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United States v. McLinn

United States Court of Appeals, Tenth Circuit

July 24, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
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.

         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, 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 other offenses, possession of a firearm by an individual who has been adjudicated as a mental defective and ...


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