[1457]*1457K.K. HALL, Circuit Judge:
Wayne Shelby Simmons appeals his jury convictions on two counts of possessing firearms after being previously convicted of a felony, in violation of 18 U.S.C.App. § 1202(a)(l)j.1 Finding this appeal to be without merit, we affirm.
I.
The undisputed evidence shows that on March 14, 1983, Simmons, who two and one-half years earlier had been convicted of a felony in the Circuit Court of Prince George’s County, Maryland, sold a Smith and Wesson pistol to a licensed firearms and sporting goods business in Silver Spring, Maryland. The evidence further shows that on January 8, 1984, a rifle, manufactured by the Savage Arms Company, and a target pistol, manufactured by the Sterling Arms Company, were found, respectively, in the bedroom and in a storage closet in the garage of defendant’s home.
On April 17, 1984, Simmons was indicted under 18 U.S.C.App. § 1202(a)(1) for two counts of possessing firearms after a prior felony conviction. Count I charged that Simmons “knowingly did unlawfully possess in commerce and affecting commerce” the Smith and Wesson pistol. Count II similarly charged defendant with unlawful possession “in commerce and affecting commerce” of the Sterling Arms pistol and the Savage Arms rifle.
At trial, the government attempted to prove the interstate commerce requirement of the offenses by offering into evidence two firearms trace forms of the Bureau of Alcohol, Tobacco and Firearms (“ATF”). According to the information supplied on these forms, the Smith and Wesson pistol was manufactured in Springfield, Massachusetts, and shipped to a Maryland distributor in 1972 and the Sterling Arms pistol was manufactured in Lockport, New York, and shipped to a Maryland distributor in 1978.
Bradley J. Parker, a special agent with the ATF in Maryland, testified that the trace is a routine ATF procedure, whereby the agency contacts the manufacturer of a weapon and requests its record custodian to complete, sign, and date an ATF form. The form verifies the place where the weapon was manufactured, as well as the date and place of initial distribution.2 Agent Parker stated that as of the trial date, he had been employed by ATF for nine years and had conducted over a thousand similar traces. Agent Parker further testified that based on his experience, the Savage Arms Company had never manufactured weapons in Maryland and that, although he did not recall its name, “[tjhere’s only been one company in Maryland” which had ever manufactured weapons. Moreover, according to Agent Parker, he had never sent a trace form to Smith and Wesson outside of Springfield, Massachusetts, or to Sterling Arms outside of Lockport, New York.
Citing the Fifth Circuit’s decision in United States v. Davis, 571 F.2d 1354 (5th [1458]*1458Cir.1978)3, defendant’s attorney objected on hearsay grounds to the admission of the trace forms to prove the interstate commerce element of a violation of 18 U.S.C. § 1202(a)(1). The government argued that the forms were business records and should be admitted as an exception to the hearsay rule. Referring to the overwhelming trustworthiness of the records and to the unreasonableness of requiring the government to produce the record custodians, the trial judge overruled defendant’s objection and admitted the forms into evidence:
There is no reason in the world why a manufacturer of a weapon would have any reason to make a false entry in a record of this sort which is routinely sent out by the Bureau of Alcohol, Tobacco and Firearms, and I think it ought to be admissible.
I don’t think that the Government is required to bring custodians from all over the country to prove the simple fact such as place of manufacture as evidenced by the records, so I’ll overrule your objection.
The trial court also overruled defense counsel’s hearsay objections to Agent Parker’s testimony that the Savage Arms Company had never manufactured firearms in Maryland.
Simmons was convicted and this appeal followed.
II.
On appeal, Simmons contends that the ATF trace forms and Agent Parker’s testimony, concerning the place where the weapons were manufactured, constitute inadmissible hearsay and violate his right of confrontation under the sixth amendment to the United States Constitution. The government, on the other hand, submits that the ATF forms are admissible either under Fed.R.Evid. 803(6) as business records or under the residual exception to the hearsay rule, Fed.R.Evid. 803(24). The government also argues that Agent Parker’s testimony was not hearsay and was sufficient to supply the interstate commerce element of the offenses. Although we cannot accept the government’s argument that the trace forms are admissible as business records under Rule 803(6),4 we agree with the government that the forms are admissible under Rule 803(24). We also conclude that Agent Parker’s testimony was sufficient to demonstrate that the Savage rifle had been transported in interstate commerce.
Fed.R.Evid. 803(24) provides that:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
[1459]*1459(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the de-clarant.
We find that the ATF trace forms meet all of the requirements of Rule 803(24). In the first place, the forms were clearly offered as evidence of a material fact to prove- the place of manufacture. Moreover, the district court found that the forms were more probative than any other evidence which could be reasonably procured, when it determined that it was not reasonable to require the government to bring in the record custodians from different parts of the country to prove this simple fact. Furthermore, as the district court concluded, there is simply no reason for the manufacturers of these weapons to falsify the entries on the routine ATF forms.5
Free access — add to your briefcase to read the full text and ask questions with AI
[1457]*1457K.K. HALL, Circuit Judge:
Wayne Shelby Simmons appeals his jury convictions on two counts of possessing firearms after being previously convicted of a felony, in violation of 18 U.S.C.App. § 1202(a)(l)j.1 Finding this appeal to be without merit, we affirm.
