United States v. Alvin Scott Corey

of determina- making these sorts courts many more

tions, they see so especially courts do.” appellate than

Guidelines cases 2035. The dis- 116 S.Ct.

518 U.S. position a better to de-

trict court was rehabilita- Bradstreet’s

termine extraordinary, were

tive efforts meaningful contradictory evi-

absence of judgment

dence, defer to that we will case.

III. reasons, we affirm foregoing

For the of the district court. judgment America, STATES

UNITED

Appellee, COREY, Defendant,

Alvin Scott

Appellant.

No. 98-1893. Appeals, Court of

First Circuit. Aug. 1999.

Submitted March

Decided Nixon, by appointment

Kevin S. Court, on brief for appellant. P.

Jay McCloskey, United States Attor- ney, Margaret and McGaughey, D. Assis- tant United States Attorney, on brief for appellee. TORRUELLA,

Before Judge, Chief CYR, HILL* and Judges. Senior Circuit CYR, Senior Circuit Judge. Corey Alvin Scott seeks to set aside his conviction for possessing a firearm aas felon, ground on the that the district court abused its discretion in admitting expert testimony that gun Corey purchased had traveled in interstate commerce. We affirm.

BACKGROUND In September an Easterfield mod- 12-gauge el pump shotgun, 916-A manu- Wesson, factured and Smith was seized Corey’s from Maine residence officers County of the Somerset Sheriffs Depart- course, ment. In due Corey, a convicted felon, possessing was indicted for a firearm which had traveled in interstate commerce. 924(e). trial, §§ See 18 At 922(g), U.S.C. government called Michael Coo- ney, a firearms enforcement officer with Alcohol, Tobacco, the Bureau of Fire- and (ATF), arms shotgun establish Maine, had been manufactured outside of necessarily and hence traveled across state Agent Cooney’s testimony lines. Id. As pivotal appeal, to the we describe it in detail.

A. The Direct Examination testifying After on direct examination that he had been an ATF agent for six years,1 Agent Cooney described his official “provid[ing] duties as technical information * Circuit, firearms, sitting by designation. pañíes import Of the Eleventh licensed to where he had "evaluated and classified and identified Cooney explained joining that before firearms." ATF he had worked as a technical assistant operations manager private for two com- identification, Massachusetts, situated in opera- tuning plant is firearms

regarding plants that other and Wesson purposes assisting but Smith design tion and enforcement com- are located Ohio and Maine. He stated and the law the [ATF] evaluating] fire- that he had been able to determine from “testing] munity,” evidence,” “handling] ATF “technical references” and “technical arms submitted Corey shotgun manuals” that was industry general and the inquiries from firearms,” and at regarding “as- manufactured the Smith and Wesson public Further, maintaining the ATF firearms in he testi- sisting] plant Massachusetts. approximately of with and having spoken reference collection fied to Smith Wes- had testified as an personnel plant firearms.” He at the Massachusetts son sixty-five occa- approximately Corey shotgun. Finally, witness on when about sions, identification, “the inter- regarding ATF asked whether reference manuals nexus, design and of fire- operation state indicate firearms particular would where manufactured, arms.” Cooney re- Agent were that ATF sponded possesses “in-house objected nonetheless The defense by ... technical information us provided Cooney’s expert qualifications Agent factory, keep and other information we nexus” element of 18 the “interstate U.S.C. in-house that I use for reference.” The district court overruled the 922(g). objection. identify the defense invited him to After upon he had in deter- the “items” relied Cooney confirmed that he After Corey mining shotgun where the had been Corey shotgun, gov- had examined manufactured, Cooney responded: “The description “a brief requested ernment history background Smith and Wesson file type, gun], including weapon [the company, we have on the and there is history.” Cooney its then markings, and shotguns, a notation in there about these shotgun as “a Smith and identified they’re explain where made.” Asked to 916-A, Wesson, twelve-gauge, Model files, ATF had compiled how the these and gun, serial pump-action shot number comprised were exclusive- whether its files 7B1279,” had “manufactured which been by the ATF ly of information sent to compa- firearms by the and Wesson Smith manufacturers, Cooney explained that the Massachusetts.”2 The ny Springfield, of “information that we’ve files consisted hearsay foundation and defense asserted speaking factory had from with the over objections prosecutor as soon as the asked and years, going and there on tours whether, exami- Cooney “[b]ased on [his] historian, asking the Smith and Wesson research,” weapon [his] nation of the Jinks, historical Roy Mr. who’s written opinion place an as to the he had formed books on Smith and Wesson.” At that that point manufacture. At the district point, defense counsel stated: “So a lot of court the defense to voir dire permitted is, basically, people you, this what tell ei- the witness. company you people ther the tells or the you ... company B. The Dire the Defense or records or memos Voir may get company.” (Emphasis from the dire, Cooney On voir testified added.) Cooney responded: “That’s cor- expertise in possessing “substantial identi- rect”. firearms,” having handled fying “hun- objection, in- of firearms” and exam- The defense renewed its dreds of thousands Cooney “strictly shotguns sisting ined and Wesson had relied Smith gathers, peo- evidence that he by Corey. Cooney [on] owned stated that type ple telling things manufac- him where these principal Smith and Wesson rounds, original magazine capacity weapon of five testified that an further % barrel-length "plug” inserted which operational, of 30 but that a had been inches, magazine capacity length to two rounds. an of 50 inches and reduced overall % D. The claimed that Cross-examination Resumes The defense manufactured.” hearsay problem could be the perceived The defense asked Agent Cooney requiring government only by cured the telephone conversation with records from the business generate “to you Jinks “was the extent of what did to shot- [the factories that show these determine whether [shotgun] was wasn’t manufactured there.” gun] was or ... manufactured Maine ?” Coo- countered that Federal government responded: ney my “That was one ... an permit 702 and 703 Rules of Evidence procedures my examinations of the shot- expert witness to formulate gun, every what do with type weapon; type reasonably on facts of a based files, I check the li- technical our research field, (Em- brary, if necessary factory.” call the Cooney added.) had demonstrated that that phasis When the defense asked methodology requirement. met that telephoned whether he had Jinks because the technical and library files research had hearsay court overruled the district “inconclusive,” proven Agent Cooney re- Cooney that objection, ground on the “No, sponded: always get sir. like to acquired he this in- [that] testified “ha[d] places my two or three to check research.” years, has made studies formation over the addition, Cooney that reiterated nota- someone, by and read a book and tions the ATF files reflected that these Wesson, history of and looked Smith shotguns were manufactured in Massachu- years that were made over the as notations 1981, setts between 1972 and and in Ohio come from.” The to where certain models 1984, between 1982 and at which time that court then declared itself “satisfied Smith and Wesson sold the line to a third reliability [Agent Cooney’s] testimo- party. Finally, Agent Cooney stated that pur- that it’s admissible for the ny is such verify he “called Smith and Wesson to that intended, it it’s not pose for which was and shotguns] had not been made in [these exclusively on that he ob- based added.) Houlton, Maine.” (Emphasis somebody from a conversation with tained again When the defense once asked weapon.” regard else with Agent Cooney to describe the various com- files, ATF

ponents of the research he ex- plained generated The Direct Examination Continues that it was “in-house C. get factory, information that we from the that, opin- testified in his brochures, from from someone speaking ion, had manufac- Corey shotgun been factory prior my calling with the them.” Wesson, and in Mas- tured Smith either Finally, Cooney agents stated that ATF he explained sachusetts or Ohio. Then factories, weapons employ- visit interview attempted he had to rule out the Smith products, ees about new then include located in Maine as the plant and Wesson updated information in the ATF files. place by phoning of manufacture the Mas- 20, 1998, on plant January sachusetts II Jinks, Roy speaking with resident his- DISCUSSION torian and the author of two books on and Wesson. Jinks informed Coo- Smith Citing exclusively v. to United States ney shotgun that the model owned Co- (1st Trenkler, Cir.1995), 61 F.3d 57-61 rey been had never Davis, and United States v. 571 manufactured Finally, Agent Cooney Maine. confirmed (5th Cir.1978), Corey claims expert opinion that he had based his “on testimony given by Agent Cooney “was [Roy provided had] information that Jinks nothing more than his recollection of what (Em- him,” as the additional research.” in- well had told thus constituted others added.) phasis hearsay. admissible ”) added; citation omit- rulings relating to meree’ review

