[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 23, 2005
No. 05-10802 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00095-CR-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 23, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Andre Williams appeals his conviction for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g), 924(e). On appeal, Williams argues
that his conviction for being a felon in possession of a firearm should be reversed
because it was based on hearsay admitted in violation of his Confrontation Clause
rights. He contends that the government violated Crawford v. Washington, 541
U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), by introducing testimonial
hearsay through a Bureau of Alcohol, Tobacco, and Firearms (“BATF”) agent
regarding the state where the gun at issue was manufactured without showing that
the hearsay declarant was unavailable or providing him the opportunity to
cross-examine the declarant. He asserts that the agent’s testimony was not based
on personal knowledge but was based on hearsay statements collected for law
enforcement purposes, including conversations with Smith & Wesson historians.
He also claims that the BATF publications the agent consulted were testimonial
hearsay because the gun manufacturers provided the data in the publications and
could expect that the information would be used for law enforcement purposes. He
concedes that some of the agent’s testimony was not based on testimonial hearsay,
but contends that once the testimonial hearsay portions are excised, there is
insufficient evidence to sustain his conviction. He also concedes that we have held
that hearsay testimony may be used by firearms interstate nexus experts, but
submits that this holding is inapposite because it was decided before Crawford.
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Sufficiency of the evidence is reviewed de novo, with all evidence viewed in
a light most favorable to the United States and all reasonable inferences drawn in
its favor. See United States v. Fallen, 256 F.3d 1082, 1087 (11th Cir. 2001). We
“need only find that a reasonable fact finder could have concluded that the
evidence established the defendant’s guilt beyond a reasonable doubt.” Id. We
“review a district court’s ruling on admission of evidence under the abuse of
discretion standard.” United States v. Maragh, 174 F.3d 1202, 1204 (11th Cir.),
modified on other grounds, 189 F.3d 1315 (11th Cir. 1999).1
To convict a defendant under 18 U.S.C. § 922(g)(1), the government must
prove beyond a reasonable doubt, among other things, “that the firearm was in or
affecting interstate commerce.” United States v. Deleveaux, 205 F.3d 1292, 1297
(11th Cir. 2000).
We have held that “erroneous admission of evidence does not warrant
reversal if the error had no substantial influence on the outcome and sufficient
evidence uninfected by error supports the verdict.” United States v. Harriston, 329
F.3d 779, 789 (11th Cir. 2003) (quotations omitted) (noting also that error is
harmless “where there is overwhelming evidence of guilt.”). Williams’ appeal
1
It is not clear whether Williams challenges the sufficiency of his conviction
for being a felon in possession of a firearm or the district court’s admission of the
testimony regarding the place of manufacture of the gun. However, under either
standard, we affirm his conviction.
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must be denied because, even charitably assuming arguendo that the district court
did err in admitting those portions of the agent’s testimony alleged to be
testimonial hearsay, that error did not have a substantial influence on the outcome
and because there was sufficient evidence to support the verdict. As the district
court noted, the gun itself was in evidence and was stamped with the legend,
“Made in U.S.A., Smith and Wesson, Springfield, Massachusetts.”
One could be “rationally able to conclude” that it was manufactured outside
Florida. United States v. Clay, 355 F.3d 1281, 1287 (11 th Cir. 2004) (“The
dispositive question is whether, based on the evidence presented to the jury, it was
rationally able to conclude that the weapon seized . . . was possessed in or affected
interstate commerce.”) Therefore, the district court’s verdict is upheld.
AFFIRMED.
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