UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America v. Criminal No. 18-cr-132-JL Opinion No. 2022 DNH 001P Laveneur Jackson
MEMORANDUM ORDER motion for judgment of acquittal hinges on whether there was sufficient evidence to establish several essential elements of the charged crimes, including whether Jackson was identified as the perpetrator. Jackson was indicted on two counts of unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After a two-day trial, the jury returned guilty verdicts. Jackson orally moved for judgment of acquittal at the end of the case-in-chief, arguing that the prosecution had not met its burden of proving beyond a reasonable doubt that: (1) he was the perpetrator of the charged crimes; (2) the firearms he allegedly possessed traveled in interstate commerce; and (3) he knew he had previously been convicted of a crime punishable by more than one year. The court took his oral submitted a written motion expanding on his arguments. 1
written submissions, the court denies the motions. 2
1 See doc. no. 217 see doc. no. 219, and Jackson filed a reply memorandum. See doc. no. 221. 2 s by endorsed order on November 18, 2021, after considering arguments at trial and in their written submissions. This order expands See, e.g., United States v. Joubert, 980 F. Supp. 2d 53, 55 n.1 (D.N.H. 2014) (citing In re Mosley, 494 F.3d 1320, 1328 (11th Cir. 2007)
beyond a reasonable doubt that Jackson was in fact the person who committed the charged offenses, the Ruger and two SCCY firearms traveled in interstate commerce at some time, and Jackson knew that he had previously been convicted of a crime punishable by more than a year in prison. Specifically, the witnesses and visual evidence sufficiently connected the person on interstate nexus specialist provided adequately supported opinion testimony that the firearms in question crossed state lines court-generated plea documents and two-year sentence that he knew of his convicted felon status at the time of the charged crimes. This constituted proof beyond a reasonable doubt.
Applicable legal standard
No person shall . . . be deprived of life, liberty, or property, without due process of law. U.S. Const. amend. V. Th prohibits the criminal conviction of any person except upon proof of gu Jackson v. Virginia, 443 U.S. 307, 309 (1979). Accordingly, prosecution closes its evidence or after the close of all the evidence, the court on the defendant s motion must enter a judgment of Fed. R. Crim. P. 29(a). Considering only the evidence presented in the government s case-in-chief, hether a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the United States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2006) (quoting United States v. Moran, 312 F.3d 480, 487 (1st Cir. 2002)). l findings and rulings to writing),
, 778 F.3d 247 (1st Cir. 2015).
record United States v. Oliver, 19 F.4th 512, 516 (1st Cir. 2021) (quoting United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993)).
In doing so, the court light most favorable to the verdict . . . give[s] equal weight to both direct and circumstantial evidence, and . . . neither weigh[s] witness
defendant s Id. (quoting United States v. Rivera-Ruiz, 244 F.3d 263, 266 (1st Cir. 2001) determine[s] whether that sum is enough for any reasonable jury to find all the elements of the crime proven beyond a reasonable doubt, even if the individual pieces of evidence are not United States v. Santos-Soto, 799 F.3d 49, 57 (1st Cir. 2015). unreasonable, insupportable, or overly speculative United States v. Rodríguez-Martinez, 778
F.3d 367, 371 (1st Cir. 2015) (quoting United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)).
Consistent with this standard, the following background draws on the evidence presented during the prosecution
A. felony convictions By criminal complaint dated July 25, 2011, Jackson was charged in Lowell District Court with five counts of violating various sections of the Massachusetts Criminal Code. 3
In 2013, he
3 See Govt. Ex. 16.
pled guilty to, and was convicted of, two felony counts: (1) possession with intent to distribute a Class A substance; and (2) possession with intent to distribute a Class B substance. 4
Each offense carried a maximum sentence of ten years in state prison. 5
Jackson was sentenced to two years of imprisonment at a house of correction and served 64 days. 6
As part of his plea, Jackson signed a tender of plea guilty plea. 7
[,] and voluntarily waived all of the rights as explained during these e further certified that
8 Similarly, in February 2011, Jackson was charged in Lawrence District Court with eight counts of violating various sections of the Massachusetts Criminal Code. 9
In August 2014, he pled guilty to, and was convicted of, four felony counts: two counts of assault and battery on a police officer, one count of possession with intent to distribute a Class A substance, and one f
4 Id. 5 Tr. Day 2 (doc. no. 216), at 36:20-37:13; see also M.G.L. c. 94C §32(a); M.G.L. c. 94C §32A(a). The offenses also carried maximum sentences of not more than two and one-half years a jail or house of correction. Id. 6 Ex. 16. Jackson and his attorney recommended this sentence. 7 Id. 8 Id. 9 See Govt. Ex. 28.