We expert-witness Houser, admissibility ted); v. 746 F.2d United States discretion, see General for clear abuses (same). (D.C.Cir.1984) Accordingly, 136, 141, Joiner, U.S. Elec. v.Co. was met the “interstate nexus” element (1997), 512, 517, L.Ed.2d 508 S.Ct. provided government demonstrated ruling at issue unless the will not reverse in a Corey possessed shotgun legal an incorrect stan predicated state other than the one which was firm a “definite and we reach dard or manufactured. States v. Cole- See United court made clear conviction (7th Cir.1994); man, United States judgment.” error Gourley, (1st Cir.1995); see Shay, 57 F.3d (10th Cir.1987). Gresham, States v. United (5th Cir.1997) rul review of (appellate Federal Rules of Evidence 702 expert ATF ings admitting admissibility govern and 703 deferential”); “highly interstate nexus three testimony. imposes Rule 702 re Ware, 997, 1002 (1) quali quirements: must Cir.1990) (rulings admitting expert skill, testify, by “knowledge, expe fied to only if testimony are reversed “nexus” (2) rience, education”; training, or erroneous”).3 “manifestly “scientific, testimony must concern techni 922(g)(1),the United section Under knowledge”; and specialized cal or other a reasonable prove beyond States must (3)the testimony such must be as “as- possessed a “fire that the defendant doubt sist the trier of fact to understand the ev- has been arm ammunition which or in idence or to determine a fact issue.” in or for interstate shipped transported or Ware, 132; at Shay, 57 F.3d see § 922(g)(1); eign 18 U.S.C. commerce.” overwhelming at 1002.4 Confronted with Bates, 77 F.3d see United States authority contrary,5 to the as well as Cir.1996) (8th (noting gov that the Agent Cooney’s extensive “firearms” ex- that “there exists prove only ernment need appellant simply prevail cannot pertise, the firearm[s] minimal nexus that ‘the time, its been, in interstate com- a claim that the district court abused have at some Fed.R.Evid. 702. suggests that the standard 3. The dissent than abuse- review be less deferential should 5. See, Dunn, of-discretion, notwithstanding the fact that (9th Cir.1991) (holding govern that appellant’s argumentation legal in the entire may prove the nexus element ment interstate than two fifteen-page consists of less brief Ware, expert opinion testimony); with pages, cites Evidence in which he neither (noting expert opinion at F.2d any Sixth Rule 702 or nor articulates "nexus,” jury determining will assist in while claim. See Clause Amendment Confrontation entirely jury); leaving ultimate to the issue Bongiorno, 106 F.3d United States v. Gann, (1st Cir.1997) (noting raised that issues Cir.1984) (same). appeal perfunctory are deemed in manner were Thus, contends that these cases dissent waived); 6. the dis see also note infra decided, pur- wrongly that for Rule 702 arguments principally upon predicated sent is poses expert testimony respect to & properly us. See notes 10 not before infra "specialized place of manufacture is not knowledge,” expert opinion unlike an as to the manufacturer. None the authorities provides: 4. Rule 702 supports propo- cited the dissent the novel technical, scientific, specialized or other If sition that a trial court must "deconstruct” an knowledge assist the trier of fact to will compo- expert’s opinion discrete into such Rather, a evidence or to determine understand the Rule 702 the in- nents. under issue, qualified an a witness as ex- quiry expert opinion, fact in taken as is whether the skill, whole, pert by knowledge, experience, jury resolving train- may assist case, education, may testify fact: this ing, thereto in ultimate issue of or gun in interstate commerce. opinion traveled form of an or otherwise. ruling noted, discretion in the Cooney testi- Corey As challenges the expert mony met these threshold criteria. testimony presented by Cooney pure hearsay, consisting of “nothing more than Accordingly, admissibility de [Cooney’s] recollection what others had depended only termination upon Evidence told him.” Specifically, Corey contends 703, to Rule which we now turn: challenged expert' opinion—that The facts or data in the particular case the shotgun had been manufactured which an an opinion bases Massachusetts, rather than Maine—was or inference perceived those exclusively based on Cooney’s conversation by or made known to the at or Jinks, with Roy the Smith and Wesson hearing. before the type rea- If of historian at the plant. Massachusetts This sonably upon by experts claim seriously as well. flawed in forming opinions field subject, inferences upon the the facts First, Corey only glosses over or data need not be admissible in evi- highly review, deferential standard of dence. (clear Shay, see 57 F.3d at 132 abuse of added). Fed.R.Evid. 703 “The discretion), proffers but highly self-serv aspect rationale of Rule 703 is that ing interpretation of the challenged testi experts in the presumed field can be mony. Agent Cooney repeatedly testified know what evidence sufficiently trust that he had based worthy probative to merit reliance.” shotgun had been manufactured in Massa Gold, Wright 29 Charles A. and Victor J. chusetts not only telephone on his conver Federal Practice and Procedure sation with Smith and Wesson historian (1997). Nevertheless, Rule 703 does Jinks, Roy but on customary own re require that the trial act judge as an inde search into technical reference manuals pendent “gatekeeper” to that ensure there and materials maintained at the ATF “re sufficient, is credible experts evidence that libraries,” search which contained infor rely on specified do types of sources in mation on approximately five thousand formulating opinions. their See Daubert v. different firearms.6 Specifically, Pharms., Cooney Inc., 579, Merrell Dow 509 U.S. consulted 595-96, “history the ATF background 113 S.Ct. 125 L.Ed.2d 469 Wesson, file” (1993); on Smith and which con see also advisory Fed.R.Evid. 703 (under tained “a notation ... about these committee’s note Rule shot “[atten guns, they’re tion is directed to the where validity [and] of the tech made.” The niques employed clearly case law relatively than to reflects that these rather inquiries fruitless hearsay types in commonly is of materials by consulted volved.”). experts.7 firearms Although Corey 6. quoted in his testimony might intimated voir dire support is that Agent Cooney and cross-examination of that factory- some of the ATF file information the ATF files themselves would be inadmissi derived. ble because all the information therein was compiled See, by agents Gresham, obtained and (ATF ATF field, he has raised this not claim on agents "may base[] their on ... appeal. Accordingly, any such claim is corporate literature reference and materials waived, deemed placed upon and reliance ATF.”); maintained United States v. it in the is dissent unwarranted. See United Bonavia, (11th 567 n. Cir. Owens, (1st 745 n. F.3d 1991) ("Interstate expert may rely nexus” on Cir.1999); supra see also note 3. weapon examination of and “consultation of Moreover, books[.]”); Ware, support record cannot such reference 914 F.2d at 1003 Agent that, Cooney claim. (noting testified: “We have in- under Evidence Rule fire- house pro- technical expert may "reasonably information that’s been rely” gun arms on factory, vided us and markings, publications other “various and ATF information lists,” keep books, we in-house that I use magazines, and "firearms trade for reference." Thus, added.) (Emphasis materials”) added); inference and reference factory he had called the because that whether

Moreover, Cooney testified “inconclu- part, proven at least in had opinion, his own research he based “No, as a fire- expertise sive,” I al- knowledge Cooney responded: own sir. his ATF and in with the both specialist, places arms or three ways get like to two supra note 1. Fur- private sector. my check research.” he had han- ther, confirmed that “[bjundreds fire- of thousands dled Cooney’s The dissent intimates arms,” type and had “examined because, unlike testimony was deficient [viz., Corey’s shotgun] before.” shotgun cases, he did of the cited experts most noted, Thus, aptly court as the district firearm, markings on the rely on the “acquired himself had

Agent Cooney mark, geographical nota proof as a such years.”8 information over Wesson, Spring (e.g., tion “Smith Second, Cooney steadfastly re- field”), respect number.9 We serial by defense suggestions repeated sisted fully disagree. exclusively on he had relied counsel that First, fre- although firearms with Smith conversations telephone his rely upon weapon markings, quently employees at the Massachu- and Wesson not re- in the dissent do decisions cited Instead, Cooney emphasized, plant. setts upon gun motely suggest reliance ... consultation “was one telephone markings required, is nor the examinations my procedures predicated not have been opinion could every type of I do with shotgun, what reliable eviden- entirely upon various other files, I check the technical our

