Argued January 23, 2014
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:13-cr-00011-RLM-CAN-1, Robert L. Miller, Jr., Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Donald J. Schmid, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, South Bend, IN.
For JOSEPH C. BROWNLEE, Defendant - Appellant: Mark S. Lenyo, I, Attorney, South Bend, IN.
Before POSNER and RIPPLE, Circuit Judges, and GILBERT, District Judge.[*]
Posner, Circuit Judge.
The defendant was convicted by a jury of being a felon in possession of a gun, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 60 months in prison. He possessed the gun--a.40 caliber Smith & Wesson pistol, model SW40VE--in Indiana. To convict him the government had to prove that the gun had been " shipped or transported in interstate or foreign commerce." § 922(g). (We don't understand what " shipped" adds to " transported" --what is transported may not have been shipped, but what is shipped must have been transported. But no matter.) To prove this, the government presented expert testimony by a special agent of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (usually referred to just as " ATF" ). The agent had worked
for the ATF for 24 years and received training at the ATF's " firearms nexus school" in how to determine where guns had been manufactured. And she had testified in previous cases about the place of manufacture of particular guns. She testified in this case that the defendant's gun had been manufactured at a plant in Connecticut and so must have been transported in interstate commerce to end up in Indiana.
She had based her research on a search of an ATF database of information about the place of manufacture of guns, on other sources of such information, such as the Blue Book of Gun Values, www.bluebookofgunvalues.com (visited March 4, 2014), and on a phone conversation and an exchange of emails that she had had the day before the trial began with the manager of the plant that had manufactured the gun. Her initial documentary search had revealed two locations, both outside Indiana--one in Wisconsin and one in Connecticut--at which the gun could have been manufactured, and she had called the manager of one of the plants, the one in Connecticut (presumably she thought it more likely to have been the plant that manufactured the defendant's gun), to pinpoint the place of manufacture--and he had told her that it was indeed his plant, the Connecticut plant. The plant is owned not by Smith & Wesson but by a small manufacturer named Tri Town Precision Plastics, see " About Us," www.ttplastics.com/prof.htm (visited March 4, 2014). It may seem odd for a plastics company to be making guns. But the pistol in question is what is called a " polymer frame" gun--the frame and grip are made of plastic although the gun barrel and the gun's moving parts are made of steel. The only issue presented by the appeal is the adequacy of the evidence to prove that the gun had not been manufactured in Indiana.
The defendant's lawyer complains about the brevity and lack of detail of the expert's testimony. And brief and general it was. Really all she said was that the gun had been manufactured in Deep River, Connecticut, and that the basis for her expert opinion was " data bases I have available to me, and, also, I spoke to the manager." But the defendant's lawyer had not questioned her qualifications to give expert testimony about whether the gun had been manufactured outside Indiana, had conducted no voir dire, had not requested a Daubert hearing, and had limited his cross-examination of her to two pointless questions: " This investigation that you did was yesterday; is that correct?" --to which she replied that she had talked to the manager yesterday--and " when these charges were brought, you had not confirmed that the gun had actually traveled in interstate commerce; is that correct?" --to which she replied: " Not exactly. I knew that it was made at one of two locations that manufacture polymer frames for Smith & Wesson." (She meant it was a " polymer frame" gun that had been manufactured at one of two locations, not that the plastic components had been manufactured at one of those locations but that the gun had been assembled elsewhere, perhaps Indiana.) Despite the brevity of her testimony it was sufficient, especially in the absence of meaningful cross-examination or contrary evidence, to justify a reasonable jury in finding that the gun had been manufactured outside Indiana.
The defendant argues that the expert was giving impermissible hearsay evidence in testifying to what the manager had told her. But an expert witness is permitted to rely on any evidence, whether it would be admissible or inadmissible if offered by a lay ...