United States v. Luna

United States Court of Appeals
For the First Circuit

No. 09-2263

UNITED STATES OF AMERICA,

Appellee,

v.

PASCUAL LUNA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Boudin, and Lipez,
Circuit Judges.

Kenneth Seiger, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.

August 12, 2011
 TORRUELLA, Circuit Judge. After opening fire on two

police officers attempting to arrest him, Pascual Luna was charged

with (1) being a felon in possession of ammunition in violation of

18 U.S.C. § 922(g)(1); (2) assaulting, resisting, opposing,

impeding, intimidating, and interfering with Scott Conley, a

detective with the Chelsea Police Department ("CPD") who had been

deputized as a special federal officer, in violation of 18 U.S.C.

§ 1111; and (3) using and carrying a firearm during and in relation

to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).

Luna moved to dismiss the second count of his indictment, arguing

that because Conley was working as a Chelsea police officer under

Chelsea supervision at the time of the alleged assault, he did not

fall within the scope of 18 U.S.C. § 111. The district court

denied the motion to dismiss without prejudice to renewal during or

after trial. See United States v. Luna, No. 07-10195, 2008 WL

3285229, at *3 (D. Mass. Aug. 5, 2008). Luna moved for a judgment

of acquittal under Federal Rule of Criminal Procedure 29(a),

alleging that the evidence was insufficient to sustain a conviction

on any of the charges, at both the close of the government's case

1
Section 111 allows for the federal prosecution of anyone who
"forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated in section 1114 of [Title 18]
while engaged in or on account of the performance of official
duties." See 18 U.S.C. § 111(a)(1). Section 1114 protects "any
officer or employee of the United States . . . while such officer
or employee is engaged in . . . official duties, or any person
assisting such an officer or employee in the performance of such
duties or on account of that assistance." 18 U.S.C. § 1114.

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and the close of all the evidence; the district court reserved

judgment and then denied the renewed motion without explanation.

Luna now appeals, arguing that the district court erred

in denying his motion to dismiss Count Two of the indictment and in

failing to grant his motion for a judgment of acquittal as to the

same count. He also raises various evidentiary and sentencing

claims. For the reasons below, we affirm.

I. Background

A. Conley's Deputization

In 2006, Conley, a detective with the CPD, was assigned

to the FBI's North Shore Gang Task Force ("Task Force"), a group

composed of local, state, and federal law enforcement officers. In

January 2007, Conley was officially deputized and his relationship

with the FBI became more formal. According to his Deputation

Statement, he was authorized to exercise "the powers of enforcement

personnel set forth in [21 U.S.C. § 878]," and thus was permitted

to

(1) carry firearms;

(2) execute and serve search warrants, arrest
warrants, administrative inspection warrants,
subp[o]enas, and summonses issued under the
authority of the United States;

(3) make arrests without warrant (A) for any
offense against the United States committed in
[his] presence, or (B) for any felony,
cognizable under the laws of the United
States, if [he had] probable cause to believe
that the person to be arrested [had] committed
or [was] committing a felony;

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 (4) make seizures of property pursuant to the
provisions of this subchapter; and

(5) perform such other law enforcement duties
as the Attorney General may designate.

21 U.S.C. § 878.

As a deputized Task Force officer, Conley was expected to

work with other Task Force officers and to collect intelligence for

the FBI. This work included, among other things, forwarding gang-

related CPD reports to the FBI. At the hearing on his motion to

dismiss, Conley testified that after he was deputized, he was

assigned a partner from the State Police, Trooper Richard Ball, who

was also a Task Force member; the two rode together during Conley's

usual shift. In addition, although the CPD paid Conley's salary,

the FBI provided funds that could be used to reimburse the City of

Chelsea for up to 7.5 hours a week in Task Force-related overtime.

On a typical day on duty as a Chelsea police officer and

Task Force officer, Conley and Ball would be in contact with some

of the other agents working in the Task Force, including FBI

Special Agent Jeff Wood. Conley would keep someone at the CPD --

at the relevant time, Lieutenant Dave Batchelor -- apprised of his

activities. If something had to be done in Chelsea while Conley

was "off the air" -- i.e., in a location where his Chelsea radio

would not work -- he would not respond. If he was in Chelsea and

received a Chelsea radio call but was in the middle of, e.g., a

Task Force drug buy, he would not respond either. If he was within

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range and not busy, he could respond to CPD calls. As Conley

testified at the hearing on Luna's motion to suppress, his Task

Force knowledge was relevant even when he was responding to these

local calls, and they would sometimes result in communications to

the FBI:

[W]hen I respond to these calls, if it was a
shooting, if it was a fight, if it was a
disorderly person at a park that we know to be
a heavily saturated-gang area, I respond and
I'd be able to conduct a field interview or
make some observations and what an average
patrol officer wouldn't be able to identify, I
would be able to identify and I would take
that information, take that report if I felt
it was relevant and forward it to the FBI.

B. The Day of Luna's Arrest2

On May 1, 2007, the day of Luna's arrest, Conley had been

assigned by the CPD to work at an immigration parade -- also

referred to as a "rally" at trial -- that was going to pass through

Chelsea. He was wearing a CPD T-shirt and had a Chelsea badge

around his neck and an FBI credential in his wallet. Conley was

working with Batchelor, the supervisor of the CPD gang unit, and

Detective Daniel Delaney, a member of the CPD gang unit. According

2
As explained below, we treat the question of whether Conley was
engaged in official federal duties at the relevant time as a
question about the sufficiency of the evidence, and thus we present
the facts relevant to that issue in the light most favorable to the
government. See United States v. Rosado-Pérez, 605 F.3d 48, 52
(1st Cir. 2010) (noting that when reviewing a sufficiency-of-the-
evidence claim, the court "take[s] the evidence and draw[s] all
reasonable inferences in the light most favorable to the
prosecution").

