                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                         No. 09-4609
                                        _____________

                             UNITED STATES OF AMERICA

                                               v.

                                   JOHNNY RAY ROBERTS,
                                                  Appellant.
                                      _______________

              APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                    (D.C. Crim. Action No. 1-08-CR-00056-001)
                   District Judge: Honorable Maurice B. Cohill, Jr.
                                  _______________

                         Argued Under Third Circuit LAR 34.1(a)
                                  December 14, 2010
                                  _______________

      Before: SLOVITER, GREENAWAY, JR., and STAPLETON, Circuit Judges

                                 (Opinion Filed: March 22, 2011)

Renee Pietropaolo (Argued)
Lisa B. Freeland
Federal Public Defender‟s Office
Pittsburgh, PA l5222
        Attorneys for Appellant

Donovan Cocas (Argued)
Robert S. Cessar
U.S. Attorney‟s Office
Pittsburgh, PA l5219
        Attorneys for Appellee
                                               1
                                    _______________

                                       OPINION
                                   ________________

GREENAWAY, JR., Circuit Judge

       Appellant Johnny Ray Roberts (“Roberts”) appeals the District Court‟s November

24, 2009 Judgment, convicting him of unlawful possession of a firearm by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).1 Roberts was sentenced to 188

months of imprisonment, to be served consecutively to a previously imposed state

sentence. Roberts was also sentenced to three years of supervised release, and a $100

special assessment. Roberts now files this timely appeal. The issues to be resolved here

are whether the admission into evidence of a Trace Summary used to show that the gun

(or ammunition) traveled in interstate commerce violated Roberts‟s rights under the

Confrontation Clause; and whether it was a discovery violation for the Government to

wait until the day of trial to turn over the Trace Summary.


1
   Under 18 U.S.C. § 922(g)(1), the government must prove: (1) that a defendant had
previously been convicted of a crime punishable by imprisonment for a term exceeding
one year; (2) that a defendant knowingly possessed a firearm; and (3) that the firearm had
been shipped or transported in interstate commerce. United States v. Dodd, 225 F.3d
340, 344 (3d Cir. 2000). 18 U.S.C. § 924(e) states that in the case of a person who
violates § 922(g) and has three previous convictions by any court referred to in §
922(g)(1) for a violent felony or a serious drug offense, or both, committed on occasions
different from one another, such person shall be fined and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law, the court shall not suspend
the sentence of, or grant a probationary sentence to, such person with respect to the
conviction under § 922(g).
                                             2
      For the following reasons, we will affirm the District Court‟s judgment of

conviction.

                                     I.   BACKGROUND

      We write primarily for the benefit of the parties and shall recount only the

essential facts. On July 27, 2008, Roberts shot a woman in the head and chest with a .22

caliber handgun. An eyewitness contemporaneously described Roberts to the Erie Police,

and on August 7, 2008, Officer Christopher Janus apprehended Roberts after a lengthy

car chase and foot pursuit. At some point during the foot pursuit, Roberts turned and

pointed a large silver handgun at Officer Janus. The officer retreated, and Roberts

walked out of sight near a creek. Eventually, Roberts was apprehended. At that time, he

was unarmed, with six rounds of .22 caliber hollow-point ammunition in his pocket. All

of the ammunition was stamped with “REM,” which indicated that it was manufactured

by Remington. A number of law enforcement professionals were summoned to the

scene, including ATF Agent Thomas Truchanowicz, who was called to help search for

the firearm Roberts had pointed at Officer Janus. Roberts had apparently discarded the

handgun in a creek, where it was retrieved by Agent Truchanowicz.

      Agent Truchanowicz noted that one side of the barrel of the handgun was stamped

“READ INSTRUCTION MANUAL, STURM RUGER & CO., SOUTHPORT, CONN.

U.S.A.” and the other side of the barrel was stamped “RUGER SP101” and “.22 LR

CALIBER,” along with the serial number of the handgun. The handgun was loaded with

six rounds of .22 caliber hollow-point ammunition, stamped “REM.” The six bullets in

                                            3
the handgun matched the six bullets found in Roberts‟s pocket and also fit into the

handgun.

