United States v. Flowers , 235 F. App'x 965 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4618
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS D. FLOWERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:05-cr-00408-REP)
Submitted: April 30, 2007 Decided: May 24, 2007
Before WILKINSON, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James M. Nachman, NACHMAN & SQUIRES, L.L.P., Richmond, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Peter S.
Duffey, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Travis Flowers of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). The district court sentenced Flowers to fifty-one months’
imprisonment, and Flowers appealed. Counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious issues for appeal but contending the district court
abused its discretion in admitting testimony of three Government
experts and in allowing the Government’s trial representative to
testify as a rebuttal witness when the representative had not
previously been excluded from the courtroom with other witnesses.
Flowers did not file a pro se supplemental brief, despite being
notified of his right to do so. The Government filed a responding
brief in which it countered the district court did not err.
Finding no error, we affirm.
We review the admission of expert testimony for an abuse
of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139
(1997); United States v. Powers, 59 F.3d 1460, 1470-71 (4th Cir.
1995). Expert testimony is admissible under Fed. R. Evid. 702 if
it concerns: (1) scientific, technical, or other specialized
knowledge that (2) will aid the jury or other trier of fact to
understand or resolve a fact at issue. See Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 592 (1993); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999) (extending Daubert’s two-prong
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gatekeeping test to all expert testimony). The first prong of this
inquiry examines whether the reasoning and methodology underlying
the expert’s proffered opinion is reliable. See Daubert, 509 U.S.
at 593-95. The second prong of the inquiry requires an analysis of
whether the opinion is relevant to the fact at issue. See id. at
591-92, 595. Thus, an expert’s testimony is admissible under Rule
702 if it “rests on a reliable foundation and is relevant,” Kumho
Tire Co., 526 U.S. at 141 (internal quotation marks and citation
omitted), and falls outside the common knowledge of the jury. See
United States v. Dorsey, 45 F.3d 809, 814-15 (4th Cir. 1995).
Counsel contends the district court improperly permitted
the testimony of an expert in the interstate transportation of
firearms and ammunition. The expert testified, based on his
analysis of the firearm’s stampings,1 that the weapon had traveled
in interstate commerce. The district court’s admission of this
expert testimony was proper. See, e.g., United States v. Williams,
445 F.3d 724, 740 (4th Cir.), cert. denied, 127 S. Ct. 314 (2006).
Counsel also contends the district court improperly
permitted the testimony of experts in the areas of latent
fingerprints and gunshot residue (“GSR”). The experts used
1
Counsel contends the expert’s reference to the stampings was
inadmissible hearsay. We conclude the expert did not testify as to
the specific markings on the firearm but instead explained that the
markings formed a basis for his evaluation, which is customary in
the expert’s field of analysis. Thus, these facts and data “need
not be admissible in evidence.” Fed. R. Evid. 703.
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percentages in their testimony to explain the likelihood of finding
evidence on a firearm. Counsel objected to the use of the
percentages; in the Anders brief, counsel contends this form of
testimony was confusing, misleading, and prejudicial. Counsel
provides no support for this contention, however. The decision to
admit the testimony was neither arbitrary nor irrational, see
United States v. Moore, 27 F.3d 969, 975 (4th Cir. 1994), and
therefore not an abuse of discretion.
Flowers did not object to the alleged failure to exclude
the Government’s representative and rebuttal witness. Therefore,
this contention is reviewed for plain error. See Fed. R. Crim. P.
52(b). Under the plain error standard, Flowers must show:
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507 U.S.
725, 732-34 (1993). Even when these conditions are satisfied, we
may exercise our discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. at 736 (internal quotation marks
omitted). The Government’s in-court representative may offer
rebuttal testimony despite having heard the other witnesses.
United States v. Frazier, 417 F.2d 1138, 1139 (4th Cir. 1969).
Thus, the district court did not err in failing to exclude the
witness.
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In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Flowers’s conviction and sentence.2 This court requires
that counsel inform Flowers, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Flowers requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Flowers.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
2
Pursuant to United States v. Booker, 543 U.S. 220 (2005), the
district court treated the guidelines as advisory and consulted the
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) sentencing factors
prior to imposing sentence. The sentence was within the statutory
prescribed range, see 18 U.S.C. § 924(a)(2) (2000) (providing
maximum punishment for § 922(g) violation is ten years’
imprisonment), and was reasonable. See United States v. Green, 436
F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006)
(holding sentence within properly calculated advisory guidelines
range is presumptively reasonable).
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