possession with intent to distribute a Class B substance. 10
The assault and battery on a police officer offense carried a maximum sentence of two and one-half years imprisonment in a house of correction. 11
Jackson was sentenced to concurrent one-year house of corrections sentences for these offenses. 12
As part of his 2014 plea, Jackson signed the same tender of plea and waiver of rights form and made the same acknowledgments as he did for his 2013 guilty plea. 13
The District Court judge similarly certified that he had addressed Jackson directly in open court and, after a colloquy, found that Jackson fully understood his rights and knowingly, intelligently, and voluntarily waived them. 14
B. January 2, 2017 encounter
store in Hooksett, New Hampshire (at the time) in response to a call from . 15
Cook met first with Keenan and then spoke with Jackson. He asked Jackson if he had a felony conviction and Jackson answered that he was a convicted felon. 16
Jackson then admitted that he
10 Id. ns. 11 Doc. no. 216, at 46:22 47:7; see also M.G.L. c. 265 § 13D. 12 Ex. 28. 13 Id. 14 Id. 15 Doc. no. 216, at 10:11-17; 12:6- that federal law enforcement agencies have deputized to help enforce federal law. Id. at 10:8-10. 16 Id. at 13:3-6.
handle guns in a gun shop. Agent Cook next asked Jackson about the possibility of obtaining back the guns that Jackso would take some time, that he would have to give some people their money back, and that the
guns were in Massachusetts. 17
Following this encounter, Agent Cook began investigating whether Keenan purchased firearms for Jackson prior to January 2, 2017. 18
As part of this process, Agent Cook spoke with local gun stores and had them look for ATF Form 4473s completed by Keenan. Purchasers of firearms from federally licensed firearms dealers must fill out Form 4473s to complete the purchase. 19
The forms contain biographical information about the purchaser, a series of questions to determine whether the purchaser is someone prohibited from possessing a firearm, information about the firearms dealer, and information about the firearm itself, including the make, model, caliber and serial number. 20
Agent Cook discovered through this inquiry that Keenan had recently completed two Form 4473s at two different New Hampshire firearms dealers.
C. December 23, 2016 purchase Keenan is a recovering heroin addict. At some point in the past, in the midst of her 17
Id. at 13:9-18. 18 Id. at 14:7-11. 19 Id. at 6-7. 20 Id. at 7.
was not using drugs, Keenan met 21
Keenan eventually learned that Lance was looking for people to buy guns for him in exchange for money and, needing money to support her drug addiction, Keenan spoke to Lance about purchasing guns for him. Lance asked Keenan if she had a valid ID and wanted to make money or obtain drugs by buying firearms for him, and Keenan agreed. Keenan eventually purchased firearms on two occasions for Lance.
The first purchase was on December 23, 2016 at Affordable Firearms in Pelham, New Hampshire. Keenan and her boyfriend Benjamin Soule-Jensen picked Lance up and drove to Affordable Firearms. 22
Outside the store, Lance gave Keenan cash and told her which firearm he wanted her to buy. Once inside, Keenan completed the purchase--she told the clerk which firearm she wanted to purchase, filled out the necessary paperwork, including an ATF Form 4473, waited for the background check results, and paid at the register. 23
Keenan then returned to the vehicle and handed Lance the firearm, and they drove away. Lance gave Keenan money or drugs for purchasing this firearm, but Keenan could not recall which.
Keenan completed and signed a Form 4473 for the December 23 Affordable Firearms purchase. 24
The form identified the firearm as a Ruger model SR1911 .45 caliber pistol, with a
21 Doc. no. 215, at 14-15. 22 Doc. 214, at 4-5. Keenan later testified that she could not remember whether she and Soule- Jensen picked Lance up on December 23 or December 27. She testified that it was possible that Lance and a friend picked her up in a silver minivan on December 23, but also possible that they picked her up on December 27. Id. at 5-7. On cross-examination, Keenan testified that Lance and his friend brought her to Affordable Firearms on December 23. Id. at 35. 23 Id. at 8. 24 Ex. 1.
