United States v. Cortez-Oropeza ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1209
UNITED STATES,
Appellee,
v.
RAFAEL CORTEZ-OROPEZA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Steven A. Feldman and Feldman & Feldman on brief for
appellant.
W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-
Almonte, Assistant United States Attorney, Chief, Appellate
Division, and David C. Bornstein, Assistant United States
Attorney, on brief for appellee.
July 13, 2022
LYNCH, Circuit Judge. Rafael Cortez-Oropeza seeks to
have this court set aside his convictions from his March 2020 jury
trial for unlawfully possessing firearms and ammunition as a
convicted felon, 18 U.S.C. § 922(g)(1), and for unlawfully
possessing a firearm with an obliterated serial number, id.§ 922(k). The argument on which this appeal turns is that the
district court abused its discretion when it qualified Bureau of
Alcohol, Tobacco, Firearms and Explosives ("ATF") Special Agent
Israel Valle as an expert under Fed. R. Evid. 702 on whether the
firearms and ammunition charged in the operative indictment had
traveled in interstate commerce. We affirm.
I.
On July 17, 2018, law enforcement recovered from Cortez-
Oropeza's home in Puerto Rico one Cobray M-12 .380 caliber
machinegun with an obliterated serial number; one Charter Arms .38
caliber revolver; one 7.62x39 mm rifle; assorted rounds of 9 mm,
.40-caliber, and 7.62 mm ammunition; and one rifle and two pistol
magazines. The rifle was loaded with four cartridges in its
magazine and one in its chamber.
After he was arrested, Cortez-Oropeza signed a written
confession stating:
I[,] Rafael Cortez[-]Oropeza[,] take all the
blame for everything they have seized at my
house, the rifle, and the submachine gun, and
the .38 were seized at my house. They are all
mine, and my wife is innocent in this whole
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situation that is happening to me. . . . I am
the only one to blame.
The confession is not at issue.
On December 17, 2019, the grand jury returned a second
superseding indictment, charging Cortez-Oropeza with unlawful
possession of firearms and ammunition as a convicted felon and
unlawful possession of a firearm with an obliterated serial number.
See 18 U.S.C. §§ 922(g)(1), (k), 924(a), (e). All three firearms
and the rounds of ammunition recovered by law enforcement were
included in the indictment, allegedly "having been shipped and
transported in interstate and foreign commerce." Cortez-Oropeza
pleaded not guilty and proceeded to trial. The parties stipulated
that Cortez-Oropeza "knew that he had been previously convicted of
a crime punishable by imprisonment for a term exceeding one year."
In conformance with its obligations under Fed. R. Crim.
P. 16, the government had notified Cortez-Oropeza that it would
call ATF Special Agent Valle as a "nexus expert" to testify, inter
alia, about "the analysis and methodology used to examine the
firearms and ammunition seized" and "the origin of [Cortez-
Oropeza's] firearms and ammunition and their interstate or foreign
nexus," i.e., whether the firearms and ammunition had traveled in
interstate commerce.1 The notice stated that Special Agent Valle's
1 Under 18 U.S.C. § 922(g), the government must prove,
inter alia, the defendant possessed a "firearm or ammunition which
has been shipped or transported in interstate or foreign commerce."
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testimony "will be based on his specialized training and experience
in the examination and analysis of firearms and ammunition and the
examination performed by him on the firearms and ammunition seized
in this case." Defense counsel did not file a motion in limine to
exclude such testimony.
At trial before the jury, the government called Special
Agent Valle to testify as to his background and training before it
moved to qualify him as an expert. On direct examination, Special
Agent Valle testified that he had been an ATF agent for two years
and, at the time, was certified by the ATF as an interstate nexus
agent. Interstate nexus agents are tasked with determining where
firearms are manufactured or assembled in order "to determine
whether the firearm, if possessed in Puerto Rico, . . . traveled
in interstate or foreign commerce." Special Agent Valle had taken
and passed multiple exams for the position and received specialized
training, including a one-week in-person class and additional
online trainings. Special Agent Valle further testified that,
after receiving his certificate, he had examined more than ten
firearms unrelated to this case to determine where they were made.
Similarly, for a section 922(k) prosecution, the government must
prove the firearm "has, at any time, been shipped or transported
in interstate or foreign commerce." This has been called the
"interstate nexus" element. See, e.g., United States v. Corey,
207 F.3d 84, 86, 88 (1st Cir. 2000).
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The government then moved to qualify Special Agent Valle
as an expert witness on firearms and the interstate nexus elements
of the crimes charged. Defense counsel objected, seeking "to voir
dire the witness before he is qualified or not as an expert."
The district court permitted defense counsel to conduct
voir dire of Special Agent Valle. During voir dire, Special Agent
Valle testified that he has been in law enforcement for well over
a decade and that this was his first time testifying as an expert.
