United States Court of Appeals For the First Circuit

No. 22-1100

UNITED STATES OF AMERICA,

Appellee,

v.

LAVENEUR JACKSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Barron, Chief Judge, Lynch, Circuit Judge, and Kelley,* District Judge.

Simon R. Brown, with whom Preti Flaherty PLLP was on brief, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Jane E. Young, United States Attorney, was on brief, for appellee.

January 23, 2023

* Of the District of Massachusetts, sitting by designation. BARRON, Chief Judge. Laveneur Jackson appeals from his

two September 2021 convictions in the United States District Court

for the District of New Hampshire. Each conviction was for

possessing a firearm as a prohibited person -- i.e., someone who

has previously been convicted of a crime punishable by more than

one year of imprisonment -- in violation of

(g)(1)

and 924(a)(2). Jackson contends that the convictions must be

reversed due to a lack of sufficient evidence. But, as a fallback,

he contends that they must be vacated and the underlying charges

dismissed due to governmental misconduct during the grand jury

proceedings. We affirm.

I.

A.

At some point before December 23, 2016, Jackson asked

Angelina Keenan to buy guns for him in exchange for money or drugs,

and Keenan agreed to do so. And then, on that date, Jackson and

Keenan traveled together to a gun store in Pelham, New Hampshire.

Jackson provided cash to Keenan for the purpose of

purchasing a Ruger SR1911 pistol, which she did. To complete the

purchase, she -- like all people who purchase a firearm from a

federally licensed dealer -- was required to execute a form

prescribed by the Bureau of Alcohol, Tobacco, Firearms and

Explosives (the "ATF 4473 form"). Keenan left the store with the

gun and then gave it to Jackson in the parking lot.

- 2 - Four days after this first gun purchase, on December 27,

Keenan made another purchase for Jackson following a similar

pattern -- this time for two SCCY pistols at a gun store in

Hooksett, New Hampshire. And, in January 2017, Jackson and Keenan

again went to the Hooksett gun store together.

While the two were at that store, however, a store

employee who had become suspicious of their behavior placed a call

to law enforcement. A local police officer who had been deputized

as a task-force officer for the ATF, Matthew Barter, as well as an

ATF special agent, John Cook, responded to the call.

At some point after Barter and Cook arrived at the store,

Cook began to question Jackson. Cook asked Jackson if he had a

felony conviction, and Jackson responded in the affirmative. Cook

then told Jackson that he was "in trouble" for handling guns in

the store, and Jackson responded that he was not aware that it was

illegal for a person who had been convicted of a felony to merely

handle guns in a gun store.

Cook continued questioning Jackson, inquiring whether

Jackson would be willing to help him recover any guns that he had

previously acquired with Keenan's assistance. Jackson responded

that the guns were in Massachusetts, that it would take some time,

and that he would have to return some money to some people. After

Cook suggested that they would need to "work together," Jackson

- 3 - responded, "Yeah, I'm not going to do that," and indicated that he

would like to speak to a lawyer.

Jackson then asked Cook if he could get $1,000 that he

said that Keenan was "holding . . . for [him]." Cook at that

point went over to Keenan to ask if she had Jackson's money.

Keenan told Cook that she did have the money but indicated that

$100 of it belonged to her as a "payment" for buying the guns that

Jackson had asked her to purchase for him. Cook and Barter then

seized the money.

Following this encounter, Jackson left the gun store.

Keenan was taken to the local police department, where she was

further questioned about the purchases.

B.

Nearly twenty months later, in August 2018, the

government commenced grand jury proceedings to obtain an

indictment against Jackson for violating the federal prohibition

on gun possession by persons who have been convicted of a crime

punishable by more than one year. See

(g)(1),

924(a)(2).2 The government called Cook to testify before the grand

2 Section 922(g)(1) provides that "[i]t shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

- 4 - jury about the January 2017 encounter between Jackson and Cook at

the gun store. The following exchange occurred during Cook's

testimony:

Government: And just to clarify, [the January 2017] purchase was never consummated; right?

Cook: Right. That's the day we show up and we stop it. . . . So at this point, I move on to interviewing Jackson. . . . And he said that he could get the guns back. He would just have to return some money to some people and it would take some time. I was like, "Hey, sounds great. But we have to do that as a team, like we're going to work together so we can get those guns off the street." And he's like, "Yeah, I'm not going to do that." And he invoked -- asked to talk to a lawyer at that point.