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to Conley, the gang unit was working at the immigration rally

because gang members had been violent at the rally in the past.

In addition, the FBI was interested in the immigration

rally. When Conley spoke with Wood about the fact that he was

going to be covering the immigration rally, Wood said that the FBI

was interested in how many people would attend the rally. Wood

said the FBI wanted to know any intelligence that was collected

about gang members trying to disrupt or take part in the rally. In

their conversation prior to the rally, Wood specifically asked

Conley if he thought Luna would be at the rally; Conley responded

affirmatively. As Conley testified at trial, he was interested in

whether Luna would be at the rally because Luna was a gang member

and the subject of state arrest warrants. According to Conley,

"part of the reason why we were [at the rally] and part of the

reason why the FBI was so interested in it, was because of

collecting the intelligence of [sic] gang members in the City of

Chelsea." Furthermore, according to the testimony of FBI Special

Agent John Woudenberg, Conley's supervisor with respect to all Task

Force matters, on the day in question, the FBI "would expect that

Detective Conley would act as a member of the [T]ask [F]orce, would

gather the appropriate intelligence and utilize that to further our

investigations."

At a certain point, Conley saw Luna and alerted Batchelor

and Delaney to his presence. The officers decided to arrest Luna

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because there were Chelsea default warrants for his arrest.3 As

the officers waited for the rally to pass by, Conley and Luna made

eye contact and Luna started to quickly walk away. Conley then got

out of his vehicle; when Luna took off running, Conley began to

chase after him. At one point, when Conley was about ten feet from

Luna, Luna turned around and shot at him and Delaney. Luna was

eventually wrestled to the ground by Officer Raul Goncalves, an

Everett police officer. Additional officers helped restrain Luna

and he was eventually taken to the police department.

The FBI quickly received word of the arrest. After Luna

had been arrested, Conley called Wood. Woudenberg had heard about

Luna's arrest from Wood within approximately an hour of the

shooting. Conley did not produce a separate report for the FBI,

but did send his CPD report regarding the incident to the FBI.4

Conley did not file for FBI-funded overtime for May 1, 2007, the

day of Luna's arrest, or for other days on which he was doing work

related to Luna. He testified at trial, however, that it was his

practice to file for FBI overtime once a week and put down the

number of hours allotted (between seven and eight hours of work),

regardless of what work he did on which days.

3
There were no federal arrest warrants for Luna as of the day of
the parade.
4
When asked about whether he had written a separate report for
the FBI, he testified, "I don't do that. I forward them the
reports that I've already generated. That's in the course of my
duty."

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C. Procedural History

Luna moved to dismiss Count Two of his indictment on the

ground that Conley was not covered by 18 U.S.C. § 111 "[b]ecause --

notwithstanding a federal deputation -- a local officer acting

under local supervision is not a federal officer for the purposes

of [section 1114 and thus] section 111." The district court

treated the question of whether Conley qualified as a federal

officer as a legal question for it to resolve and concluded that

"Conley, as a sworn member of the FBI Task Force, was an 'officer

or employee of the United States' within the meaning of § 1114 and

thus was entitled to protection under § 111." Luna, 2008 WL

3285229, at *3. It noted that the question of whether Luna "shot

at [Conley] . . . 'while [Conley] was engaged in or on account of

the performance of official duties' is a question for the jury."

Id.

The case proceeded to trial and Luna moved for a judgment

of acquittal at the close of the government's case and after the

close of all the evidence. He did not prevail, and the jury later

convicted him on all counts.

II. Discussion

A. The Section 111 and 1114 Claims

Luna first argues that Count Two of his indictment should

have been dismissed because the district court improperly concluded

that Conley was a federal officer within the scope of 18 U.S.C.

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§§ 1114 and 111. In addition, he argues that the government's

evidence was not sufficient to prove that Conley was engaged in the

performance of federal duties at the relevant time.

1. The Legal Framework and Standards of Review

18 U.S.C. § 111 provides for the punishment of anyone who

"forcibly assaults, resists, opposes, impedes, intimidates, or

interferes with any person designated in section 1114 of [Title 18]

while engaged in or on account of the performance of official

duties." 18 U.S.C. § 111(a)(1). Section 1114 designates the

following individuals as part of the protected class: "any officer

or employee of the United States or of any agency in any branch of

the United States Government . . . while such officer or employee

is engaged in or on account of the performance of official duties,

or any person assisting such an officer or employee in the

performance of such duties or on account of that assistance." 18

U.S.C. § 1114.

a. Federal Officer Status

The question of whether a person in a particular position

qualifies as an "officer . . . of the United States" under 18

U.S.C. § 1114 -- or what we refer to as a "federal officer" -- is

a question of law. See United States v. Roy, 408 F.3d 484, 489

(8th Cir. 2005) ("Whether an officer in [the victim's] position,

i.e., an officer of the Flandreau City and Flandreau Santee Sioux

Tribal Police Department, qualifies as a federal officer is a

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'threshold legal question' for the court." (quoting United States

v. Bettelyoun, 16 F.3d 850, 853 (8th Cir. 1994))); United States v.

Martin, 163 F.3d 1212, 1214 (10th Cir. 1998).5 Thus, we review de

novo the district court's determination that Luna was eligible for

protection under section 111 as a "federal officer." See, e.g.,

United States v. Rodríguez-Vélez, 597 F.3d 32, 44 (1st Cir. 2010).