      In 2009, Roberts was tried and convicted in state court of attempted homicide and

other charges, related to the shooting of the woman the previous summer. He was

sentenced in state court to 300 to 600 months of imprisonment, with an additional 42-84

months to run consecutively due to other charges.

      The grand jury returned a federal indictment charging Roberts with possession of a

firearm by a convicted felon,2 in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Roberts

went to trial on the federal charges, once the state proceedings had been concluded. On

the morning of trial, Roberts stipulated to possession of the gun and ammunition, but

challenged the government‟s proof that the gun or ammunition had crossed state lines—

the interstate commerce element of unlawful possession of a firearm, 18 U.S.C. §

922(g)(1). He also contended that the government could not prove that the gun was a

Sturm & Ruger P101 or that the ammunition was manufactured by Remington.

      The focal point of Roberts‟s objection on this appeal is the Trace Summary.

Immediately after Roberts‟s arrest, Agent Truchanowicz submitted a request to the

Alcohol, Tobacco and Firearms‟ (“ATF”) National Trace Center seeking a Trace

Summary on the gun. Agent Truchanowicz provided the following information to the

Trace Center — firearm make, model, serial number, caliber, and the person from whom


2
  Roberts was charged with possession of a Ruger model SP 101 .22 caliber revolver and
twelve rounds of Remington .22 caliber ammunition.

                                            4
the gun was recovered. The Trace Summary is the compilation of information about the

gun. Specifically, it confirms the make, model, serial number, and the history of the

firearm. It also provides that the firearm had been manufactured by Sturm Ruger &

Company in Southport, Connecticut, shipped to Canton, Ohio, and sold to the last known

owner in Pennsylvania.

       At trial, the government presented the testimony of Officer Janus, who described

the chase and the fact that Roberts had pointed a gun at him. Next, Officer Michael

Suchy testified to booking Roberts, inventorying his personal effects, and finding six .22

caliber rounds of ammunition in his pockets. Agent Truchanowicz testified extensively

on both direct and cross about the Trace Summary. The District Court admitted the Trace

Summary into evidence. Additionally, Agent Truchanowicz told the jury how he spotted

and recovered the .22 caliber revolver from the creek bed and observed the writing on the

sides of the gun barrel and on the ammunition.

       ATF Senior Special Agent Mark Willgohs testified for the government as a

firearms and ammunition expert.3 Using the identifying information, including the make

and serial number of the gun, provided to him by Agent Truchanowicz, Agent Willgohs

researched the gun and prepared a report concluding that the gun was made in either


3
  According to his testimony, Agent Willgohs has been deemed an “Interstate Nexus”
expert since 1994 and has been deemed an expert in firearms identification, origin, and
classification, in federal court over 25 times. As part of that training, Agent Willgohs has
been to the Sturm & Ruger manufacturing plants in Connecticut and New Hampshire,
and has also toured the Remington ammunition plant.


                                             5
Connecticut or New Hampshire. After physically examining Roberts‟s gun from the

witness stand, Agent Willgohs confirmed that it was a Sturm & Ruger revolver and stated

that it was manufactured in either Connecticut or New Hampshire. He also testified that

the distinctive “REM” stamp on the ammunition indicated that it was manufactured by

Remington in either Connecticut or Arkansas.

       Roberts‟s attorney did not present any witnesses. Defense counsel argued that the

revolver was not a Ruger but was a “generic” gun with counterfeit Ruger stamps. He

also argued that the ammunition was not made by Remington but, instead, was an off-

brand marked with Remington‟s stamp. Last, he argued that both the gun and the

ammunition were made in Pennsylvania, never crossing state lines.4

       The jury convicted Roberts. During sentencing, the District Court found the

Armed Career Criminal Act (“ACCA”) was applicable, and the Guidelines range was

determined to be between 188 and 235 months of imprisonment. Roberts‟s attorney

asked for leniency on his client‟s behalf, arguing that in light of the lengthy sentence

Roberts received for the July 2008 shooting of the woman, “for practical purposes, there

is virtually no chance that he‟s going to actually serve a day of the sentence that you

impose on him.” (Supp. App. Vol. II 39). The government countered by arguing that

Roberts should receive some sentence because “otherwise, he gets no punishment at all

for the conduct involved with threatening to shoot . . . Officer Janus.” (Id. at 43).