He also testified as to his training to become an interstate nexus
agent, which included instruction on and practice with inspecting
firearms for specific markings and proofmarks and searching those
marks on a database owned and maintained by the ATF.
The government, following this voir dire, renewed its
motion to qualify Special Agent Valle as an expert. Defense
counsel again objected, arguing that the witness had not testified
to the specifics of his training and that "he will essentially be
almost a lay witness." The district court stated:
Let me tell you what I think this witness has
to be an expert on. He has to be an expert
not on firearms generally but on how to
determine whether this firearm has moved in
interstate commerce. And I would like to hear
some questions, either from the government or
from the defense, establishing that he -- how
he knows about determining that, what training
he has on that issue, before I rule on whether
he's an expert on that or not.
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The government questioned Special Agent Valle further
about his in-person and other training. The agent stated that he
first had to prove his basic knowledge of firearms by passing an
exam. After that, he was instructed "on how to find markings,
proofmarks, make and models, [and the] caliber of firearms,"
focusing on the frame of the weapon. He also was trained to
consult the ATF "database, books, [his] knowledge[ and]
experience, and sometimes . . . another senior special agent" to
determine, based on the firearm's marks, where a firearm was
manufactured. Special Agent Valle stated that he spent most of
his in-person training practicing locating the manufacturing
origin of firearms. He inspected more than thirty firearms in
that time and passed another exam before he was certified as an
interstate nexus agent. He continued to receive online trainings
"every couple of months" or so.
Defense counsel conducted further voir dire of Special
Agent Valle, during which the agent stated that he did not know
the specific quality control for adding manufacturers' markings
and proofmarks to the ATF database, did not memorize what each and
every marking means, had not published anything within his field
of gun markings identification or joined any organizations, and
did not remember his exam scores, although he did know he received
passing grades. Special Agent Valle further testified to his
reliance on various reference materials when determining whether
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a firearm has traveled in interstate commerce, including the Blue
Book for Gun Values and "Ammo Guide" or "[s]omething similar to
that," although he did not remember the publishers or authors of
the books.
Defense counsel objected under Fed. R. Evid. 702(a) to
qualifying Special Agent Valle as an expert, arguing that "our
concern is he will not, with his very limited experience and
knowledge, be able to help this jury with anything." The district
court overruled the objection and, based on the agent's testimony,
granted the government's motion to qualify Special Agent Valle as
an expert. The court immediately instructed the jury: "I will
allow the witness to testify as an expert. Like any other witness,
you [the jurors] are the ones that determine the weight that will
be given to this witness."
Special Agent Valle, thereafter, testified to the
manufacturing origin of Cortez-Oropeza's firearms and ammunition,
concluding that, based on his inspection of the contraband, his
research on the ATF database, and his own knowledge, each was
manufactured outside of Puerto Rico. He stated that the machinegun
was manufactured in Buffalo, New York because the serial number
had a "dash 12" and started with "0000001 up to 0011565": the
unobliterated part of "[t]his one is 12-0009." Special Agent Valle
concluded that the Charter Arms revolver was manufactured in
Connecticut based on the markings stating, "Charter Arms," and his
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research on the ATF database that all Charter Arms revolvers are
manufactured in Connecticut. The rifle, Special Agent Valle
testified, was manufactured in China, as there was a proofmark of
a triangle with a 26 inside. And the ammunition was manufactured
either in Connecticut or Arkansas and in Russia. He observed two
types of the ammunition seized had an "R dot P[,] [a]nd that's a
Remmington [sic] ammunition. . . . [T]hey manufacture ammunition
in Arkansas and Connecticut." The other type was "a TulAmmo, which
they manufacture ammunition in Russia." He also testified to his
general knowledge that neither firearms nor ammunition are
manufactured in Puerto Rico.
Defense counsel cross-examined Special Agent Valle on
when he inspected the firearms (a month before trial), whether he
prepared a report of his inspections (he did not because a former
interstate nexus agent had),2 whether another agent verified his
conclusions (none had), whether he confirmed the serial numbers of
the firearms with the manufacturers (he did not because that is
outside the scope of his duties), and whether there are unlicensed
armorers and gunsmiths in Puerto Rico that modify and assemble
firearms and ammunition (the agent could not answer due to
2 Special Agent Valle's conclusions as to the out-of-state
manufacturing origins of the firearms and ammunition matched those
of the former interstate nexus agent's for all but the rifle, for
which the former agent stated he could not determine the origin.
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potentially confidential information; he did state on redirect
that gunpowder is not produced in Puerto Rico).
The jury found Cortez-Oropeza guilty of both counts of
unlawful firearm possession, for which he was convicted and
sentenced.
His appeal contends that the district court abused its
discretion in qualifying Special Agent Valle as an expert under
Fed. R. Evid. 702(a).
II.
Our review of a district court's decision to admit, over
objection, expert-witness testimony is for clear abuse of
discretion. United States v. Corey, 207 F.3d 84, 88 (1st Cir.