Government: And at that point you stopped questioning; right?

Cook: I stopped talking to him.

Government: One thing. Before he asked to speak to a lawyer, before he stopped cooperating and talking to you, you had asked him where the firearms had gone; right?

Cook: Right.

Government: And he said they were in Massachusetts.

Cook: He did. That's right.

Section 924(a)(2), at the time Jackson was charged, in turn provided that "[w]hoever knowingly violates subsection [(g)] of Section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both." The statute has since been revised to provide for a penalty of up to 15 years of imprisonment for a violation of subsection (g). See

(a)(8).

- 5 - Government: Okay. All right. At this point he invokes -- he says, "I want to talk to an attorney." And you stop questioning him; right?

Cook: Correct. Yes.

Government: But then he says something without you asking him any questions; right?

Cook: Right. So I basically told him, okay, you can go. And he said, "Well, you know, can I get my money from her?" And I was like, "What money?" And he was like, "She has $1,000 of mine." I was like, "Why does she have your money?" He said, "Well, she's just holding it for me." So I was like, okay. So I go over and I talk to Keenan. I'm like, "Do you have $1,000?" She goes, "Yeah, he gave me $1,000 to buy the guns." And then at that point she said, "$100 was for me, for payment for me for doing it, and the rest of the money was to buy the guns." So, you know, we just seized the whole $1,000 as evidence. We don't give it to anybody. ATF takes it into custody. We still have it in the evidence room.

Government: All right. And after this room - - after you seized the money, Jackson left the area; right?

Cook: Correct.

Government: He walked away.

Cook: That's right.

Government: And he was free to walk away because he wasn't under arrest.

Cook: Correct.

The government also sought during the grand jury

proceedings to show through Cook's testimony that Jackson had

- 6 - previously been convicted of a crime punishable by more than one

year. Cook's testimony in this regard was as follows:

Government: Is it fair to say that after [your] review of [Jackson's] criminal history, the last conviction you see on it is in December of 2013 for assault with a dangerous weapon?

Cook: That is one of the convictions I've seen on his criminal history.

Government: I’m sorry, I’m thinking of sentencing. Actually, the last sentence that we see here is on July 30th of 2014; correct?

Cook: That's right.

Government: And that's for assault and battery on a police officer?

Cook: I have his last felony conviction --

Government: Resisting arrest?

Cook: -- possession to distribute.

Government: And possession --

Cook: Possession to distribute, two counts, on July 30th, 2014. That was in the Lawrence District Court.

Government: A11 right. Let's go with that. That's going to be Docket 118-CR-495?

Cook: 58613 is what I have for the Lawrence District Court conviction.

Government: Okay. You have the -- okay. He was sentenced for several things on that date. But that is fair to say. So, possession to distribute drugs?

Cook: Correct.

- 7 - Government: And July 30th of 2014 was the last sentence?

Cook: Correct.

Government: And it doesn't look like he had any probation. Just said one year; correct?

Cook: I believe that's correct, yes.

Government: So it's fair to say you don't know for sure.

Cook: I don't know that for sure, no. I know that he has multiple felony convictions. I know that.

The grand jury returned an indictment alleging in two

separate counts that Jackson, "who on or about September 3, 2013,

was convicted in the Dorchester District Court in Massachusetts of

Assault with a Dangerous Weapon, a crime punishable by imprisonment

for a term exceeding one year, did knowingly possess" the Ruger

SR1911 pistol and the SCCY pistols "on or about" the two dates in

December 2016 that Keenan had purchased them. The indictment did

not allege that Jackson had any other felony convictions.3

At a detention hearing after Jackson had been arrested

on these charges, Jackson pointed out that the Dorchester,

Massachusetts conviction for assault with a dangerous weapon that

was identified in the indictment did not belong to him. The

3Jackson was also charged with two counts of aiding and abetting the making of a false statement in connection with the acquisition of a firearm, see

(a)(6), 924(a)(2), but those charges were later dismissed by the District Court with prejudice.

- 8 - government admitted after some further investigation that Jackson

was correct on that score and thereafter commenced grand jury

proceedings for the purpose of securing a superseding indictment.

