Circuit Consensus: Using Expert Testimony To Establish Interstate Commerce Element For Firearm Offense

In reviewing the evidence offered to establish the interstate commerce element for the felon in possession of a firearm statute, the Seventh Circuit notes that expert testimony “is the standard method of proof,” in United States v. Brownlee, _ F.3d _ (7th Cir. March 4, 2014) (No. 13‐2745)

To establish federal jurisdiction, many offense have an interstate or foreign commerce element. This is common for many firearm offenses. For example, the felon in possession of a firearm statute, 18 U.S.C. § 922(g)(1), requires proof that the firearm was shipped, transported or received "in interstate or foreign commerce." The Seventh Circuit recently considered the form of proof to satisfy this interstate commerce element.

Trial Court Proceedings: Special Agent Expert Testimony

In the case, defendant Brownlee was prosecuted for being a felon in possession of a firearm. At trial, the government called a special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") to provide expert testimony. She concluded that the seized firearm "had been manufactured at a plant in Connecticut and so must have been transported in interstate commerce to end up in Indiana." Brownlee, _ F.3d at _. As summarized in the case:

She had based her research on a search of an ATF database of information about the place of manufacture of guns, on other sources of such information, such as the Blue Book of Gun Values, (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 [who was in Connecticut].

Brownlee, _ F.3d at _. The jury convicted the defendant. The sole issue on appeal concerning "the adequacy of the evidence to prove that the gun had not been manufactured in Indiana."

Seventh Circuit Review: "Standard Method Of Proof"

The Seventh Circuit affirmed the admission of the expert testimony. In doing so, the circuit noted that expert testimony to establish the interstate element “is the standard method of proof,” citing the following cases in support:

  • First Circuit: United States v. Corey, 207 F.3d 84, 92 (1st Cir. 2000) (admitting expert testimony)
  • Seventh Circuit: United States v. Ware, 914 F.2d 997, 1003 (7th Cir. 1990) (noting expert “testimony could have been useful to the jury to determine whether the weapon had traveled in interstate commerce”) (citing other cases); United States v. Lowe, 860 F.2d 1370, 1374 (7th Cir. 1988) (“the government's firearms expert not only testified that the gun in Lowe's possession was manufactured in Germany and imported through California, he stated that, in his opinion, the firearm had traveled in both foreign and interstate commerce”)
  • Eighth Circuit: United States v. Carter, 270 F.3d 731, 734–35 (8th Cir. 2001) (“firearms expert showing that information stamped on the gun identified its place of manufacture” outside the state where the gun was recovered))

The circuit found unpersuasive the defense counsel's complaint "about the brevity and lack of detail of the expert’s testimony." As the circuit noted, "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.'” The complaint failed to get any traction on appeal particularly where defense counsel "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 requested a Daubert hearing, and had limited his cross-examination of her to two pointless questions". Brownlee, _ F.3d at _. While the testimony was brief it was also "sufficient, especially 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." Brownlee, _ F.3d at _.

Finally, the circuit was not troubled by the reliance of the expert on statements of the gun manufacturer. Certainly, the circuit observed, "[a]n expert who parrots an out‐of‐court statement is not giving expert testimony; he is a ventriloquist’s dummy.” However, an expert may rely on the statements of others in forming an opinion, including under FRE 703 which allows an expert to rely on inadmissible evidence “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”


The Brownlee case shows one common means to satisfy the interest element in firearm offense through expert testimony. For a related case addressing proof of the firearm interstate element, consider Agent Testimony On Firearms' Interstate Travel Did Not Violate "Best Evidence Rule".

Other cases involving proof of the interstate commerce for other statutes have recognized other forms of proof. See, e.g., Vehicle Identification Number From National Insurance Crime Bureau Admitted To Establish Interstate Commerce Under FRE 803(17) ; Using The Hearsay Exception For Published Compilations Under FRE 803(17) ; Computer User Name, Authored Files and Manufacturer’s Inscription Was Not Hearsay Evidence ; see also Proof That An Internet Communication Necessarily Traveled Across State Lines.


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