United States v. Cortez-Oropeza

40 F.4th 50

• Court: Court of Appeals for the First Circuit
• Decided: July 13, 2022
• Docket: 21-1209P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1209

UNITED STATES,

Appellee,

v.

RAFAEL CORTEZ-OROPEZA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Steven A. Feldman and Feldman & Feldman on brief for appellant. W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá- Almonte, Assistant United States Attorney, Chief, Appellate Division, and David C. Bornstein, Assistant United States Attorney, on brief for appellee.

July 13, 2022 LYNCH, Circuit Judge. Rafael Cortez-Oropeza seeks to

have this court set aside his convictions from his March 2020 jury

trial for unlawfully possessing firearms and ammunition as a

convicted felon, 18 U.S.C. § 922(g)(1), and for unlawfully

possessing a firearm with an obliterated serial number, id.

§ 922(k). The argument on which this appeal turns is that the

district court abused its discretion when it qualified Bureau of

Alcohol, Tobacco, Firearms and Explosives ("ATF") Special Agent

Israel Valle as an expert under Fed. R. Evid. 702 on whether the

firearms and ammunition charged in the operative indictment had

traveled in interstate commerce. We affirm.

I.

On July 17, 2018, law enforcement recovered from Cortez-

Oropeza's home in Puerto Rico one Cobray M-12 .380 caliber

machinegun with an obliterated serial number; one Charter Arms .38

caliber revolver; one 7.62x39 mm rifle; assorted rounds of 9 mm,

.40-caliber, and 7.62 mm ammunition; and one rifle and two pistol

magazines. The rifle was loaded with four cartridges in its

magazine and one in its chamber.

After he was arrested, Cortez-Oropeza signed a written

confession stating:

I[,] Rafael Cortez[-]Oropeza[,] take all the blame for everything they have seized at my house, the rifle, and the submachine gun, and the .38 were seized at my house. They are all mine, and my wife is innocent in this whole

- 2 - situation that is happening to me. . . . I am the only one to blame.

The confession is not at issue.

On December 17, 2019, the grand jury returned a second

superseding indictment, charging Cortez-Oropeza with unlawful

possession of firearms and ammunition as a convicted felon and

unlawful possession of a firearm with an obliterated serial number.

See 18 U.S.C. §§ 922(g)(1), (k), 924(a), (e). All three firearms

and the rounds of ammunition recovered by law enforcement were

included in the indictment, allegedly "having been shipped and

transported in interstate and foreign commerce." Cortez-Oropeza

pleaded not guilty and proceeded to trial. The parties stipulated

that Cortez-Oropeza "knew that he had been previously convicted of

a crime punishable by imprisonment for a term exceeding one year."

In conformance with its obligations under Fed. R. Crim.

P. 16, the government had notified Cortez-Oropeza that it would

call ATF Special Agent Valle as a "nexus expert" to testify, inter

alia, about "the analysis and methodology used to examine the

firearms and ammunition seized" and "the origin of [Cortez-

Oropeza's] firearms and ammunition and their interstate or foreign

nexus," i.e., whether the firearms and ammunition had traveled in

interstate commerce.1 The notice stated that Special Agent Valle's

1 Under 18 U.S.C. § 922(g), the government must prove, inter alia, the defendant possessed a "firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

- 3 - testimony "will be based on his specialized training and experience

in the examination and analysis of firearms and ammunition and the

examination performed by him on the firearms and ammunition seized

in this case." Defense counsel did not file a motion in limine to

exclude such testimony.

At trial before the jury, the government called Special

Agent Valle to testify as to his background and training before it

moved to qualify him as an expert. On direct examination, Special

Agent Valle testified that he had been an ATF agent for two years

and, at the time, was certified by the ATF as an interstate nexus

agent. Interstate nexus agents are tasked with determining where

firearms are manufactured or assembled in order "to determine

whether the firearm, if possessed in Puerto Rico, . . . traveled

in interstate or foreign commerce." Special Agent Valle had taken

and passed multiple exams for the position and received specialized

training, including a one-week in-person class and additional

online trainings. Special Agent Valle further testified that,

after receiving his certificate, he had examined more than ten

firearms unrelated to this case to determine where they were made.

Similarly, for a section 922(k) prosecution, the government must prove the firearm "has, at any time, been shipped or transported in interstate or foreign commerce." This has been called the "interstate nexus" element. See, e.g., United States v. Corey, 207 F.3d 84, 86, 88 (1st Cir. 2000).

- 4 - The government then moved to qualify Special Agent Valle

as an expert witness on firearms and the interstate nexus elements

of the crimes charged. Defense counsel objected, seeking "to voir

dire the witness before he is qualified or not as an expert."

The district court permitted defense counsel to conduct

voir dire of Special Agent Valle. During voir dire, Special Agent

Valle testified that he has been in law enforcement for well over

a decade and that this was his first time testifying as an expert.

