ORDER ON MOTION IN LIMINE RE: EXPERT TESTIMONY OF ATF AGENT BRENT MCSWEYN

JOHN A. WOODCOCK, Jr., Chief District Judge.

With trial scheduled to begin on November 3, 2014, James Stile moves in limine to prohibit the Government from introducing the testimony of Alcohol, Tobacco, Firearms and Explosives (ATF) Agent Brent McSweyn concerning the interstate nexus of the firearm and ammunition evidence in this case. Mot. in Limine Re: Expert Test. of ATF Agent Brent McSweyn (ECF No. 494) (Def.'s Mot.). The Government responded on October 24, 2014. Gov't's Resp. to Def.'s Mot. in Limine Re: Expert Test. of ATF Agent Brent McSweyn (ECF NO. 522) (Gov't's Opp'n). In its response, the Government confirmed that as AFT Agent McSweyn has moved across the Country, it does not intend to call him, and has substituted ATF Special Agent Stephen Hickey to testify in place of ATF Agent McSweyn. Id. at 1. The Court has substituted Special Agent Hickey for Agent McSweyn in this Order.

Mr. Stile says that the Government proffered Special Agent Hickey to testify regarding the interstate nexus requirement of Count III, the felon in possession charge, an alleged violation of 18 U.S.C. § 922(g).1 Def.'s Mot. at 1. His main complaint is that "the proposed testimony is not admissible under Rule 702 because it is not information beyond the ken of the jury."2 Id. at 2. Next, Mr. Stile maintains that Special Agent Hickey does not have a sufficient basis for his opinion that the gun and ammunition were manufactured outside the state of Maine. Id. at 2-3. He says that the Special Agent is merely reciting otherwise inadmissible hearsay. Id.

The law in the First Circuit defeats Mr. Stile's argument. The First Circuit Court of Appeals has consistently upheld the admission of the testimony of ATF agents as experts on the issue of interstate nexus. United States v. Luna, 649 F.3d 91, 105 (1st Cir. 2011); United States v. Cormier, 468 F.3d 63, 72 (1st Cir. 2006); United States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000).3 There are a couple of caveats. First, the proffered expert must be qualified as such under Federal Rules of Evidence 702 and 703. Corey, 207 F.3d at 88-89. Here, the Government has attached a statement of qualifications for Special Agent Hickey and the Court's initial review of his qualifications strongly suggests that Special Agent Hickey is qualified as an expert to testify on the issue of interstate nexus. See Gov't's Opp'n Attach. 1 at 3-5 (Report of Investigation and Statement of Qualifications). In fact, his statement of qualifications says he has qualified to testify as an interstate nexus expert in the United States District Court for the District of Maine. Id. at 5.

A second caution is that the agent may not merely repeat "the out-of-court statements of others." Luna, 649 F.3d at 105 (citation omitted). At the same time, an agent is allowed to 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. (citation omitted). The question, which the Court cannot evaluate until Agent Hickey is called to the stand, is whether his testimony falls within the permissible ambit.4 Id.

With the understanding that some of these issues must await trial, to the extent that the motion demands Agent Hickey's exclusion as an expert witness, the Court DISMISSES without prejudice James Stile's Motion in Limine Re: Expert Testimony of ATF Agent Brent McSweyn (ECF No. 494).

SO ORDERED.