                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 06a0065n.06
                               Filed: January 24, 2006

                                           No. 05-5475

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR
                                                       )    THE WESTERN DISTRICT OF
ANTHONY VASSER,                                        )    TENNESSEE
                                                       )
       Defendant-Appellant.                            )


Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge.*

       SILER, Circuit Judge. Defendant Anthony Vasser appeals his conviction for being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g) on several grounds. We AFFIRM.



                                       BACKGROUND

       In 2002, police officers executed a search warrant at Vasser’s residence and discovered three

firearms in a locked bedroom closet. One pistol was found on the closet shelf; two other pistols

were each found inside a woman’s purse. Vasser admitted the purses were his. Elsewhere in the

bedroom, officers located ammunition of the same caliber as one of the pistols. Alcohol, Tobacco,

Firearms, and Explosives (“ATF”) Special Agent Alan Oxley testified that he had examined the



       *
       The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 05-5475
United States v. Vasser

three firearms in question and determined that they were manufactured outside Tennessee and that

they necessarily moved in interstate commerce to be in Tennessee.

       At trial, Vasser admitted that the bedroom and the closet in which the guns were found were

his and that he possessed the combination to the lock on the closet door. However, Vasser’s sister

testified that most of the items in the closet were hers, including the purses and the guns. Three

other defense witnesses testified that Vasser neither owned nor carried a gun or a purse.

       During deliberations, the jury submitted the following question to the court: “Which gun

was on the shelf?” During the courtroom discussion of the jury’s question, the government’s

attorney advised that the gun in question was exhibit eight. The district court ordered a transcript

of the officer’s testimony that described the location of the guns to be delivered to the jury when

completed. The jury later advised the court that it no longer needed the transcript. Subsequently

the jury reached a guilty verdict on count one of Vasser’s indictment.

       After the jury was excused, a court security officer approached counsel for the government

and stated that “[m]y fingers work fine” while simultaneously extending downward all of the fingers

on one hand and three on the other hand. Government counsel interpreted this signal as a reference

to exhibit eight, which was the gun on the closet shelf and the subject of discussion between the

court and counsel regarding the jury’s question. The government’s attorney conveyed the court

officer’s comment to defense counsel and the court. The court allowed defense counsel to contact

the jury and question them concerning the court officer’s conduct.

       At the motion for a new trial and sentencing hearing, the court officer in question refused

to testify, asserting his Fifth Amendment privilege against self-incrimination. Defense counsel

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United States v. Vasser

called no jurors to testify. The district court concluded that although the court officer did try to relay

information to the jury, the defendant failed to show that he was prejudiced, and the transcript being

prepared would have provided the same information that court officer Smith implied he had

communicated to the jury. The district court thus denied Vasser’s motion for a new trial.

                                              DISCUSSION

                       1. Evidence Sufficient to Support a Guilty Verdict

        First, Vasser argues that the government’s evidence was insufficient to support a guilty

verdict. He complains that the guilty verdict was returned “only after an illegal communication of

an unknown nature to the jury” and that he presented evidence from four witnesses who testified that

he neither owned nor handled a gun. However, ample evidence was presented to support the jury’s

verdict of guilty. The testimony of defense witnesses to the contrary is not dispositive. The totality

of the evidence is adequate to permit a reasonable jury to find the essential elements of the crime

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979)

                                2. Expert Testimony of Alan Oxley

        Second, Vasser argues that the government failed to establish Oxley’s expertise in the

interstate nexus of firearms. Further, Vasser contends that no attempt was made to demonstrate how

Oxley “arrived at his determination of interstate transfer or what source of information he used.”

Vasser argues, without so stating, that Oxley was not properly qualified as an expert.1



        1
         Vasser’s sole objection to the admissibility of Oxley’s testimony at trial was based on his
counsel’s opinion that “recent problems with . . . ATF [made it] quite obvious that the in-house
training [was] insufficient.”

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United States v. Vasser

       Under 18 U.S.C. § 922(g), the government must prove beyond a reasonable doubt that the

defendant possessed or received a firearm which has been transported in interstate commerce.