I.
The undisputed evidence shows that on March 14, 1983, Simmons, who two and one-half years earlier had been convicted of a felony in the Circuit Court of Prince George’s County, Maryland, sold a Smith and Wesson pistol to a licensed firearms and sporting goods business in Silver Spring, Maryland. The evidence further shows that on January 8, 1984, a rifle, manufactured by the Savage Arms Company, and a target pistol, manufactured by the Sterling Arms Company, were found, respectively, in the bedroom and in a storage closet in the garage of defendant’s home.
On April 17, 1984, Simmons was indicted under 18 U.S.C.App. § 1202(a)(1) for two counts of possessing firearms after a prior felony conviction. Count I charged that Simmons “knowingly did unlawfully possess in commerce and affecting commerce” the Smith and Wesson pistol. Count II similarly charged defendant with unlawful possession “in commerce and affecting commerce” of the Sterling Arms pistol and the Savage Arms rifle.
At trial, the government attempted to prove the interstate commerce requirement of the offenses by offering into evidence two firearms trace forms of the Bureau of Alcohol, Tobacco and Firearms (“ATF”). According to the information supplied on these forms, the Smith and Wesson pistol was manufactured in Springfield, Massachusetts, and shipped to a Maryland distributor in 1972 and the Sterling Arms pistol was manufactured in Lockport, New York, and shipped to a Maryland distributor in 1978.
Bradley J. Parker, a special agent with the ATF in Maryland, testified that the trace is a routine ATF procedure, whereby the agency contacts the manufacturer of a weapon and requests its record custodian to complete, sign, and date an ATF form. The form verifies the place where the weapon was manufactured, as well as the date and place of initial distribution.2 Agent Parker stated that as of the trial date, he had been employed by ATF for nine years and had conducted over a thousand similar traces. Agent Parker further testified that based on his experience, the Savage Arms Company had never manufactured weapons in Maryland and that, although he did not recall its name, “[tjhere’s only been one company in Maryland” which had ever manufactured weapons. Moreover, according to Agent Parker, he had never sent a trace form to Smith and Wesson outside of Springfield, Massachusetts, or to Sterling Arms outside of Lockport, New York.
Citing the Fifth Circuit’s decision in United States v. Davis, 571 F.2d 1354 (5th [1458]*1458Cir.1978)3, defendant’s attorney objected on hearsay grounds to the admission of the trace forms to prove the interstate commerce element of a violation of 18 U.S.C. § 1202(a)(1). The government argued that the forms were business records and should be admitted as an exception to the hearsay rule. Referring to the overwhelming trustworthiness of the records and to the unreasonableness of requiring the government to produce the record custodians, the trial judge overruled defendant’s objection and admitted the forms into evidence:
There is no reason in the world why a manufacturer of a weapon would have any reason to make a false entry in a record of this sort which is routinely sent out by the Bureau of Alcohol, Tobacco and Firearms, and I think it ought to be admissible.
I don’t think that the Government is required to bring custodians from all over the country to prove the simple fact such as place of manufacture as evidenced by the records, so I’ll overrule your objection.
The trial court also overruled defense counsel’s hearsay objections to Agent Parker’s testimony that the Savage Arms Company had never manufactured firearms in Maryland.
Simmons was convicted and this appeal followed.
II.
On appeal, Simmons contends that the ATF trace forms and Agent Parker’s testimony, concerning the place where the weapons were manufactured, constitute inadmissible hearsay and violate his right of confrontation under the sixth amendment to the United States Constitution. The government, on the other hand, submits that the ATF forms are admissible either under Fed.R.Evid. 803(6) as business records or under the residual exception to the hearsay rule, Fed.R.Evid. 803(24). The government also argues that Agent Parker’s testimony was not hearsay and was sufficient to supply the interstate commerce element of the offenses. Although we cannot accept the government’s argument that the trace forms are admissible as business records under Rule 803(6),4 we agree with the government that the forms are admissible under Rule 803(24). We also conclude that Agent Parker’s testimony was sufficient to demonstrate that the Savage rifle had been transported in interstate commerce.
Fed.R.Evid. 803(24) provides that:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
[1459]*1459(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the de-clarant.
We find that the ATF trace forms meet all of the requirements of Rule 803(24). In the first place, the forms were clearly offered as evidence of a material fact to prove- the place of manufacture. Moreover, the district court found that the forms were more probative than any other evidence which could be reasonably procured, when it determined that it was not reasonable to require the government to bring in the record custodians from different parts of the country to prove this simple fact. Furthermore, as the district court concluded, there is simply no reason for the manufacturers of these weapons to falsify the entries on the routine ATF forms.5 The forms thus have the circumstantial guarantees of trustworthiness, equivalent to the other hearsay exceptions under Rule 803, and their admission serves the general purposes of the rules and the interests of justice.
