TORRUELLA, Circuit Judge.
After opening fire on two police officers attempting to arrest him, Pascual Luna was charged with (1) being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1); (2) assaulting, resisting, opposing, impeding, intimidating, and interfering with Scott Conley, a detective with the Chelsea Police Department ("CPD") who had been deputized as a special federal officer, in violation of 18 U.S.C. § 111
Luna now appeals, arguing that the district court erred in denying his motion to dismiss Count Two of the indictment and in failing to grant his motion for a judgment of acquittal as to the same count. He also raises various evidentiary and sentencing claims. For the reasons below, we affirm.
In 2006, Conley, a detective with the CPD, was assigned to the FBI's North Shore Gang Task Force ("Task Force"), a group composed of local, state, and federal law enforcement officers. In January 2007, Conley was officially deputized and his relationship with the FBI became more formal. According to his Deputation Statement, he was authorized to exercise
21 U.S.C. § 878.
As a deputized Task Force officer, Conley was expected to work with other Task Force officers and to collect intelligence for the FBI. This work included, among other things, forwarding gang-related CPD reports to the FBI. At the hearing on Luna's motion to dismiss, Conley testified that after he was deputized, he was assigned a partner from the State Police, Trooper Richard Ball, who was also a Task Force member; the two rode together during Conley's usual shift. In addition, although the CPD paid Conley's salary, the FBI provided funds that could be used to reimburse the City of Chelsea for up to 7.5 hours a week in Task Force-related overtime.
On a typical day on duty as a Chelsea police officer and Task Force officer, Conley and Ball would be in contact with some of the other agents working in the Task Force, including FBI Special Agent Jeff Wood. Conley would keep someone at the CPD—at the relevant time, Lieutenant Dave Batchelor—apprised of his activities. If something had to be done in Chelsea while Conley was "off the air"—i.e., in a location where his Chelsea radio would not work—he would not respond. If he was in Chelsea and received a Chelsea radio call but was in the middle of, e.g., a Task Force drug buy, he would not respond either. If he was within range and not busy, he could respond to CPD calls. As Conley testified at the hearing on Luna's motion to suppress, his Task Force knowledge was relevant even when he was responding to these local calls, and they would sometimes result in communications to the FBI:
On May 1, 2007, the day of Luna's arrest, Conley had been assigned by the CPD to work at an immigration parade—
In addition, the FBI was interested in the immigration rally. When Conley spoke with Wood about the fact that he was going to be covering the immigration rally, Wood said that the FBI was interested in how many people would attend the rally. Wood said the FBI wanted to know any intelligence that was collected about gang members trying to disrupt or take part in the rally. In their conversation prior to the rally, Wood specifically asked Conley if he thought Luna would be at the rally; Conley responded affirmatively. As Conley testified at trial, he was interested in whether Luna would be at the rally because Luna was a gang member and the subject of state arrest warrants. According to Conley, "part of the reason why we were [at the rally] and part of the reason why the FBI was so interested in it, was because of collecting the intelligence of [sic] gang members in the City of Chelsea." Furthermore, according to the testimony of FBI Special Agent John Woudenberg, Conley's supervisor with respect to all Task Force matters, on the day in question, the FBI "would expect that Detective Conley would act as a member of the [T]ask [F]orce, would gather the appropriate intelligence and utilize that to further our investigations."
At a certain point, Conley saw Luna and alerted Batchelor and Delaney to his presence. The officers decided to arrest Luna because there were Chelsea default warrants for his arrest.
The FBI quickly received word of the arrest. After Luna had been arrested, Conley called Wood. Woudenberg had heard about Luna's arrest from Wood within approximately an hour of the shooting. Conley did not produce a separate report for the FBI, but did send his CPD report regarding the incident to the FBI.
Luna moved to dismiss Count Two of his indictment on the ground that Conley was
The case proceeded to trial and Luna moved for a judgment of acquittal at the close of the government's case and after the close of all the evidence. He did not prevail, and the jury later convicted him on all counts.