weapon. foundations, indepen- as their tiary such fac- library, necessary if call the research professional experi- or their dent research added.) Moreover, tory.” (Emphasis Furthermore, expertise. ence and explicitly that he had relied Cooney noted wit- in certain cases an Jinks, clear that “as well as on his conversation gain gun access to mark- ness could not (Emphasis research.” add- the additional ed.) Gregg, ings. by defense counsel See United States Finally, asked manufacture, Clawson, weapon’s testify to location of 912- United States v. Cir.1987) (9th agent's (holding personal knowledge); that ATF based on cf. adequately founded if "nexus” Buggs, States works,” predicated "standard reference Cir.1990) (permitting Indiana law-enforce- manuals, "catalogs, firearms and ref- such as testify that Smith and Wesson ment officers to publications”). erence Springfield, handguns in were manufactured Massachusetts). Gresham, See, (ATF e.g., 8. 118 F.3d at 266 agents "may their on ... base[] accepted, premise Even if this were to be personal experience in law enforce- their Cooney suggests did the record Horsman, ment.”); 114 F.3d United States v. rely upon Corey shotgun "mark- 822, Cir.1997) indeed (8th (finding sufficient 824-25 ings.” was asked to When expert’s testimony cross-examination an on Corey personally description provide [the that he was not aware that "a brief gun defendant’s was ever manufactured in the including weapon type, shotgun], mark- it); possessed United States v. state where he Wallace, responded ings, history,” Cooney and its 580, Cir.1989) (5th 889 F.2d 584 Wesson, 916-A, and Model it was "a Smith agent (finding hearsay problem no where ATF gun, twelve-gauge, pump-action shot serial years experience "testified that his with 13 7B1279,” by the "manufactured number training[ were based on his ... ] conclusions company of firearms Smith and Wesson experience”); Gregg, 803 and United States v. Corey As has Springfield, Massachusetts.” (10th Cir.1986) (crediting F.2d attempted appeal describe the mark- not on weapon specialist's testimony loca- as to the ings shotgun, we can conclude on the entirely on wit- tion of manufacture based fairly inferred that that the district court personal knowledge experience); ness’s by Agent Cooney expert opinion was offered Simmons, 773 F.2d United States part, upon an examina- predicated, at least in (4th Cir.1985) (ATF agent with nine 1460-61 markings. shotgun tion of the years’ experience, had thou- who conducted investigations, sands firearms allowed to Cir.1986) (10th Abbas, (4th (noting the States v. Cir.1996) government required produce (“Rule is “not 703 exists so that scienti- trial, prove specific actual firearm at or fic standards be admitted as trustwor- or serial manufacturer number of the fire- thy and exceptions reliable hearsay Thus, in question”). though arm reliance rule, thereby negating parade the need to gun markings may on well enhance an into court each every individual either expert opinion, methodologies other sound remotely intimately involved the cre- plainly are not thereby rendered unrelia- standard.”). ation of a per ble se. Finally, appellant’s total reliance Second, gun markings do not necessarily Davis misplaced.10 and Trenkler is constitute conclusive evidence. See Cole- Davis, the government attempted to intro man, 22 F.3d at (noting that even reports,11 duce ATF trace and the court though geographical stamped location is ruled that the reports trace came within no weapon, jury might fairly infer that hearsay-rule exception. See Fed.R.Evid. location there reflected was the home plant (records 803(6) manufacturer, regularly conducted necessarily 803(8) business); site); manufacturing (“public see also United records and re Horsman, 803(24) (residual States v. ports”); exception). See (8th Cir.1997) (even gun stamped Davis, where 1356-58, 1360 n. 11. But gnd “Springfield, “Made U.S.A.” see, Massa- Simmons, (hold 773 F.2d at 1459 chusetts,” expert was asked to state his ing that ATF trace reports meet the “re opinion, on research “[b]ased and his ex- sidual hearsay” exception, they pos since pertise,” as to weapon whether the was trustworthiness). sess sufficient -indicia of manufactured in Springfield, Massachu- Furthermore, Davis did not involve Rule setts). 70S, which specifically permits expert wit nesses rely on otherwise suggests dissent further inadmissible government type must establish nexus of a “reasonably more relied” on evidence, direct adducing such as trial tes- by experts in the field. See United States manufacturer, timony from the (5th Cir.1986). or intro- 115, 121 v. Harper, 802 F.2d ducing the manufacturer’s internal records Similarly, Trenkler involved an ATF re- in evidence. We have not been able to port pursuant 803(24), admitted to Rule support find for suggestion the case rather than as foundation testi- law, importantly, however. More such mony introduced under Rule 703. See regimen would reinvent the “best evi- Trenkler, 57-62; 61 F.3d at requirement dence” which Evidence Rule Maddix, Cir.1996) designed to relax. Cf. (ATF agent rely allowed to on trace report Simmons, reaching “interstate com- (4th Cir.1985) (finding that Confrontation element, long agent merce” so as “testified forms, by Clause was not violated trace experts customarily rely that firearms policy since interest in minimizing “[t]he upon tracing reports to determine whether expense delay” and by requiring caused firearms transported have been across testify record custodians to at trial “must lines”) 703). (citing state Fed.R.Evid. against be balanced utility the [limited] Thus, the Confrontation Clause to the defen- Davis and Trenkler are neither le- dant”) added); gally also factually apposite. nor cf. fifteen-page appellate 10. The brief submitted a firearm to the manufacturer. The ATF then by Corey pages legal argu- devotes but two requires report the manufacturer to fill out a mentation, and cites Trenkler and Davis. detailing gun’s history, and submit it to the ATF. reports agents request 11. These enable ATF the home office to trace the serial number on upon which independent bases the other

III opinion.”). that he relied to form CONCLUSION challenges only the Finally, Corey as pro- admissibility opinion testimony district that the record discloses As the Cooney, there is no need by Agent in vided within its discretion well court acted sufficiency govern- that comment on the narrow contention Corey’s rejecting nexus element. ment’s evidence on the “nothing on more Cooney had relied Agent however, jury remained Obviously, others had of what than his recollection Cooney’s Agent free to discredit him,” we need not consider told part.13 been whole or Cooney testimony would have he relied under Rule 703 had inadmissible the factual record be- Accordingly, given telephone conversation exclusively on the us, within court acted well fore the district employees. More- and Wesson to Smith jury to con- allowing its discretion over, categorical formulation given the by testimony provided sider the by Corey ap- argument presented Cooney relating to the Agent ATF Michael need to determine wheth- peal, there is no Shay, 57 nexus” element. See “interstate reliance on the Cooney’s partial er F.3d at 132. with Smith and telephone conversation Affirmed. his employees somehow rendered Wesson expert opinion well-supported otherwise TORRUELLA, Judge Chief the Federal Rules of suspect under either (Dissenting). Clause.12 Evidence or the Confrontation Gresham, accommodate a minor inconvenience (noting F.3d at 266 To But see by gov- of evidence “testify presentation in the agents may ATF on the basis ernment, major in- majority allows a their testimo- hearsay” may “base[ ] into a criminal defendant’s Sixth with the manufactur- cursion ny on discussions Ware, This ers”); right Amendment to confrontation.1 (finding is the result of allow- unfortunate outcome agent error where ATF also testified no testimony contrary ing “expert” so-called contacted the manufac- “previously that he Federal Rule of requirements to the telephone”); turer mail and but see also Oil, majority goes further Evidence 702. The Arkwright Mut. Ins. Co. v. Gwinner (8th Cir.1997) Inc., upon govern- call astray by failing to (‘Where showing of adequate to make an expert’s opinion partly is ment Federal Rule of reasonable reliance under hearsay based on which does not meet regrettable develop- This opinion is nev- Evidence 703. requirements, Rule 703 his where, egregious as especially if it ment supported ertheless admissible reasonably upon by experts mistakenly type 12. The contends that the "of dissent panel opinion assumption forming opinions on the rests or field [viz., Agent Cooney's "reliance on subject,” inferences Fed.R.Evid. phone is irrelevant since also relied call] [he] personal experi- on ATF files and his in-house jury that it 13. The district court instructed Rather, Cooney's ence.” reliance [expert] testimony "accept reject could phone simply because call is irrelevant ... witness’s [t]he ... should consider [and] narrowly, Corey appeal so formulated training, experience and education and arguments the dissent re- failed to raise the opin- given soundness of the reasons for the gards persuasive. supra note 3. ion, and all the other evidence in the case matter, Although the we need not resolve testimony.” might impact or on that bear testimony we that the trial note also —that Agent Cooney proce- had followed the same Const, ("In art. VI all criminal 1. See U.S. "every type weapon” arguably dure with of — right prosecutions, enjoy the the accused shall discretionary might sustain the district court's with the witnesses ... be confronted to. ruling Cooney information used— the him...."). against including phone was confirmation —itself

93 here, in “experts particular punishable by imprisonment field” crime year testi- a term .... exceeding are federal law enforcement officers one to ship subject mat- or in fying regarding self-serving transport interstate or commerce commerce, Finally, majority simply fails to foreign possess ter. or in af- or commerce, the fact that the of fecting any take into account use firearm or am- munition; in a must hearsay any evidence criminal case or to receive firearm or The pass Supreme constitutional muster. ammunition which has shipped been in hearsay has held that evidence must interstate foreign Court or commerce. possess “particularized guarantees § 922(g)(1). 18 U.S.C. trustworthiness,” Roberts, v. Ohio U.S. At in appeal issue this is evidence