5
The question of whether a given position confers "federal
officer" status under section 111 is a question of law, while the
question of whether a particular victim was in fact in that
position is a question of fact. See Roy, 408 F.3d at 489 ("Whether
[the victim] himself was [a federal] officer . . . [is a]
question[] of fact for the jury." (citing Bettelyoun, 16 F.3d at
853)); Martin, 163 F.3d at 1214 ("[W]hile the type of individual
encompassed by § 1114 is a legal question for the court, the jury
must decide the ultimate issue of fact -- whether [the victim] was
engaged in the performance of federal duties." (emphasis added));
United States v. Oakie, 12 F.3d 1436, 1440 (8th Cir. 1993) (noting
that "[w]hether a BIA Deputy Special Officer is an officer or
employee of the Department of Interior for purposes of § 111 is an
issue of law for the court" and later explaining that "[w]hether
[the specific victim] was in fact a BIA Deputy Special Officer" was
a "fact question[] for the jury"); see also United States v. Ama,
97 F. App'x 900, 901 (10th Cir. 2004) (noting that the "type of
individual encompassed by § 1114 is a legal question" (emphasis
added) (quoting Martin, 163 F.3d at 1214)).

The distinction is inconsequential here because Luna does not
dispute that Conley was in fact a deputized federal task force
officer. Cf. United States v. Torres, 862 F.2d 1025, 1030 (3d Cir.
1988) (court had to determine whether evidence was sufficient for
jury to conclude that officer had in fact been assigned to federal
task force). Thus, we phrase our analysis, as the parties and the
district court have, in terms of whether Conley, rather than
someone in Conley's position, was a federal officer by virtue of
his federal deputization.

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 b. Engagement in Official Duties

The question of whether an officer was engaged in

"official duties" related to his or her federal deputization6 at

the relevant time is generally a question of fact for the jury,

reviewed for sufficiency of the evidence. See, e.g., Roy, 408 F.3d

at 489 ("Whether [the officer] himself was . . . engaged in

official duties at the time of the incident [is a] question[] of

fact for the jury."); United States v. Ama, 97 F. App'x 900, 901

n.2 (10th Cir. 2004) ("Whether an individual was engaged in

official duties is a question of fact."); United States v.

Dombrowsky, 111 F. App'x 716, 718 (5th Cir. 2004) (reviewing for

sufficiency of the evidence the question of whether officers were

engaged in the performance of official duties); United States v.

Hoy, 137 F.3d 726, 729 (2d Cir. 1998) ("The question of whether an

officer is engaged in an official duty is a factual one and

therefore is properly left to the jury."); Bettelyoun, 16 F.3d at

853 (noting that it is for the "jury to decide whether the

6
We add "related to his federal deputization" because a state
officer who is deputized to perform federal duties but who, e.g.,
only performs them in alternate weeks would not be protected as a
"federal officer" when performing solely state -- albeit "official"
-- duties, since the section 111 protection depends upon one's
status as a federal officer. Cf. Bettelyoun, 16 F.3d 850, 853 n.2
(8th Cir. 1994) (noting, in the context of explaining an
alternative means by which the government could have shown that a
victim was a "federal officer," that "a tribal officer who has been
designated as a Deputy Special Officer of the BIA is a federal
officer within the meaning of § 111 when performing the federal
duties he or she ha[s] been deputized to perform" (emphasis
added)).

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government proved . . . that the assault victims were in fact

federal officers who were engaged in the performance of their

official duties"); United States v. Green, 927 F.2d 1005, 1007 (7th

Cir. 1991), overruling on other grounds recognized by United States

v. Graham, 431 F.3d 585 (7th Cir. 2005); United States v. López,

710 F.2d 1071 (5th Cir. 1983) (noting that jury "could properly

find under the evidence" that relevant officer was engaged in the

performance of his official duties); United States v. Hohman, 825

F.2d 1363, 1365 (9th Cir. 1987) (reviewing for sufficiency of the

evidence jury's conclusion that officer was assaulted "while

engaged in or on account of . . . official duties"); United States

v. Reid, 517 F.2d 953, 960 (2d Cir. 1975) ("While submission of the

issue to the jury may have been unnecessary if, on the undisputed

evidence, the assault on [the federal officer] occurred while he

was engaged in or was on account of the performance of his official

duties, such submission has been approved inferentially in some

opinions, and doubtless is the wiser course." (citations omitted));

cf. United States v. Frizzi, 491 F.2d 1231, 1232 (1st Cir. 1974)

(noting, in explaining why the court "[could not] quite say it was

outside the scope of [a mail carrier's] employment" to "seek an

apology" from a person who had spat on him, that "[a] jury should

be permitted to choose between a personal frolic and standing up

for his employer's right to have him pursue his duties

unmolested").

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 Here, the court treated the question of whether Conley

was engaged in official federal duties at the relevant time as a

factual one.7 Because this appears to have been the appropriate

7
When instructing the jury, the district court began by
explaining that the fourth element of the section 111 charge
required that Conley "was both[] (A) an officer or employee of the
United States acting within the scope of his federal deputization
as a federal officer, and (B) was performing federal investigative
or law enforcement duties at the time." The court later added the
following instructions, noting that it had already concluded, as a
legal matter, that Conley was a deputized member of a federal task
force and thus a federal officer:

[I]t is the case that Mr. Conley was at the time of
these events a Chelsea police officer with all of the
authority of a Chelsea police officer. He was also,
however, deputized as a member of a federal task force
and I have previously held in this case that he was,
therefore, also a federal officer, but that's not the end
of it.

