s credibility becomes so

significant that prosecutorial error attacking that credibility cannot be

harmless beyond a reasonable doubt.” Velarde v. Shulsen, 

,

1095 (10th Cir. 1985).

      Despite this precedent, the majority concludes that the constitutional

error here was harmless based on the credibility of the government

witnesses and Ms. O’Neal’s own lack of credibility. In my view, the

government has not met its burden of proof on harmlessness, so I

respectfully dissent.

1.    Ms. O’Neal’s un-Mirandized statement was vital to proving her
      state of mind.

      Ms. O’Neal and the government’s witnesses provided conflicting

accounts on the key issue—Ms. O’Neal’s knowledge that taking guns into

the Dominican Republic violated U.S. laws. Without the benefit of
Miranda warnings, Ms. O’Neal told Agent Larko that she’d been instructed

by a sergeant on her military base that she didn’t need a license to take

firearms into the Dominican Republic. The government set out to show that

Ms. O’Neal had lied to Agent Larko, eliciting testimony from the sergeant

that he’d never discussed this topic with Ms. O’Neal. The government thus

argued that Ms. O’Neal had lied because she knew that taking guns into the

Dominican Republic was illegal. The broadside was devastating and led to

Ms. O’Neal’s conviction for unlicensed export of a firearm.

     The district court later acknowledged that the government had

violated the Fifth Amendment by eliciting evidence of Ms. O’Neal’s

statement to Agent Larko. 1 But the court concluded that the Fifth

Amendment violation was harmless. For this conclusion, we engage in de

novo review. United States v. Glass, 

, 1403 (10th Cir. 1997).

     In exercising de novo review, we must reverse the conviction unless

the government satisfied its “extraordinary burden” of showing that this

constitutional violation was harmless beyond a reasonable doubt. United

States v. Robinson, 

, 1274 (10th Cir. 2009). The

constitutional violation was harmless beyond a reasonable doubt only if

Ms. O’Neal’s un-Mirandized statement to Agent Larko did not contribute

to the conviction. United States v. Perdue, 

, 1469 (10th Cir.


1
     The government does not contest this conclusion.

                                      2
1993). “To say that an error did not contribute to the verdict is . . . to find

that error unimportant in relation to everything else the jury considered on

the issue in question, as revealed in the record.” Yates v. Evatt, 

, 403 (1991).

      In my view, the improperly introduced testimony was vital. In

closing argument, the government had confronted the difficulty of proving

Ms. O’Neal’s knowledge: There was no direct evidence of what Ms.

O’Neal had known about U.S. laws governing the export of firearms into

the Dominican Republic. The government overcame this challenge by

imploring the jury to focus on Ms. O’Neal’s statement to Agent Larko. 2

      This focus left little room for reasonable doubt because it’d be hard

to imagine why Ms. O’Neal would have lied unless she knew that she’d

violated the law. Little wonder that Ms. O’Neal was convicted of exporting

guns without legal authorization. But how can we know what the jury

would have decided if Ms. O’Neal’s statement to Agent Larko hadn’t been

wrongfully admitted?

      The majority disregards the vital role of this improperly introduced

testimony, arguing that the government’s other evidence of guilt was

overwhelming. Maj. Op. at 7. In my view, the majority’s approach fails to


2
       The government’s reliance on this inadmissible statement provides “a
highly relevant measure. . . of the likelihood of prejudice.” United States
v. Irvin, 

, 1264 (10th Cir. 2012) (quoting United States v.
DeLoach, 

, 192 (D.C. Cir. 1974)).
                                       3
account for the magnitude of the improperly admitted evidence and the

importance of credibility in the jury’s assessment of guilt.

2.    The un-Mirandized statement allowed the government to
      minimize the weaknesses in its case.

      To determine whether the government proved that the Miranda

violation was harmless beyond a reasonable doubt, we must consider the

magnitude of the un-Mirandized statement in comparison to the entirety of

the evidence. United States v. Baldwin, 

, 723–24 (5th Cir.

1982). 3 Without the un-Mirandized statement, the government had to prove

beyond a reasonable doubt that Ms. O’Neal had known that bringing guns

into the Dominican Republic was illegal.

      Proving actual knowledge, however, is difficult. See Virgin Islands v.

Rodriguez, 

, 12 (3d Cir. 1970) (stating that “actual knowledge”

is “a matter difficult to prove”). The government could prove that Ms.

