United States v. Jarelle McLean , 695 F. App'x 681 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4673
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARELLE MCLEAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Mark S. Davis, District Judge. (4:16-cr-00034-MSD-RJK-1)
Submitted: May 30, 2017 Decided: June 12, 2017
Before KING, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Andrew W. Grindrod, Assistant Federal Public
Defender, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney,
Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarelle McLean appeals from his conviction following a jury trial of possession of
a firearm and ammunition by a convicted felon. On appeal, he challenges venue, the
expert firearm testimony, and the Government’s closing argument. We affirm.
I.
McLean first argues that the evidence was insufficient to prove that the offense
occurred in the Eastern District of Virginia. The parties agree that the evidence
established that the offense occurred in Newport News, Virginia, and the parties agree
that Newport News, Virginia, is located in the Eastern District of Virginia. However,
McLean contends that the Government did not present evidence that Newport News is
located in the Eastern District of Virginia. The Government asserts, inter alia, that
McLean waived any objection by failing to raise the issue of venue in district court.
McLean contends that he preserved his claim by making a general motion for
judgment of acquittal under Fed. R. Crim. P. 29, both at the close of the Government’s
case and at the close of all the evidence. McLean argues that his challenge to the
sufficiency of the evidence on each element was sufficient to preserve a challenge to the
Government’s failure to prove venue. However, McLean’s arguments are not supported
by our case law.
First, we have noted that venue is not an offense element. See United States v.
Engle, 676 F.3d 405, 412 (4th Cir. 2012) (“Venue is not a substantive element of a
crime.” (internal quotation marks omitted)). In addition, we have held that a post-trial
motion for acquittal that raises venue for the first time results in waiver of the claim,
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rendering it unreviewable. See, e.g., United States v. Delfino, 510 F.3d 468, 473 n.2 (4th
Cir. 2007) (“Because the Delfinos’ improper venue claim was raised in their post-trial
motion for judgment of acquittal and/or new trial, we conclude that it was untimely and
that the claim is waived.”); United States v. Collins, 372 F.3d 629, 633 (4th Cir. 2004)
(“[I]f an indictment properly alleges venue, but the proof at trial fails to support the venue
allegation, an objection to venue can be raised at the close of evidence.”). Further, a bare
Rule 29 motion for acquittal that does not mention venue waives the venue argument.
See United States v. Knox, 540 F.3d 708, 716 (7th Cir. 2008). Accordingly, McLean’s
failure to specifically raise the issue of venue in district court has waived appellate
review.
II.
McLean next argues that the district court erred in permitting an agent to testify as
an expert, both because his testimony violated Fed. R. Evid. 702 and because his
testimony violated the Confrontation Clause. Specifically, McLean asserts that the
agent’s methodology was simply to rely on the ATF Tracing Center report, which is
allegedly insufficient under Rule 702. Next, McLean argues that the trace history reports
were prepared for litigation by out-of-court witnesses whom McLean was not able to
confront or cross-examine.
We “review for abuse of discretion the district court’s decision to admit expert
testimony under Federal Rule of Evidence 702.” See United States v. Wilson, 484 F.3d
267, 273 (4th Cir. 2007). The district court must be granted “considerable leeway in
deciding in a particular case how to go about determining whether particular expert
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testimony is reliable.” Id. at 273 (internal quotation marks omitted). If an expert seeks to
be qualified on the basis of experience, the district court must require that he “explain
how [his] experience leads to the conclusion reached, why [his] experience is a sufficient
basis for the opinion, and how [his] experience is reliably applied to the facts.” Id. at 274
(alterations in original) (internal quotation marks omitted).
In order to determine the reliability of an expert’s methods, a district court should
consider testing, peer review, error rates, and acceptability in the relevant scientific
community. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993).
However, as the Supreme Court stated in Daubert, the test of reliability is flexible, and
Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts
or in every case. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). In
applying these principles, “the measure of intellectual rigor will vary by the field of
expertise and the way of demonstrating expertise will also vary.” Tyus v. Urban Search
Mgmt., 102 F.3d 256, 263 (7th Cir. 1996). Indeed, “genuine expertise may be based on
experience or training.” Id. The Advisory Committee notes to Rule 702 specifically note
that “[i]n certain fields, experience is the predominant, if not sole, basis for a great deal of
reliable expert testimony.” Fed. R. Evid. 702, advisory committee’s note to 2000
amendment.
The agent testified to a long career involving firearm crimes and specialized
training. He also stated that he trained others regarding firearms and had toured eight or
nine firearms factories. The agent stated that he spent substantial time in hands-on
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learning regarding “firearms, nomenclature, how they operate.” J.A. 304. * He was
trained at the ATF Tracing Facility regarding firearm production, manufacture, and
design. The agent had testified “[n]umerous” times in front of every judge in the Norfolk
and Newport News federal courts. Id. at 305. The agent testified that, although often he
could look at a gun and know from experience where it was from or who produced or
manufactured it, he will also rely on the Tracing Center report and do additional research.