4
  None of the government‟s witnesses gave testimony to corroborate any of these
arguments.

                                              6
Roberts was sentenced to 188 months of imprisonment, the bottom of his advisory

Guidelines range, to run consecutively to his state sentences. Roberts filed a timely

appeal.

              II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had subject matter jurisdiction, pursuant to 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291 to review the District Court=s final

judgment of conviction and sentence. We also have jurisdiction under 18 U.S.C. §

3742(a).

       We exercise plenary review over Confrontation Clause challenges. United States

v. Trala, 386 F.3d 536, 543 (3d Cir. 2004); United States v. Lore, 430 F.3d 190, 208-09

(3d Cir. 2005). If evidence was admitted in contravention of a defendant‟s Confrontation

Clause rights, we must consider whether the error was harmless beyond a reasonable

doubt. See Lilly v. Virginia, 527 U.S. 116, 140 (1999); United States v. Hinton, 423 F.3d

355, 362 (3d Cir. 2005).

       A trial court‟s remedy for a discovery violation, under its supervisory powers, is

reviewed for abuse of discretion, while factual findings upon which the decision was

based are reviewed for clear error. Gov‟t of Virgin Islands v. Fahie, 419 F.3d 249, 258

(3d Cir. 2005); United States v. Lee, 573 F.3d 155, 160 (3d Cir. 2009).

                              III.   LEGAL STANDARD

A.     The Confrontation Clause




                                             7
       Pursuant to the Confrontation Clause of the Sixth Amendment to the Constitution

of the United States, made applicable to the states through the Fourteenth Amendment,

“in all criminal prosecutions, the accused shall enjoy the right to be confronted with the

witnesses against him.” Md. v. Craig, 497 U.S. 836, 844 (1990). Although the

confrontation requirement is not absolute, it is not easy to dismiss. Id. That

confrontation requirement may be satisfied when an in-person confrontation is not

possible, if the denial of the confrontation is necessary to “further an important public

policy and only where the reliability of the testimony is otherwise assured.” Id.

B.     Harmless Error

       If the court concludes that there was error, either in the admission of the Trace

Summary or under Rule 16, the error must be reviewed to determine whether it is

harmless. Harmless error is “any error, defect, irregularity or variance which does not

affect substantial rights.” FED. R. CRIM. P. 52(a). An error is harmless when we are left

with “a sure conviction that the error did not prejudice the defendant.” United States v.

Jannotti, 729 F.2d 213, 220 n.2 (3d Cir.), cert. denied, 469 U.S. 880 (1984). In Arizona

v. Fulminante, 499 U.S. 279, 309-10 (1991), the Supreme Court recognized a distinction

between structural defects, which require reversal, and trial errors, which require a

reviewing court to engage in harmless error analysis (particularly, when Constitutional

error exists). “A trial error is an error which occurred during the presentation of the case

to the jury, and which may therefore be quantitatively assessed in the context of other




                                              8
evidence presented in order to determine whether its admission was harmless beyond a

reasonable doubt.” Id. at 307-08.

C.       Federal Rule of Criminal Procedure (FED. R. CRIM. P.) 16

         Under FED. R. CRIM. P. 16(a)(1)(E) and 16(a)(1)(F), the government is required to

turn over: (1) documents within the government‟s possession, custody, or control when

the item is material to preparing the defense or the government intends to use the item in

its case-in-chief at trial; (2) reports of examinations and tests if the item is within the

government‟s possession, custody, or control, government counsel knows or through due

diligence could have known the item exists, and the item is material to preparing the

defense or the government intends to use the item in its case-in-chief at trial.