First, the deputization defines the extent of his
authority as a federal officer as a member of the task
force, and the government has to prove . . . what Mr.
Conley was authorized to do as a federal officer as a
member of that task force.

Second, the government has to show that the
activities he was engaged in at the time of and during
the chase were federal official activities within the
authorization. That is, that he was performing federal
investigative or . . . law enforcement activities at that
time.

Finally, it added the following details regarding the fourth
element of Count Two:

Concerning the fourth element, review the evidence
of the documents that . . . are in evidence. Consider
what they say about the responsibilities of Mr. Conley
and his role as a member of the task force. Consider the
testimony of the witnesses as to the nature of the task
force work and specifically what Mr. Conley was doing for
the task force. Consider the evidence of his interaction

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treatment in light of the case law, we analyze the jury's

conclusion that Conley was performing official federal duties at

the time of Luna's assault using the familiar sufficiency-of-the-

evidence standard.8 See United States v. Troy, 583 F.3d 20, 24-25

(1st Cir. 2009). In doing so, "we examine the evidence, both

direct and circumstantial, in the light most favorable to the

jury's verdict. 'We do not assess the credibility of a witness, as

with his superiors on the task force and specifically who
directed and controlled his activities on May 1st, 2007.

Review the evidence as to his work for the Chelsea
Police, what was his assignment on that day, what was he
in fact doing on that day before and during the chase,
and then decide whether the government has proven each of
the four elements . . . .
8
This is not a typical section 111 case. Typically, the question
of whether a victim was "engaged in official duties" hinges on
whether the victim was "acting within the scope of what [he] is
employed to do" as opposed to being engaged in a "personal frolic,"
United States v. Kelley, 850 F.2d 212, 214 (5th Cir. 1988) (quoting
United States v. Heliczer, 373 F.2d 241, 245 (2d Cir. 1967)),
rather than on whether he was acting, at least in part, in a
federal law enforcement capacity. One could argue that although
the question of whether a victim was engaged in a "personal frolic"
is an appropriate factual question for the jury, the question of
what constitutes being engaged in certain activities in both a
federal and state law enforcement capacity is not, but Luna has not
made a compelling argument to this effect.

We note, however, that to the extent that Luna is arguing that
it was improper, as a matter of law, for the jury to consider more
than the ten-minute time period during which Conley was pursuing
him to execute a state arrest warrant when assessing whether Conley
was engaged in official federal duties, we find this argument
unpersuasive. Cf. United States v. O'Connell, 703 F.2d 645, 650
(1st Cir. 1983) (noting that the court was unpersuaded that a
federal officer was no longer engaged in the performance of
official duties the moment he had handed the defendant the subpoena
he had come to deliver).

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that is a role reserved for the jury.'" Id. at 24 (citation

omitted) (quoting United States v. Paret-Ruiz, 567 F.3d 1, 5 (1st

Cir. 2009)). "Nor need we be convinced that the government

succeeded in 'eliminating every possible theory consistent with the

defendant's innocence.'" Id. (quoting United States v. Moran, 312

F.3d 480, 487 (1st Cir. 2002)). "Rather, we must decide 'whether

that evidence, including all plausible inferences drawn therefrom,

would allow a rational factfinder to conclude beyond a reasonable

doubt that the defendant committed the charged crime.'" Id.

(quoting United States v. Cruz-Rodríguez, 541 F.3d 19, 26 (2008)).

2. Analysis

a. Status as a Federal Officer

Many of the criticisms that Luna lodges against the

district court's legal conclusion that Conley was a "federal

officer" would more appropriately be framed as arguments against

the sufficiency of the evidence presented to show that Conley was

"engaged in official duties" at the relevant time. We address only

the first issue here, and conclude that the district court was

correct in concluding that Conley was a "federal officer."

The First Circuit has not previously discussed whether a

local police officer, deputized as a federal task force member, may

be considered a "federal officer" for the purposes of 18 U.S.C.

§§ 111 and 1114. The Supreme Court has provided some guidance in

United States v. Feola, 420 U.S. 671 (1975), noting that the

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purpose of 18 U.S.C. § 111 is "to protect both federal officers and

federal functions." Id. at 679. Though the parties cite many

cases from other circuits involving the relevant statutes, few are

directly relevant to the question of whether a local police officer

who has been deputized as a member of a federal task force, and

whose general working relationship with federal authorities is

similar to Conley's, can be protected under section 111 based on

his or her own status as a "federal officer."

The case we find most comparable is United States v.

Torres, 862 F.2d 1025 (3d Cir. 1988).9 There, the victim was a

Philadelphia police officer who had been assigned to the Federal

Drug Enforcement Administration ("DEA") Task Force.10 Id. at 1027.

The opinion is short on details, but it appears that the victim's

general role as a member of his task force was similar to Conley's

because he was not fully integrated into a DEA unit but instead had

many of the duties of a local police officer. On the night in

question, he had been patrolling with another undercover police

9
Although Torres is still good law as it relates to this case, we
note that in Torres, the government made, and the court did not
comment on, a concession regarding sentencing that would no longer
be appropriate after Deal v. United States, 508 U.S. 129 (1993).
Thus, the Third Circuit has said that "to the extent [Torres] may
be interpreted as contrary to Deal, it is superceded by Deal."
United States v. Casiano, 113 F.3d 420 (3d Cir. 1997).
10
The defendant-appellant claimed that the evidence at trial was
insufficient for the jury to conclude that the officer was actually
assigned to the task force, but the court found that the evidence
was sufficient for the jury to make this finding. Torres, 862 F.3d
at 1030.