During these grand jury proceedings, which took place in

February 2020, the government again called Cook to testify. The

following exchange occurred during Cook's testimony:

Government: And Special Agent Cook[,] [w]ould you agree with me that [the colloquy from the 2018 grand jury proceedings] about [Jackson's prior felony] conviction was not particularly clear?

Cook: Yes.

Government: All right. So what the indictment originally said was a September 2013 Mass. conviction for assault with dangerous weapons; right?

Cook: Correct.

Government: What did further investigation reveal about that particular conviction?

Cook: I don't know if that actually was a guilty conviction, that charge.

Government: For Mr. Jackson?

Cook: For Mr. Jackson, yes.

Government: Have you since that time done additional research on Mr. Jackson's criminal history?

Cook: Yes.

Government: Can you explain to the Grand Jury what that investigation has determined?

- 9 - Cook: So when you get a criminal history report, a lot of times they don't actually have the disposition, you know, if they're actually found guilty or not guilty. So if you have a very lengthy criminal history, you actually have to reach out to the courts and request the court documents, go through the court documents to see if they were actually found guilty or not. So it's just not as clear-cut, so it took a little bit more digging. But what I found out is Mr. Jackson has been convicted of several felony offenses.

Cook then identified a July 2002 conviction for breaking

and entering with intent to commit a felony in Springfield,

Massachusetts, which he testified that he determined was Jackson's

conviction through a fingerprint analysis. He also identified a

drug-distribution conviction in Methuen, Massachusetts, which he

similarly testified that he determined was Jackson's conviction

through a fingerprint analysis.

The grand jury handed up a superseding indictment that

alleges that Jackson, "knowing he had previously been convicted of

a crime punishable by imprisonment for a term exceeding one year,

did knowingly possess" the Ruger SR1911 and SCCY pistols "on or

about" the dates in December 2016 that Keenan had purchased them.

Jackson moved to dismiss the superseding indictment on the ground

that the government prosecutor and agent Cook committed misconduct

during the grand jury proceedings because they both knew that

Cook's statement that "I don't know if [the September 2013 assault

with a dangerous weapon] actually was a guilty conviction . . .

- 10 - [for] Jackson" was false because they both knew at that time that

the conviction was not Jackson's and failed to correct the false

statement. Jackson also moved to dismiss the superseding

indictment on the ground that in the course of the government's

questioning of Cook about his interrogation of Jackson at the gun

store, the government improperly characterized Jackson's

invocation of his constitutional rights to counsel and to remain

silent to the grand jury by describing the invocation as a

cessation of Jackson's "cooperation."

The District Court held a hearing on both motions on

August 17, 2021. Following the hearing, the District Court denied

the motions.

C.

A two-day jury trial was held in the District of New

Hampshire on September 26 and September 27, 2021. Cook provided

similar testimony at the trial to the testimony that he gave during

the grand jury proceedings that resulted in the superseding

indictment. The government also called employees of the gun

stores that Jackson and Keenan had visited. In addition, the

government introduced photographs of the firearms in question and

certified copies of Jackson's Massachusetts Registry of Motor

Vehicles documents, including his license photographs and other

identifying information.

- 11 - To establish that the guns in question had traveled in

interstate commerce (i.e., the "interstate nexus element") the

government called another ATF employee, special agent John Forte,

who offered expert testimony about where the guns were likely

manufactured. Forte testified that he reviewed the ATF 4473 forms

that Keenan had executed at the gun stores to determine the

manufacturers and serial numbers of the guns in question. He then

testified that he reviewed certain reference materials --

including periodicals, books, online research, and notes gathered

by other nexus examiners -- in connection with his research,

although he did not name or testify to further details about those

materials. Forte also testified that he reviewed a database that

ATF maintains to determine whether the manufacturers had

potentially worked with a subcontractor to produce the guns in

question (the "variance database") and concluded that they had

not.

Forte then testified that, based on these reviews, he

determined that the Ruger pistol was manufactured in Prescott,

Arizona, and the two SCCY pistols were manufactured in Daytona

Beach, Florida. Forte further testified that he spoke to somebody

at Ruger and was able to confirm that the Ruger pistol was in fact

not manufactured elsewhere, and that he had "contacted SCCY" but

could not remember "the details" about that outreach. He

testified as well that "all of these things" are sources of

- 12 - information that are reasonably relied upon by experts in his

field.

