NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 19-3948
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                                  SHAWN K. HARVEY,
                                                   Appellant
                                    _______________

                     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
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 25, 2020

              Before: McKEE, JORDAN, and RENDELL, Circuit Judges.

                                  (Filed: October 1, 2020)
                                     _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

                                              1
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.



                                             2
      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, 

, 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, 

, 352 (3d Cir. 2011) (citations and internal
quotation marks omitted).
                                               4
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
         3

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, 

, 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.”

(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.”

(internal quotation marks
and citation omitted).
                                                5
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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