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officer; he and his partner had stopped to investigate suspicious

activity when the defendant pulled up in a vehicle and pointed a

gun at him. Id. at 1026. The court concluded that the victim --

a DEA Task Force member who was, at the time of the assault,

engaged in federal law enforcement duties -- was within the scope

of section 111's protections. Id. at 1030. We similarly conclude

that the district court properly determined that Conley -- a local

police officer who had been deputized as a member of the Task Force

-- was a "federal officer" for section 111 purposes.

b. Engagement in Official Duties

Luna claims that the evidence was insufficient to support

the conclusion that Conley was engaged in the performance of

federal duties when Luna assaulted him. To support this

contention, he points out the following: (1) Conley was ordered

to work at the rally by the CPD, not the FBI; (2) while at the

rally, Conley was in a CPD car, was wearing a CPD shirt, and had a

CPD badge around his neck (though he carried an FBI credential);

(3) Conley was working with two other Chelsea officers, and there

was no contact with federal officers during the rally; (4) Conley

decided to arrest Luna based on outstanding warrants from the

Chelsea District Court rather than on a federal arrest warrant

(which did not exist); (5) Conley did not file a separate FBI

report and did not submit claims for FBI overtime for the day in

question, instead submitting Chelsea overtime claims.

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 The government argues that Luna fails to appreciate that

because of the nature of Conley's role, he was often wearing two

hats, acting as both a Chelsea police officer and a Task Force

member simultaneously. We agree, and conclude that the evidence at

trial was sufficient for a rational jury to conclude that Conley

was engaged in federal duties at the relevant time.

Although Luna was assigned to cover the rally by the CPD

and was working with other Chelsea officers, his work was relevant

to the mission of the Task Force, as demonstrated, generally, by

the nature of his role -- to keep tabs on anything to do with gangs

in his area -- and, specifically, by the conversations he had with

FBI agents. When Conley spoke with one of his FBI contacts, Wood,

about the fact that he was going to be covering the rally on May 1,

Wood said that the FBI "was very interested in the numbers that the

rally was going to bring" and that "they wanted to know any

intelligence that [was] collected in regards to gang members trying

to disrupt the rally or take . . . part in the rally."

Furthermore, Wood "specifically asked [Conley] if [he] thought

Pascual Luna would be there."11 The fact that Conley was working

with Chelsea officers, wearing a Chelsea shirt and riding in a

Chelsea car, and executing a state warrant does not foreclose the

possibility that he was playing a dual role at the relevant time.

11
The FBI was aware of Luna because Conley had been investigating
Luna with the FBI prior to the day of the rally.

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 In addition, Conley's actions after the assault are

consistent with the conclusion that Conley was engaged in official

federal duties at the relevant time. After Luna's arrest, Conley

called Wood, who reported Luna's arrest to Woudenberg, Conley's FBI

supervisor, within approximately an hour. Although Conley did not

produce a separate report for the FBI, he sent his CPD report

regarding the assault to the FBI. Finally, although he did not

file for FBI overtime for May 1, this does not suggest that he was

not engaged in Task Force work on the day in question; it was his

practice to file for FBI overtime once a week, regardless of when

he did what type of work.

We conclude that the evidence was sufficient for a

rational jury to reach the conclusion that Conley was engaged in

federal duties at the relevant time.

B. Evidentiary Claims

1. Authentication of the Ammunition

Luna claims that the district court abused its discretion

in admitting Luna's purported ammunition into evidence because the

government failed to establish chain of custody and thus, according

to Luna, the ammunition was not properly authenticated. The

government responds that it submitted the ammunition on the basis

of its connection to the firearm that the defendant used rather

than by establishing chain of custody. We conclude that any error

was harmless.

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 a. Background

The government elected to connect Luna to the ammunition

indirectly. The government called numerous witnesses to establish

that the firearm introduced at trial was the one that Luna had on

the day of the arrest. First, Conley identified the firearm as the

one Luna had possessed on the day of the arrest. Over Luna's

objection, the court admitted the gun into evidence. Goncalves,

another officer who had been at the scene of the crime, later

testified that he recognized the firearm that was in evidence

because of its brown handle. Delaney, who was also at the crime

scene, corroborated Goncalves's description of the handle, adding

that revolvers, like Luna's firearm, were very rare on the streets.

Finally, Batchelor, who had chased Luna after he shot at Conley,

said that the gun at trial was the one he had seen the day of the

arrest and testified that Luna's revolver was the only firearm of

its type he had seen in 2007.

As for the ammunition, the district court admitted it

into evidence over Luna's objection after Conley testified that he

recognized the bullets and spent casing as items that another

officer had shown him on the day of the assault. Later on, the

government's ballistics expert, Trooper Lombard of the

Massachusetts State Police, testified that he had conducted a

firing test that demonstrated that the defendant's firearm shot the

spent casing that had been admitted.

-20-
 b. Analysis

We review the admission or exclusion of evidence for

abuse of discretion. United States v. Díaz, 597 F.3d 56, 64 (1st

Cir. 2010).

Evidence must be authenticated before it may be admitted.

Fed. R. Evid. 901(a). Prior to admitting evidence, "[t]he district

court must determine 'if there is a reasonable probability the

evidence is what it is purported to be.'" United States v. Barrow,

448 F.3d 37, 42 (1st Cir. 2006) (quoting United States v. Cruz, 352

F.3d 499, 506 (2003)). "[E]vidence . . . is properly admitted if

it is readily identifiable by a unique feature or other identifying

mark. On the other hand, if the offered evidence is of the type

that is not readily identifiable or is susceptible to alteration,

a testimonial tracing of the chain of custody is necessary."