serial number of 67162351. 25
Robert Williams signed the form on behalf of Affordable Firearms. 26
ATF Special Agent John Forte testified that this model Ruger was in fact a firearm and that, in his opinion, it was manufactured in Prescott, Arizona. 27
D. December 27, 2016 purchase Keenan next purchased two Like the prior purchase, Lance picked out the firearms and paid for them, and Keenan completed
the purchase. 28
video surveillance inside its store and at the checkout counter. The video showed Keenan and Lance looking at firearms in their display cases, speaking with the store clerks, handling the firearms, and paying for the firearms at the cash register. 29
Keenan testified that the man she identif she purchased the Ruger firearm for on December 23 at Affordable Firearms and the same man 30
Keenan completed and signed finalizing the purchase, she handed the firearms over to Lance in the parking lot. 31
As with the
25 Id. 26 Id. Mr. Williams testified at trial. 27 Doc. 214, at 75-76. After allowing defense counsel to voir dire Agent Forte, the court granted e opinion testimony under Federal Rule of Evidence 702. 28 Id. at 12. 29 Exs. 5-8a; Doc. 214, at 15-21. 30 Doc. 214, at 22. 31 Id. at 21. Keenan was charged with and pled guilty to making false statements on the Form 4473s during each of these purchases. She cooperated with the government, received leniency in
prior purchase, Lance gave Keenan either money or drugs for purchasing these firearms. 32
The Form 4473 -2 9MM pistols, one with serial number 382613 and the other with serial number 433115. 33
Lee Adams signed the form on behalf of . 34
Agent Forte testified that this model SCCY was in fact a firearm and that, in his opinion, it was manufactured in Daytona Beach, Florida. 35
E. Jackson was indicted in this case in August 2018. Two different court-appointed lawyers represented him until early-December 2019, when Jackson moved to proceed pro se. 36
After a hearing on the motion, during which the court held a colloquy with Jackson, advised against representing himself, and provided warnings about self-representation pursuant to Faretta v. California, 422 U.S. 806 (1975) 37
The court also appointed stand-by counsel for Jackson during his period of self-representation. While representing
her sentence as a result of her cooperation, and served a five-month prison sentence, followed by a period of supervised release. Doc. 215, at 17-21. 32 Doc. 214, at 22. 33 Ex. 3. 34 Id. Mr. Adams also testified at trial. 35 Doc. 214, at 78-79. 36 See 39). 37 See ; see also Doc. no. 203 (transcript of hearing where court provided Faretta warnings about self-representation).
himself, Jackson filed a motion and affidavit in which he made certain admissions relating to the charged crimes. 38
Keenan if she knew anyone who would be willing to sell Jackson a firearm. 39
The motion continued: On December 23, 2016, Jackson met with Keenan and Soule-Jensen and traveled to Affordable Firearms in Pelham. 40
Jackson gave Keenan $600, Jackson and Keenan entered the store and selected a firearm to purchase, and Jackson returned to Soule- as Keenan purchased the firearm. 41
Keenan then returned to the vehicle with the firearm and drove Jackson back to his residence in Lowell, Massachusetts. 42
Jackson also stated in his pro se motion that on December 27, 2016, he arranged with Keenan to purchase another firearm, this and purchased two firearms. 43
38 See Govt. Exs. 14 & 15. Prior to trial, the court denied motion in limine to exclude these pleadings, as he did not provide any legitimate basis for excluding them, aside from the potential harm they posed to his defense. 39 Ex. 14 at 3. Jackson signed the motion by handwritten signature and had his signature notarized. Id. at 12. 40 Id. 41 Id. 42 Id. 43 Id. at 4; see also ¶ 8.
ed the statements in his motion, but added that he spoke with 44
Jackson signed the affidavit by handwritten signature and had his signature notarized. 45
F. Other trial evidence
testified at trial about the purchases at issue and the process for purchasing firearms at each store. Through its witnesses, the government also introduced photographs of the firearms in question and certified copies of Massachusetts Registry of Motor Vehicles information, including his license photographs, date of birth, signature, residential address, and the types of credentials or licenses he held in Massachusetts. 46
-in-chief, Jackson moved for judgment of acquittal. The court took s motion under advisement. See Fed. R. Crim. P. 29(b). Jackson did not call any witnesses or, other than cross examining prosecution witnesses, put on his own case. The jury found him guilty on both counts.
