U.S.A. v. Corey

• Decision Date: 28 March 2000
• Docket Number: No. 98-1893,98-1893
• Citation: 207 F.3d 84
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. ALVIN SCOTT COREY, Defendant, Appellant
• Court: U.S. Court of Appeals — First Circuit

Page 84

207 F.3d 84 (1st Cir. 2000) UNITED STATES OF AMERICA, Appellee,
v.
ALVIN SCOTT COREY, Defendant, Appellant. No. 98-1893 United States Court of Appeals for the First Circuit Submitted August 3, 1999
Decided March 28, 2000

Page 85

Kevin S. Nixon, by appointment of the Court, on brief for appellant.

Jay P. McCloskey, United States Attorney, and Margaret D. McGaughey, Assistant United States Attorney, on brief for appellee.

Before Torruella, Chief Judge, Hill^* and Cyr, Senior Circuit Judges.

CYR, Senior Circuit Judge.

Alvin Scott Corey seeks to set aside his conviction for possessing a firearm as a felon, on the ground that the district court abused its discretion in admitting expert testimony that the gun Corey purchased had traveled in interstate commerce. We affirm.

I.

BACKGROUND

In September 1997, an Easterfield model 916-A 12-gauge pump shotgun, manufactured by Smith and Wesson, was seized from Corey's Maine residence by officers of the Somerset County Sheriff's Department. In due course, Corey, a convicted felon, was indicted for possessing a firearm which had traveled in interstate commerce. See 18 U.S.C. 922(g), 924(e). At trial, the government called Agent Michael Cooney, a firearms enforcement officer with the Bureau of Alcohol, Tobacco, and Firearms (ATF), to establish that the shotgun had been manufactured outside of Maine, and hence necessarily traveled across state lines. Id. As Agent Cooney's testimony is pivotal to the appeal, we describe it in detail.

A. The Direct Examination

After testifying on direct examination that he had been an ATF agent for six years,¹ Agent Cooney described his official duties as "provid[ing] technical information

Page 86

regarding firearms identification, operation and design for purposes of assisting the [ATF] and the law enforcement community," "test[ing] and evaluat[ing] firearms submitted as evidence," "handl[ing] inquiries from industry and the general public regarding firearms," and "assist[ing] in maintaining the ATF firearms reference collection of approximately 5000 firearms." He had testified as an expert witness on approximately sixty-five occasions, regarding "the identification, interstate nexus, operation and design of firearms."

The defense nonetheless objected to Agent Cooney's expert qualifications on the "interstate nexus" element of 18 U.S.C. 922(g). The district court overruled the objection.

After Agent Cooney confirmed that he had examined the Corey shotgun, the government requested "a brief description of [the gun], including the weapon type, markings, and its history." Cooney then identified the shotgun as "a Smith and Wesson, Model 916-A, twelve-gauge, pump-action shot gun, serial number 7B1279," which had been "manufactured by the Smith and Wesson firearms company of Springfield, Massachusetts."² The defense asserted foundation and hearsay objections as soon as the prosecutor asked Cooney whether, "[b]ased on [his] examination of the weapon and [his] research," he had formed an opinion as to the place of manufacture. At that point the district court permitted the defense to voir dire the witness.

B. The Voir Dire by the Defense

On voir dire, Agent Cooney testified to possessing "substantial expertise in identifying firearms," having handled "[h]undreds of thousands of firearms" and examined Smith and Wesson shotguns of the type owned by Corey. Cooney stated that the principal Smith and Wesson manufacturing plant is situated in Massachusetts, but that other Smith and Wesson plants are located in Ohio and Maine. He stated that he had been able to determine from ATF "technical references" and "technical manuals" that the Corey shotgun was manufactured at the Smith and Wesson plant in Massachusetts. Further, he testified to having spoken with Smith and Wesson personnel at the Massachusetts plant about the Corey shotgun. Finally, when asked whether ATF reference manuals would indicate where particular firearms were manufactured, Agent Cooney responded that ATF possesses "in-house technical information . . . provided us by the factory, and other information we keep in-house that I use for reference."