                                     IV.     ANALYSIS

A.       Confrontation Clause

         Roberts contends that the District Court erred in admitting the Trace Summary

into evidence because: (1) it had not been previously disclosed in discovery, as is

required by Rule 16, despite its “obvious” materiality; (2) it constituted hearsay; and (3)

its admission would violate the Confrontation Clause. (Appellant‟s Br. at 2.)

         The government argues that it provided advance notice to the defense of the

pertinent contents of the Trace Summary, by turning over the Detailed Trace in

compliance with Rule 16 of the Federal Rules of Criminal Procedure.5 The Detailed


5
    The Detailed Trace was not admitted into evidence.

                                               9
Trace showed that (1) the firearm was manufactured by Ruger, and (2) that this particular

firearm had been sold several times in Pennsylvania. The government contends that this

was substantially the same information contained in the Trace Summary.6

       In his December 16, 2010 28(j) letter to this Court, Roberts argues that the issue is

whether a document reflecting the results of a Trace Summary is testimonial within the

meaning of the Confrontation Clause and, if so, whether the government can meet its

burden of proving, beyond a reasonable doubt, that the error did not contribute to the

verdict.

       We find that the Trace Summary is testimonial in nature,7 within the meaning of

the Confrontation Clause, because the Trace Summary was made for the purpose of

establishing some fact with the intent to be introduced at trial. Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527, 2532 (2009). Further, we find that the District Court

erred in admitting the Trace Summary to prove the interstate commerce element of 18

6
  Both documents provide information that the gun had been manufactured by Ruger,
which the uncontroverted evidence established manufactured that model gun in either
Connecticut or New Hampshire, and ended up in Pennsylvania. On the other hand, the
Trace Summary provides information that the Ruger had been sold in Ohio before being
sold in Pennsylvania. Based on this circumstance, the Trace Summary is, for purposes of
showing the interstate commerce element, cumulative of the Detailed Trace.
7
  In its second December 16, 2010 28(j) letter to the Court, the government disagrees
with Roberts that the Trace Summary is testimonial in nature, but agrees that the Trace
Summary contains “hearsay of some stripe.” In the same letter, the government also
admits that the District Court erred in admitting the document as nonhearsay, and
concedes that, even if the Trace Summary contained nontestimonial hearsay, there is an
insufficient factual record to support its admission under one of the exceptions to the
hearsay rule, namely, Federal Rule of Evidence 807.


                                             10
U.S.C. § 922(g)(1) because the Trace Summary violated the Confrontation Clause of the

Constitution of the United States.8 The person who created the Trace Summary, an

unidentified agent at the ATF National Tracing Center, was not presented at trial and

Roberts was deprived of an ability to confront him or her.

B.     Harmless Error

       Our analysis now requires us to determine whether the admission of the Trace

Summary was harmless error. An error is harmless if it “does not affect substantial

rights” of the defendant. FED. R. CRIM. P. 52(a). An error in admitting plainly relevant

evidence that possibly influenced the jury adversely to a litigant cannot be conceived of

as harmless. Chapman v. California, 386 U.S. 18, 23-24 (1967). Before a constitutional

error can be held harmless, the court must be able to declare a belief that it was harmless

beyond a reasonable doubt.” Id. at 24.

       “Whether . . . an error is harmless in a particular case depends upon a host

of factors, all readily accessible to reviewing courts.” Delaware, 475 U.S. at 684.

These factors include: (1) the importance of the Trace Summary to the

prosecution‟s case; (2) whether the Trace Summary was cumulative; (3) the

presence or absence of evidence corroborating or contradicting the Trace




8
  “A criminal defendant states a violation of the Confrontation Clause by showing that he
was prohibited from engaging in otherwise appropriate cross-examination . . .” Delaware
v. Van Arsdall, 475 U.S. 673, 680 (1986).


                                             11
Summary on material points; (4) the extent of cross-examination otherwise

permitted; (5) and the overall strength of the prosecution‟s case. Id.

       As stated in Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), when

determining whether an error is harmless, “the inquiry is not whether, in a trial that

occurred without the error, a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered in this trial was surely unattributable

to that error.” Under Chapman, “certain constitutional errors, no less than other

errors, may have been „harmless‟ in terms of their effect on the factfinding process

at trial.” Id. at 279. The Supreme Court has stated that harmless error review

looks “to the basis on which the jury actually rested its verdict.” Id.

