                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4673


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JARELLE MCLEAN,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Mark S. Davis, District Judge. (4:16-cr-00034-MSD-RJK-1)


Submitted: May 30, 2017                                           Decided: June 12, 2017


Before KING, SHEDD, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Andrew W. Grindrod, Assistant Federal Public
Defender, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney,
Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Jarelle McLean appeals from his conviction following a jury trial of possession of

a firearm and ammunition by a convicted felon. On appeal, he challenges venue, the

expert firearm testimony, and the Government’s closing argument. We affirm.

                                            I.

       McLean first argues that the evidence was insufficient to prove that the offense

occurred in the Eastern District of Virginia.       The parties agree that the evidence

established that the offense occurred in Newport News, Virginia, and the parties agree

that Newport News, Virginia, is located in the Eastern District of Virginia. However,

McLean contends that the Government did not present evidence that Newport News is

located in the Eastern District of Virginia. The Government asserts, inter alia, that

McLean waived any objection by failing to raise the issue of venue in district court.

       McLean contends that he preserved his claim by making a general motion for

judgment of acquittal under Fed. R. Crim. P. 29, both at the close of the Government’s

case and at the close of all the evidence. McLean argues that his challenge to the

sufficiency of the evidence on each element was sufficient to preserve a challenge to the

Government’s failure to prove venue. However, McLean’s arguments are not supported

by our case law.

       First, we have noted that venue is not an offense element. See United States v.

Engle, 676 F.3d 405, 412 (4th Cir. 2012) (“Venue is not a substantive element of a

crime.” (internal quotation marks omitted)). In addition, we have held that a post-trial

motion for acquittal that raises venue for the first time results in waiver of the claim,

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rendering it unreviewable. See, e.g., United States v. Delfino, 510 F.3d 468, 473 n.2 (4th

Cir. 2007) (“Because the Delfinos’ improper venue claim was raised in their post-trial

motion for judgment of acquittal and/or new trial, we conclude that it was untimely and

that the claim is waived.”); United States v. Collins, 372 F.3d 629, 633 (4th Cir. 2004)

(“[I]f an indictment properly alleges venue, but the proof at trial fails to support the venue

allegation, an objection to venue can be raised at the close of evidence.”). Further, a bare

Rule 29 motion for acquittal that does not mention venue waives the venue argument.

See United States v. Knox, 540 F.3d 708, 716 (7th Cir. 2008). Accordingly, McLean’s

failure to specifically raise the issue of venue in district court has waived appellate

review.

                                             II.

       McLean next argues that the district court erred in permitting an agent to testify as

an expert, both because his testimony violated Fed. R. Evid. 702 and because his

testimony violated the Confrontation Clause.        Specifically, McLean asserts that the

agent’s methodology was simply to rely on the ATF Tracing Center report, which is

allegedly insufficient under Rule 702. Next, McLean argues that the trace history reports

were prepared for litigation by out-of-court witnesses whom McLean was not able to

confront or cross-examine.

       We “review for abuse of discretion the district court’s decision to admit expert

testimony under Federal Rule of Evidence 702.” See United States v. Wilson, 484 F.3d

267, 273 (4th Cir. 2007). The district court must be granted “considerable leeway in

deciding in a particular case how to go about determining whether particular expert

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testimony is reliable.” Id. at 273 (internal quotation marks omitted). If an expert seeks to

be qualified on the basis of experience, the district court must require that he “explain

how [his] experience leads to the conclusion reached, why [his] experience is a sufficient

basis for the opinion, and how [his] experience is reliably applied to the facts.” Id. at 274

(alterations in original) (internal quotation marks omitted).

       In order to determine the reliability of an expert’s methods, a district court should

consider testing, peer review, error rates, and acceptability in the relevant scientific

community. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993).

However, as the Supreme Court stated in Daubert, the test of reliability is flexible, and

Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts

or in every case. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). In

applying these principles, “the measure of intellectual rigor will vary by the field of

expertise and the way of demonstrating expertise will also vary.” Tyus v. Urban Search

Mgmt., 102 F.3d 256, 263 (7th Cir. 1996). Indeed, “genuine expertise may be based on

experience or training.” Id. The Advisory Committee notes to Rule 702 specifically note

that “[i]n certain fields, experience is the predominant, if not sole, basis for a great deal of

reliable expert testimony.”     Fed. R. Evid. 702, advisory committee’s note to 2000

amendment.

       The agent testified to a long career involving firearm crimes and specialized

training. He also stated that he trained others regarding firearms and had toured eight or

nine firearms factories. The agent stated that he spent substantial time in hands-on



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learning regarding “firearms, nomenclature, how they operate.” J.A. 304. * He was

trained at the ATF Tracing Facility regarding firearm production, manufacture, and

design. The agent had testified “[n]umerous” times in front of every judge in the Norfolk

and Newport News federal courts. Id. at 305. The agent testified that, although often he

could look at a gun and know from experience where it was from or who produced or

manufactured it, he will also rely on the Tracing Center report and do additional research.