56, 66, 100 S.Ct. L.Ed.2d 597 prosecution offered to (1980), establish the testing such that “adversarial prong § interstate nexus little, 922(g)(1) if expected anything, would be to add —“in affecting or commerce.” The interstate reliability,” Lilly Virginia, [its] to 116, -, prong 922(g)(1) jurisdic nexus is a U.S. S.Ct. requirement. tional (1999). Compare U.S. v. L.Ed.2d 117 I fail to how the see Blais, Cir.1996) (1st objected evidence to in this appeal (holding challenge facial to the constitu standard, high particularly this meets tionality § 922(g)(1) hope of 18 U.S.C. when we consider that this evidence was law), less as a matter of with United jurisdictional used to establish a fact ab- 549, 562, López, States v. 514 U.S. sent which there is no triable federal (1995) 1624, 131 S.Ct. L.Ed.2d 626 (holding crime. § 922(q) 18 U.S.C. unconstitutional be addition, In deference to the Court’s jurisdictional it cause “contains no element policy. ATF is unwarranted as a matter of ensure, through case-by-case which would improper The use of the tendered testimo- inquiry, in possession the firearm ny justifiable purpose. serves no commerce”). question affects interstate It prosecution easily could in- establish the proof is well settled that that a firearm by introducing terstate nexus of a firearm was manufactured outside the state subpoenaed records from the manufactur- which the possession occurred is sufficient er, testimony direct from the manufactur- support finding possession er, reports. or even ATF trace This would See, “in or was affected commerce.” require only expenditure by a minimal Gourley, government relatively little effort on (10th Cir.1987); part prosecution. In an indus- Cir.1983). Johnson, 722 F.2d try governmental oversight where is en- demic and keeping pervasive, record case, the prosecution offered the unduly should not be burdensome to re- ATF Agent Michael quire that such independent evidence be Corey’s weapon establish that produced rely, rather than proof of a possession at the time of his arrest jurisdictional element crime Maine had been manufactured either in charged, self-serving “ATF research” Ohio, Massachusetts or and therefore had material. traveled in interstate commerce. The court admitted this over defen-

DISCUSSION objection pursuant dant’s to Fed.R.Evid. Corey charged Alvin Scott with pos- give 703. Rule 703 allows an session of a firearm a felon in violation opinion testimony that is based on facts or § 922(g)(1). of 18 U.S.C. The statute data not admitted into evidence if “of a states that: type reasonably upon by experts any person— forming opinions

It shall unlawful for field in of, any subject.” who has been convicted in court inferences admissibility be Review determination of should 1. Standard manifestly erroneous.” sustained “unless admit rulings court’s a trial review We superior op- This deference reflects the evidence for excluding particular ting or judge gauge the trial portunity of See, e.g., United of discretion. abuse expert the competence both Riverar-Gómez, 67 F.3d v. States opinion would be the extent to which (1st Cir.1995). majori Accordingly, as the Despite seeming helpful jury. to the indicates, a court’s de correctly district ty have used to language breadth of the we expert or exclude cision admit deference, rul- describe this trial court deference. great entitled to generally is expert ings regarding admission of Joiner, 522 U.S. Elec. Co. See General We have testimony remain reviewable. 512,139 136, 138-39, 118 L.Ed.2d 508 S.Ct. decisionmaking left all such to trial not (1997); Shay, judges, nor should we. Cir.1995). (1st However, unlike most admissibility ex involving the appeals that affect the policy questions Basic present testimony, this case does not pert decisions very nature of trial lie behind Here, evidentiary question. pure testimony. expert to receive Under rely prosecution Evidence, allowed the trial court not Federal Rules of testimony to solely expert evidence, establish are them- only explain but of the crime. jurisdictional element These selves sources of evidence. two 1624; related, 115 S.Ct. López, roles, 514 U.S. quite are distinct. though Raymond, 98 F.3d at 648-50. Under deciding explanation by circumstances, a less deferential these expert jury judge, will assist the appropriate. of review is standard superior position judge of the trial over By appellate judge apparent. many general courts make the [W]hile comparison, deciding whether evi- rulings that a trial court’s statement be allowed from this dence should discretionary, it clear evidence are source, judge upon the trial draws less many particular evidence determi- immediately be- the scene and the cast beyond question ap- nations raise a him, and more the substantive fore may ques- be considered plication and law. To the extent that the decision to tions of law. The abuse of discretion testimony as a source of allow reflex should standard recited significantly intertwined with evidence is freely court stop per- from appellate law, underlying we will substantive institutional role of de- forming its own deference, and take a accord less ciding law is. what the much closer look. Davis, Steven Childress & Martha Federal (1992). Standards Review 4.02 Orleans, In re Air Crash Disaster at New held agreement Fifth Circuit is and has (5th Cir.1986). Simi- subject expert testimony may F.2d 299 larly, Carpenter, Salas v. closer examination. (5th Cir.1992), the Fifth held: “Ex- Circuit pert witnesses two roles: ex- adoption perform

Since the of the Federal Rules plaining jury, acting we have accorded evidence to a of Evidence jury. trial courts considerable discretion in de- the source of evidence for When role, admissibility in the latter we termining speaks a district court’s by experts. give evidence We have said that less deference to admissibility decision.” Id. at 305.2 the discretion is “broad” and questions Although prece- questions primarily of law this circuit has no similar dent, evidentiary interpretation that certain issues about the of the Federal Rules idea Evidence, novo.”); which we review de warrant a standard of review is not stricter See, Coneiro, Sposito, novel. Olsen v. United States (1st Cir.1997) (same). (1st Cir.1999) ("Here evidentiary

95 Here, at in part, contrary was the sole source least to the dictates of Further, evidence Rules 702 and 703. prosecution’s of the on interstate cases distinguishable on the facts. nexus, impor- More this question and the before Court however, tantly, compliance with Rule 703 ruling is whether the trial court’s admit- uphold appellant’s alone is not sufficient to ting testimony proper this as a matter in conviction this case because the evi- in Accordingly, law. line with the Fifth satisfy dence does requirements in reasoning Pan American Circuit’s Accordingly, Sixth Amendment. Salas, I Airways World would hold below, the reasons stated I would reverse that the trial court’s decision to allow ex- appellant’s conviction. pert testimony proof jurisdiction- as of the § 922(g)(1) subject al element of to a III. Federal Rule of Evidence 702 higher of review. standard admissible, To be expert testimony must Nonetheless, my dissent does not rest requirements meet the of Fed.R.Evid. 702. assume, I point. may arguendo, on this provides: It of review is applicable that the standard scientific, technical, If or other special- Applying abuse of discretion. this stan- knowledge ized will assist the trier of dard, may only it is settled that the Court fact to understand the evidence or to appellant’s reverse conviction on the “evi- issue, in qual- determine a fact a witness in dentiary question” raised this case if: skill, ified as an expert knowledge, (1) the district court based its decision on education, experience, training, (2) standard; legal an incorrect or we have testify in thereto the form of an firm a “definite and conviction that or otherwise. judgment court made clear error of Fed.R.Evid. 702. The rule has three re- the conclusion reached based I quirements, but need address the weighing Shay, of the relevant factors.” First, two appeal. that are at issue this (quoting 57 F.3d at 132 United States v. subject matter of the must (1st Gómez, 378, 921 Benavente F.2d “scientific, technical, spe- involve or other Cir.1990)). Second, knowledge.” cialized Id. a witness may testify expert only as an where Question Impression II. of First “specialized court determines that knowl- expert testimony may Whether be used will the trier edge assist under- of fact jurisdictional requirement to establish the stand the evidence.” Id. add- 922(g)(1) question impres of first ed). However, in the First sion Circuit. case, prosecution this used least seven other circuits have addressed Cooney’s expert testimony for pur- three Relying issue. either Fed. R. Evid (1) poses: identify Smith & Wesson as 702 or all have that expert determined shotgun manufacturer Co- See, is permissible. United (2) rey’s possession, identify the location (5th Gresham, v. States manufac- each of Smith & Wesson Cir.1997); Maddix, States v. United (3) identify turing plants, and which (8th Cir.1996); F.3d potential the three Smith & Wesson facili- Coleman, (7th F.3d Cir. actually ties manufactured this 1994); Dunn, United States v. shotgun. Expert testimony regarding the (9th Cir.1991); States identity prop- of a firearm manufacturer is (11th Bonavia, n. 2 requires specialized er because it knowl- Cir.1991); Gregg, United States v. 803 edge undoubtedly jury. assists the Cir.1986); United However, neither the location of a manu- Simmons, 1455, 1460-61 place nor the actual a fire- facturing plant (4th Cir.1985). my colleagues pa- Unlike fall within the arm is manufactured is, majority, Rule neither can believe this case law rameters of 702 because knowledge,” agent “iden- knowl- on his “specialized described