Expert testimony is “admitted frequently in firearm prosecutions to establish that
the firearm in question traveled in interstate commerce.” United States v. Conn, 297 F.3d
548, 556 (7th Cir. 2002); see also United States v. Corey, 207 F.3d 84, 92 (1st Cir. 2000)
(upholding admission of agent’s expert testimony, based partly on conversations with
Smith & Wesson’s historian, that a Smith & Wesson firearm was manufactured in
Massachusetts). The agent’s testimony was based on his specialized knowledge of
firearms, and he utilized his knowledge, his independent research, and information from
the trace report to formulate a conclusion. Moreover, his conclusions about how and
where the firearm was assembled would have aided the jury, as a layperson would not
likely be familiar with these details, nor was this information otherwise in evidence.
Thus, the district court’s decision to qualify the agent as an expert did not constitute an
abuse of discretion.
*
Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
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Turning to the Confrontation Clause claim, McLean contends that the tracing
report on which the agent relied constituted testimonial hearsay and that the authors of
the report did not testify, thereby violating his right to confront his accusers. McLean
contends that the agent acted as a mere conduit to introduce the inadmissible hearsay.
“The Sixth Amendment to the United States Constitution, made applicable to the
States via the Fourteenth Amendment, provides that [i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (alteration and omission in
original) (internal quotation marks and citation omitted). The Confrontation Clause
“guarantees a defendant’s right to confront those who bear testimony against him,” and,
therefore, a witness’ testimony is “inadmissible unless the witness appears at trial or, if
the witness is unavailable, the defendant had a prior opportunity for cross-examination.”
Id. (internal quotation marks omitted) (quoting Crawford v. Washington, 541 U.S. 36, 51
(2004)). Moreover, such “testimonial statements” include “statements that were made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Id. at 310 (quoting Crawford, 541
U.S. at 51-52).
However, while “Crawford forbids the introduction of testimonial hearsay as
evidence in itself, . . . it in no way prevents expert witnesses from offering their
independent judgments merely because those judgments were in some part informed by
their exposure to otherwise inadmissible evidence.” United States v. Johnson, 587 F.3d
625, 635 (4th Cir. 2009). An expert’s reliance on testimonial hearsay “only becomes a
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problem where the witness is used as little more than a conduit or transmitter for
testimonial hearsay, rather than as a true expert whose considered opinion sheds light on
some specialized factual situation.” Id. The test is whether the expert is giving an
independent judgment or “merely acting as a transmitter for testimonial hearsay.” Id.
“As long as he is applying his training and experience to the sources before him and
reaching an independent judgment, there will typically be no Crawford problem.” Id.
Here, it is clear that the agent was not acting as a mere conduit for testimonial
hearsay but applied his experience and training to determine that the firearm traveled in
interstate commerce. The agent stated that, based on his training and experience, he
made an independent conclusion as to where the firearm was manufactured and then he
reviewed the tracing report, which was in agreement with his conclusion. Moreover, we
have held that the ATF records exhibit “an exceptionally high degree of reliability” and
cross-examining ATF custodians would likely do nothing but “confirm the simple factual
statements made on the trace forms.” United States v. Simmons, 773 F.2d 1455, 1460
(4th Cir. 1985) (accepting expert testimony that Smith & Wesson firearms are
manufactured in Massachusetts). Given that the agent’s testimony went substantially
beyond merely repeating the hearsay evidence, the agent’s testimony did not violate
McLean’s Sixth Amendment rights.
III.
Finally, McLean claims the Government’s closing argument constituted
misconduct. Specifically, McLean asserts that the prosecutor portrayed the defense
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attorney as deceitful, by claiming that he was attempting to distract the jury through the
use of “smoke and mirrors.” J.A. 466.
We review a claim of prosecutorial misconduct “to determine whether the conduct
so infected the trial with unfairness as to make the resulting conviction a denial of due
process.” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (internal quotation
marks omitted). “The test for reversible prosecutorial misconduct has two components;
first, the defendant must show that the prosecutor’s remarks or conduct were improper
and, second, the defendant must show that such remarks or conduct prejudicially affected
his substantial rights so as to deprive him of a fair trial.” Id. In addition, because
McLean did not object during or after closing argument, we review for plain error. See
United States v. Olano, 507 U.S. 725, 732 (1993).
We find that the prosecutor’s characterization of the defense’s strategy was not
misconduct. The Government instead was commenting on the strength of the merits of
the defense by focusing the jury on the officers’ testimony regarding the encounter and
the video evidence. Moreover, contrary to McLean’s suggestion, the prosecutor’s
argument was not a personal attack on defense counsel, but rather a comment on the
materiality of the defense’s evidence. Accordingly, the Government’s closing argument
was not improper. See United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013)
(finding no error in prosecutor’s use of term “smoke and mirrors” to describe defense’s
case); United States v. Davis, 15 F.3d 1393, 1402-03 (7th Cir. 1993) (finding that
Government’s references to defense case as “hogwash,” “trash,” and “garbage” may have
been undignified but did not violate defendant’s due process).
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Thus, we affirm McLean’s conviction. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
AFFIRMED
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