Luna first argues that Count Two of his indictment should have been dismissed because the district court improperly concluded that Conley was a federal officer within the scope of 18 U.S.C. §§ 1114 and 111. In addition, he argues that the government's evidence was not sufficient to prove that Conley was engaged in the performance of federal duties at the relevant time.
18 U.S.C. § 111 provides for the punishment of anyone who "forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of [Title 18] while engaged in or on account of the performance of official duties." 18 U.S.C. § 111(a)(1). Section 1114 designates the following individuals as part of the protected class: "any officer or employee of the United States or of any agency in any branch of the United States Government . . . while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance." 18 U.S.C. § 1114.
The question of whether a person in a particular position qualifies as an "officer . . . of the United States" under 18 U.S.C. § 1114—or what we refer to as a "federal officer"—is a question of law. See United States v. Roy, 408 F.3d 484, 489 (8th Cir.2005) ("Whether an officer in [the victim's] position, i.e., an officer of the Flandreau City and Flandreau Santee Sioux Tribal Police Department, qualifies as a federal officer is a `threshold legal question' for the court." (quoting United States v. Bettelyoun, 16 F.3d 850, 853 (8th Cir.1994))); United States v. Martin, 163 F.3d 1212, 1214 (10th Cir.1998).
The question of whether an officer was engaged in "official duties" related to his or her federal deputization
Here, the court treated the question of whether Conley was engaged in official federal duties at the relevant time as a factual one.
Many of the criticisms that Luna lodges against the district court's legal conclusion that Conley was a "federal officer" would more appropriately be framed as arguments against the sufficiency of the evidence presented to show that Conley was "engaged in official duties" at the relevant time. We address only the first issue here, and conclude that the district court was correct in concluding that Conley was a "federal officer."
The First Circuit has not previously discussed whether a local police officer, deputized as a federal task force member, may be considered a "federal officer" for the purposes of 18 U.S.C. §§ 111 and 1114. The Supreme Court has provided some guidance in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), noting that the purpose of 18 U.S.C. § 111 is "to protect both federal officers and federal functions." Id. at 679, 95 S.Ct. 1255. Though the parties cite many cases from other circuits involving the relevant statutes, few are directly relevant to the question of whether a local police officer who has been deputized as a member of a federal task force, and whose general working relationship with federal authorities is similar to Conley's, can be protected under section 111 based on his or her own status as a "federal officer."
The case we find most comparable is United States v. Torres, 862 F.2d 1025 (3d Cir.1988).
Luna claims that the evidence was insufficient to support the conclusion that Conley was engaged in the performance of federal duties when Luna assaulted him. To support this contention, he points out the following: (1) Conley was ordered to work at the rally by the CPD, not the FBI; (2) while at the rally, Conley was in a CPD car, was wearing a CPD shirt, and had a CPD badge around his neck (though he carried an FBI credential); (3) Conley was working with two other Chelsea officers, and there was no contact with federal officers during the rally; (4) Conley decided to arrest Luna based on outstanding warrants from the Chelsea District Court rather than on a federal arrest warrant (which did not exist); (5) Conley did not file a separate FBI report and did not submit claims for FBI overtime for the day in question, instead submitting Chelsea overtime claims.
The government argues that Luna fails to appreciate that because of the nature of Conley's role, he was often wearing two hats, acting as both a Chelsea police officer and a Task Force member simultaneously. We agree, and conclude that the evidence at trial was sufficient for a rational jury to conclude that Conley was engaged in federal duties at the relevant time.
Although Luna was assigned to cover the rally by the CPD and was working with other Chelsea officers, his work was relevant to the mission of the Task Force, as demonstrated, generally, by the nature of his role—to keep tabs on anything to do with gangs in his area—and, specifically, by the conversations he had with FBI agents. When Conley spoke with one of his FBI contacts, Wood, about the fact that he was going to be covering the rally on May 1, Wood said that the FBI "was very interested in the numbers that the rally was going to bring" and that "they wanted to know any intelligence that [was] collected in regards to gang members trying to disrupt the rally or take . . . part in the rally." Furthermore, Wood "specifically asked [Conley] if [he] thought Pascual Luna would be there."