fairly be tified the manufacturer from characteristic edge.” Id. markings stamps.” Id. The shell opposite an con- majority reaches The testimony Ninth determined “[t]his Circuit analysis. The Rule 702 clusion without objects had prove was relevant to that the however, law, clearly support does not case in commerce.” Id. traveled interstate contrast, a holding. In majority’s correct, holding in but the the law illustrates The Gann examination of careful any analysis real a testimony opinion lacking does not Agent Cooney’s why —is — which infects this area source of confusion “specialized knowledge [that] constitute indicated, of law. As Gann holds the trier of fact to understand will assist testimony may be expert under Rule 702 Id. the evidence.” identify particular manufactur- used the admissibil- The first case consider weapon. a id. at 724. The er of See testimony on the interstate ity expert of clearly supports Rule 702 this language of v. of a firearm was United States nexus technical, scientific, “If or oth- conclusion: (9th Cir.1984). Gann, In knowledge will assist specialized er Gann, argued the defendant dis- evidence trier of fact to understand the objection denying erred in trict court ..., ... qualified expert a witness as testimony govern- offered may testify thereto.” Fed.R.Evid. 702. witness, an ATF firearms expert ment’s lay question average There is no that the officer, to his of enforcement a juror identify cannot the manufacturer of manufacturer of the the location of the simply by examining weapon. firearm ammunition. See recovered firearms and of an especially This is true the case principal argu- id. at 724. The defendant’s gun gun only unmarked or a marked with of a proof ment was that of the location testimony Consequently, a serial number. manufacturing plant require does not ex- identifying the manufacturer of a firearm pert testimony. usually special- will constitute technical The Ninth affirmed convic Circuit knowledge ized that will assist the trier In pursuant tion to Fed.R.Evid. requires fact. Rule 702 no more. reaching holding, the court cited Unit problem with is that cites Gann Sickles, ed F.Supp. States In approval Sickles. (3d (D.Del.1981), aff'd, 688 F.2d 827 Cir. Sickles, expert court held that district 1982). Sickles, the district court held identify the testimony could be used to expert testimony that the admission of re a manufacturing plant. location of lating manufacturing to the location of the Sickles, F.Supp. 512. This is an plant proper. was The court reasoned entirely proposition, different and one that expert that the witness relied on informa in Rule 702. has basis no itself, tion on gun as well as treatises manufacturing plant and the these The location of experience. officer’s Under circumstances, question of fact that be established “the ultimate decision of prosecution, in interstate direct evidence. The guns whether the traveled example, any ex could introduce number of jury, commerce was for the and [the] records pert drawing corporate on common sense documents or historical corporation’s to establish the location of a opined when he ultimate issue.” [the] However, manufacturing Similarly, facilities. direct Id. the Ninth stated that Circuit the manufacturer could “not for the from Gann testified easily place of so-called purpose identifying weap the location of used testimony. identity of a manufacturing plants, on and ammunition Unlike manufacturer, the location of a purpose establishing but instead for the firearm simply the manufacturer’s facilities does not each manufacturer of Gann, technical, “scientific, weapons spe- or other and ammunition seized.” involve added). Fed.R.Evid. 702. knowledge.” F.2d at 724 “Based cialized corporate documents or direct stand basic are illustrative. this case The facts indicating a manufacturer Smith from Here, Cooney testified that manufacturing has fa- manufacturing company where the has facilities & Wesson Massachusetts, Ohio, Massa- easily and Maine. a matter evaluated cilities. This is Ohio, “scien- chusetts, are not and Maine the realm of their com- by laymen within technical, tific, specialized or other knowledge experience. mon example, Compare, for Id. knowledge.” Similarly, place the actual of manufac- has & Wesson testimony that Smith (i.e., shotgun Corey’s ture where in Massachusetts manufacturing plant manufactured) in fact does possession was involving aircraft testimony expert with standard of Rule 702.11 not fall within the maintenance,3 bank- accounting practices,4 expert testimony juror require A does not customs,5 corporate management,6 ing corporate indicating records to understand distribu- picture motion production,7 farm manufactured in either that a firearm was investments,9 or tion,8 securities Ohio, but not or Maine. Massachusetts By com- jargon.10 of criminal meaning un- people a that of common This is fact Wes- of a Smith & the location parison, easily comprehend. derstanding can Con- ordinary fact .an plant is production son majority’s indi- sequently, contrary to of evi- subject presentation to the that is cation, authority overwhelming there dis- way any as other the same dence in proper subject expert a for that this is not juror a is not Admittedly, fact. puted advisory Fed.R.Evid. 702 testimony. See knowledge of independent likely have to (“There cer- note is no more committee’s has production & Wesson where Smith determining when tain test for make facilities, alone does not but inqui- than the common sense may be used plants technical the location would be layman the untrained ry whether did, Rule 702 would be If it specialized. intelligently to determine qualified could testimony expert meaningless, is- degree the possible particular the best any fact essentially establish be used to from those hav- enlightenment sue without case. dispute every understanding of the sub- ing specialized addition, requires Rule 702 ject dispute.”).12 involved Fed. testimony “assist the trier of fact.” Nonetheless, few cases that have added). Here, an 702 R.Evid. question have determined addressed this juror abundantly qualified ordinary regarding the inter- testimony expert physi- direct evidence assess of properly is permissible of a firearm state nexus It is patently disingenuous cal location. v. United States 702. See under Rule requires fact that the trier of suggest (9th Cir.1991); 615, Dunn, 618 946 F.2d testimony to under- expert of assistance Echeverri, See, 982 10. See, e.g., States v. 864 Leasing, United Jet e.g., Davis v. American 3. 1993); 675, (1st 612, (8th 1988). Cir. States v. F.2d United 680 615 Cir. F.2d 1, Cir.1990). (1st Castiello, 3 915 F.2d Architects, See, Systems e.g., 4. 373, Cir.1985). (1st 377 loca- Although distinction between the 11. facilities and tion of a manufacturer’s See, Reliance e.g., Nat’l State Bank v. First 5. normally place manufacturer” is "actual 725, (3d 1981). Co., Cir. 668 F.2d 731 Elec. case, incidental, issue in it is the critical one, where the manufacturer has such as this See, F.2d 611 Corp., 6. e.g., v. Centex Bauman possession and in the state of facilities both 1980). 1115, (5th Cir. 1120-21 outside it. Hester, See, Corp. v. e.g., Crop Federal Ins. 7. Pepsi Cola Puer 12. See also Ruiz-Troche Cir.1985). (8th 728 (1st Co., 81 Bottling to Rico admissible, 1998) ("To expert testimo Cir. See, e.g., 8. v. Allied Artists Pic Wilder Enters. only in the ny sense must be relevant 1980). (4th tures, F.2d Cir. relevant, see Fed.R.Evid. must be all evidence in the incremental sense See, but also Reynolds, Witter Shad v. Dean admitted, Cir.1986). opinion, if expert’s proposed F.2d Ware, Quite above, simply, as indicated the lan- (7th Cir.1990). cases, however, guage These uni- of Rule supports appellant’s ar- Gann, gument and holding belies the formly rely erroneously citing Court.13 authority rejecting all Rule 702 challenges on this is- IV. Federal Rule of Evidence 703 turn, majority, sue. See id. The finds I also support reject disagree my colleagues’ sufficient these cases to treatment of Rule 703. challenge provides: Rule 702 con- Rule 703 appellant’s to his analysis. respectfully viction without be- The facts or data in case lieve this determination is erroneous. which an expert bases an opinion likely would assist trier of fact to under as to a matter which obvi- issue.”); stand or determine a fact in Ed ously knowledge is within the common Co., Jewelry Jewelry Peters Co. v. C & J jurors testimony, because such almost def- (1st Cir.1997) (holding trial inition, assistance.”); can be of no 1 John W. perform gatekeeping court "must its func al., Strong et McCormick On Evidence tion, by assessing testimony whether the 'will (1999) ("To expert warrant the use of testi- assist the trier of fact to understand the evi mony, proponent the must establish at least " (quot dence or a to determine fact in issue' First, general traditionally two elements. the 702)); ing Fed.R.Evid. United v. Mon States subject of the inference must be so distinc- tas, 775, (1st Cir.1994) ("Expert 41 F.3d 784 science, tively profession, related to a busi- testimony subject on a that is well within the ness, occupation beyond or as to be the ken jury’s ordinary experience gener a bounds of Second, lay persons.... the witness must value.”); ally probative has little United have knowledge sufficient skill or related to Rohm, (9th States v. F.2d 993 1413 pertinent calling the field or that his infer- Cir.1993) ("Our inquiry gen [Rule 702] has probably ence will aid the trier in the search erally upon expert the focused whether testi truth.”); Wright 29 Charles Alan & Vic- mony improperly addresses matters within Gold, tor James Federal Practice and Proce- understanding average juror.... the (1997) ("The dure important 6274 most guard perhaps [T]his circuit continues to — elucidation, determining expert factor in whether jealously expert testimo- too areas —from ny will jurors’ jury's [the believed 'assist trier of is the fact]' to be within the common un derstanding.”); Sepúlveda, expert testimony accurately United need for States 15 to deter- (1st Cir.1993) ("[T]he Thus, F.3d trial expert testimony mine the facts. as- function, judge performs gatekeeping a deter sists where it relates to esoteric matters be- mining reasonably likely whether it is yond experience lay people. the of most expert possesses specialized knowledge the Similarly, experts are needed where the testi- which will the better to assist trier under mony complex concerns matters that chal- issue.”); Cruz, a stand fact in lenge comprehension lay the people. Ex- (2d 1992) (holding Cir. ex pert testimony may helpful also be where the pert testimony is not admissible unless sub subject simply confusing.... On the other ject aspects reasonably matter has "esoteric hand, expert testimony does not assist where perceived beyond jury”); as the ken @for jury opinion has no need an be- Lamattina, United States v. easily cause can be derived from common (1st Cir.1989) (expert testimony is inad- sense, experience, jury’s common own jury missable where is able to determine is perceptions, simple logic. or For the same possible degree”); sues "to the best Andrews reason, expert testimony may helpful not be Co., v. Metro North Commuter R. put where there jury are other means to (2d Cir.1989) ("For expert’s an tes facts.”). position in a accurately decide the timony to be admissible under [Rule 702] it must be directed to matters within the wit majority my 13. The takes issue with Rule 702 scientific, technical, specialized ness' or analysis, stating that a trial court need not knowledge lay and not to matters which a expert’s testimony deconstruct an into dis- jury capable understanding and decid components. supra crete note 5. The in- ing expert's help.”); without opinion testimony dication is that on inter- (7th Lundy, Cir. proper expert state nexus 1987) even if ("Courts agree improper that dt is testimony place on the of manufacture is not. permit expert testify regarding an facts respectfully I First, fail to see how this can be. people understanding of common can cases)); easily it is settled law that a trial comprehend.” (citing court must Scott v. Sears, Co., perform gatekeeping Roebuck a & function to ensure that 1986) ("Rule Cir. proposed expert testimony complies 702 makes inadmissible with the reasonably upon by relied type data of perceived those may be inference or forming opinion experts or in the field expert known made by or nexus of a firearm. to the interstate type rea- hearing. If of before trial court erred argues Appellant by experts upon sonably relied testimony Cooney’s be- admitting Agent forming opinions field entirely on based cause his was subject, the facts upon the inferences majority in evi- evidence. The admissible concludes need not be or data proper Cooney’s dence. phone relied not call because he added). Ac- Fed.R.Evid. Jinks, Roy historian to Smith & Wesson testimo- expert proponent cordingly, ATF technical infor- but also on “in-house Rule showings under make two ny must “knowledge expe- own mation” and his First, offering party disagree this respectfully rience.” relied must show that analysis. type data of the on facts or Second, party in the field. by Agent Relied on A. The Evidence reason- this reliance was show that must Reasonable un- Was Not element is the critical The latter able.14 Rule 703 der case. stated, telephoned Agent Cooney As Here, we must decide Roy historian Jinks to & Wesson on facts or Smith testimony was based Cooney’s See, give 'care- requires trial court to Rule 703 Daubert Rules of Evidence. Federal 579, Pharm., Inc., any inadmissible facts ful consideration’ to U.S. 509 Merrell Dow v. 2786, rely, 591-93, expert will in order to upon which the L.Ed.2d 469 125 113 S.Ct. ”); Lab., Inc., is 'reasonable.' (1993); 724 F.2d determine whether reliance McDonald v. Fed. 304, Co., Second, Cir.1984). 243, (1st Slaughter 919 F.2d am not v. Southern Talc I 248 ("Federal (5th Cir.1990) of Evi- expert Rule single states an case that aware of subjects examine may testify requires to courts to the as such dence 703 anointed once Rule requirements reliability expert's of sources to determine not meet the of an do Third, important, satisfy inter- they the the threshold established and most whether 702. requires rule.”); Corp., generally 881 Head v. Lithonia nexus of firearm state Cir.1989) (1) 941, (10th ("Implicit place of knowledge manufacture, things: two 944 of F.2d (2) possession. [obligation] to make and the state of is the court’s [Rule 703] If, place pursuant of to Rule argued, preliminary as I have neither determination 104(a) possession underlying data particular con- nor the state of whether the manufacture reasonably knowledge, and therefore relied specialized kind that is is of a stitutes reaching testimony, I fail proper experts Rule 702 then field is Thus, court the district on the ultimate issue see how conclusions.... to nexus, fact, responsibilities independent better. its interstate fairs not abdicate meet minimum stan- decide if the bases reliability a condition of admissi- See, Litig., dards of PCB e.g., re Paoli Yard 14. R.R. omitted)); (internal v. 717, Cir.1994) ("It quotes Almonte (3d bility.” is 748 35 F.3d 763, Co., 787 F.2d Union Fire Ins. of rea- National judge who makes determination Cir.1986) (trial failing (1st reliance, court erred judge to 770 and ... for the sonable investigation into to conduct more extensive under Rule factual determination make facts expert’s or police reliance 104(a) basing her whether his or that an is reasonable); Freightliner v. Soden data was reasonably type of opinion on a data 498, (5th Cir.1983) Corp., F.2d 505 714 judge conduct upon by experts, the must experts a ("Though have afforded wide courts reasonable- independent ness.”); into evaluation 924, Locascio, choosing picking the sources latitude 6 F.3d opinions, Rule 703 nonethe- Cir.1993) (“We (2d on which to base agree that a district 938 reliability requires courts to examine accept expert testimony less is not bound to court sources.”); v. Amax Coal simply of those Baumholser questionable data because based Cir.1980) 550, (7th ("It Co., field.”); 630 F.2d 553 such data in the use other determine, in the exer- the trial court University v. A.W. Chesterton Rhode Island discretion, expert's 1200, Cir.1993) ("Rules Co., (1st cise of its 2 F.3d 1218 sufficiently reliable of information entitle- sources do not automatic 703 and 705 afford opinion.”). reception testimony. warrant proponents ments 100