He also testified as to his training to become an interstate nexus

agent, which included instruction on and practice with inspecting

firearms for specific markings and proofmarks and searching those

marks on a database owned and maintained by the ATF.

The government, following this voir dire, renewed its

motion to qualify Special Agent Valle as an expert. Defense

counsel again objected, arguing that the witness had not testified

to the specifics of his training and that "he will essentially be

almost a lay witness." The district court stated:

Let me tell you what I think this witness has to be an expert on. He has to be an expert not on firearms generally but on how to determine whether this firearm has moved in interstate commerce. And I would like to hear some questions, either from the government or from the defense, establishing that he -- how he knows about determining that, what training he has on that issue, before I rule on whether he's an expert on that or not.

- 5 - The government questioned Special Agent Valle further

about his in-person and other training. The agent stated that he

first had to prove his basic knowledge of firearms by passing an

exam. After that, he was instructed "on how to find markings,

proofmarks, make and models, [and the] caliber of firearms,"

focusing on the frame of the weapon. He also was trained to

consult the ATF "database, books, [his] knowledge[ and]

experience, and sometimes . . . another senior special agent" to

determine, based on the firearm's marks, where a firearm was

manufactured. Special Agent Valle stated that he spent most of

his in-person training practicing locating the manufacturing

origin of firearms. He inspected more than thirty firearms in

that time and passed another exam before he was certified as an

interstate nexus agent. He continued to receive online trainings

"every couple of months" or so.

Defense counsel conducted further voir dire of Special

Agent Valle, during which the agent stated that he did not know

the specific quality control for adding manufacturers' markings

and proofmarks to the ATF database, did not memorize what each and

every marking means, had not published anything within his field

of gun markings identification or joined any organizations, and

did not remember his exam scores, although he did know he received

passing grades. Special Agent Valle further testified to his

reliance on various reference materials when determining whether

- 6 - a firearm has traveled in interstate commerce, including the Blue

Book for Gun Values and "Ammo Guide" or "[s]omething similar to

that," although he did not remember the publishers or authors of

the books.

Defense counsel objected under Fed. R. Evid. 702(a) to

qualifying Special Agent Valle as an expert, arguing that "our

concern is he will not, with his very limited experience and

knowledge, be able to help this jury with anything." The district

court overruled the objection and, based on the agent's testimony,

granted the government's motion to qualify Special Agent Valle as

an expert. The court immediately instructed the jury: "I will

allow the witness to testify as an expert. Like any other witness,

you [the jurors] are the ones that determine the weight that will

be given to this witness."

Special Agent Valle, thereafter, testified to the

manufacturing origin of Cortez-Oropeza's firearms and ammunition,

concluding that, based on his inspection of the contraband, his

research on the ATF database, and his own knowledge, each was

manufactured outside of Puerto Rico. He stated that the machinegun

was manufactured in Buffalo, New York because the serial number

had a "dash 12" and started with "0000001 up to 0011565": the

unobliterated part of "[t]his one is 12-0009." Special Agent Valle

concluded that the Charter Arms revolver was manufactured in

Connecticut based on the markings stating, "Charter Arms," and his

- 7 - research on the ATF database that all Charter Arms revolvers are

manufactured in Connecticut. The rifle, Special Agent Valle

testified, was manufactured in China, as there was a proofmark of

a triangle with a 26 inside. And the ammunition was manufactured

either in Connecticut or Arkansas and in Russia. He observed two

types of the ammunition seized had an "R dot P[,] [a]nd that's a

Remmington [sic] ammunition. . . . [T]hey manufacture ammunition

in Arkansas and Connecticut." The other type was "a TulAmmo, which

they manufacture ammunition in Russia." He also testified to his

general knowledge that neither firearms nor ammunition are

manufactured in Puerto Rico.

Defense counsel cross-examined Special Agent Valle on

when he inspected the firearms (a month before trial), whether he

prepared a report of his inspections (he did not because a former

interstate nexus agent had),2 whether another agent verified his

conclusions (none had), whether he confirmed the serial numbers of

the firearms with the manufacturers (he did not because that is

outside the scope of his duties), and whether there are unlicensed

armorers and gunsmiths in Puerto Rico that modify and assemble

firearms and ammunition (the agent could not answer due to

2 Special Agent Valle's conclusions as to the out-of-state manufacturing origins of the firearms and ammunition matched those of the former interstate nexus agent's for all but the rifle, for which the former agent stated he could not determine the origin.

- 8 - potentially confidential information; he did state on redirect

that gunpowder is not produced in Puerto Rico).

The jury found Cortez-Oropeza guilty of both counts of

unlawful firearm possession, for which he was convicted and

sentenced.

His appeal contends that the district court abused its

discretion in qualifying Special Agent Valle as an expert under

Fed. R. Evid. 702(a).

II.

Our review of a district court's decision to admit, over

objection, expert-witness testimony is for clear abuse of

discretion. United States v. Corey, 207 F.3d 84, 88 (1st Cir.