Consequently, the interstate nexus element was met if the government demonstrated that Vasser

possessed the firearm in a state other than the one in which it was manufactured. The government

proved the interstate nexus element of the crime through Oxley’s expert testimony. See United

States v. Glover, 265 F.3d 337, 344-45 (6th Cir. 2001).

       We review the issue of expert testimony admissibility for an abuse of discretion. United

States v. Tocco, 200 F.3d 401, 418 (6th Cir. 2000). We repeatedly have found law enforcement

officers’ expert testimony admissible where it will aid the jury’s understanding of a concept, such

as the interstate nexus requirement of Section 922(g), “not within the experience of the average

juror.” United States v. Thomas, 74 F.3d 676, 683 (6th Cir. 1996). Thus a properly qualified expert

may testify that, in his opinion, a firearm was manufactured outside the state where it was found,

“when an essential element of the crime was movement of the [firearm] in interstate commerce.”

Glover, 265 F.3d at 345.

       Oxley was properly qualified to testify as to the location of the firearms’ manufacture and

therefore as to his opinion whether the firearms had traveled in interstate commerce. He had over

fifteen years of law enforcement experience and had been employed by ATF for nearly six years.

He demonstrated specialized training in the area of interstate nexus identification and had testified

as an interstate nexus expert in federal court over sixty times. Accordingly, the district court did not

abuse its discretion in ruling that Oxley was qualified to testify by “knowledge, skill, experience,

training, or education,” that his testimony concerned technical or other specialized knowledge, and

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United States v. Vasser

that his testimony would assist the jury in understanding the evidence or in determining a fact in

issue. FED. R. EVID. 702.

                 3. Section 922(g)’s “in or affecting commerce” Requirement

       Third, Vasser argues that the district court erred in denying his motion for judgment of

acquittal or for dismissal because the government did not “properly establish its jurisdiction under

the Interstate Commerce Clause.” Citing United States v. Lopez, 514 U.S. 549 (1995), Vasser

characterizes the government’s burden in a Section 922(g) case as one requiring proof that

defendant’s activity (1) utilized the channels of interstate commerce, (2) utilized the

instrumentalities of interstate commerce, or (3) has a “substantial relation” to interstate commerce.

See Lopez, 514 U.S. at 558-59. However, this contention runs counter to precedent that Section

922(g)(1) represents a valid exercise of Congress’s legislative power under the Commerce Clause.

See, e.g., Scarborough v. United States, 431 U.S. 563 (1977); United States v. Loney, 331 F.3d 516,

524 (6th Cir. 2003).

     4. Vasser’s Requested Jury Instruction Regarding the Elements of Section 922(g)

       The sum total of Vasser’s “legal” argument on this issue is as follows: “Defense counsel

submitted to the trial court a request for jury instruction. The written instruction stated that the

firearm ‘affected’ interstate commerce, not merely was ‘transported’ in interstate commerce. This

instruction properly presented the elements of this offense.” Because the issue of the requested jury

instruction is unaccompanied by any effort at developed argumentation whatsoever, it is waived.

See United States v. Sandridge, 385 F.3d 1032, 1035 (6th Cir. 2004).




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United States v. Vasser

5. Failure to Demonstrate Prejudice Resulted from Communication between Court Officer

                                               and Jury

       Vasser’s final assignment of error concerns the communication made to the jury by a court

security officer during jury deliberations. The district court denied Vasser’s motion for a new trial

based on the extraneous information provided to the jury. This court reviews a district court’s denial

of a motion for a new trial for an abuse of discretion. United States v. Pierce, 62 F.3d 818, 833 (6th

Cir. 1995). The burden of showing juror bias rests with the defendant and not the government.

United States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984) (proclaiming that “the remedy for

allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual

bias” (internal citations and quotations omitted)).

       Upon Vasser’s motion, the district court properly allowed defense counsel to contact the

jurors and question them concerning the court officer’s conduct. However, the district court found

that although the court officer did attempt to relay information to the jury, Vasser failed to

demonstrate that any prejudice resulted from the action; additionally, it found that the jury would

have received the same purported information from the transcript that was to be prepared and

presented to the jury.

       AFFIRMED.




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