Jackson argues that the government failed to establish, beyond a reasonable doubt, three essential elements of the charged crimes: (1) identification of Jackson as the perpetrator of the crimes; (2) the jurisdictional, interstate nexus element; and (3) Jac
44 Ex. 15 at ¶ 9. 45 Id. at 3. 46 See Ex. 18 (Massachusetts RMV Records).
convicted felon status at the time he possessed the firearms in question. The court addresses each argument in turn.
A. Identification an essen United
States v. Ayala, 289 F.3d 16, 25 (1st Cir. 2002) (quoting United States v. Alexander, 48 F.3d 1477, 1490 (9th Cir. 1995)). Here, the court instruc doubt as to whether the United States Attorney has proved any one or more elements of the 47
Jackson argues that no rational factfinder could conclude that the government proved he was the perpetrator because no witnesses identified him in court, the circumstantial evidence did not sufficiently connect the person in the courtroom to the crimes, and the jury could not infer that he was the defendant because he was wearing a mask covering part of his face for the entire trial. 48
These arguments 49
do not persuade the court. -court identification by a witness is not necessarily
47 Final Instructions to Jury (doc. 209). 48 he District of New COVID-19 pandemic required all attendees to wear facemasks at counsel table or in the gallery during in-court proceedings. The one exception was that lawyers questioning witnesses, and witnesses themselves, could remove their masks during questioning if those individuals showed proof of vaccination or produced a negative COVID-19 test on the day of testimony. 49 It is unclear whether Jackson is arguing that the government failed to prove that the person sitting in court was Laveneur Jackson, that the person in court was Laveneur Jackson, but not the person who committed the charged offenses, or both. The court assumes Jackson is arguing both and looks to factors relevant to both scenarios.
Ayala, 289 F.3d at 25; see also United States v. Taylor, 900 F.2d 779, 782 (4th Cir. 1990)
Preliminarily, the court disagrees that there was no in-court identification of Jackson as the person on trial. Agent Cook testified during direct examination that he met and spoke with Jackson 50
The prosecutor referred to
inferences from both the question and the answer. See United States v. Haddow, No. CR 2012-35, 2014 WL 552108, at *9 (D.V.I. Feb. 12, 2014), sub nom. United States v. Bailey, 115 A.F.T.R.2d 2015- 2015) may draw
see also Doc. no. 209 evidence, unless the witness adopts the facts set fort
Agent Cook December 27 and saw Jackson in the video. 51
Furthermore, Agent Cook obtained a certified prosecutor introduced the license records as an exhibit and published it to the jury, Agent Cook
50 Tr. Day 2 (doc. 216) at 12:12-14, 29:1-3. 51 Id. at 29:4-5 (during direct examination); 63:16-24 (during cross-examination).
recognized the person in the license photograph 52
and the same
During cross-examination after the government had already established that Agent Cook met Jackson in person on January 2 and identified Jackson in surveillance video footage from December 27 and his license photograph defense counsel, perhaps inadvertently, had Agent Cook indirectly identify Jackson as the person sitting at defense table. The complete exchange, which neither party mentioned in their written submissions, was as follows:
Q. Mr. Jackson is a tall man? A. He is. Q. Is he heavier, the same, or thinner than he was then? Can you tell by looking at him today? A. Today he s thinner. Q. So, he was a big, tall guy? A. Yes.
A. He is. 53
person who was sitting in the courtroom as the defendant that day during trial, regardless of
52 Id. at 33:13-20. 53 Id. at 64:5- Firearms on December 23. See Tr. Day 3 (doc. 214), at 22:5-10. The jury could thus identify Jackson as the perpetrator of both of the charged crimes.
whether that person was masked or not. This evidence was thus sufficient to prove, beyond a reasonable doubt, that Jackson was the perpetrator of the charged crimes.
Aside from the sufficient evidence described above, additional proof in the record supported the necessary link between the individual sitting in the courtroom and the individual named in the indictment. First, both red to the id not object to the prosecution referring to h . United States v. Weed, 689 F.2d 752, 755-56 (7th Cir.1982). Agent Cook also accepted co during cross-examination. 54
See Doc. 214 -- you met Laveneur Jackson -- Jackson in 2016 -- A. Yes. Q. -- A rational jury could infer from c ere discussing the person on trial. See United States v. Doherty, 867 F.2d 47, 67 (1st Cir. 1989) (sufficient evidence of identification where witnesses referenced person with the same name as the person indicted); United States v. Strong, No. CR-10-MJ-94-MJK, 2010 WL 3952323, at *5 (D. Me. Oct. 7, 2010) Ashely Guy, Anne Nixon, Paul Thompson and Jonathan Voisine used the two names intercha
- ey himself identifies his client at
54 ell as the January 2 encounter with law enforcement.