United States v. Anderson, 452 F.3d 66, 80 (1st Cir. 2006) (quoting

United States v. Abreu, 952 F.2d 1458, 1467 (1st Cir. 1992)). If

evidence is admitted prematurely because it is not yet

authenticated, a court of appeals need not remand for a new trial

if later testimony cures the error. See United States v.

Blackwell, 694 F.2d 1325, 1331 (D.C. Cir. 1982) ("[E]ven if the

photographs were not fully authenticated by the prosecution and

their admission into evidence premature, any error was cured by the

testimony of the defendant before the close of the trial. A new

trial is therefore not required on this ground.").

-21-
 Assuming, without deciding, that the district court

abused its discretion in admitting the firearm and the ammunition

after Conley's testimony alone, we still need not reverse; later

testimony supported the conclusion that both were "what [they were]

purported to be." Barrow, 448 F.3d at 42 (quoting Cruz, 352 F.3d

at 506) (internal quotation mark omitted).

After the firearm had been admitted, the government

elicited testimony that established its "unique feature[s]" or

"identifying mark[s]." See Anderson, 452 F.3d at 80. Goncalves

testified that the firearm at trial was the revolver he had picked

up from the sidewalk after Luna had dropped it; on cross-

examination, he explained that he had identified the revolver

during his direct examination based on its distinctive brown

handle. Delaney also testified at trial that he recognized the

gun, and explained that it had distinctive wood grips and was, as

a revolver, an unusual firearm to see on the streets. Finally,

Batchelor testified that the firearm at trial was the same one he

had seen on Luna on the day of the arrest, and later noted that the

firearm, a "snub-nose .38 Special," was the only one of its type he

had seen in 2007. As the authentication process demands only a

"reasonable probability that the evidence is what it is purported

to be," Barrow, 448 F.3d at 42 (quoting Cruz, 352 F.3d at 506)

(internal quotation mark omitted), we conclude that the government

offered sufficient support for the district court to enter the

-22-
firearm into evidence eventually, even if not at the early point

when it actually did admit the gun; thus, there was no reversible

error.

As for the ammunition, by the time the case was submitted

to the jury, there was sufficient testimony to support the

conclusion that "there [was] a reasonable probability" that it,

too, was "what it [was] purported to be." Id. (quoting Cruz, 352

F.3d at 506) (internal quotation mark omitted). Lombard's

ballistics examination established that the spent casing had been

fired from Luna's firearm. His testimony authenticated the

ammunition on the basis of the distinctive marks left by the

firearm on the casing. See Anderson, 452 F.3d at 80. Assuming,

without deciding, that the district court abused its discretion in

admitting the ammunition during Conley's testimony, it would not

have abused its discretion by admitting the evidence after

Lombard's testimony, and thus we need not reverse.

2. Expert Testimony on "Interstate Nexus"

Luna claims that the district court committed plain error

in admitting alleged hearsay testimony from the government's expert

witness to prove that the ammunition presented at trial was

sufficiently connected to interstate commerce to satisfy 18 U.S.C.

§ 922(g)12 (i.e., to fulfill the "interstate nexus" requirement).

12
The statute makes it illegal for individuals in various
categories "to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or ammunition."

-23-
The government argues that it was entitled to offer expert

testimony regarding the interstate nexus requirement that relied,

in part, on outside sources that are typically consulted in the

course of determining the provenance of ammunition. Luna did not

object at trial, and thus we review only for plain error. See,

e.g., United States v. Famania-Roche, 537 F.3d 71, 77 (1st Cir.

2008). Finding none, we affirm.

a. Background

Special Agent Mattheu Kelsch of the Bureau of Alcohol,

Tobacco, Firearms and Explosives ("ATF") testified for the

government as an expert in order to establish the requisite

interstate nexus. Kelsch testified that he had been certified as

an "interstate nexus expert" by the ATF, and the district court

found him sufficiently qualified to testify as an expert. In

Kelsch's opinion, the ammunition at trial had been manufactured

outside the state of Massachusetts. He reached this conclusion

based on his experience as well as consultation with an ATF

database, an internet database, and an employee of the ammunition

manufacturer. Critically, Special Agent Kelsch testified that the

markings on the shell casing signified that it was manufactured by

Remington Peters, which only manufactured ammunition in Connecticut

and Arkansas.

18 U.S.C. § 922(g).

-24-
 b. Analysis

The government can establish the interstate nexus element

required under 18 U.S.C. § 922(g)(1) by showing that a defendant

"possessed the [ammunition] in a state other than the one in which

it was manufactured." United States v. Corey, 207 F.3d 84, 88 (1st

Cir. 2000). Expert testimony is appropriate to prove the

interstate nexus element. United States v. Cormier, 468 F.3d 63,

72 (1st Cir. 2006). Experts may rely on "technical manuals,

conversations with manufacturers, and [their] prior experience" in

forming their opinions without running afoul of Federal Rule of

Evidence 703. Id. at 72 (citing Corey, 207 F.3d at 91–92).

However, although an expert may rely on these sources, the entirety

of his or her testimony cannot be the mere repetition of "the out-

of-court statements of others." Id. at 73 (quoting United States

v. Smith, 869 F.2d 348, 355 (7th Cir. 1989)).

Kelsch's testimony clearly falls within the ambit of

Corey and Cormier. Kelsch relied on third-party sources in

conjunction with, not to the exclusion of, his initial, independent

determination. His testimony was thus not simply a summary of out-

of-court sources but a thorough opinion drawing on multiple sources

to ensure accuracy. Just as we stated in Cormier, "[w]e see no

reason why an expert in [ammunition] identification could not

reasonably rely on ATF manufacturing records," as well as a

conversation with a manufacturer, "to determine the provenance of

-25-
[ammunition]." Cormier, 468 F.3d at 72-73. To conclude otherwise

would effectively restrict the sources available to experts and

reduce accuracy. As we find no error, let alone plain error,

Luna's argument is without merit.