In addition, Conley's actions after the assault are consistent with the conclusion that Conley was engaged in official federal duties at the relevant time. After Luna's arrest, Conley called Wood, who reported Luna's arrest to Woudenberg, Conley's FBI supervisor, within approximately an hour. Although Conley did not produce a separate report for the FBI, he sent his CPD report regarding the assault to the FBI. Finally, although he did not file for FBI overtime for May 1, this does not suggest that he was not engaged in Task Force work on the day in question; it was his practice to file for FBI overtime once a
We conclude that the evidence was sufficient for a rational jury to reach the conclusion that Conley was engaged in federal duties at the relevant time.
Luna claims that the district court abused its discretion in admitting Luna's purported ammunition into evidence because the government failed to establish chain of custody and thus, according to Luna, the ammunition was not properly authenticated. The government responds that it submitted the ammunition on the basis of its connection to the firearm that the defendant used rather than by establishing chain of custody. We conclude that any error was harmless.
The government elected to connect Luna to the ammunition indirectly. The government called numerous witnesses to establish that the firearm introduced at trial was the one that Luna had on the day of the arrest. First, Conley identified the firearm as the one Luna had possessed on the day of the arrest. Over Luna's objection, the court admitted the gun into evidence. Goncalves, another officer who had been at the scene of the crime, later testified that he recognized the firearm that was in evidence because of its brown handle. Delaney, who was also at the crime scene, corroborated Goncalves's description of the handle, adding that revolvers, like Luna's firearm, were very rare on the streets. Finally, Batchelor, who had chased Luna after he shot at Conley, said that the gun at trial was the one he had seen the day of the arrest and testified that Luna's revolver was the only firearm of its type he had seen in 2007.
As for the ammunition, the district court admitted it into evidence over Luna's objection after Conley testified that he recognized the bullets and spent casing as items that another officer had shown him on the day of the assault. Later on, the government's ballistics expert, Trooper Lombard of the Massachusetts State Police, testified that he had conducted a firing test that demonstrated that the defendant's firearm shot the spent casing that had been admitted.
We review the admission or exclusion of evidence for abuse of discretion. United States v. Diaz, 597 F.3d 56, 64 (1st Cir.2010).
Evidence must be authenticated before it may be admitted. Fed. R.Evid. 901(a). Prior to admitting evidence, "[t]he district court must determine `if there is a reasonable probability the evidence is what it is purported to be.'" United States v. Barrow, 448 F.3d 37, 42 (1st Cir.2006) (quoting United States v. Cruz, 352 F.3d 499, 506 (1st Cir.2003)). "[E]vidence . . . is properly admitted if it is readily identifiable by a unique feature or other identifying mark. On the other hand, if the offered evidence is of the type that is not readily identifiable or is susceptible to alteration, a testimonial tracing of the chain of custody is necessary." United States v. Anderson, 452 F.3d 66, 80 (1st Cir.2006) (quoting United States v. Abreu, 952 F.2d 1458, 1467 (1st Cir.1992)). If evidence is admitted prematurely because it is not yet authenticated, a court of appeals need not remand for a new trial if later testimony cures the error. See United States v. Blackwell, 694 F.2d 1325, 1331 (D.C.Cir.1982) ("[E]ven if the photographs were not fully authenticated by the prosecution
Assuming, without deciding, that the district court abused its discretion in admitting the firearm and the ammunition after Conley's testimony alone, we still need not reverse; later testimony supported the conclusion that both were "what [they were] purported to be." Barrow, 448 F.3d at 42 (quoting Cruz, 352 F.3d at 506) (internal quotation mark omitted).