Ayala, 289 F.3d at 25 26 (defense counsel statement to the prior to witness testimony t supported inference of identification).
In addition, no witness denied that the Jackson they were referring to was the Jackson on imony] was there any hint Strong, 2010 WL 3952323, at *5. This too supports the inference of identity. See Doherty, 867 F.2d at 67 [defendant] in court and heard him referred to as Deliere, and no one Alexander, 48 F.3d at 1490 ( and
(quoting Weed, 689 F.2d at 755)).
on January 2 or for whom Keenan purchased firearms on December 23 or 27. Strong, 2010 WL 3952323, at *5. surveillance videos and th 2.
Lastly, the jury had which allowed them to visually compare the images with the man in the courtroom. See Ayala, 289 F.3d at 25-26 ; United States v. Hoelscher, 764 F.2d 491, 496 (8th Cir. 1985)
. While during the trial, the jury could still compare other aspects of his physical appearance to the prior
visual depictions and draw inferences that the man sitting before them was in fact the man in the photographs and videos. This visual evidence, though limited, coupled with the wit testimony linking Jackson to the crimes, was sufficient proof--absent a direct in-court
identification--from which a rational jury could conclude beyond a reasonable doubt that Jackson was the perpetrator. 55 Jackson argues that because he was masked for the entirety of the trial and nobody asked him to remove his mask, the jury never saw his mouth and nose, making the inference that he was the perpetrator too speculative to sustain his convictions. The court disagrees, mainly because, as discussed above, Agent Cook explicitly linked the Jackson in the surveillance videos
this indirect in-court identification and the weight of the other evidence linking Jackson to the charged crimes, the court is unconvinced that the jury
beyond a reasonable doubt. [a defendant] is entirely during the crime, so too is the absence of direct in-court identification of Jackson understandable
United States v. Miller, No. 08- 1260, 2009 WL 82718, at *1 (1st Cir. 2009). While, in one circumstance, the jury could see the defendant at counsel table during trial, but not during the charged crimes, and in the other, the jury could see the defendant during the crimes, but not his complete face during trial, the result is
55 Of course, the government could have avoided this perceived hole in its proof entirely had it elicited Agent Cook or Keenan to directly identify Jackson in court, which each seemed poised to do.
the same. In either scenario, the jury can draw inferences from the circumstantial evidence to conclude that the man who witnesses referred to and the man who appeared in videos and photographs tied to the charged crimes was the same man sitting at defense counsel table. Not Laveneur Jackson of whom they spoke was different from the defendant, but their answers to questions made clear that they were speaking about the defendant on trial. Thus, a rational juror viewing the evidence in the light most favorable to the verdict could find that Jackson was the same individual named in the indictment. e must be denied.
B. Interstate nexus
element of the charged crimes. Specifically, the indictment charges Jackson with possessing d affecting interstate the District of New Hampshire. 56
See 18 U.S.C. § 922(g)(1) (the government must prove beyond
To affect interstate commerce, the firearms must, at any time after they were manufactured, have moved from one state to another or from a foreign country into the United States. See United States v. Dixon, 787 F.3d 55, 60-61 (1st Cir. 2015) s]ection 922(g) requires only that a defendant have possessed a firearm in a state other than the one in which it was manufactured . . . that is, that the defendant have possessed a firearm that has