       Expert testimony is “admitted frequently in firearm prosecutions to establish that

the firearm in question traveled in interstate commerce.” United States v. Conn, 297 F.3d

548, 556 (7th Cir. 2002); see also United States v. Corey, 207 F.3d 84, 92 (1st Cir. 2000)

(upholding admission of agent’s expert testimony, based partly on conversations with

Smith & Wesson’s historian, that a Smith & Wesson firearm was manufactured in

Massachusetts).   The agent’s testimony was based on his specialized knowledge of

firearms, and he utilized his knowledge, his independent research, and information from

the trace report to formulate a conclusion. Moreover, his conclusions about how and

where the firearm was assembled would have aided the jury, as a layperson would not

likely be familiar with these details, nor was this information otherwise in evidence.

Thus, the district court’s decision to qualify the agent as an expert did not constitute an

abuse of discretion.




       *
         Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by
the parties in this appeal.


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       Turning to the Confrontation Clause claim, McLean contends that the tracing

report on which the agent relied constituted testimonial hearsay and that the authors of

the report did not testify, thereby violating his right to confront his accusers. McLean

contends that the agent acted as a mere conduit to introduce the inadmissible hearsay.

       “The Sixth Amendment to the United States Constitution, made applicable to the

States via the Fourteenth Amendment, provides that [i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (alteration and omission in

original) (internal quotation marks and citation omitted).     The Confrontation Clause

“guarantees a defendant’s right to confront those who bear testimony against him,” and,

therefore, a witness’ testimony is “inadmissible unless the witness appears at trial or, if

the witness is unavailable, the defendant had a prior opportunity for cross-examination.”

Id. (internal quotation marks omitted) (quoting Crawford v. Washington, 541 U.S. 36, 51

(2004)). Moreover, such “testimonial statements” include “statements that were made

under circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.” Id. at 310 (quoting Crawford, 541

U.S. at 51-52).

       However, while “Crawford forbids the introduction of testimonial hearsay as

evidence in itself, . . . it in no way prevents expert witnesses from offering their

independent judgments merely because those judgments were in some part informed by

their exposure to otherwise inadmissible evidence.” United States v. Johnson, 587 F.3d

625, 635 (4th Cir. 2009). An expert’s reliance on testimonial hearsay “only becomes a

                                            6
problem where the witness is used as little more than a conduit or transmitter for

testimonial hearsay, rather than as a true expert whose considered opinion sheds light on

some specialized factual situation.” Id. The test is whether the expert is giving an

independent judgment or “merely acting as a transmitter for testimonial hearsay.” Id.

“As long as he is applying his training and experience to the sources before him and

reaching an independent judgment, there will typically be no Crawford problem.” Id.

      Here, it is clear that the agent was not acting as a mere conduit for testimonial

hearsay but applied his experience and training to determine that the firearm traveled in

interstate commerce. The agent stated that, based on his training and experience, he

made an independent conclusion as to where the firearm was manufactured and then he

reviewed the tracing report, which was in agreement with his conclusion. Moreover, we

have held that the ATF records exhibit “an exceptionally high degree of reliability” and

cross-examining ATF custodians would likely do nothing but “confirm the simple factual

statements made on the trace forms.” United States v. Simmons, 773 F.2d 1455, 1460

(4th Cir. 1985) (accepting expert testimony that Smith & Wesson firearms are

manufactured in Massachusetts). Given that the agent’s testimony went substantially

beyond merely repeating the hearsay evidence, the agent’s testimony did not violate

McLean’s Sixth Amendment rights.

                                          III.

      Finally, McLean claims the Government’s closing argument constituted

misconduct.   Specifically, McLean asserts that the prosecutor portrayed the defense



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attorney as deceitful, by claiming that he was attempting to distract the jury through the

use of “smoke and mirrors.” J.A. 466.

      We review a claim of prosecutorial misconduct “to determine whether the conduct

so infected the trial with unfairness as to make the resulting conviction a denial of due

process.” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (internal quotation

marks omitted). “The test for reversible prosecutorial misconduct has two components;

first, the defendant must show that the prosecutor’s remarks or conduct were improper

and, second, the defendant must show that such remarks or conduct prejudicially affected

his substantial rights so as to deprive him of a fair trial.” Id. In addition, because

McLean did not object during or after closing argument, we review for plain error. See

United States v. Olano, 507 U.S. 725, 732 (1993).

      We find that the prosecutor’s characterization of the defense’s strategy was not

misconduct. The Government instead was commenting on the strength of the merits of

the defense by focusing the jury on the officers’ testimony regarding the encounter and

the video evidence.    Moreover, contrary to McLean’s suggestion, the prosecutor’s

argument was not a personal attack on defense counsel, but rather a comment on the

materiality of the defense’s evidence. Accordingly, the Government’s closing argument

was not improper. See United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013)

(finding no error in prosecutor’s use of term “smoke and mirrors” to describe defense’s

case); United States v. Davis, 15 F.3d 1393, 1402-03 (7th Cir. 1993) (finding that

Government’s references to defense case as “hogwash,” “trash,” and “garbage” may have

been undignified but did not violate defendant’s due process).

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       Thus, we affirm McLean’s conviction. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before this court

and argument would not aid the decisional process.

                                                                              AFFIRMED




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