2000). We must affirm, "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.'" Id.(quoting United States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995)).3
There is no argument that the district court applied an incorrect
legal standard.4
3 Cortez-Oropeza's contention that this court will apply
a less deferential standard of review where the government "relies
solely on an expert to establish the interstate jurisdictional
element of a felon-in-possession charge" is unsupported and
contradicted by the controlling caselaw in this circuit. See,
e.g., Corey, 207 F.3d at 88–89.
4 Appellate counsel is different from Cortez-Oropeza's
trial counsel.
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Fed. R. Evid. 702 provides that a witness can be
qualified as an expert "by knowledge, skill, experience, training,
or education" (emphasis added). Under Rule 702(a), the witness's
testimony must concern his "scientific, technical, or other
specialized knowledge" and "help the trier of fact to understand
the evidence or to determine a fact in issue."
The district court did not abuse its discretion in ruling
that Special Agent Valle was qualified to testify as an expert on
the interstate travel of Cortez-Oropeza's firearms and ammunition.
See Santos v. Posadas de P.R. Assocs., Inc., 452 F.3d 59, 64 (1st
Cir. 2006) ("The test is whether, under the totality of the
circumstances, the witness can be said to be qualified as an expert
in a particular field through any one or more of the five bases
enumerated in Rule 702 . . . ." (emphasis added)). Cortez-
Oropeza's arguments to the contrary lack merit.
We reject Cortez-Oropeza's argument that Special Agent
Valle's testimony was inadmissible under Fed. R. Evid. 702(a)
because it did not concern specialized knowledge. This court
repeatedly has rejected similar arguments and has observed that
"[e]xpert testimony is appropriate to prove the interstate nexus
element." United States v. Luna, 649 F.3d 91, 105 (1st Cir. 2011);
see also Corey, 207 F.3d at 88–89; United States v. Cormier, 468
F.3d 63, 72 (1st Cir. 2006) ("[T]he 'interstate nexus' element of
§ 922(g) constitute[s] specialized knowledge for which expert
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testimony would be appropriate."). Further, we have held that
experts on the interstate travel of firearms reasonably may base
their testimony on their personal inspection of the firearms,
together with ATF manufacturing records, technical manuals, and
reference materials, just as Special Agent Valle did here. See
Corey, 207 F.3d at 89 n.7; see also Cormier, 468 F.3d at 73 ("[The
expert] not only consulted publicly available records in making
his conclusions about the manufacturing origin of the weapons, but
he also looked to conversations with manufacturers and research
texts, and he inspected one of the weapons."); United States v.
Allen, 190 F. App'x 785, 787 (11th Cir. 2006) (per curiam)
(unpublished) ("[The expert] based his opinion [of interstate
nexus] on the markings on the gun, his personal knowledge
concerning the manufacture and distribution of guns, and his review
of industry-wide publications, including The Blue Book of Gun
Values."); United States v. Ware, 914 F.2d 997, 1003 (7th Cir.
1990) ("[E]xperts in the field of firearms identification rely on
[markings on the firearm, ATF publications and lists, and firearms
trade books and other reference materials] with regard to the issue
of interstate transportation of firearms and such reliance is
reasonable."). Special Agent Valle's expert testimony that
Cortez-Oropeza's firearms and ammunition were manufactured outside
of Puerto Rico clearly would help a jury in its consideration of
the interstate nexus element.
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Cortez-Oropeza, acting pro se, makes two additional
arguments in his Fed. R. App. P. 28(j) letter; neither saves his
appeal. His first argument, purporting to rely on Rehaif v. United
States, 139 S. Ct. 2191 (2019), depends entirely on his assertion
that the government failed to have admissible testimony that guns
traveled in interstate commerce. Because we have rejected his
counseled claim that the expert testimony should have been
excluded, necessarily this pro se claim also must fail.
As to Cortez-Oropeza's second pro se argument that "he
does not categorically meet the definition of the statutory
authority 18 U.S.C. § 924(e) [ARMED CAREER OFFENDER] because his
only prior countable offenses are approximately 20 years old,
pursuant to [U.S. Sent'g Guidelines Manual] § 4A1.2(e)" (first
alteration in original), even if not waived for lack of
development, the argument is wrong. The portion of the sentencing
guidelines that Cortez-Oropeza cites provides that prior offenses
are to be counted if they "resulted in the defendant being
incarcerated during any part of such fifteen-year period" prior to
the defendant's "commencement of the instant offense." U.S. Sent'g
Guidelines Manual § 4A1.2(e) (U.S. Sent'g Comm'n 2021). While
Cortez-Oropeza's convictions for prior crimes predate the
commission of his instant offense by over fifteen years, he was
incarcerated for those offenses within fifteen years of his
commencing the instant offense.
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III.
Affirmed.
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