After the firearm had been admitted, the government elicited testimony that established its "unique feature[s]" or "identifying mark[s]." See Anderson, 452 F.3d at 80. Goncalves testified that the firearm at trial was the revolver he had picked up from the sidewalk after Luna had dropped it; on cross-examination, he explained that he had identified the revolver during his direct examination based on its distinctive brown handle. Delaney also testified at trial that he recognized the gun, and explained that it had distinctive wood grips and was, as a revolver, an unusual firearm to see on the streets. Finally, Batchelor testified that the firearm at trial was the same one he had seen on Luna on the day of the arrest, and later noted that the firearm, a "snub-nose .38 Special," was the only one of its type he had seen in 2007. As the authentication process demands only a "reasonable probability that the evidence is what it is purported to be," Barrow, 448 F.3d at 42 (quoting Cruz, 352 F.3d at 506) (internal quotation mark omitted), we conclude that the government offered sufficient support for the district court to enter the firearm into evidence eventually, even if not at the early point when it actually did admit the gun; thus, there was no reversible error.
As for the ammunition, by the time the case was submitted to the jury, there was sufficient testimony to support the conclusion that "there [was] a reasonable probability" that it, too, was "what it [was] purported to be." Id. (quoting Cruz, 352 F.3d at 506) (internal quotation mark omitted). Lombard's ballistics examination established that the spent casing had been fired from Luna's firearm. His testimony authenticated the ammunition on the basis of the distinctive marks left by the firearm on the casing. See Anderson, 452 F.3d at 80. Assuming, without deciding, that the district court abused its discretion in admitting the ammunition during Conley's testimony, it would not have abused its discretion by admitting the evidence after Lombard's testimony, and thus we need not reverse.
Luna claims that the district court committed plain error in admitting alleged hearsay testimony from the government's expert witness to prove that the ammunition presented at trial was sufficiently connected to interstate commerce to satisfy 18 U.S.C. § 922(g)
Special Agent Mattheu Kelsch of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") testified for the government as an expert in order to establish the requisite interstate nexus. Kelsch testified that he had been certified as an "interstate nexus expert" by the ATF, and the district court found him sufficiently qualified to testify as an expert. In Kelsch's opinion, the ammunition at trial had been manufactured outside the state of Massachusetts. He reached this conclusion based on his experience as well as consultation with an ATF database, an internet database, and an employee of the ammunition manufacturer. Critically, Special Agent Kelsch testified that the markings on the shell casing signified that it was manufactured by Remington Peters, which only manufactured ammunition in Connecticut and Arkansas.
The government can establish the interstate nexus element required under 18 U.S.C. § 922(g)(1) by showing that a defendant "possessed the [ammunition] in a state other than the one in which it was manufactured." United States v. Corey, 207 F.3d 84, 88 (1st Cir.2000). Expert testimony is appropriate to prove the interstate nexus element. United States v. Cormier, 468 F.3d 63, 72 (1st Cir.2006). Experts may rely on "technical manuals, conversations with manufacturers, and [their] prior experience" in forming their opinions without running afoul of Federal Rule of Evidence 703. Id. at 72 (citing Corey, 207 F.3d at 91-92). However, although an expert may rely on these sources, the entirety of his or her testimony cannot be the mere repetition of "the out-of-court statements of others." Id. at 73 (quoting United States v. Smith, 869 F.2d 348, 355 (7th Cir.1989)).
Kelsch's testimony clearly falls within the ambit of Corey and Cormier. Kelsch relied on third-party sources in conjunction with, not to the exclusion of, his initial, independent determination. His testimony was thus not simply a summary of out-of-court sources but a thorough opinion drawing on multiple sources to ensure accuracy. Just as we stated in Cormier, "[w]e see no reason why an expert in [ammunition] identification could not reasonably rely on ATF manufacturing records," as well as a conversation with a manufacturer, "to determine the provenance of [ammunition]." Cormier, 468 F.3d at 72-73. To conclude otherwise would effectively restrict the sources available to experts and reduce accuracy. As we find no error, let alone plain error, Luna's argument is without merit.