Jackson moved to strike Forte's testimony on the grounds

that Forte's opinions were not based on "scientific, technical, or

other specialized knowledge" and that his testimony in this case

was not the product of "reliable principles and methods." See

Fed. R. Evid. 702. The District Court denied the motions.

At the close of the government's case-in-chief, Jackson

moved for acquittal under Federal Rule of Criminal Procedure 29.

Jackson argued in the motion that the prosecution had not met its

burden of proving that Jackson was the perpetrator of the charged

crimes, or that Jackson knew that he had been convicted of a crime

punishable by more than one year of imprisonment. Jackson also

argued in that motion that Forte's testimony must be stricken under

the Federal Rules of Evidence and that, once stricken, the

interstate nexus element could not be satisfied, such that a

judgment of acquittal under Rule 29 would be warranted. The

District Court took the Rule 29 motion under advisement and invited

briefing on the issues that had been raised.

Jackson did not call witnesses of his own before he

rested his defense. The jury returned a guilty verdict on both

counts on September 28, 2021.

The District Court denied Jackson's motion for acquittal

under Rule 29 in an endorsed order on November 18, 2021, and later

- 13 - issued a published order explaining its reasoning on January 4,

2022. See United States v. Jackson,

(D.N.H.

2022). A few weeks later, on January 26, 2022, the District Court

sentenced Jackson to 66 months of imprisonment, followed by 3 years

of supervised release. Judgment of conviction entered on the same

day. Jackson thereafter filed a timely notice of appeal.

II.

We begin with Jackson's contention that his convictions

must be reversed because the government failed to present

sufficient competent evidence to prove the material elements of

the charges that were brought against him.4 We review a preserved

challenge to a District Court's denial of a Rule 29 sufficiency

motion de novo. United States v. Oliver,

(1st

Cir. 2021). In conducting this inquiry, we must draw "all

reasonable inferences from the evidence in favor of the verdict."

at 519 (citing United States v. Fuentes-Lopez,

(1st Cir. 2021)). That said, we must "reject those evidentiary

interpretations and illations that are unreasonable,

insupportable, or overly speculative." United States v.

Rodríguez-Martinez,

(1st Cir. 2015) (internal

quotations omitted).

Jackson does not renew his challenge to the sufficiency of 4

the evidence that he knew he had previously been convicted of a crime punishable by more than a year imprisonment, and we therefore do not address it on appeal.

- 14 - A.

Jackson rests his contention that the District Court

erred in denying his request to enter judgment of acquittal under

Rule 29 in part on the ground that the government failed to

identify him as the perpetrator of the charged offenses at trial.

See United States v. Ayala,

(1st Cir. 2002)

("Identification of the defendant as the person who committed the

charged crime is always an essential element which the government

must establish beyond a reasonable doubt."). More specifically,

Jackson argues that no rational juror could have found that Jackson

was the perpetrator because no witnesses identified him in court

and -- especially in light of the fact that he was masked during

the entire trial -- the circumstantial evidence of his identity in

those circumstances was insufficient.

But, we agree with the District Court that there was in

fact an "in-court identification of Jackson as the person on

trial." Jackson,

. Indeed, in the course

of defense counsel's questioning of Cook, Cook was asked whether

he could "tell by looking at [Jackson] today" whether Jackson was

"heavier, the same, or thinner than he was" at the time of Cook's

encounter with Jackson at the Hooksett gun store, and Cook

responded: "[t]oday he's thinner," and then went on to further

testify that he believed Jackson was the person who was depicted

in surveillance footage from the Pelham store. See

- 15 - In any event, we also agree with the District Court that

"additional proof in the record supported the necessary link

between the individual sitting in the courtroom and the individual

named in the indictment."

at 250–51. For example, both the

prosecution and defense counsel "referred to the defendant at

trial" as the person involved in the alleged events, and the

defense at no point objected to the references to the person in

the courtroom at trial as "the defendant." See United States v.

Weed,

(7th Cir. 1982).

We therefore see nothing that would have required the

jury to rely on the type of "unreasonable, insupportable, or overly

speculative" inference that would warrant acquittal in order to

conclude that Jackson was in fact the perpetrator of the charged

offenses. See Rodríguez-Martinez,

. Accordingly,

we reject this challenge to the denial of his Rule 29 motion.

B.