inquire origin appellant’s shot- Gresham, about See United States v. 118 F.3d (5th 258, gun. majority Cir.1997); believes that reli- 266 United States v. Horsman, (8th 822, ance on is irrelevant 114 Cir.1997); since F.3d Maddix, 311, relied on ATF United States v. Cooney also in-house tech- 96 F.3d (8th Cir.1996); personal Bonavia, experience. nical files and his United States v. 565, (11th Cir.1991); F.2d 567 n. 2 disagree govern- and would hold that the Ware, United States v. ment’s evidence of interstate nfexus is in- (7th Cir.1990); Wallace, to Rule pursuant sufficient 703. (5th Cir.1989). 889 F.2d More majority While the declines to reach the important, the research itself included call, propriety telephone it seems literature,” Gresham, “corporate information gleaned intuitive that from a books,” Bonavia, “reference phone placed by call an investigating offi- F.2d at 567 n. “various firearms trade proceedings cer criminal begun have after books, magazines, and reference materi- objective does not bear earmarks of rea- als,” Ware, 914 F.2d at publi- “ATF reliability. example, sonable For in- cations,” (emphasis added), id. “catalogs, provided by formation Mr. Jinks was not manuals, firearms publica- reference documented, published, subject to peer tions,” Clawson, United States v. Further, review. way we have no of know- (9th Cir.1987), or at very least ing on what Mr. basis Jinks determined Maddix, an ATF report, trace see shotgun the Smith & Wesson in appel- at 315. lant’s possession was not manufactured in In contrast to best, these traditional Maine. At and well- testimony regarding accepted research, Agent forms of Cooney telephone conversation amounts to a relied on in-house generated by material summary expert’s opinion. of another the ATF itself. refers to these This alone is not sufficient for admission See, materials as ATF “research under Rule libraries” and Corp. TK-7 “technical files.” Removing this semantic ofBarbouti, Estate Cir.1993) gloss, the underlying picture troubling: (expert testimony was inadmissi- a federal law enforcement officer ble relied on under Rule 703 “where the expert internal, non-published government failed files to any to demonstrate basis for con- establish an appellant’s element of cluding that crime. another individual’s opinion my opinion, In reliable, ... this cannot amount was than to rea- other the fact that it sonable reliance by definition was the and there- opinion of someone he believed to fore violates Rule Smith, It is difficult to be an expert”); United States v. imagine in (7th Cir.1989) (“[A]n any that other context Court agent would allow an of expert party one may simply witness not summarize rely party’s on that self-serving, own inter- out-of-court statements of others as his nal documents as a basis for his testimony.”); see also so-called 29 Charles Alan expert opinion. Wright Gold, & Victor James Federal (1997). Practice and Procedure Further, when asked how the ATF in- house generated, information was Accordingly, Agent we are left with ATF Cooney explained that ATF research ma- in-house files and the agent’s personal ex- compiled by terials are perience. agents ATF Admittedly, both be rele- through interviews with firearm vant factors in a Rule manufac- analysis. How- ever, point, turers. At one example, I am aware of no case he where the states: expert relied on ATF reference mate- personal experience.