The district court sentenced Luna to fifteen years' imprisonment for being a felon in possession of ammunition, pursuant to the Armed Career Criminal Act, see 18 U.S.C. § 924(e). Section 924(e) provides that any person who (1) violates 18 U.S.C. § 922(g)—which forbids, among other things, being a felon in possession of ammunition—and (2) has three previous convictions,
Luna objected below to being sentenced as an armed career criminal both in a sentencing memorandum and at his sentencing hearing. In his memorandum, he argued that (1) his 2005 Cambridge convictions
Luna's arguments on appeal have a different focus. Instead of primarily attacking the validity of the ACCA convictions, he argues that none of his three non-drug predicates meet the ACCA's "violent felony" requirement. The government argues that (1) Luna has forfeited his challenge to his designation as an armed career criminal because he made very different arguments below, and (2) Luna cannot prevail even on the merits. We assume, without deciding, that Luna's claims have not been forfeited and move on to the merits, reviewing de novo the question of whether at least three of his convictions qualify as predicate offenses. See United States v. Dancy, 640 F.3d 455, 464 (1st Cir.2011).
The ACCA defines a "violent felony" as
18 U.S.C. § 924(e)(2)(B). The first clause "is sometimes referred to as the `force clause,'" and "[t]he portion of clause (ii) following the enumerated offenses is known as the `residual clause.'" United States v. Holloway, 630 F.3d 252, 256 (1st Cir.2011).
In determining whether each conviction qualifies as a "violent felony" under either of these clauses, we must "take a categorical approach," which means that "we may consider only the offense's legal definition." Id. We base our analysis on "the elements of the . . . crime, as specified in the state statutes that criminalize [the relevant conduct] and set forth standard charging language, and as interpreted by the [relevant state's] courts." Dancy, 640 F.3d at 468. We must "forgo[] any inquiry into how the defendant may have committed the offense." Holloway, 630 F.3d at 256.
The "first step" in this categorical approach is to "identify the offense of conviction." Id. (quoting United States v. Giggey, 589 F.3d 38, 41 (1st Cir.2009)) (internal quotation mark omitted). If the defendant was convicted under a statute that covers only one offense, this task is relatively straightforward. If, however, the statute covers more than one offense (like, e.g., the Massachusetts assault and battery statute, which criminalizes "(1) harmful battery; (2) offensive battery; and (3) reckless battery"), the court may only conclude that a conviction under that statute satisfies the ACCA if either (1) all of the possible offenses of conviction are violent felonies, or (2) the court can (a) ascertain, by looking at "a restricted set of documents," which offense underlies the conviction, and (b) conclude that the particular offense of conviction is a violent felony under the ACCA. Id. at 257; see also Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010).
For an offense to qualify as a predicate under the ACCA's "force clause," it must "[have] as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). As the Supreme Court recently held in Johnson, "physical force" is defined as "violent force—that is, force capable of causing physical pain or injury to another person." 130 S.Ct. at 1271. For an offense to qualify as a predicate under the ACCA's "residual clause," on the other hand, it must be "roughly similar, in kind as well as in degree of risk posed, to the examples" listed in 18 U.S.C. § 924(e)(2)(B)(ii). Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). "An offense is similar in kind if it `typically involve[s]' purposeful, violent, and aggressive conduct." Dancy, 640 F.3d at 466 (quoting Begay, 553 U.S. at 144-45, 128 S.Ct. 1581). The residual clause does not simply cover "every crime that `presents a serious potential risk of physical injury to another.'" Begay, 553 U.S. at 142, 128 S.Ct. 1581 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).