Jackson separately challenges the District Court's

denial of his Rule 29 motion due to the District Court's asserted

error in admitting the expert testimony of agent Forte, as Jackson

contends that without that testimony the evidence did not suffice

to show that the guns Jackson was charged for possessing traveled

in interstate commerce. See

(g)(1). The

government does not dispute on appeal that, absent Forte's

testimony, the record would not suffice to permit a rational juror

- 16 - to find that the guns at issue traveled in interstate commerce.

So, the key issue is whether Jackson is right that the District

Court erred in not striking Forte's testimony under Federal Rules

of Evidence 702 and 703.

Our review of the District Court's decision not to strike

Forte's testimony is for abuse of discretion. Martínez v. United

States,

(1st Cir. 2022). Under this rubric:

embedded findings of fact are reviewed for clear error, questions of law are reviewed de novo, and judgment calls are subjected to classic abuse-of-discretion review. We will reverse a trial court's decision if we determine the judge committed a material error of law or a meaningful error in judgment. This occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them.

(citations omitted).

1.

We begin with Jackson's contention that the District

Court's decision to admit Forte's testimony violated Federal Rule

of Evidence 702. The Rule provides that a "witness who is

qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise"

if:

(a) the expert's scientific, technical, or other specialized knowledge will help the

- 17 - trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

The Supreme Court of the United States explained in

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(1993), that Rule 702 assigns a "gatekeeping role for the judge"

to determine whether "an expert's testimony both rests on a

reliable foundation and is relevant to the task at hand." But,

although the district court's "focus, of course, must be solely on

principles and methodology, not on the conclusions that they

generate,"

, "nothing in either Daubert or the Federal

Rules of Evidence requires a district court to admit opinion

evidence that is connected to existing data only by the ipse dixit

of the expert," Gen. Elec. Co. v. Joiner,

(1997).

Rather, a "court may conclude that there is simply too great an

analytical gap between the data and the opinion proffered."

That said, "[t]hat 'the factual underpinning of an expert's opinion

is weak' is 'a matter affecting the weight and credibility of the

testimony -- a question to be resolved by the jury.'" Martínez,

- 18 -

(quoting Milward v. Acuity Specialty Prods. Grp.,

Inc.,

, 22 (1st Cir. 2011)).

Jackson does not argue to us that Forte -- as an ATF

"interstate nexus examiner" -- lacked the type of specialized or

technical knowledge or training necessary for someone to be

"qualified as an expert." He also does not argue to us that

Forte's testimony, if admissible, would not be "help[ful to] the

trier of fact" -- i.e., that it is not "relevant." Fed. R. Evid.

702(a); see Martínez,

.5 Jackson contends instead

that the government failed to show through Forte's testimony that

his expert opinions in this case were "the product of reliable

principles and methods," and that the government similarly failed

to show through Forte's testimony that he "reliably applied the

principles and methods to the facts of [Jackson's] case." Fed.

R. Evid. 702(c), (d).

In pressing this contention, Jackson asserts that

Forte's testimony about the sources and reference materials that

he consulted to form his opinions was "extremely vague,"

"conclusory," and "non-specific." Jackson points in this regard

5 In the District Court, Jackson also argued that Forte lacked the requisite "specialized" and "technical" knowledge to be qualified to offer expert opinion testimony under Rule 702(a), but the District Court rejected that aspect of the argument -- and Jackson does not renew it on appeal. See also United States v. Cortez-Oropeza,

(1st Cir.) (noting that this Court has "repeatedly . . . rejected similar arguments"), cert. denied,

(2022).

- 19 - to the fact that Forte did not specify in his testimony which

periodicals, online materials, books, or other materials he

consulted in reaching an opinion about the origin of the guns at

issue here and also could not provide any details from his

communications with Ruger and SCCY.

Jackson is right that Forte did not detail in his

testimony which reference materials he reviewed as to each gun

(with the exception of ATF's internal variance database). Jackson

is also right that Forte could not recall details that he learned

from his contact with Ruger and attempted contact with SCCY. And,

Jackson is right as well that a review of prior cases rejecting

challenges to the admissibility of expert testimony by an

interstate nexus examiner reveals that the expert testimony

offered in those cases more specifically detailed the precise

reference materials relied upon by the interstate nexus examiner.

See, e.g., United States v. Corey,

(1st Cir.

2000); United States v. Cormier,

(1st Cir.