       We have stated that —

       The erroneous admission of testimonial hearsay in violation of the
       Confrontation Clause is “„simply an error in the trial process itself‟ . . .
       [that] we may affirm if the error was harmless.” United States v. Hinton,
       423 F.3d 355, 361-62 (3d Cir. 2005) (applying harmless error analysis to
       a Confrontation Clause challenge); see United States v. Lore, 430 F.3d
       190, 209 (3d Cir. 2005) (considering whether an error was harmless
       beyond a reasonable doubt).

United States v. Jimenez, 513 F.3d 62, 78 (3d Cir. 2008).

       When we apply the harmless error analysis, as articulated in Chapman,

Delaware, Sullivan, and Jimenez to the facts of this case, we find that the error in

admitting the Trace Summary was harmless beyond a reasonable doubt. Id. As

we stated in Jimenez, a reviewing court must determine whether any Crawford




                                             12
(Confrontation Clause) violation, regarding improperly admitted evidence, was

harmless beyond a reasonable doubt.

       Here, the Trace Summary was not critical to the Government‟s case, as

there was no reasonable doubt about the interstate commerce element under §

922(g)(1).9 First, there was no evidence, testimonial or documentary, which

established or even suggested that the designation or markings on the gun itself are

not authentic. Second, Agent Willgohs testified to the place of manufacture of the

Ruger, establishing that it was not Pennsylvania. Agent Willgohs testified that

Ruger guns, at the time the gun in question was manufactured, were exclusively

manufactured in Connecticut or New Hampshire. There is no evidence in the

record that Ruger guns are manufactured in Pennsylvania. Third, the Ruger gun

was recovered from a creek, where Officer Janus had seen Roberts toss it, in


9
   The government argues that we may uphold Roberts‟ conviction on the alternative
theory that the ammunition crossed state lines, as this theory in no way relies on the
disputed Trace Summary. Because the indictment was phrased in the conjunctive, the
jury could convict Roberts as long as it found that either the gun or the ammunition had
crossed state lines. 18 U.S.C. § 922(g) and § 922(g)(1). The usual rule is that “[w]hen a
jury returns a guilty verdict on an indictment charging several acts in the conjunctive, . . .
the verdict stands if the evidence is sufficient with respect to any of the acts charged.”
United States v. Vampire Nation, 451 F.3d 189, 204 (3d Cir. 2006) (internal citations
omitted). However, that is not the rule for constitutional errors. If there is a
constitutional violation, “the reviewing court should vacate and remand for a new trial
without the invalid or unconstitutional theory,” United States v. Syme, 276 F.3d 131, 144
(3d Cir. 2002), unless the court is confident beyond a reasonable doubt that the error did
not contribute to the verdict. Chapman, 386 U.S. at 24. We must therefore analyze the
impact of the Trace Summary on the general verdict considering the whole record.
Delaware, 475 U.S. at 681.

                                              13
Pennsylvania. Fourth, Agent Willgohs testified that the basis for his opinion at

trial and in his expert report that the gun was manufactured by Sturm Ruger &

Company, Inc., in Southport, Connecticut, or New Port, New Hampshire, was the

“compilation of reference material” he had gathered over his 21 years as an ATF

firearms field agent; his familiarity with Ruger‟s manufacturing process, including

his two visits to Ruger plants; his “hundreds of examinations of firearms;” the

Blue Book, 27th Edition; and the Gun Trader‟s 24th Edition. (App. Vol. II, 127,

128, 135, 144.) He did not rely on the Trace Summary during his testimony at

trial.