After the defense invited him to identify the "items" he had relied upon in determining where the Corey shotgun had been manufactured, Cooney responded: "The Smith and Wesson history background file that we have on the company, and there is a notation in there about these shotguns, where they're made." Asked to explain how the ATF had compiled these files, and whether its files were comprised exclusively of information sent to the ATF by the manufacturers, Cooney explained that the files consisted of "information that we've had from speaking with the factory over the years, and in going there on tours and asking the Smith and Wesson historian, Mr. Roy Jinks, who's written historical books on Smith and Wesson." At that point, defense counsel stated: "So a lot of this is, basically, what people tell you, either the company tells you or the people at the company . . . or records or memos you may get from the company." (Emphasis added.) Cooney responded: "That's correct".

The defense renewed its objection, insisting that Cooney had relied "strictly [on] hearsay evidence that he gathers, people telling him where these things are

Page 87

manufactured." The defense claimed that the perceived hearsay problem could be cured only by requiring the government "to generate the business records from these factories that show that [the shotgun] was or wasn't manufactured there." The government countered that Federal Rules of Evidence 702 and 703 permit an expert witness to formulate an opinion based on facts of a type reasonably relied upon by experts in the particular field, and that Agent Cooney had demonstrated that his methodology met that requirement.

The district court overruled the hearsay objection, on the ground that Cooney "ha[d] testified [that] he acquired this information over the years, has made studies and read a book by someone, and the history of Smith and Wesson, looked at notations that were made over the years as to where certain models come from." The court then declared itself "satisfied that the reliability of [Agent Cooney's] testimony is such that it's admissible for the purpose for which it was intended, and it's not based exclusively on hearsay that he obtained from a conversation with somebody else with regard to this weapon."

C. The Direct Examination Continues

Agent Cooney testified that, in his opinion, the Corey shotgun had been manufactured by Smith and Wesson, either in Massachusetts or Ohio. Then he explained that he had attempted to rule out the Smith and Wesson plant located in Maine as the place of manufacture by phoning the Massachusetts plant on January 20, 1998, and speaking with Roy Jinks, the resident historian and the author of two books on Smith and Wesson. Jinks informed Cooney that the model shotgun owned by Corey had never been manufactured in Maine. Finally, Agent Cooney confirmed that he had based his expert opinion "on information that [Roy Jinks had] provided as well as the additional research." (Emphasis added.)

D. The Cross-examination Resumes

The defense asked Agent Cooney whether the telephone conversation with Jinks "was the extent of what you did to determine whether this [shotgun] was manufactured in Maine or not . . . ?" Cooney responded: "That was one of . . . my procedures in my examinations of the shotgun, what I do with every type of weapon; I check the technical files, our research library, if necessary call the factory." (Emphasis added.) When the defense asked whether he had telephoned Jinks because the technical files and research library had proven "inconclusive," Agent Cooney responded: "No, sir. I always like to get two or three places to check my research." In addition, Cooney reiterated that notations in the ATF files reflected that these shotguns were manufactured in Massachusetts between 1972 and 1981, and in Ohio between 1982 and 1984, at which time Smith and Wesson sold the line to a third party. Finally, Agent Cooney stated that he "called Smith and Wesson to verify that [these shotguns] had not been made in Houlton, Maine." (Emphasis added.)

When the defense once again asked Agent Cooney to describe the various components of the ATF research files, he explained that it was "in-house generated information that we get from the factory, from brochures, from someone speaking with the factory prior to my calling them." Finally, Cooney stated that ATF agents visit weapons factories, interview employees about new products, then include the updated information in the ATF files.

II DISCUSSION

Citing exclusively to United States v. Trenklar, 61 F.3d 45, 57-61 (1st Cir. 1995), and United States v. Davis, 571 F.2d 1354, 1356-58 (5th Cir. 1978), Corey claims that the testimony given by Agent Cooney "was nothing more than his recollection of what others had told him," thus constituted inadmissible hearsay.

Page 88

We review rulings relating to the admissibility of expert-witness testimony for clear abuses of discretion, see General Elec. Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 517 (1997), and will not reverse unless the ruling at issue was predicated on an incorrect legal standard or we reach a "definite and firm conviction that the court made a clear error of judgment." United States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995); see United States v. Gresham, 118 F.3d 258, 266 (5th Cir. 1997) (appellate review of rulings admitting ATF expert testimony on interstate nexus are "highly deferential"); United States v. Ware, 914 F.2d 997, 1002 (7th Cir. 1990) (rulings admitting expert "nexus" testimony are reversed only if "manifestly erroneous").³

Under section 922(g)(1), the United States must prove beyond a reasonable doubt that the defendant possessed a "firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C....