O’Neal had bought a lot of guns, had given inconsistent explanations in the

past for why she bought so many guns, and had been turned away from the

Canadian border roughly ten years before she got stopped in the Dominican

Republic. With these facts, a jury might reasonably infer that Ms. O’Neal



3
      Ms. O’Neal’s statement to Agent Larko was ostensibly exculpatory.
But the government argued at trial that the statement was false and used
the false statement to undermine Ms. O’Neal’s credibility. We “must
consider the importance of the erroneously admitted exculpatory
statement[ ] to the government’s proof of guilt in order to assess
harmlessness.” United States v. Bailey, 

, 342 (2d Cir. 2014).
                                      4
had known that bringing guns into the Dominican Republic would be

illegal. But the government had a problem: How could it convince the jury

to draw these inferences and find, beyond a reasonable doubt, that Ms.

O’Neal had actually known that bringing guns into the Dominican Republic

was illegal?

     Ms. O’Neal’s statement to Agent Larko solved this problem for the

government: This statement allowed the government to argue that Ms.

O’Neal had lied about why she thought that she could legally bring guns

into the Dominican Republic. If the jury agreed that Ms. O’Neal had lied,

the jury could naturally infer that Ms. O’Neal had known that she was

committing a crime. But, as the district court later acknowledged, the

government never should have been allowed to elicit evidence of Ms.

O’Neal’s un-Mirandized statement.

     The government’s other evidence of guilt paled in comparison to Ms.

O’Neal’s un-Mirandized statement. The other evidence consisted of

testimony by the border patrol agents, ATF forms signed by Ms. O’Neal,

and language on the Delta Airlines website about traveling with firearms.

The majority concludes that this evidence shows Ms. O’Neal’s recognition

of the complexity of laws governing international travel with guns,

pointing out that she had given conflicting testimony about her reasons for

buying guns and why she was traveling.



                                     5
        The jury might have viewed this evidence as the majority does. But

the jury might also have assessed the evidence differently. After all, Ms.

O’Neal didn’t hide the fact that she was taking guns to the Dominican

Republic. She declared all of the guns to the airline and immediately told a

customs agent that she had guns in her luggage. Given these voluntary

disclosures, defense counsel contended in closing argument that “these are

the actions . . . of someone who had no idea . . . it was illegal to take guns

from the U.S or bring them to the [Dominican Republic].” R. vol. V, at

1294.

        In light of these disclosures and defense counsel’s argument, the

central issue for the jury was credibility. With the un-Mirandized

statement, the government shattered Ms. O’Neal’s credibility. But without

the un-Mirandized statement, the government’s evidence might have had its

own credibility challenges.

        An example involves the testimony underscored by the district court

and the majority: Ms. O’Neal’s interaction with the border patrol agents.

This interaction took place roughly ten years before the events at issue and

nearly thirteen years before the two agents testified. Given the passage of

time, the border patrol agents’ testimony could reasonably leave the jury

with three questions:

        1.   Did the agents remember precisely what they had said almost
             thirteen years earlier? Or, like many of us, did they simply
             think that their memories of the incident were correct?

                                       6
      2.    Did Ms. O’Neal actually understand the agents when they told
            her about the restrictions on taking firearms into Canada?

      3.    Did Ms. O’Neal accurately recall the content of this
            conversation roughly ten years later (when she flew to the
            Dominican Republic)?
      The border patrol agents acknowledged that the Canadian port of

entry had been busy and that their conversations with Ms. O’Neal had been

brief. Although one agent testified that he had told Ms. O’Neal that she

needed “to obtain an ATF Form 6 to export the firearm from the U.S.,” R.

vol. V, at 1081, there is no indication that he had explained this

requirement (for example, by defining the term “export,” as the district

court did for the jury). 4

      The border patrol agents did offer an explanation for their ability to

recall their encounter with Ms. O’Neal. They said that discovery of

firearms at the border was rare and that this incident had led to a

procedural change. In the majority’s view, this explanation gave

“considerable force” to the agents’ testimony. Maj. Op. at 11.


4
        The jury instructions state that “[t]o ‘export’ means to send or carry
from the United States to another country.” R., vol. I, at 599. Without the
benefit of these jury instructions, a layperson like Ms. O’Neal might have
thought that “export” laws involved only commercial transactions. See
Kuhali v. Reno, 

, 109 (2d Cir. 2001) (“[T]he recognition that
export constitutes a commercial use of goods has informed the construction
of . . . federal criminal statutes [other than 22 U.S.C. § 2278].”); see also
Fla. Sugar Mkt. & Terminal Ass’n v. United States, 

, 1335
(Fed. Cir. 2000) (“[T]oday the legal definition of export is generally
understood to refer solely to foreign commerce.” (emphasis in original)).
                                      7
     As the majority suggests, the agents’ testimony might have persuaded

a jury that Ms. O’Neal had known about the requirements for exporting

firearms. But a jury could also reasonably question

          the agents’ recall of precisely what they had told Ms. O’Neal
           nearly thirteen years earlier and

          Ms. O’Neal’s understanding and memory of what the agents
           had said roughly ten years earlier.