         Both Agent Willgohs and Agent Truchanowicz were subject to rigorous

cross-examination.10 Throughout their examination, no evidence came before the

jury challenging the government‟s proposition that the gun traveled through

interstate commerce. Agent Truchanowicz testified that the Trace Summary

provided “the history of the firearm,” including that it was manufactured by Sturm

and Ruger in Southport, Connecticut, and that it was sold first in Ohio and then in

Pennsylvania. However, Agent Willgohs testified, based on independent sources

and his 21 years of experience, that all Rugers of this model were made in either

Connecticut or New Hampshire, and that this gun was, in his expert estimation, an

authentic Ruger. He testified that, although he had seen some homemade

10
   Although a factor to be considered under Delaware, the agents‟ cross-examination is
in and of itself not a relevant factor here since neither was the author of the Trace
Summary.

                                            14
firearms, in his 21 years of inspecting hundreds of guns he had never seen one

duplicated or counterfeited to look like a real Ruger. Although the evidence that

the gun was sold in Ohio does not appear elsewhere in the record aside from the

Trace Summary, this is immaterial to the government‟s proof of the interstate

commerce nexus where they showed that this Ruger, found in Pennsylvania, had

to have traveled in interstate commerce because all Rugers are made outside the

state.

         There is nothing in the record that gives us any reason to believe the jury

rested its verdict on the Trace Summary, as there was no evidence at trial

introducing any reasonable doubt that the gun might have been manufactured in

Pennsylvania. Given the evidence put forth by the government that all Rugers,

including this one, are made outside of Pennsylvania, and the lack of any

countervailing evidence that the gun was either a counterfeit or may have been

made in Pennsylvania, there was no basis for any doubt in the jury‟s mind which

the Trace Summary may have put to rest. Chapman, Delaware, Sullivan, and

Jimenez are satisfied. Based on the record evidence, we find that any

Confrontation Clause violation that occurred as a result of the improperly admitted

Trace Summary was harmless beyond a reasonable doubt.

C.       Federal Rule of Criminal Procedure 16




                                              15
       Roberts also contends that he was not notified of the government‟s intent to

use the Trace Summary until the day of trial.11 According to Roberts, the

government had the Trace Summary in its possession at least a year before

providing it to the defense, evidenced by Agent Truchanowicz‟s testimony that he

had ordered the Trace Summary approximately one year before trial. Since the

notice requirement was not met, we also find that the government violated FED. R.

CRIM. P. 16, for failing to disclose the Trace Summary during discovery.

However, we similarly find that error to be harmless beyond a reasonable doubt

for the same reasons set forth above.

                                  V.     CONCLUSION

       We find that the District Court erred in admitting the Trace Summary into

evidence. The decision to admit the Trace Summary was an error in the trial process

itself, not a structural defect affecting the framework within which the trial proceeds, and

was therefore subject to harmless error analysis. Having conducted that analysis, we

conclude that it was harmless beyond a reasonable doubt. We also find that, under Rule

16, the Trace Summary should have been provided to Appellant during discovery. We

find that this failure to disclose was also harmless beyond a reasonable doubt.

       In light of the overwhelming evidence produced by the government, including the

testimony of both Agent Truchanowicz and Agent Willgohs, we believe there was

11
  The defendant was well aware in advance of the government‟s argument on this point,
since the Detailed Trace (which provided the same essential facts as the Trace Summary),
had been provided to defense counsel during discovery.

                                             16
sufficient evidence to ensure that the jury‟s guilty verdict for possession of a firearm that

had traveled in interstate commerce was unattributable to the improper admission of the

Trace Summary.12 Therefore, for the reasons provided, we affirm the judgment of

conviction by the District Court. 13




12
   United States v. Hardwick, 544 F.3d 565, 574 (3d Cir. 2008) (where the Third Circuit
held that “the overwhelming evidence convinces us that the District Court‟s error was
harmless beyond a reasonable doubt.”) “A … violation will not result in a reversal
where the independent, „properly admitted evidence of [the defendant‟s] guilt is so
overwhelming, and the prejudicial effect of the co-defendant‟s admission so insignificant
by comparison, that it is clear beyond a reasonable doubt that the improper use of the
admission was harmless error.‟”) Id. (Internal citations and quotations omitted).
13
   We also grant Appellee‟s Motion to Supplement the Record on Appeal with Volume II
of the Supplemental Appendix.

                                             17