C. Armed Career Criminal Act ("ACCA") Sentencing Claim13

The district court sentenced Luna to fifteen years'

imprisonment for being a felon in possession of ammunition,

pursuant to the Armed Career Criminal Act, see 18 U.S.C. § 924(e).

Section 924(e) provides that any person who (1) violates 18 U.S.C.

§ 922(g) -- which forbids, among other things, being a felon in

possession of ammunition -- and (2) has three previous

convictions,14 punishable by more than one year, for either

(a) violent felonies, (b) serious drug offenses, or both faces a

fifteen-year mandatory minimum sentence. See 18 U.S.C. §§ 924(e),

922(g).

Luna objected below to being sentenced as an armed career

criminal both in a sentencing memorandum and at his sentencing

hearing. In his memorandum, he argued that (1) his 2005 Cambridge

13
Luna also raised another sentencing claim on appeal, but his
argument has been foreclosed by the Supreme Court's recent decision
in Abbott v. United States, 131 S. Ct. 18 (2010).
14
As the statute makes clear, "the term 'conviction' includes a
finding that a person has committed an act of juvenile delinquency
involving a violent felony." 18 U.S.C. § 924(e)(2)(C).

-26-
convictions15 for resisting arrest and assault and battery on a

police officer ("ABPO") were invalid because (a) he did not plead

guilty knowingly and voluntarily and (b) his waiver of a jury trial

was ineffective and invalid; (2) his 2005 Chelsea conviction for

assault with a dangerous weapon ("ADW") was invalid because (a) his

waiver of a jury trial was ineffective and invalid and (b) the

facts were insufficient to support a guilty verdict; and (3) his

2000 Boston "youthful offender" adjudication for armed robbery is

not a proper ACCA predicate under 18 U.S.C. § 924(e)(2)(B) -- which

requires juvenile ACCA predicates to involve "the use or carrying

of a firearm, knife, or destructive device" -- because (a) the

Massachusetts armed robbery statute does not require the use of a

knife, (b) the record does not reflect that Luna entered a guilty

plea, and (c) the facts were insufficient for the court to adjudge

him a youthful offender.16 At his sentencing hearing, Luna added

that his 2005 Chelsea conviction for ADW should not qualify as an

ACCA predicate because the crime can be committed in a variety of

15
The government, citing the Pre-Sentence Report, refers to these
as 2004 convictions in the Somerville District Court, but the
transcript Luna submitted shows that Luna pleaded guilty in 2005 in
the Cambridge District Court.
16
Although Luna objected below to the district court's use of a
2007 Malden conviction for possession of cocaine with intent to
distribute as an ACCA predicate, he has not pursued this argument
on appeal.

-27-
ways, not all of which require the use of a firearm, knife, or a

destructive device.17

Luna's arguments on appeal have a different focus.

Instead of primarily attacking the validity of the ACCA

convictions, he argues that none of his three non-drug predicates

meet the ACCA's "violent felony" requirement. The government

argues that (1) Luna has forfeited his challenge to his designation

as an armed career criminal because he made very different

arguments below, and (2) Luna cannot prevail even on the merits.

We assume, without deciding, that Luna's claims have not been

forfeited and move on to the merits, reviewing de novo the question

of whether at least three of his convictions qualify as predicate

offenses. See United States v. Dancy, 640 F.3d 455, 464 (1st Cir.

2011).

1. The Legal Framework

The ACCA defines a "violent felony" as

any crime punishable by imprisonment for a
term exceeding one year, or any act of
juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive
device that would be punishable by
imprisonment for such term if committed by an
adult, that --

17
Luna's counsel appears to have been merging the requirement of
18 U.S.C. § 924(e)(2)(B), governing which juvenile offenses are
ACCA predicates, with the case law requiring a particular type of
analysis for crimes that can be committed in a variety of ways
(i.e., that are "non-generic"), not all of which involve violent
force, see Section II.C.1, infra.

-28-
 (i) has as an element the use,
attempted use, or threatened use
of physical force against the
person of another; or

(ii) is burglary, arson, or
extortion, involves use of
explosives, or otherwise
involves conduct that presents a
serious potential risk of
physical injury to another
. . . .

18 U.S.C. § 924(e)(2)(B). The first clause "is sometimes referred

to as the 'force clause,'" and "[t]he portion of clause (ii)

following the enumerated offenses is known as the 'residual

clause.'" United States v. Holloway, 630 F.3d 252, 256 (1st Cir.

2011).

In determining whether each conviction qualifies as a

"violent felony" under either of these clauses, we must "take a

categorical approach," which means that "we may consider only the

offense's legal definition." Id. We base our analysis on "the

elements of the . . . crime, as specified in the state statutes

that criminalize [the relevant conduct] and set forth standard

charging language, and as interpreted by the [relevant state's]

courts." Dancy, 640 F.3d at 468. We must "forgo[] any inquiry

into how the defendant may have committed the offense." Holloway,

630 F.3d at 256.

The "first step" in this categorical approach is to

"identify the offense of conviction." Id. (quoting United States

v. Giggey, 589 F.3d 38, 41 (1st Cir. 2009)) (internal quotation

-29-
mark omitted). If the defendant was convicted under a statute that

covers only one offense, this task is relatively straightforward.