56 See Superseding Indictment (doc. no. 82), at 3, 5.
crossed state lines at some point United States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000)) 209). 57
To establish this element, the government elicited opinion testimony from ATF Special Agent John Forte about the place of manufacture for the firearms in question. Expert testimony See United States v. Cormier, 468 F.3d 63, 72 (1st Cir. 2006) (citing United States v. Corey, 207 F.3d 84, 88-89 (1st Cir. 2000)). Over the defens in the form of an opinion under Rule 702. After Agent Forte testified, Jackson moved to strike his testimony under Rules 702 and 703. Jackson renews that request in his Rule 29 motion, a knowledge 58
Fed. R. Evid. 702. testimony should be stricken because he improperly
57 The government suggests that the interstate nexus requirement can also be met if the firearm travels across state lines after it is purchased and argues that happened here statements that the guns Keenan purchased for him were in Massachusetts. The court need not interstate nexus, which occurred up through the time of purchase, sufficient. Case law from the First Circuit Court of Appeals also suggests that the interstate travel must have occurred before the defendant possessed the firearm. See United States v. Acosta, 67 F.3d 334, 340 (1st Cir. 1995) United States v. Joost, 133 F.3d 125, 131 (1st Cir. 1998) or ammunition is in or affecting commerce within the meaning of the statute [i]f at some time after it was manufactured, and before the offense was committed, that firearm or ammunition was transported between states or between a state and a foreign country or a foreign country and he trial evidence was not sufficiently clear about whether the guns that were allegedly in Massachusetts were the same guns that Keenan had purchased for Jackson on December 23 and 27. 58 only a half a paragraph to it in his Rule 29 motion. See doc. no. 217-1, at 8. Ample evidence nevertheless supported See doc. no. 214, at 54-65.
based his opinions on inadmissible evidence that other experts in his field do not reasonably rely upon. See Fed. R. Evid. 703. Rule 29 arguments, the court reaffirms its decision not to strike
Where a firearm was manufactured, and thus, whether it traveled in interstate or foreign commerce may require expert testimony based on technical or other specialized knowledge. Corey, 207 F.3d at 88-89; Cormier, 468 F.3d at 72 § 922(g) As an experienced and trained ATF Special Agent and interstate nexus examiner, Agent Forte had the requisite knowledge to give opinion testimony under Rule 702 about the place of manufacture and interstate travel of the firearms in question. See Corey, 207 F.3d at 89.
and methods. Jackson argues that because Agent Forte described his source material and methodology in vague, non-specific, and conclusory terms, his testimony did not meet the standards of Rule 702 and 703. He further argues that Agent Forte did not specify whether the otherwise inadmissible ATF 59
was something experts in his field reasonably rely upon, and thus, the court could not admit the portion of his opinion that relied on that database. The court disagrees with Jackson. Agent Forte completed specialized training to become an interstate nexus examiner, during which he learned how to research whether a firearm has traveled in interstate or foreign
59 ATF grants variances to manufacturers for different reasons, including abbreviations or modifications to gun markings or to approve subcontracted manufacturers, and maintains a database of the variances. Doc. no. 214, at 72. Jackson contends that this database was inadmissible hearsay because it was simply what someone else told Agent Forte about the firearms. As the government does not challenge this characterization, the court will adopt it for purposes of this order.
As part of that training, Agent Forte visited firearms manufacturers in the New England area, including Ruger, and received written materials from the manufacturers about where certain firearms are manufactured. 61
In addition to his training and education, Agent Forte relies on internal and external reference materials, periodicals, and databases, Internet research, and contact with other ATF nexus agents when determining where a firearm was manufactured and whether it traveled in interstate commerce. 62
He also relies on conversations with firearm manufacturers themselves. 63 In this case--where Agent Forte did not have the actual firearms in question--he relied on the Form 4473s to obtain the manufacturer, model, and serial number for each firearm. 64
He then consulted the variance database to determine whether the manufacturers subcontracted out the manufacturing for these particular firearms. 65
He also reviewed reference material (books and online research) and information previously gathered by other nexus examiners, including notes of interviews. 66
All of these types of source material, including the variance database, are reasonably relied upon by experts in the interstate nexus field. 67
60 Id. at 61. 61 Id. at 61-62. documents that indicate their serial number how they do their sequencing of their serial Id. at 62:16-20. 62 Id. 63 Id. at 63. 64 Id. at 72-73. 65 Id. at 71-72. 66 Id. at 74, 82. 67 Id.
Jackson contends that because Agent Forte variance database as a tool that experts in his field reasonably rely upon, the jury could not
consider the part of his opinion based on that database. This misinterprets testimony. Agent Forte explained that he always checks the variance database when conducting
a nexus analysis and confirmed that he looked at his customary reference material to determine manufact 68
the field? 69
Jackson posits that the variance database because he first mentioned that database during an earlier question and answer about situations where he has access to the physical firearm. This is not a reasonable could quite reasonable have been understood as a catch-all that included the variance database that Agent Forte had discussed just minutes prior. It was also not apparent from this testimony that Agent Forte meant to exclude the variance database from the list of sources reasonably relied upon by other experts in his field, or that he was limiting his reference to the database only to situations where he had access to the firearm.