Luna concedes that his previous drug conviction is an ACCA predicate. In addition, Luna's claim that his Massachusetts conviction for ABPO is not a proper ACCA predicate has been foreclosed by Dancy, which held that "the Massachusetts crime of ABPO qualifies under the residual clause of the ACCA," even after Holloway, 630 F.3d 252, and Johnson, 130 S.Ct. 1265. Dancy, 640 F.3d at 470. Thus, we need
Under the ACCA, to qualify as a predicate "conviction," an "act of juvenile delinquency" must, in addition to meeting the requirements of the force clause or the residual clause, "involv[e] the use or carrying of a firearm, knife, or destructive device" and be a type of crime that "would be punishable by imprisonment for [a term exceeding one year] if committed by an adult." 18 U.S.C. § 924(e)(2)(B). Luna does not claim that his act of juvenile delinquency did not involve a knife; he does, however, contend that it does not meet the requirements of the force clause.
To obtain an armed robbery conviction in Massachusetts, the government must prove that (1) "the defendant was armed with a dangerous weapon" (though it need not be used); (2) "the defendant either applied actual force or violence to the body of the person identified in the indictment, or by words or gestures put him in fear" (i.e., the defendant "committed an assault on that person"); and (3) "the defendant took the money or . . . the property of another with intent to steal it." Commonwealth v. Rogers, 459 Mass. 249, 945 N.E.2d 295, 301 n. 4 (2011); see also Mass. Gen. Laws ch. 265, § 17 (defining an armed robbery perpetrator as one who, "being armed with a dangerous weapon, assaults another and robs, steals, or takes from his person money or other property which may be the subject of larceny").
Luna contends that because these elements can be met if a defendant, while armed, puts his victim in fear using threatening words or gestures, the crime does not require violent force. He does not, however, explain why, even if an armed robbery involves only "threatening words or gestures," it does not have "as an element the . . . attempted use[] or threatened use of physical force." 18 U.S.C. § 924(e)(2)(B)(i). Insofar as he is claiming that the version of armed robbery involving threatening words or gestures does not involve the threat of force but rather involves the threat of something else, we reject his claim; Massachusetts case law makes clear that the threat involved is a threat of force. See Commonwealth v. Stewart, 365 Mass. 99, 309 N.E.2d 470, 476 (1974) (noting, while discussing whether jury instructions were proper, that "if force or threat of force had been applied to a customer [at a supermarket] . . . who was trying to interpose himself or to call the police, a charge of robbery from that customer with respect to money of [the supermarket] could have been sustained" (emphasis added)); Commonwealth v. Rajotte, 23 Mass.App.Ct. 93, 499 N.E.2d 312, 313 (1986) ("[T]he defendant argues that the taking was not effected by force or threat of force and hence was only a larceny and not a robbery." (emphasis added)); Commonwealth v. Dellinger, 10 Mass.App.Ct. 549, 409 N.E.2d 1337, 1342 (1980) ("One element of robbery is that the taking be by force or threat of force from a person." (emphasis added)). Luna has also provided no reason for us to conclude that the type of force involved in armed robbery is not "violent force—that is, force
Thus, we conclude that Luna has three ACCA predicate convictions and affirm the district court's sentence.
For the reasons stated, we affirm the convictions and sentence.
The distinction is inconsequential here because Luna does not dispute that Conley was in fact a deputized federal task force officer. Cf. United States v. Torres, 862 F.2d 1025, 1030 (3d Cir.1988) (court had to determine whether evidence was sufficient for jury to conclude that officer had in fact been assigned to federal task force). Thus, we phrase our analysis, as the parties and the district court have, in terms of whether Conley, rather than someone in Conley's position, was a federal officer by virtue of his federal deputization.
Finally, it added the following details regarding the fourth element of Count Two:
We note, however, that to the extent that Luna is arguing that it was improper, as a matter of law, for the jury to consider more than the ten-minute time period during which Conley was pursuing him to execute a state arrest warrant when assessing whether Conley was engaged in official federal duties, we find this argument unpersuasive. Cf. United States v. O'Connell, 703 F.2d 645, 650 (1st Cir. 1983) (noting that the court was unpersuaded that a federal officer was no longer engaged in the performance of official duties the moment he had handed the defendant the subpoena he had come to deliver).