rials and his In most generated That’s in-house information cases that “personal indicate reliance on get that we from factory, from bro- research,” chures, the expert testimony was also from someone speaking based on an weapon. factory examination of the prior my calling them. added)); Gregg, 803 asked ders.” counsel fact, defense when specialist on testified (weapon F.2d at 571 information major manufac- gun conversations Cooney depended on “that there were no Agent Cooney Oklahoma”); Simmons, employees, & Wesson in with Smith turers State (ATF that infor- find else would agent “[h]ow testified replied, F.2d at 1460-61 appellant’s Consequently, out?” mation ex- knowledge and personal on his “based Cooney’s Agent that contention Arms Co. had never perience, Savage absolutely hearsay is entirely on was based Maryland.”). in manufacturing plant had a indicated, requires Rule As correct. words, have allowed fire- In other courts reliance, I do not believe reasonable ex- personal on their rely arms may reason- officer law enforcement that a based on the brand only where perience to establish rely on evidence ably that physical impossibility it was he is simply because of a crime an element in the state weapon was manufactured an witness. deemed Here, Smith & Wesson has possession. Cooney’s purported Similarly, Agent Maine, manufacturing plant state experience personal on reliance these circum- possession. Under have allowed Three courts persuasive. stances, higher that a de- it is axiomatic on their rely solely experts to firearms required proof opine should gree formulating experience personal & Wesson appellant’s Smith firearm that See Unit- to interstate nexus. at & manufactured Smith was not 1070, 1077 Buggs, 904 F.2d ed States in Maine. plant Wesson 571; (7th Cir.1990); F.2d at Gregg, 803 Simmons, These at 1460-61. Rely Did Not B. however, very dif- cases, premised on Markings the Fire- Distinctive in this contained facts than those ferent arm cases of these Specifically, each case. the fact majority overlooks to a limited rely on distinctive Cooney did not no there were statement manufac- shotgun in formulat- Corey’s markings on possession. state turing facilities major- overwhelming opinion.15 An ing (ATF agent at 1077 Buggs, indicate cases reported ity handguns & testified “Smith Wesson factor are a central on a markings firearm Massa- Springfield, are manufactured Gresham, See, e.g., analysis. Rule 703 in a that a .357 He also testified chusetts. Horsman, 266; at revolvers and no is a revolver magnum Coleman, Maddix, 315; 824; F.3d at Indiana’s bor- within are manufactured Moreover, although reading was the serial number. majority’s disagree with the 15. I manufacturer of passage identifies supra note 9. On point. record on this examination, place of nothing identifies the Cooney shotgun, here was asked direct (Smith headquar- & Wesson is description of Exhibit "a brief manufacture. provide Massachusetts, weapon including Springfield, but Corey shotgun], tered in [the history.” Agent Coo- in markings, manufacturing facilities type, company and its has Massachusetts.) Maine, Ohio, im- ney replied: More and Cooney was subse- portant, however. Wesson, Model 916- a & 7 is Smith Exhibit on what times basis quently asked numerous A, shotgun, serial 12-gauge, pump-action opinion interstate nexus. on he formulated his manufac- 7 was 7B1279. Exhibit number telephone call a relied on testified that he He firearms com- by the Smith & Wesson tured materials, Wesson, research ATF is, to Smith & It pany Springfield, Massachusetts. did not experience. He indi- personal and his shotgun. My ex- design, pump-action a by shotgun. markings any reliance cate it has a barrel revealed that amination suggest that )6 inches, respectfully there Accordingly, I 30 and length approximately fairly indicates nothing record that length approximately an overall and distinctive mark- Agent Cooney relied on inches. and % formulating ings in added). on the firearm passage, read this (Emphasis As on interstate nexus. by Agent only marking identified Ware, (the 130-31; 1002; F.3d at F.2d at er revolver had been admitted into Wallace, 584; United States v. #A-1), evidence as exhibit and the fact Merritt, Cir.1989); that the revolver had been seized in Mis- Gourley, United States v. added). souri.” Id. at (10th Cir.1987); United States v. Har- Similarly, in Gresham the defendant was (5th Cir.1986). per, 802 F.2d The guilty possession found of a firearm by a importance of markings distinctive on a convicted felon. See 118 F.3d at 258. On firearm is markings self evident: are non- appeal, defendant claimed that the district hearsay evidence that expert allow an court by abused its discretion permitting identify the manufacturer. Once the man- government to offer testimony identified, ufacturer is the expert can easi- in order to satisfy jurisdictional nexus ly determine the location of the manufac- required by § 922(g)(1). The Fifth Circuit turing Typically facilities. these facilities conviction, affirmed the stating, “[p]roof of possession, outside of the state of and the interstate nexus to the firearm expert readily therefore the can opine that based expert testimony by a law weapon traveled in interstate com- enforcement officer.” Id. at (citing merce. Privett, United States v. United States v. Maddix is illustrative. (5th Cir.1995)). reasoned, The court “it is 11,1994 On March Maddix was arrested in axiomatic expert opinions may be City, Kansas Missouri charged based on facts or data of type reasonably being possession felon of a firearm in upon by experts field, in particular § 922(g)(1). violation of See 96 F.3d at if even the sources are not admissible evi- trial, 313. At an ATF special agent testi- 703). dence.” (citing Id. Fed.R.Evid. fied that the revolver in posses- Maddix’s trial, prosecution At offered the tes California, sion had been manufactured timony of two ATF special agents. The shipped Arkansas, to dealers and then agents testified that the component parts eventually sold Missouri. See id. at 315. pipe bomb had been manufactured testimony, Based on this Maddix was con- outside Texas and had traveled in inter charged. victed as state commerce.16 agents, who were appeal, On Maddix argued that the dis- admitted experts, based their trict court abused its discretion in admit- on studies of distinctive markings on the ting hearsay evidence to jur- establish the products, corporate literature and refer isdictional element of 922(g)(1). The ATF, ence materials maintained Circuit, however, Eighth affirmed. The manufacturers, discussions with the court special reasoned that the agent testi- personal experience their in law enforce fied as a firearms and that his ment. See id. After reviewing these opinion properly relied on a tracing report facts, stated, the Fifth Circuit have “[w]e and markings on weapon. The court regularly upheld such expert stated, “firearms customarily rely against hearsay challenges, holding that upon tracing reports to determine whether testimony is satisfy admissible to firearms have been transported across jurisdictional required nexus state (citing lines.” Id. at 315 Fed.R.Evid. § 922(g)(1).” Id. 703). Further, opinion “[h]is was also based upon evidence other than the tracing The Gresham court prior cited three report, is, identity the of the manufac- Fifth opinions, Circuit noting that the ex- (Clerke turer Technicorp) place relied, and the pert testimony had part, whole or (Santa Monica, California), manufacture on markings on the weapons in each of both which were stamped on the Wallace, revolv- these 584; cases. See 889 F.2d at 16. The court component determined the purposes § 922(g)(1). for See 118 F.3d at parts “pipe of a bomb” constituted "firearms” 265. for the reasons stat- Accordingly, 920; appeal. F.2d Harper, 802 Merritt, at F.2d ed, Cooney’s testi- determined, I would hold that the “[i]n court 121. The reason- facts or data mony is not based on on case, relied ATF the instant by experts field Gresham, ably relied on information.” similar to opinion an as interstate formulating Therefore, court did “the district at 266. 703. nexus. See Fed.R.Evid. admitting the its discretion abuse not jurisdic- the satisfy testimony to The Sixth Amendment at 267. V. Id. nexus element.” tional testi- Here, markings were testimony- Cooney’s no distinctive The failure of question. regarding to firearm of Fed.R.Evid. requirements fied meet the to finding of reversible for a 703 is sufficient of This Case The Facts C. However, deeper runs my concern error. Unique to the techni- improper than the adherence Rules of Evi- Federal cal intricacies of the acknowledge to majority also fails criminal this is a case Specifically, dence. absolutely case are facts of this that the enjoys protection the defendant has considered other case unique. No Confrontation the Sixth Amendment’s establish to appropriate is what evidence Clause. Rule 703 to pursuant nexus interstate has firearms manufacturer