68 Id. As Agent Forte explained, one of the purposes of the variance database is to determine whether the listed manufacturer subcontracted its manufacturing for this particular firearm. 69 Id. at 74:11-14.
After locating the manufacturer, model, and serial number for each firearm, Agent Forte confirmed that each gun was in fact a firearm as defined under federal law. 70
He then determined that the Ruger model SR1911 that Keenan purchased for Jackson on December 23 at 71
Through his training, experience, and research, Agent Forte knew that Ruger typically manufactured its model SR1911 firearms in Arizona. 72
He confirmed that this particular firearm was manufactured at the Arizona facility by reviewing the variance database and verifying that it was not subcontracted for manufacturing at a different facility under a variance. 73
Because Agent Forte located a variance for a Ruger with a different serial number prefix, he consulted with a representative of Ruger and confirmed that the SR1911 purchased on December 23 was indeed manufactured in Arizona. 74
While Agent Forte could not recall whether he communicated with Ruger by email or phone, or the name of the person he spoke with, what matters most is that this communication confirmed his opinion that the firearm was manufactured in Arizona. His y a summary of out-of-court sources but a thorough opinion United States v. Luna, 649 F.3d 91, 105 (1st Cir. 2011); Cormier, 468 F.3d at 73 marize
70 Id. at 75-76 (Ruger); 78 (SCCY). Agent Forte testified that he has test fired the Ruger model at issue and either test fired or watch someone else test fire the SCCY model at issue. 71 Id. at 76. This was significant because Ruger also has a manufacturing facility in New Hampshire. 72 Id. documents that indicated where their firearms were manufactured based on the sequencing of the serial numbers. Id. at 62. 73 Id. at 76-77. 74 Id. at 77.
the out-of- United States v. Smith, 869 F.2d 348, 355 (7th Cir. 1989)).
that the Ruger had traveled in interstate commerce, which was based entirely on facts or data reasonably relied on by experts in his field, was the product of reliable principles and methods and admissible under Rule 702. See Cormier, 468 F.3d at 72-73 (interstate nexus experts may rely on as well as eir opinions without running afoul of Rule 703) (citing Corey, 207 F.3d at 91 92); Luna, 649 F.3d at 105 (same).
followed a similar course. Based on his specialized training and experience, Agent Forte knew that SCCY had one manufacturing facility in Daytona Beach, Florida. 75
He testified that he had worked with other SCCY firearms and knew from that experience that its only manufacturing database to confirm that SCCY had one facility in Florida. 76
Agent Forte was not aware of any information that this model SCCY firearm was manufactured anywhere else and he again checked the ATF variance database to confirm that there were no variances on file for the SCCY pistols at issue. 77
Because Keenan purchased these SCCY firearms for Jackson at a New Hampshire firearms dealer, Agent Forte opined that the firearms crossed state lines, and thus
75 Id. at 79-80. 76 Id. at 85-86. 77 Id.
traveled in or affected interstate commerce. 78
Although Agent Forte did not recall if he contacted someone at SCCY to verify the place of manufacture for these firearms, that information was not necessary to support the admissibility of his opinion or its sufficiency to satisfy the interstate nexus element. To the best of his knowledge, and based on his experience and use of materials reasonably relied upon by his colleagues in the nexus field, Agent Forte opined that the firearms were manufactured in Florida and traveled to New Hampshire to be sold. That necessarily satisfied the interstate nexus element for the SCCY firearms. While Agent
to render his otherwise credible, straightforward, and well-supported analysis unreliable and inadmissible. 79 denied and he is not entitled to a judgment of acquittal on this basis.
C. Knowledge of convicted felon status of of the knowledge- of-status element of the charged crimes. To be convicted of unlawful possession of a firearm under 18 U.S.C. § 922(g)(1), Jackson f, a crime he must have known that he had been convicted of a crime punishable by imprisonment for a term exceeding one year at the time he possessed the firearms in question. Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) 209).
78 Id. at 80. 79 Assuming that the prosecution knew that defense counsel was poised to challenge Agent its case would have been better served by eliciting more details about Agent during his direct examination.