2006).

But, we have accepted interstate nexus testimony

predicated on an examiner's reference to the types of materials

that Forte testified that he used -- including books, periodicals,

online research, ATF databases, and notes compiled by other

examiners. See Cormier,

; see also, e.g., United

States v. Cortez-Oropeza,

(1st Cir.), cert. denied,

- 20 -

(2022). And, Forte did testify that he "ma[d]e the

determination" as to the manufacturing location of the guns based

on those types of materials, even if he did not specify which

materials. Moreover, Jackson does not contend that those types

of materials do not in fact contain the type of information that

Forte would have needed to review to opine on where the gun was

likely manufactured. We are therefore satisfied that the District

Court did not abuse its discretion in ruling that Forte also

reliably applied the principles and methods to the facts of the

case. After all, where "the factual underpinning of an expert's

opinion is weak" but the methods are otherwise found to be

reliable, such an issue is "a matter affecting the weight and

credibility of the [expert's] testimony" -- that is, "a question

to be resolved by the jury." Martínez,

(quoting

Milward, 639 F.3d at 22).

Jackson does invoke out-of-circuit authority that he

argues supports his contention that Forte's testimony should have

been stricken under Rule 702. But, it does not.

Although Jackson is right that the Ninth Circuit in

United States v. Valencia-Lopez,

(9th Cir.

2020), relied on Rule 702 to overturn the decision by the district

court there to admit expert testimony from a law enforcement

officer, the panel in doing so emphasized that the expert had

provided no explanation for his methodology in reaching his opinion

- 21 - -- there, that there was "almost nil" possibility that a drug

cartel would have tried to coerce the defendant in the manner that

the defendant claimed that it did. See

. Here,

in contrast, Forte testified that he researched the particular

guns that Jackson possessed based on the serial numbers that were

reported on the ATF forms that he reviewed, and that he applied a

methodology that has been repeatedly accepted by this Court as

reliable to those guns.

Moreover, Jackson is right that in Coleman v. United

States, No. 4:17-CV-2228,

, at *4 (N.D. Ohio Mar.

6, 2018), the district court did express concern about the

vagueness of the interstate nexus examiner's testimony concerning

the "ATF database [and] ATF reports" that he had relied upon in

reaching an opinion about the origin of the gun at issue. But,

the district court ultimately relied in granting habeas relief on

its separate finding that the expert failed to testify that other

experts in the field "reasonably rely" on the type of materials

that he used, see

, which implicates Rule 703 rather than

Rule 702. And -- as we next explain -- there is no such Rule 703

problem in this case.

2.

We turn, then, to Jackson's contention that the District

Court erred by not striking Forte's testimony pursuant to Rule

703, which provides: "An expert may base an opinion on facts or

- 22 - data in the case that the expert has been made aware of or

personally observed. If experts in the particular field would

reasonably rely on those kinds of facts or data in forming an

opinion on the subject, they need not be admissible for the opinion

to be admitted." Fed. R. Evid. 703.

The District Court rejected this argument on the ground

that its factual premise -- that Forte never testified that experts

in his field regularly use the variance database -- is wrong.

Jackson,

. We agree with the District

Court.

Forte testified that he always checks the variance

database when he is conducting an interstate nexus analysis. See

He went on to explain that he looked at his usual reference

materials for this case, including to determine whether the

manufacturers had "subcontracted [the manufacturing process] to

some other manufacturer."

. The government then asked:

"all of the various things that you're looking at, are all of those

reasonably relied upon by experts in the field?" Forte responded,

"yes."

The District Court interpreted Forte's affirmative

response to this question as including the variance database,

and that factual finding is not clearly erroneous. As the District

Court explained, the "prosecutor's question could quite

reasonabl[y] have been understood as a catch-all that included the

- 23 - variance database that Agent Forte had discussed just minutes

prior."

It is also not otherwise clear from the record that

Forte intended to exclude the variance database from the set of

materials that he testified that other interstate nexus examiners

rely upon. See

As a result, the District Court supportably

concluded that Forte's testimony "was based entirely on facts or

data reasonably relied on by experts in his field." Jackson,

. Thus, like the District Court, we must reject

Jackson's contention that the jury should not have been allowed to

consider Forte's testimony related to the variance database.

III.