where non-hearsay relies on an Where pos- the state of facilities in manufacturing evidence, markings weapon, on such as rea- Obviously, what constitutes session. only comply with Rule evidence need does in one context rebanee sonable here, However, where, testi- entirely an different necessarily apply purports prosecution offered mony facts. set of com- the evidence must rely hearsay, on “reasonably approach, any Under Rule 703 and Confronta- both with ply re- necessarily upon” standard ex- Circuit The Seventh tion Clause. facts and specific focus on quires plained: case, surrounding circumstances cases, un- inquiry court’s In criminal offered, particu- and the precise beyond finding go der Rule 703 must aAs opinion. for that of the basis lars by an expert hearsay rebed identify possible it is not consequence, tes- expert’s An these standards. meets always that are expert opinion for bases entirely on hear- based that was timony Thus, precedent reasonably reliable. might satisfy Rule say reports, while Rule 703 raised questions defen- violate a would nevertheless value. of dubious right to confront dant’s constitutional James Wright Alan & Victor 29 Charles witnesses. adverse Gold, Procedure Practice Federal Lawson, web, I (1997). this reason as For Cir.1981). than critical majority’s less that the believe crimi- gives a Clause The Confrontation than law is less of the case treatment “to be confronted right nal defendant satisfying. him.” against U.S. the witnesses Policy D. Considerations concern of the central art. VI. The Cont. “to ensure the reli- is Clause the Court Confrontation policy, matter Finally, as a against a criminal ability of the evidence by allow- precedent dangerous setting rigorous it to test- by subjecting defendant on its own rely ing party adversary proceed- in the context of ing expert opinion. as a basis compilation Maryland of fact.” the trier ing before mind, absolutely justifi- no there In my 3157, 836, 845, 110 S.Ct. 497 U.S. Craig, deference the Court’s reflexive cation for (1990). Accordingly, pur- L.Ed.2d 666 111 by presented the issues ATF on to the 104 Clause,

suant to the Confrontation a defen- the witness at the preliminary hearing dant “guaranteed opportunity for where the statement was made. See 448 70-73, effective cross-examination.” U.S. at 100 contrast, Delaware v. S.Ct. In 2531. Arsdall, 673, 678-679, Wright Supreme Van 475 U.S. Court held that the (1986). 1431, S.Ct. statements of a 89 L.Ed.2d 674 child sexual abuse particularized victim lacked guarantees The opportunity cross-examination, for of required trustworthiness for admission protected Clause, by the Confrontation under the Confrontation Clause. See 497 ensuring is critical integrity 826, U.S. at 110 S.Ct. 3139. The Court the fact-finding process. Cross-exami- focused on the “presumptive unreliability nation is principle by means which of out-of-court statements” on the the believability of a witness and the “suggestive manner” in which the child’s truth of his testimony are tested. doctor conducted the interview. Id. Stincer, Kentucky 736, v. 730, 482 U.S. Here, cursory even a examination of the 2658, (1987) S.Ct. 96 L.Ed.2d 631 (quoting record shows that there are no “indicia of Alaska, 308, 316, Davis 415 U.S. reliability” sufficient to uphold the admis- 1105, (1974)). S.Ct. 39 L.Ed.2d 347 In sion of Cooney’s testimony regard- light of a defendant’s right to cross-exami- ing the interstate prong nexus nation, out-of-court statements are admis- Roberts, § 922(g)(1). 66, See 448 U.S. at sible criminal trial limited under First, 2531. Agent Cooney S.Ct. of- circumstances. fered the out-of-court statements of Smith Specifically, Supreme Court has held & historian Roy Wesson Jinks as substan- that the Confrontation Clause is violated tive against evidence the defendant. where an out-of-court statement of a wit- These statements were made in a tele- ness does not bear adequate “indicia of phonic interview that by was conducted Roberts, reliability.” Ohio 448 U.S. the government without procedural safe- (1980). S.Ct. 65 L.Ed.2d 597 guards criminal proceedings had be- after The Supreme Court has stated that “indi- gun. the “totality Given of the circum- cia reliability” can be demonstrated in stances,” there is no reason to believe that ways. two Where the evidence falls within these out-of-court by statements offered “a firmly hearsay exception,” rooted relia- prosecution prove interstate nexus bility can be inferred. Id. All other cases are “particularly worthy of belief.” require “a showing of particularized guar- Wright, 497 U.S. at 110 S.Ct. trustworthiness,” id., antees of such Second, Agent Cooney relied on in- “adversarial testing would be expected indicated, house ATF files. I already As little, add if anything, to their reliability,” difference, there little from a hearsay Lilly v. Virginia, 116,-, 527 U.S. standpoint, between the ATF’s internal 1887, 1894, (1999). S.Ct. 144 L.Ed.2d 117 materials, reference which compiled are Further, guarantees “particularized ATF agents interviewing firearm manufac- trustworthiness” must be “drawn from the field, turers in the and a telephone call to totality of circumstances that surround the the manufacturer. These records have not making of the statement and that render subjected been to public scrutiny, and they the declarant particularly worthy of be are not likely to be pursuant available lief.” Wright, 805, 820, Idaho v. 497 U.S. the Freedom of Information Act. (1990). 110 S.Ct. 111 L.Ed.2d 638 552(c)(7). U.S.C. Given presumption Roberts Wright illustrative. inadmissibility accorded accusatory Roberts, the Supreme Court that an held hearsay statements not pursuant admitted out-of-court statement an unavailable firmly to a rooted hearsay exception, see witness was sufficiently reliable to be ad- Illinois, id. (citing 530, 543, Lee v. 476 U.S. trial, mitted at consistent with the Con- (1986)), S.Ct. L.Ed.2d 514 Clause, frontation because defense counsel government’s evidence of interstate nexus had engaged in full cross-examination possess of does “particularized guaran- up- sufficient of trustworthiness” tees WALDMAN; Joseph Plaintiff- conviction. appellant’s hold Appellant; in be- employees, & Wesson The Smith jury, the before appearance an saved ing from cross-exami- immune rendered were thereby al- was prosecution The

nation. JOEL; Abra KIRYAS OF VILLAGE by fact jurisdictional a establish lowed to Mittelman; Wieder; Solo ham Jacob noth- who did a witness simply producing Kahan; Wertzberger; Yudel mon statements out-of-court summarize ing but Szeged Schwimmer; Gedalye Mendel the defen- Consequently, others. made ca individual in, in their official veracity of to test the way no had dant Defendants-Appellees; pacities; of This use him. against offered evidence failing evidence, in addition hearsay Housing Au Hirsch; Kiryas Mayer Joel 703, denied Fed.R.Evid. of requirements Neuman, official thority; in his Moses to con- right constitutional appellant Lawson, capacity; Hakir Vaad witnesses. individual front adverse Inc.; Joel, at 302. Town of Kiryas yah, of County of Monroe; Orange Board un- inquiry a case court’s In a criminal Tredwell, Elections; F. finding beyond Alexander go must der Rule York; on State, New Secretary of State Rules the Federal the standards meets Defendants. willing to is If this Court of Evidence. Docket No. 99-7830 its rely on agency government allow post-indictment manuals and own internal Appeals, Court a basic element establish calls to telephone Circuit. Second testify- crime, by clothing simply aof aura the unwarranted agent with ing 10, 2000 Jan. Argued: plain then, my opinion, “expert,” has Clause Confrontation language 21, 2000 Decided: March recognition. beyond been emasculated non- produce government Requiring re- jurisdictional

hearsay evidence major hardly 922(g)(1)

quirement of Particularly prosecution.

burden here,

where, weapon question number, a minor it is a serial

stamped with to establish inconvenience

bureaucratic manufactured, by weapon

where from of records subpoenaing

requiring resources of manufacturer. by re- hardly be strained can

government nex- of interstate proof direct such

quiring

us.

CONCLUSION above, respec- stated

For the reasons

tively dissent.

Case Details

Case Name: United States v. Alvin Scott Corey

Court Name: Court of Appeals for the First Circuit

Date Published: Mar 28, 2000

Citation: 207 F.3d 84

Docket Number: 98-1893

Court Abbreviation: 1st Cir.