United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUPFEY JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Jason Philpot's
(“Philpot”) Motion in Limine .
January 27, 2015, a grand jury in the Northern District of
Georgia returned a five-count Indictment  charging
Defendants Philpot and Patrick Reese (together,
“Defendants”) with aiding and abetting each other
in a Hobbs Act Robbery, in violation of 18 U.S.C.
§§ 1951 and 2 (Count 1); using, carrying and
discharging a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) (Counts 2
and 3); and being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (Counts 4 and 5). The
Indictment alleges that, on September 30, 2014, Defendants
robbed a Waffle House restaurant in Tucker, Georgia.
January 2015, Special Agent William B. Hassell, Jr., of the
Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”), prepared an expert report on the two
firearms allegedly possessed illegally by Philpot (the
“Report”). The Report found that one of the
firearms was manufactured in Ohio, and the other was
manufactured in Germany and imported to the United States by
a company based in Maryland. ([191.1] at 1). The Report
states “[i]t is the opinion of SA Hassell that if these
firearms were received and/or possessed in the State of
Georgia, they traveled in or affected interstate and/or
foreign commerce.” ([191.1] at 2).
12, 2017, Philpot filed his Motion in Limine, seeking to
preclude Special Agent Hassell from “introducing an
opinion as evidence about the effect of the firearms in
question on interstate and foreign commerce.” ( at
3). Philpot argues, without citation to authority, that
Special Agent Hassell's opinion should be excluded
because it “invades the province of the jury.”
( at 2).
charges Philpot with possessing two firearms as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). “In
order to prove this offense, the prosecution must establish,
beyond a reasonable doubt, that: (1) the defendant had
previously been convicted of a felony; (2) the defendant
knowingly possessed a firearm; and (3) the firearm traveled
in or affected interstate commerce.” United States
v. Folk, 754 F.3d 905, 915 (11th Cir. 2014). Philpot
seeks to preclude Special Agent Hassell from testifying that
the firearms in Count 4 “traveled in or affected
interstate commerce.” ( at 2).
law in this circuit . . . clearly allows the interstate nexus
element of § 922(g) to be established by expert
testimony.” United States v. Floyd, 281 F.3d
1346, 1349 (11th Cir. 2002); see United States v.
Hunter, 373 F. App'x 973, 977 (11th Cir. 2010)
(“Generally, expert testimony that the firearm traveled
in interstate commerce is sufficient [to establish the
interstate nexus element].”). In United States v.
Scott, 263 F.3d 1270 (11th Cir. 2001), an ATF agent
testified, at trial, that the firearm allegedly possessed by
the defendant “was manufactured in California and had
moved in interstate commerce.” Id. at 1274.
The Eleventh Circuit held that this evidence was
“sufficient to demonstrate the required nexus to
interstate commerce.” Id. In United States
v. Buenrostro, 187 F. App'x 922 (11th Cir. 2006),
the court held that “the requisite interstate nexus of
the firearm was satisfied” where “[a]n expert
testified at trial that, based on their make and serial
numbers, the guns found at [defendant's] residence were
manufactured in California and Florida, could not have been
manufactured in Georgia, and had traveled in and affected
interstate commerce.” Id. at 924. In
Floyd, the Eleventh Circuit upheld the
admissibility, at trial, of expert testimony from an ATF
agent that “the ammunition seized from [defendant] was
manufactured by Winchester in Illinois and necessarily
travelled in interstate commerce.” 281 F.3d at 1347,
1349; see also United States v. Hunter, 373 F.
App'x 973, 978 (11th Cir. 2010) (finding no reversible
error where the trial court allowed an ATF agent to testify
that “the firearm and ammunition found on [defendant]
‘traveled in or affected interstate
claim that Special Agent Hassell's opinion should be
excluded because it “invades the province of the jury,
” ignores Circuit precedent. Indeed, Rule 704(a) of the
Federal Rules of Evidence provides that “[a]n opinion
is not objectionable just because it embraces an ultimate
issue.” Fed.R.Evid. 704(a); see Hunter, 373 F.
App'x at 977-78 (stating that “a witness may
testify to his opinion on an ultimate issue of fact, but he
cannot simply tell the jury what to decide, ” and
finding that an ATF Agent's testimony that a firearm
‘traveled in or affected interstate commerce' . . .
fell short of telling the jury that they should find
[defendant] guilty”). Special Agent Hassell is not
precluded “from introducing an opinion as evidence
about the effect of the firearms in question on interstate
and foreign commerce.” ( at 3). Philpot's
Motion in Limine is denied.
foregoing reasons, IT IS HEREBY ORDERED that
Defendant Jason Philpot's Motion in Limine  is