We now turn to Jackson's fallback contention that his

convictions must be vacated because the District Court abused its

discretion in denying his motion to dismiss the superseding

indictment on the ground that the government committed misconduct

during the grand jury proceedings to obtain it. Jackson alleges

two types of misconduct: first, that the government knowingly

presented false information about Jackson's prior convictions and

failed to correct it, and second, that the government improperly

invited the grand jury to draw negative inferences from Jackson's

invocation of his constitutional rights to remain silent and to

counsel during his encounter with Cook. We conclude that the

District Court did not abuse its discretion in declining to dismiss

the indictments based on either ground.

- 24 - A.

The Due Process Clause of the Fifth Amendment to the

U.S. Constitution provides in relevant part that "[n]o person shall

be . . . deprived of life, liberty, or property, without due

process of law." This constitutional guarantee secures, among

other things, the right of criminal defendants to "fundamental

fairness" in the proceedings that are brought against them.

United States v. Valenzuela-Bernal,

(1982);

United States v. Anzalone,

(1st Cir. 2019).

This Court has recognized that while a "grand jury may

consider incompetent evidence" presented by the government in the

course of obtaining an indictment, a grand jury "cannot itself

violate a constitutional privilege." United States v. Flaherty,

(1st Cir. 1981) (emphasis added) (citing United

States v. Calandra,

(1974)). Among these

privileges is a criminal defendant's right to fundamentally fair

proceedings under the Due Process Clause. See United States v.

Reyes-Echevarria,

(1st Cir. 2003); United States v.

Giorgi,

(1st Cir. 1988).

Thus, we have recognized that where the government

elicited false or misleading testimony in order to obtain an

indictment, knew that the relevant testimony was false, and failed

to correct the falsity, such that the government "distort[ed] the

integrity" of the grand jury proceeding, Giorgi,

,

- 25 - dismissal of the indictment may be warranted, see Reyes-

Echevarria,

. In any given case, however, "it is

within the discretion of the trial court to dismiss an indictment

if it is based on incompetent or illicit evidence" presented to

the grand jury, and "[t]o a lesser extent, the court of appeals

has the supervisory power to make similar dismissals." Flaherty,

.

The parties are in agreement that our review of the

District Court's denial of Jackson's motion dismiss on grounds of

government misconduct in the grand jury proceedings is for abuse

of discretion. See, e.g., United States v. Ramos-Gonzalez,

(1st Cir. 2015). The parties also appear to agree

that if Jackson were right that the government committed misconduct

during the grand jury proceeding, then he must still show that the

violation prejudiced him. See Reyes-Echevarria,

;

United States v. Flores-Rivera,

(1st Cir. 1995)

("[A]s a general matter, a district court may not dismiss an

indictment for errors in grand jury proceedings unless such errors

prejudiced the defendants." (quoting Bank of Nova Scotia v. United

States,

(1988))). And, under that standard,

Jackson must show that "the violation substantially influenced the

grand jury's decision to indict, or [that] there is grave doubt

that the decision to indict was free from the substantial influence

- 26 - of such violations." Bank of Nova Scotia,

(internal quotations omitted).6

Jackson argues that the District Court abused its

discretion in declining to find that a violation of his

constitutional rights occurred during the second grand jury

proceedings because the government knew that Cook's testimony that

"I don't know if [the September 2013 assault with a dangerous

weapon] actually was a guilty conviction . . . [for] Jackson" was

false and failed to correct the falsity, even though the false

statement was made in front of the grand jury. Jackson then argues

that he was prejudiced because the grand jury must have been

influenced by testimony about a non-existent conviction for

assault with a deadly weapon -- "an especially inflammatory

representation where the grand jury was being asked to indict

Jackson for illegal, felonious possession of firearms."

6 We note that Jackson concedes to us that we must apply the prejudice standard for "nonconstitutional error" articulated in Bank of Nova Scotia,

, see Reyes-Echevarria,

(applying this standard to a similar challenge), notwithstanding that the grand jury misconduct challenges that he brings are predicated on what he contends are errors of constitutional magnitude, but cf. Bank of Nova Scotia,

(explaining that the Court was adopting the standard "at least where dismissal is sought for nonconstitutional error" and noting that "no constitutional error occurred during the grand jury proceedings" in the case).

- 27 - We bypass Jackson's claim that the government elicited

improper testimony and hold that he cannot show that he was

prejudiced. See Reyes-Echevarria,

.

