           Case: 18-13185   Date Filed: 10/21/2019   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13185
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:17-cr-60112-KAM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

CHRISTOPHER BRINSON,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (October 21, 2019)



Before MARCUS, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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      Christopher Brinson appeals from his conviction for possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Brinson contends the

district court plainly erred in allowing the expert testimony of Detective Stephen

Barborini regarding his prior identifications of firearms, and the district court erred

in denying Brinson’s motion for judgment of acquittal, as the evidence was

insufficient to support his conviction because the Government failed to prove an

object he was holding in images on social media was, in fact, a firearm. After

review, we affirm Brinson’s conviction.

                                    I. DISCUSSION

A. Prior firearms identifications

      Rule 702 of the Federal Rules of Evidence allows “[a] witness who is

qualified as an expert by knowledge, skill, experience, training, or education,” to

give expert testimony, so long as the following requirements are met:

      (a) the expert’s scientific, technical, or other specialized knowledge
      will help the trier of fact to understand the evidence or to determine a
      fact in issue; (b) the testimony is based on sufficient facts or data;
      (c) the testimony is the product of reliable principles and methods;
      and (d) the expert has reliably applied the principles and methods to
      the facts of the case.

Fed. R. Evid. 702. Rule 703 of the Federal Rules of Evidence provides that “[a]n

expert may base an opinion on facts or data in the case that the expert has been

made aware of or personally observed.” Fed. R. Evid. 703. However, “if the facts

or data would otherwise be inadmissible, the proponent of the opinion may
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disclose them to the jury only if their probative value in helping the jury evaluate

the opinion substantially outweighs their prejudicial effect.” Id.

      Expert testimony that meets the requirements of Rule 702 may still be

excluded under Rule 403. United States v. Frazier, 387 F.3d 1244, 1263 (11th Cir.

2004) (en banc). Rule 403 of the Federal Rules of Evidence provides the court

may exclude relevant evidence “if its probative value is substantially outweighed

by a danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. “Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.” Fed. R.

Evid. 401.

      Plain-error review applies because, as Brinson concedes, although he

objected to testimony regarding the details of Barborini’s 32 prior firearms

identifications, he did not object to Barborini’s testimony he had made 32 prior,

accurate determinations. See United States v. Vereen, 920 F.3d 1300, 1312 (11th

Cir. 2019) (“Objections not raised in the district court are reviewed only for plain

error.”). The district court did not plainly err in allowing Barborini’s testimony

regarding his prior, accurate firearms identifications. See id. (explaining under

plain-error review, we may correct an error where (1) an error occurred; (2) the


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error was plain; (3) the error affects substantial rights; and (4) the error “seriously

affects the fairness, integrity, or public reputation of judicial proceedings”).

Barborini’s testimony regarding the 32 prior determinations was not part of his

expert opinion; rather, it occurred while he was being qualified as an expert

witness and supported his experience in the field of firearms identification, in

which he was qualified as an expert without objection. See Fed. R. Evid. 702;

Frazier, 387 F.3d at 1260 (stating the burden of establishing a witness is qualified

to testify as an expert, pursuant to Rule 702, rests on the proponent of the expert

testimony). Thus, the testimony regarding the 32 prior determinations was relevant

as it pertained to Barborini’s experience and qualifications as an expert and relayed

to the jury how his prior experience informed the conclusions he reached in this

case. Barborini’s qualification as an expert also relied on his advanced training

with the ATF, which included traveling to firearms manufacturers and learning

about the markings of various firearms. See Fed. R. Evid. 702. Further, even if

Barborini’s testimony were inadmissible, its probative value of relaying to the jury

his experience in firearms identification outweighed any prejudicial effect. See

Fed. R. Evid. 403; United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir. 2003)

(stating we review issues related to Rule 403 “in a light most favorable to [the

evidence’s] admission, maximizing its probative value and minimizing its undue

prejudicial impact” (quotation marks omitted)).