     In discounting these questions, the majority appears to view the

agents’ testimony in the light most favorable to the government. But for

harmlessness, it is Ms. O’Neal—not the government—who should obtain

the benefit of these favorable inferences. See p. 2, above. With these

inferences, a jury could reasonably doubt Ms. O’Neal’s understanding and

recall of what the agents had said roughly ten years earlier.

     The majority also relies on ATF forms signed by Ms. O’Neal and

language on the Delta Airlines website about traveling with firearms. But

the ATF forms say only that the State Department or Commerce

Department “may” require a license before exporting firearms.

Government’s Exh. 007, at 3. The forms do not say that a license is

required or define the term “export.” Similarly, the Delta website instructs

passengers that they are “responsible for knowledge of and compliance

with all Federal, State, or local laws regarding the possession and

transportation of firearms.” Defendant’s Exh. P, at 3. Like the ATF forms,

the website does not explain the requirement of an export license.
                                      8
      Finally, the majority observes that Ms. O’Neal “was a long-time gun

owner who understood that possession of firearms is governed by complex

rules,” noting that she had given conflicting testimony about the reasons

for her gun purchases and travel plans. Maj. Op. at 7. But these facts do

not establish Ms. O’Neal’s knowledge of the licensing requirements for

exporting firearms.

3.    The majority fails to consider how the inadmissible statement
      undermined Ms. O’Neal’s credibility while bolstering the
      government’s case.
      In assessing this evidence, the majority notes that the jury could

draw inferences favoring the government on the issue of actual knowledge.

But Ms. O’Neal argued at trial that the jury should reject those inferences,

observing that no one had told her about the licensing requirements.

      In light of the conflicting inferences from the evidence, Ms. O’Neal’s

un-Mirandized statement proved her undoing: The jury could readily

conclude that she had lied to Agent Larko when pressed on why she

thought that she could bring firearms into the Dominican Republic. The

district court magnified the impact of the potential lie by telling the jurors

that they could consider Ms. O’Neal’s statements in deciding what she had

known. 5 And in closing argument, the government invited the jury to


5
      The jury instruction stated:

      The intent of a person or the knowledge that a person possesses
      at any given time may not ordinarily be proved directly because
                                      9
consider Ms. O’Neal’s lie as a window into her state of mind, arguing that

she would “say anything she can to make things better for herself.” R. vol.

V, at 1281, 1283.

      In these ways, the un-Mirandized statement allowed the government

to pulverize Ms. O’Neal’s defense and to minimize the weaknesses in the

government’s own case, such as the passage of nearly thirteen years since

the incident at the Canadian border and the absence of a clear statement of

the licensing requirements either in the ATF forms or on the Delta website.

See United States v. Shannon, 

, 359 n.18 (3d Cir. 2014)

(“Although [the government’s evidence] may well be sufficient to convict,

it is not enough to sustain a conviction when, as in this case, there has

been a Fifth Amendment violation and the case depends so heavily on

whether one believes the defendant’s story.”)

      The upshot is reflected in the verdict: Ms. O’Neal was acquitted on

sixteen of seventeen counts. The jury’s sixteen findings of “not guilty”

came after the government had raised Ms. O’Neal’s familiarity with guns

and varying explanations for her gun purchases and travel. But these


      there is no way of directly scrutinizing the workings of the
      human mind. In determining the issue of what a person knew or
      what a person intended at a particular time, you may consider
      any statements made, or acts done by that person and all other
      facts and circumstances received in evidence which may aid in
      your determination of that person’s knowledge or intent.

R. vol. I, at 606.
                                     10
arguments did not convince the jury to convict on sixteen of the seventeen

counts.

     The majority points out that these other counts involved different

evidence and elements. A jury might have parsed the counts as the majority

does. But a jury might also have distinguished the export count based on

the impact of Ms. O’Neal’s un-Mirandized statement to Agent Larko. We

thus cannot conclude beyond a reasonable doubt that Ms. O’Neal’s

statement was “unimportant [as to the export charge] in relation to

everything else the jury considered on the issue in question.” Yates v.

Evatt, 

, 403 (1991); see United States v. Harrison, 

, 893 (9th Cir. 1994) (“[T]he jury's decision to acquit [the defendant]

of the other money laundering and financial structuring charges impacts

upon our holding [that the Fifth Amendment violation was not

harmless].”).

4.   Conclusion

     I would conclude that the violation of Ms. O’Neal’s Fifth Amendment

right was not harmless beyond a reasonable doubt. Given this conclusion, I

would reverse the conviction.




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