United States v. Robinson

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0831n.06
Filed: November 14, 2006
No. 05-3444
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
THELL ROBINSON III, ) OHIO
)
Defendant-Appellant. )
Before: SILER, CLAY, and BALDOCK,* Circuit Judges.
SILER, Circuit Judge. Following a jury trial, Thell Robinson was convicted of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 100 months
in prison. He appeals his conviction on three grounds. First, that the evidence was insufficient to
convict him of the charge. Second, that the court should have stricken the testimony of the expert.
Third, that the indictment failed to state an offense. Because Robinson’s arguments lack merit, we
AFFIRM.
I. BACKGROUND
*
The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
No. 05-3444
United States v. Robinson
Columbus, Ohio police officers stopped the car in which Robinson was a passenger. The
officers asked him to exit the vehicle and conducted a patdown, during which one officer discovered
a Bryco Arms 9mm handgun in the waistband of Robinson’s pants.
At trial, the government introduced the testimony of Bureau of Alcohol, Tobacco and
Firearms and Explosives (ATF) Special Agent David Hall for the purpose of showing the origin of
the gun to prove the interstate commerce nexus element of the charge. Hall testified that he had
examined between 50 and 100 Bryco firearms and that, to his knowledge, Bryco’s current and
previous manufacturing locations included Costa Mesa and Irvine, California, and Nevada. He
testified that he knew of no other Bryco manufacturing facilities besides those in Nevada and
California. He further testified that on the side of the Bryco firearm obtained from Robinson there
was a stamp stating “Bryco Arms” and “Costa Mesa, California, U.S.A.” Hall further explained that
he conducts research on information for testimony utilizing records saved on compact discs
maintained by the ATF. These records contain the addresses of firearms manufacturers, which they
are required to provide to the ATF.
II. DISCUSSION
The felon in possession statute, 18 U.S.C. § 922(g), states, in relevant part, that
It shall be unlawful for any person who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding
one year . . . to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition[.]
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No. 05-3444
United States v. Robinson
18 U.S.C. § 922(g)(1). In the present case, where Robinson’s status as a felon and his possession
of a firearm were not in dispute, the only remaining element of the statute the government needed
to prove was the interstate commerce requirement.
1. Interstate Commerce Nexus
The district court properly ruled that sufficient evidence existed to support the interstate
nexus element of the crime under the statute. The weapon in question bore the inscriptions “Bryco
Arms” and “Costa Mesa, California, U.S.A.” “[P]roof that a firearm was manufactured outside the
state in which the possession occurred is sufficient to support a finding that the possession was in
or affected commerce.” Watkins v. United States, 564 F.2d 201, 204 (6th Cir. 1977).
Other circuits have recognized that the manufacturer’s inscription on a firearm alone is
evidence sufficient to prove that the weapon traveled in interstate commerce. See, e.g., United States
v. Clay, 355 F.3d 1281, 1286-87 (11th Cir. 2004) (finding no error in admission of firearm with
imprint for purposes of establishing interstate commerce nexus); United States v. Brantley, 68 F.3d
1283, 1288 (11th Cir. 1995) (firearm seized in Florida and bearing inscription of manufacture in
Atlanta gave a “clear indication of interstate commerce”). We similarly hold that a manufacturer’s
inscription on a firearm can be sufficient evidence to prove that the firearm traveled in interstate
commerce.
2. Expert Testimony
Notwithstanding the persuasiveness of the firearm’s inscription, the government presented
additional evidence through Hall. Hall personally examined numerous Bryco firearms and was
familiar with Bryco’s historical manufacturing locations in California and Nevada. It has long been
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United States v. Robinson
recognized that “[t]he government may satisfy its burden of establishing that the firearm was
manufactured outside the state in which the possession occurred by presenting the testimony of a
witness who, through personal experience, knows the place of manufacture of the firearm and by
making the witness available for cross-examination.” United States v. Vincent, 20 F.3d 229, 236 (6th
Cir. 1994). These criteria were satisfied in the present case and the jury properly relied on the
firearm’s inscription, as well as on any additional testimony offered by Hall, in convicting Robinson
under the statute charged.
The district court also properly admitted the testimony of Hall despite the exclusion of his
written report. As we noted in Vincent, the testimony of an expert witness regarding a firearm’s
place of manufacture is “not hearsay.” Id. Furthermore, Robinson failed to move to strike Agent
Hall’s testimony at trial. Admission of the testimony was not an abuse of discretion.
3. Sufficiency of the Indictment
The indictment charged Robinson with possessing a firearm that had been shipped and
transported in interstate commerce. It was sufficient to put Robinson on notice of the crime he was
charged. In United States v. Poole, 929 F.2d 1476, 1479 (10th Cir. 1991), the defendant made a
similar argument that the indictment against him was insufficient because it did not allege the
specific elements of 18 U.S.C. § 922(g)(1). Id. at 1479. He further argued that because the
indictment might be interpreted as charging receipt or possession he could be charged with two
crimes under § 922. Id. The Tenth Circuit found these claims to be without merit because the
government need not precisely state the language in a statute to set forth a sufficient indictment, and
the record would remedy any double-jeopardy concerns. Id.
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United States v. Robinson
Robinson alleges that the indictment did not charge an offense, but a motion to dismiss was
not made before trial under Fed. R. Crim. P. 12(b)(3)(B). Nevertheless, the court could still entertain
such a motion while the case is pending. Id.
Although the indictment did not track the language of the statute, it charged a crime under
18 U.S.C. § 922(g)(1). A person who possesses a firearm had to receive it, unless he made the
weapon, which was never claimed. And a person who receives it then possesses it. See United
States v. Manni, 810 F.2d 80, 84 (6th Cir. 1987). The decision in United States v. Combs, 369 F.3d
925 (6th Cir. 2004), is not applicable, for in that case the indictment failed to state an offense;
whereas, in this case, an offense is charged, although not in the exact language of the statute.
AFFIRMED.
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