As for the notice requirement of Rule 803(24), the Assistant United States Attorney stated at oral argument that he had given Simmons’ counsel notice in advance of trial of the government’s intention to introduce the ATF forms into evidence in order to establish the interstate commerce nexus. This notice is also demonstrated by the fact that during the government’s direct examination of Agent Parker, Simmons’ counsel objected to the forms as hearsay and immediately produced for the trial court and the government copies of the Fifth Circuit’s opinion in Davis, supra, which addressed the applicability of Rules 803(6) and 803(24) to the ATF form at issue. We, accordingly, conclude that the ATF trace forms in this case were properly admitted into evidence as an exception to the hearsay rule under Fed.R.Evid. 803(24).
Moreover, we find no merit in Simmons’ argument that the admission of the forms violated his sixth amendment right to confront the witnesses against him. In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court held that when a declarant was not present to be cross-examined, the Confrontation Clause normally requires a showing of unavailability and a showing that the statement bears “indicia of reliability.” 448 U.S. at 66, 100 S.Ct. at 2539. See also, United States v. Lisotto, 722 F.2d 85, 88 (4th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1682, 80 L.Ed.2d 157 (1984). The [1460]*1460Roberts court acknowledged, however, that the Confrontation Clause problems of hearsay evidence could not be resolved by any one analysis:
The Court, however, has recognized that competing interests, if “closely examined” Chambers v. Mississippi, 410 U.S. [284] at 295, 93 S.Ct. [1038] at 1045 [35 L.Ed.2d 297 (1973)], may warrant dispensing with confrontation at trial. See Mattox v. United States, 156 U.S. [237] at 243, 15 S.Ct. [337] at 340 [39 L.Ed. 409 (1895)] (“general rules of law of this kind, however beneficient in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case”). Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence, applicable in criminal proceedings. See Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934); California v. Green, 399 U.S. [149] at 171-72, 90 S.Ct. [1930] at 1941-42 [26 L.Ed.2d 489 (1970)] (concurring opinion).
This Court, in a series of cases, has sought to accommodate these competing interests. True to the common-law tradition, the process has been gradual, building on past decisions, drawing on new experience, and responding to changing conditions. The Court has not sought to “map out a theory of the Confrontation Clause that would determine the validity of all ... hearsay 'exceptions.’ ” California v. Green, 300 U.S., at 162, 90 S.Ct., at 1937.
448 U.S. at 64-65, 100 S.Ct. at 2538.
The policy interest in minimizing expense and delay, to which the trial court alluded below when it admitted the ATF forms, must be balanced against the utility of the Confrontation Clause to the defendant. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court found that the utility of trial confrontation was so remote that it did not require the prosecution to produce a seemingly available witness. See Roberts, 448 U.S. at 65 n. 7,100 S.Ct. at 2538 n. 7. In this case, we conclude that the actual utility of confronting the firearms record custodians would have been minimal, and that it is highly unlikely that the custodians would have done anything but confirm the simple factual statements made on the trace forms.
The second element of the Confrontation Clause requirement is the reliability factor. As the Roberts court stated:
The Court has applied this “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” This reflects the truism that “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” and “stem from the same roots.” It also responds to the need for certainty in the workaday world of conducting criminal trials.
448 U.S. at 66, 100 S.Ct. at 2539 (citations and footnote omitted). Clearly, the simple, factual statements presented on the forms, particularly when considered in light of the legal requirement for manufacturers to maintain firearms records {see 27 C.F.R. Part 178 and note 4, infra), exhibit an exceptionally high degree of reliability. Further reliability is demonstrated by Agent Parker’s testimony that he had never sent a trace form to Smith and Wesson outside of Massachusetts or to Sterling Arms outside of New York. We, therefore, conclude that the “indicia of reliability” prong is met and that appellant’s argument under the Confrontation Clause must fail.
Finally, we reject Simmons’ assertion that Agent Parker’s testimony concerning the out-of-state location of the Savage Arms Company was inadmissible hearsay. Agent Parker testified that he had worked with ATF for nine years, primarily dealing with firearms, and had conducted over a thousand similar firearms investigations. He further testified that based on his personal knowledge and experience, the [1461]*1461Savage Arms Company had never had a manufacturing plant in Maryland. This statement is not hearsay, but is based on the personal knowledge of an experienced witness who was available for cross-examination. We conclude that Agent Parker’s testimony as a firearms expert was sufficient to show the required interstate commerce nexus for the Savage rifle. See United States v. Sickles, 524 F.Supp. 506, 511-12 (D.Delaware 1981), and United States v. Stine, 458 F.Supp. 366, 371 (E.D.Pa.1978) (ATF agent’s unrebutted expert testimony was sufficient to establish the place of manufacture and to prove the element of interstate shipment of the firearms).
III.
For the foregoing reasons, Simmons’ convictions for violating the provisions of 18 U.S.C.App. § 1202(a)(1) are affirmed.
AFFIRMED.