Jackson does not dispute that he was convicted of crimes punishable by prison terms exceeding one year. Instead, he argues that the government failed to prove that he knew he had been convicted of a crime punishable by more than one year of imprisonment on either December 23 or 27, 2016. Specifically, Jackson contends that the tender of plea and waiver of rights forms he signed in Massachusetts state court were insufficient to prove knowledge because it was not apparent to the jury from the language in the forms that the Massachusetts judges informed Jackson of the range of sentences for these crimes. The court disagrees.
that the judges in his prior criminal cases held a colloquy where they informed Jackson of the possible range of sentences for the crimes to which he was pleading guilty. While plea colloquy documentation or information is not required in every prohibited person trial to prove knowledge of convicted felon status, it was only needed here because Jackson did not serve more than a year for his Massachusetts crimes. Jackson signed two waiver of rights forms in which he charges. Each set of charges carried maximum sentences of ten years in state prison. The state
court judges [,] and voluntarily waived all of the rights as
Jackson further contends that without the transcript or audio recording of his plea colloquies, the evidence was insufficient as to whether the state court judges actually informed him of the possible range of sentences. Jackson is incorrect. Massachusetts law requires that
judges inform defendants, if they are entering a guilty plea, of the potential maximum penalties of the crimes to which they are pleading guilty. See Mass. R. Crim. P. 12(c)(3)(A) (the judge defendant . . . of the maximum possible sentence on the cha United States v. Guardado, No.
CV 4:12-CR-40004-TSH, 2021 WL 3055015, at *5 (D. Mass. July 20, 2021), certificate of appealability granted, No. CV 4:12-CR-40004-TSH, 2021 WL 4121496 (D. Mass. Sept. 9, 2021) defendants entering guilty pleas of their potential sentencing exposure to ensure their pleas are
Given the clear mandate of Massachusetts law the sentencing court failed to explain the United States v. Guzman-Merced, 984 F.3d 18, 20 (1st Cir. 2020), cert. denied, 2021 WL 1520969, 209 L. Ed. 2d 565, 141 S. Ct. 2546 (2021); see also United States v. Burghardt, 939 F.3d 397 (1st Cir. 2019) pled guilty to offenses punishable by a term of imprisonment well beyond a year. Nor does he
dispute that New Hampshire law requires a judge to make sure that a defendant knows the maximum possible sentence when entering a guilty plea. So it seems virtually certain that at least one of the two state court judges who accepted Burghardt s guilty pleas in his state court cases . . . told Burghardt face-to-face what his maximum sentence could be. (citations omitted); United States v. Bryant, 976 F.3d 165, 176 (2d Cir. 2020) (evidence of plea colloquy, where defendant (present in court) read and understood his rights and possible sentences, and the fact that Virginia law required the judge to be satisfied that the defendant understood the charge and
in § 922(g)(1) and the Massachusetts rules requiring judges to inform criminal defendants of the range of possible sentences, particularly because the maximum sentences applicable to each crime for which Jackson was convicted are lengthy.
Jackson was also sentenced to two years imprisonment in a house of corrections (at the recommendation of his attorney) for one set of charges, which further suggests that he was aware that the crimes he was pleading guilty to carried sentences of more than one year in prison. Jackson counters that he never actually served that two-year sentence or served more than a year in prison, so his situation was akin to the hypothetical defendant in Rehaif who of a prior crime but sentenced only to probation,not know that the crime [wa]s punishable by imprisonment for a term exceeding one year. Rehaif, 139 S. Ct. at 2198 (quoting 18 U.S.C. § 922(g)(1) Rehaif is misplaced because he was not sentenced only to probation. Rather, he was sentenced to a prison term exceeding one year and would have known of this sentence from communications with counsel and the court during his plea colloquy. See Bryant, 976 F.3d at 176 lso have heard, at his sentencing, that he was being sentenced to three years imprisonment, even though that sentence was being suspended. Thus, this situation is not akin to the hypothetical situation that concerned the Supreme Court in Rehaif, where a defendant received a sentence of probation on the prior felony and might not have understood that the maximum punishment for .
Lastly, J further support that he knew of his prohibited status. See United States v. Austin, 991 F.3d 51, 59 (1st Cir. 2021)
Rehaif s Viewing this evidence in totality, and in the light most favorable to the verdict, it was sufficient for a rational jury to conclude beyond a reasonable doubt that Jackson knew that he had been previously convicted of crimes punishable by more than one year at the time he possessed the firearms in question in December 2016.
motions for judgment of acquittal are DENIED.
Joseph N. Laplante United States District Judge
Dated: January 4, 2022 cc: Anna Z. Krasinski, AUSA Seth R. Aframe, AUSA Simon R. Brown, Esq.
80 Doc. no. 217.