NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

RYAN MCGOWAN, 

Defendant-Appellant.

No. 16-10300 

D.C. No. 

2:12-cr-00207-TLN-1 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Submitted August 16, 2018**

San Francisco, California

Before: O'SCANNLAIN and BEA, Circuit Judges, and McLAUGHLIN,***

District Judge.

Ryan McGowan appeals his conviction for (1) engaging in the business of 

dealing firearms without a license, in violation of 18 U.S.C. § 922(a)(1), and (2) 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Mary A. McLaughlin, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation.

FILED

AUG 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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conspiracy to make a false statement on ATF Form 4473, in violation of 18 U.S.C. 

§ 371. Because the facts are known to the parties, we repeat them only as necessary 

to explain our decision.

I

Sufficient evidence supports both counts of McGowan’s conviction.

A

Count One. To prove that McGowan was “engage[d] in the business of . . . 

dealing in firearms,” the government had to show that McGowan “devote[d] time, 

attention, and labor to dealing in firearms as a regular course of trade or business 

with the principal objective of livelihood and profit through the repetitive purchase 

and resale of firearms.” 18 U.S.C. §§ 922(a)(1)(A), 921(21)(C). Selling firearms 

need not have been McGowan’s primary source of income. See United States v. 

Ibarra, 581 F. App’x 687, 690 (9th Cir. 2014).

The jury had before it ample evidence to conclude that McGowan purchased 

and sold firearms with the principal objective of livelihood and profit. McGowan 

purchased eight Desert Eagle handguns in the span of a few years, selling six of 

them, despite claiming that they were not “a fun gun to shoot.” He also told a 

firearms dealer that he could acquire more Desert Eagles if the dealer knew of 

anyone who was interested. More generally, McGowan would frequently post guns 

for sale immediately after picking them up from the dealer, or at times before he 
3 

had even picked up the gun. McGowan also flatly admitted to detectives that he 

was “in [the] business of selling guns for profit.” 

B

Count Two. The government had to prove that McGowan conspired with 

Snellings “knowingly [to] make[] any false statement or representation with 

respect to the information required by [Chapter 44 of Title 18] to be kept in the 

records of a [federally licensed firearms dealer].” 18 U.S.C. § 924(a)(1)(A).

Sufficient evidence supports the jury’s conclusion that McGowan conspired

knowingly falsely to answer question 11.a. on ATF Form 4473, which is 

information required to be kept by Chapter 44 of Title 18. Abramski v. United 

States, 134 S. Ct. 2259, 2274 (2014). McGowan indicated that he was the “actual 

transferee/buyer” of a Ruger LCP on such form, but he never paid for or picked up 

the firearm. He instead transferred the firearm to Snellings just one day after the 

expiration of the 10-day waiting period. The jury could thus conclude that he 

acquired the firearm on behalf of Snellings, rendering his answer to question 11.a. 

false. And McGowan was aware that it was false, later admitting to detectives that 

he “didn’t buy the gun.” That McGowan and the Ruger’s ultimate recipient, 

Preparos, did not know of each other is irrelevant, because McGowan purchased 

the firearm on behalf of Snellings, not Preparos.

There was also sufficient evidence that Snellings’ Firearms was a federally 
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licensed firearms dealer at the time McGowan made the false statement: the ATF 

Form on which he lied itself shows the store’s license number.1

II

The district court did not abuse its discretion in denying the motion for a 

new trial on account of prosecutorial misconduct.

A

Even if the prosecutor at times crossed the line by arguing defense counsel

had “distorted” the evidence or the law, see United States v. Frederick, 78 F.3d 

1370, 1379–80 (9th Cir. 1996), it cannot be said that “the prosecutor’s improper 

conduct so affected the jury’s ability to consider the totality of the evidence fairly 

that it tainted the verdict and deprived [McGowan] of a fair trial,” United States v. 

Sanchez, 659 F.3d 1252, 1257 (9th Cir. 2011) (internal quotation marks omitted). 

The district court often emphasized to the jury that arguments of counsel are not 

evidence. See United States v. Freter, 31 F.3d 783, 787 (9th Cir. 1994). And 

McGowan’s guilt did not turn on subtle credibility determinations, where “the 

possibility of prejudicial effect grows,” United States v. Weatherspoon, 410 F.3d 

1142, 1151 (9th Cir. 2005); rather, objective evidence of McGowan’s purchasing 

 

1 The jury instructions were not deficient on this point, because they required 

the jury to find that McGowan made a false statement pertaining to “information 

that the law requires a federal firearms licensee to keep,” mirroring the 

requirements of § 924(a)(1)(A).
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and selling pattern strongly supported the jury’s verdict. Finally, to the extent the 

prosecutor argued that defense counsel had “distorted” the law, he did so only after 

defense counsel had, in fact, repeatedly misstated the law to the jury. See United 

States v. Young, 470 U.S. 1, 12 (1985). Specifically, defense counsel often argued 

that McGowan could be convicted on Count One only if he intended selling guns 

to be his primary source of income. 

B

Neither reference to Halcon’s testimony from McGowan’s first trial required 

a new trial. Halcon reaffirmed “Statement One” during the second trial, so the 

prosecutor was free to reference it in closing. Nor was it improper for the 

prosecutor to emphasize that Halcon did not limit his definition of straw purchase 

in “Statement One” to purchasing firearms for “a prohibited person.” “Statement 

Two” was not reaffirmed in the second trial, but the district court’s specific 

instruction to disregard the statement was sufficient to dispel any prejudice that 

might have arisen from the prosecutor’s reference to it in rebuttal. The possibility 

of prejudice was limited because the substance of “Statement Two” was otherwise 

in evidence. See Freter, 31 F.3d at 786–87.

III

The judgment of the district court is AFFIRMED.