If, however, the statute covers more than one offense (like, e.g.,

the Massachusetts assault and battery statute, which criminalizes

"(1) harmful battery; (2) offensive battery; and (3) reckless

battery"), the court may only conclude that a conviction under that

statute satisfies the ACCA if either (1) all of the possible

offenses of conviction are violent felonies, or (2) the court can

(a) ascertain, by looking at "a restricted set of documents," which

offense underlies the conviction, and (b) conclude that the

particular offense of conviction is a violent felony under the

ACCA. Id. at 257; see also Johnson v. United States, 130 S. Ct.

1265, 1273 (2010).

For an offense to qualify as a predicate under the ACCA's

"force clause," it must "[have] as an element the use, attempted

use, or threatened use of physical force against the person of

another." 18 U.S.C. § 924(e)(2)(B)(i). As the Supreme Court

recently held in Johnson, "physical force" is defined as "violent

force -- that is, force capable of causing physical pain or injury

to another person." 130 S. Ct. at 1271. For an offense to qualify

as a predicate under the ACCA's "residual clause," on the other

hand, it must be "roughly similar, in kind as well as in degree of

risk posed, to the examples" listed in 18 U.S.C.

§ 924(e)(2)(B)(ii). Begay v. United States, 553 U.S. 137, 143

-30-
(2008). "An offense is similar in kind if it 'typically

involve[s]' purposeful, violent, and aggressive conduct." Dancy,

640 F.3d at 466 (quoting Begay, 553 U.S. at 144-45). The residual

clause does not simply cover "every crime that 'presents a serious

potential risk of physical injury to another.'" Begay, 553 U.S. at

142 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).

2. Analysis

Luna concedes that his previous drug conviction is an

ACCA predicate. In addition, Luna's claim that his Massachusetts

conviction for ABPO is not a proper ACCA predicate has been

foreclosed by Dancy, which held that "the Massachusetts crime of

ABPO qualifies under the residual clause of the ACCA," even after

Holloway, 630 F.3d 252, and Johnson, 130 S. Ct. 1265. Dancy, 640

F.3d at 470. Thus, we need only conclude that one additional

offense falls under the ACCA's force clause or residual clause in

order to affirm. We now turn to Luna's juvenile adjudication for

armed robbery.

Under the ACCA, to qualify as a predicate "conviction,"

an "act of juvenile delinquency" must, in addition to meeting the

requirements of the force clause or the residual clause, "involv[e]

the use or carrying of a firearm, knife, or destructive device" and

be a type of crime that "would be punishable by imprisonment for [a

term exceeding one year] if committed by an adult." 18 U.S.C.

§ 924(e)(2)(B). Luna does not claim that his act of juvenile

-31-
delinquency did not involve a knife; he does, however, contend that

it does not meet the requirements of the force clause.

To obtain an armed robbery conviction in Massachusetts,

the government must prove that (1) "the defendant was armed with a

dangerous weapon" (though it need not be used); (2) "the defendant

either applied actual force or violence to the body of the person

identified in the indictment, or by words or gestures put him in

fear" (i.e., the defendant "committed an assault on that person");

and (3) "the defendant took the money or . . . the property of

another with intent to steal it." Commonwealth v. Rogers, 945

N.E.2d 295, 301 n.4 (Mass. 2011); see also Mass. Gen. Laws ch. 265,

§ 17 (defining an armed robbery perpetrator as one who, "being

armed with a dangerous weapon, assaults another and robs, steals,

or takes from his person money or other property which may be the

subject of larceny").18

Luna contends that because these elements can be met if

a defendant, while armed, puts his victim in fear using threatening

words or gestures, the crime does not require violent force. He

does not, however, explain why, even if an armed robbery involves

18
Although the crime of armed robbery can be committed in two ways
(using (1) actual force or violence or (2) words or gestures that
put the victim in fear), see Commonwealth v. Santos, 797 N.E.2d
1191, 1195 (Mass. 2003) (referring to the two "form[s] of
'assault'" that can be "used to perpetrate [an] armed robbery"), we
need not determine which version of armed robbery Luna committed
because both versions are proper ACCA predicates, as discussed
below.

-32-
only "threatening words or gestures," it does not have "as an

element the . . . attempted use[] or threatened use of physical

force." 18 U.S.C. § 924(e)(2)(B)(i). Insofar as he is claiming

that the version of armed robbery involving threatening words or

gestures does not involve the threat of force but rather involves

the threat of something else, we reject his claim; Massachusetts

case law makes clear that the threat involved is a threat of force.

See Commonwealth v. Stewart, 309 N.E.2d 470, 476 (Mass. 1974)

(noting, while discussing whether jury instructions were proper,

that "if force or threat of force had been applied to a customer

[at a supermarket] . . . who was trying to interpose himself or to

call the police, a charge of robbery from that customer with

respect to money of [the supermarket] could have been sustained"

(emphasis added)); Commonwealth v. Rajotte, 499 N.E.2d 312, 313

(Mass. App. Ct. 1986) ("[T]he defendant argues that the taking was

not effected by force or threat of force and hence was only a

larceny and not a robbery." (emphasis added)); Commonwealth v.

Dellinger, 409 N.E.2d 1337, 1342 (Mass. App. Ct. 1980) ("One

element of robbery is that the taking be by force or threat of

force from a person." (emphasis added)). Luna has also provided no

reason for us to conclude that the type of force involved in armed

robbery is not "violent force -- that is, force capable of causing

physical pain or injury," Johnson, 130 S. Ct. at 1271 (emphasis

omitted), and we see no reason to do so.

-33-
 Thus, we conclude that Luna has three ACCA predicate

convictions and affirm the district court's sentence.

III. Conclusion

For the reasons stated, we affirm the convictions and

sentence.

Affirmed.

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