United States of America v. Joseph C. Brownlee

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2745
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
J OSEPH C. BROWNLEE ,
Defendant‐Appellant.
____________________
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.
____________________
A RGUED J ANUARY 23, 2014 — D ECIDED MARCH 4, 2014
____________________
Before P OSNER and R IPPLE , Circuit Judges, and G ILBERT,
District Judge. *
P OSNER , 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
* Of the Southern District of Illinois, sitting by designation.

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2 No. 13‐2745
had to prove that the gun had been “shipped or transported
in interstate or foreign commerce.” § 922(g). (We don’t un‐
derstand 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 particu‐
lar 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 data‐
base 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 Con‐
necticut—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 manufac‐

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No. 13‐2745 3
turer 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 bar‐
rel and the gun’s moving parts are made of steel. The only
issue presented by the appeal is the adequacy of the evi‐
dence 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 gen‐
eral 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 re‐
quested a Daubert hearing, and had limited his cross‐
examination of her to two pointless questions: “This investi‐
gation that you did was yesterday; is that correct?”—to
which she replied that she had talked to the manager yester‐
day—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 ex‐
actly. 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 manufac‐
tured 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.) De‐
spite the brevity of her testimony it was sufficient, especially

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4 No. 13‐2745
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 imper‐
missible 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 inadmissi‐
ble if offered by a lay witness, that experts in the witness’s
area of expertise customarily rely on. The evidence the ex‐
pert relies on has to provide an adequate foundation for the
expert’s opinion, Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993); Price v. Thurmer, 637 F.3d 831, 837–38
(7th Cir. 2011); Ward v. Dixie National Life Ins. Co., 595 F.3d
164, 181–82 (4th Cir. 2010)—but that is all. Anyway the ATF
agent’s testimony about her conversation with Tri Town’s
manager was icing on the cake. The government didn’t have
to prove where the gun had been manufactured, only that it
had not been manufactured in Indiana, a conclusion the ex‐
pert had arrived at on the basis of her database searches be‐
fore she talked to the manager.
Although the judge properly allowed her to testify that
she’d been told by the manager that the gun had been manu‐
factured at his plant, he wouldn’t allow her to repeat what
the manager had said. It’s true that “the entirety of [an ex‐
pert’s] testimony cannot be the mere repetition of ‘the out‐
of‐court statements of others,’” United States v. Luna, 649 F.3d
91, 105 (1st Cir. 2011), quoting United States v. Cormier, 468
F.3d 63, 73 (1st Cir. 2006), and that “an expert witness may
not simply summarize the out‐of‐court statements of others
as his testimony.” United States v. Smith, 869 F.2d 348, 355
(7th Cir. 1989). But the key words are “mere” and “simply.”

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No. 13‐2745 5
An expert who parrots an out‐of‐court statement is not giv‐
ing expert testimony; he is a ventriloquist’s dummy. The ex‐
pert in this case would not have been doing that in quoting
what the manager had told her in their phone conversation,
any more than if she had read off the locations of gun facto‐
ries from her databases.
The district judge was concerned that a verbatim tran‐
scription of what the manager had said would be unduly
prejudicial, a ground for exclusion under both Rule 403 and
Rule 703. He said “she wouldn’t be able [he meant she
wouldn’t be permitted]—given the last sentence of Rule 703
and the fact that the probative value in helping the jury un‐
derstand the weight of the … opinion doesn’t substantially
outweigh the possibility of unfair prejudice … to recount the
conversation with the manufacturer.” We don’t see, and the
judge didn’t explain, why a paraphrase would be less “un‐
fairly” prejudicial than, say, a recorded quotation, which
would be more reliable.
The defendant’s lawyer argues finally that the manager
should have been called to testify to the place of manufac‐
ture of the gun—that his testimony would have been more
reliable than the expert’s. But remember that the lawyer
hadn’t questioned the qualifications of the ATF agent to tes‐
tify to the place of manufacture of the gun. He thus had tac‐
itly conceded that a reasonable jury could, despite the ab‐
sence of other evidence, conclude from the expert’s testi‐
mony alone that the defendant’s gun had indeed been
manufactured outside of Indiana.
The agent not only works in Indiana, but her job involves
determining the state in which a gun is manufactured (or in
which it is not manufactured—because, to repeat, it doesn’t

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6 No. 13‐2745
matter where the defendant’s gun was manufactured so long
as it was not manufactured in the state in which he pos‐
sessed it). The manager of Tri Town Plastics’ plant has a dif‐
ferent job, the performance of which would be disrupted if
he had to fly to remote locations any time a person was be‐
ing prosecuted as a felon in possession of a gun believed to
have been manufactured in that plant. It’s no surprise that
the use of expert testimony to prove that a gun has crossed
state lines is the standard method of proof of that element of
the crime of being a felon in possession—evidence accepted
as valid by (so far as we have been able to determine) all
courts. See, e.g., United States v. Ware, 914 F.2d 997, 1003 (7th
Cir. 1990); United States v. Lowe, 860 F.2d 1370, 1374 (7th Cir.
1988); United States v. Corey, 207 F.3d 84, 92 (1st Cir. 2000);
United States v. Carter, 270 F.3d 731, 734–35 (8th Cir. 2001).
A FFIRMED.

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