2000). We must affirm, "unless the ruling at issue was predicated

on an incorrect legal standard or we reach a 'definite and firm

conviction that the court made a clear error of judgment.'" Id.

(quoting United States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995)).3

There is no argument that the district court applied an incorrect

legal standard.4

3 Cortez-Oropeza's contention that this court will apply a less deferential standard of review where the government "relies solely on an expert to establish the interstate jurisdictional element of a felon-in-possession charge" is unsupported and contradicted by the controlling caselaw in this circuit. See, e.g., Corey, 207 F.3d at 88–89.

4 Appellate counsel is different from Cortez-Oropeza's trial counsel.

- 9 - Fed. R. Evid. 702 provides that a witness can be

qualified as an expert "by knowledge, skill, experience, training,

or education" (emphasis added). Under Rule 702(a), the witness's

testimony must concern his "scientific, technical, or other

specialized knowledge" and "help the trier of fact to understand

the evidence or to determine a fact in issue."

The district court did not abuse its discretion in ruling

that Special Agent Valle was qualified to testify as an expert on

the interstate travel of Cortez-Oropeza's firearms and ammunition.

See Santos v. Posadas de P.R. Assocs., Inc., 452 F.3d 59, 64 (1st

Cir. 2006) ("The test is whether, under the totality of the

circumstances, the witness can be said to be qualified as an expert

in a particular field through any one or more of the five bases

enumerated in Rule 702 . . . ." (emphasis added)). Cortez-

Oropeza's arguments to the contrary lack merit.

We reject Cortez-Oropeza's argument that Special Agent

Valle's testimony was inadmissible under Fed. R. Evid. 702(a)

because it did not concern specialized knowledge. This court

repeatedly has rejected similar arguments and has observed that

"[e]xpert testimony is appropriate to prove the interstate nexus

element." United States v. Luna, 649 F.3d 91, 105 (1st Cir. 2011);

see also Corey, 207 F.3d at 88–89; United States v. Cormier, 468

F.3d 63, 72 (1st Cir. 2006) ("[T]he 'interstate nexus' element of

§ 922(g) constitute[s] specialized knowledge for which expert

- 10 - testimony would be appropriate."). Further, we have held that

experts on the interstate travel of firearms reasonably may base

their testimony on their personal inspection of the firearms,

together with ATF manufacturing records, technical manuals, and

reference materials, just as Special Agent Valle did here. See

Corey, 207 F.3d at 89 n.7; see also Cormier, 468 F.3d at 73 ("[The

expert] not only consulted publicly available records in making

his conclusions about the manufacturing origin of the weapons, but

he also looked to conversations with manufacturers and research

texts, and he inspected one of the weapons."); United States v.

Allen, 190 F. App'x 785, 787 (11th Cir. 2006) (per curiam)

(unpublished) ("[The expert] based his opinion [of interstate

nexus] on the markings on the gun, his personal knowledge

concerning the manufacture and distribution of guns, and his review

of industry-wide publications, including The Blue Book of Gun

Values."); United States v. Ware, 914 F.2d 997, 1003 (7th Cir.

1990) ("[E]xperts in the field of firearms identification rely on

[markings on the firearm, ATF publications and lists, and firearms

trade books and other reference materials] with regard to the issue

of interstate transportation of firearms and such reliance is

reasonable."). Special Agent Valle's expert testimony that

Cortez-Oropeza's firearms and ammunition were manufactured outside

of Puerto Rico clearly would help a jury in its consideration of

the interstate nexus element.

- 11 - Cortez-Oropeza, acting pro se, makes two additional

arguments in his Fed. R. App. P. 28(j) letter; neither saves his

appeal. His first argument, purporting to rely on Rehaif v. United

States, 139 S. Ct. 2191 (2019), depends entirely on his assertion

that the government failed to have admissible testimony that guns

traveled in interstate commerce. Because we have rejected his

counseled claim that the expert testimony should have been

excluded, necessarily this pro se claim also must fail.

As to Cortez-Oropeza's second pro se argument that "he

does not categorically meet the definition of the statutory

authority 18 U.S.C. § 924(e) [ARMED CAREER OFFENDER] because his

only prior countable offenses are approximately 20 years old,

pursuant to [U.S. Sent'g Guidelines Manual] § 4A1.2(e)" (first

alteration in original), even if not waived for lack of

development, the argument is wrong. The portion of the sentencing

guidelines that Cortez-Oropeza cites provides that prior offenses

are to be counted if they "resulted in the defendant being

incarcerated during any part of such fifteen-year period" prior to

the defendant's "commencement of the instant offense." U.S. Sent'g

Guidelines Manual § 4A1.2(e) (U.S. Sent'g Comm'n 2021). While

Cortez-Oropeza's convictions for prior crimes predate the

commission of his instant offense by over fifteen years, he was

incarcerated for those offenses within fifteen years of his

commencing the instant offense.

- 12 - III.

Affirmed.

- 13 -