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      Lastly, Brinson’s reliance on United States v. Scrima, 819 F.2d 996, 1002

(11th Cir. 1987), is misplaced. In Scrima, this Court held the district court did not

err by limiting an expert witness’s testimony regarding a hearsay statement that

formed the basis of his opinion, determining that, although experts could

sometimes rely on hearsay as a basis for their testimony, such hearsay evidence

must be of the type reasonably relied upon by experts in that field in forming

opinions. Id. Scrima dealt with an expert witness’s reliance on hearsay testimony

to form an opinion, whereas here, the basis for Barborini’s testimony was his own

training and personal experience identifying firearms. Accordingly, Brinson did

not identify any on-point case precedent that supported his argument regarding

Barborini’s expert testimony. See United States v. Hoffman, 710 F.3d 1228, 1232

(11th Cir. 2013) (stating for an error to be plain, it must be “contrary to explicit

statutory provisions or to on-point precedent in this Court or the Supreme Court”

(quotations omitted)).

B. Sufficiency of the Evidence

      “To justify a conviction for violation of § 922(g)(1), the government must

have proved that: (1) [the defendant] was a convicted felon, (2) he knowingly

possessed a firearm, and (3) the firearm was in or affected interstate commerce.”

United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). A firearm

includes “any weapon (including a starter gun) which will or is designed to or may


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readily be converted to expel a projectile by the action of an explosive.” 18 U.S.C.

§ 921(a)(3).

      We have held a conviction for brandishing a gun during the commission of a

crime, under 18 U.S.C. § 924(c), “may be sustained by lay witness testimony that a

defendant carried or used a gun,” rejecting the defendant’s argument the

government failed to offer sufficient evidence the object he brandished during a

robbery was a firearm capable of firing a projectile by means of an explosive.

United States v. Hunt, 187 F.3d 1269, 1270-71 (11th Cir. 1999). Evidence in Hunt

included witness testimony Hunt possessed a firearm during a bank robbery,

including one witness’s testimony Hunt “cocked the gun” in her face. Id. at 1270.

We determined the government did not have to “show to a scientific certainty that

a defendant is carrying a device that fires projectiles by means of an explosive” nor

did it have to offer the gun into evidence or present expert witness testimony

identifying the object as a firearm. Id. at 1271. In a factually similar case, we

applied Hunt in affirming a defendant’s § 924(c) conviction, even though the

firearm was not in evidence, based upon witness testimony about the weapon.

United States v. Woodruff, 296 F.3d 1041, 1049 (11th Cir. 2002).

      The evidence was sufficient to support Brinson’s § 922(g)(1) conviction. See

United States v. Lander, 668 F.3d 1289, 1296 (11th Cir. 2012) (“We review de

novo the district court’s denial of a judgment of acquittal on sufficiency of the


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evidence grounds.”). Although Brinson argues Hunt and Woodruff are

distinguishable because they involved violent crimes, our holding in both cases,

that the government need not show to a scientific certainty a defendant is carrying

a firearm, did not depend on the violent nature of the robberies in those cases. See

Woodruff, 296 F.3d at 1049; Hunt, 187 F.3d at 1270-71. While the officers who

testified at Brinson’s trial did not see the alleged firearm in person, they all viewed

the photographs and video depicting Brinson holding what appeared to them to be

a firearm. Although Brinson contrasts Barborini’s testimony with that of his expert

witness’s, the jury had exclusive province over credibility determinations and was

entitled to accept Barborini’s testimony and reject Brinson’s expert witness’s

testimony. See United States v. Feliciano, 761 F.3d 1202, 1206 (11th Cir. 2014)

(“The jury has exclusive province over the credibility of witnesses . . . .”). Further,

the officers’ testimonies, based on viewing the images of Brinson and their

experiences handling similar firearms, were not incredible as a matter of law. See

id. (stating in conducting sufficiency review, we will not revisit the question of

witness credibility “unless it is incredible as a matter of law”). Accordingly, the

evidence was sufficient to support Brinson’s conviction.

                                    II. CONCLUSION

      We affirm Brinson’s 18 U.S.C. § 922(g) conviction.

      AFFIRMED.


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