To prove that Jackson was guilty of the underlying

counts, the government needed to establish before the grand jury

that Jackson had at least one prior conviction that was punishable

by more than one year in prison. See

(g)(1). Yet,

Cook testified that the defendant had multiple felony convictions

other than the one that undergirds Jackson's due process challenge,

and Jackson does not contest the authenticity of those other

convictions. Thus, even though -- as the District Court put it -

- the government "engaged in a very sloppy presentation7 that was

difficult to follow," and even though the agent may have "made a

statement about a prior conviction [that was] incorrect," we see

no reason to think that the grand jury in issuing the superseding

indictment (which does not refer to any specific previous

convictions) did not rely on this "abundant" evidence of other

prior felony convictions.8 Nor does the precedent in this area

7 We note that this was the government's second grand jury presentation. By choosing to read from the erroneous portions of the transcript of the first grand jury presentation, the government effectively repeated the misstep that led to the error in the original indictment. 8 To be sure, Jackson may be right that there is potential for prejudicial harm when the government mistakenly references a violent felony offense like assault with a deadly weapon -- particularly in a firearms possession case -- but, such harm is

- 28 - that Jackson marshals as support for a contrary conclusion provide

it, as that precedent consists of one out-of-circuit district court

ruling that is readily distinguished. See United States v.

Cooper,

, 95-96 (D. Kan. 2019) (dismissing

indictment without prejudice due to the government's failure to

correct a law enforcement officer's false testimony that a medical

examination report contained evidence of sexual penetration, an

essential element of the charged offense, when the report in fact

did not).

B.

Jackson next contends that the government committed

misconduct during the grand jury proceedings by prompting

testimony from Cook that referenced Jackson's invocation of his

constitutional rights and by characterizing the invocation as a

cessation of Jackson's "cooperation" with law enforcement (rather

than explaining to the jury that Jackson had every right to say

what he did). The parties appear to agree that the same abuse of

discretion and prejudice standards described above apply to this

second misconduct-based claim.

To recap, the government called Cook to testify before

the grand jury about his questioning of Jackson at the gun store

in Hooksett, New Hampshire. Cook testified that after he had

minimized where, as here, the mistaken reference must be balanced against abundant evidence of multiple felony convictions.

- 29 - asked Jackson to "work together" with him to "get those guns off

the street," Jackson invoked his right to speak to an attorney,

and that he thereafter "stopped talking to [Jackson]." The

government then asked, "One thing. Before [Jackson] asked to

speak to a lawyer, before he stopped cooperating and talking to

you, you had asked him where the firearms had gone; right?"

(emphasis added). Cook clarified that Jackson had told him that

the guns were now in Massachusetts, and that it was then that

Jackson had asked to speak to a lawyer. Cook then testified that

Jackson asked -- without any prompting -- whether he could "get

[his] money" from Keenan.

Jackson contends that the grand jury would have

understood the government's statement that Jackson "stopped

cooperating" as "obstinan[ce] instead of a lawful exercise of [his]

constitutional right" (quoting United States v. Reeves, No. 11-

520,

, at *18 (D.N.J. May 25, 2012)). Even assuming

that is true, though, Jackson by his own account still must show

that that the government intentionally and improperly sought to

invite the grand jury to draw a negative inference from the

invocation of his rights. United States v. Lopez-Gutierrez,

(10th Cir. 1996); see also United States v.

Barbour,

(1st Cir. 2004). And, considering the

full context of the colloquy during Cook's grand jury testimony,

we cannot conclude that the government's questioning and Cook's

- 30 - reference to Jackson's invocation of his rights rose to the level

of such intentional misconduct.

The District Court did conclude that the government's

questioning could be seen to criticize Jackson's refusal to speak

to Cook and that it would not allow such a reference at trial, but

the sequence of questioning reveals that the government was more

likely trying to show that Jackson freely offered additional

incriminating information about the money that he had given to

Keenan -- notwithstanding his own prior invocation of his rights.

In other words, on this record, the manner in which the government

referenced Jackson's invocation of his constitutional rights

cannot be said to have constituted an impermissible attempt to

infringe on the ability of the grand jury to exercise its own

independent judgment under our precedents. We thus affirm the

District Court's conclusion that "the colloquy on that issue was

[not] serious enough to warrant the extreme remedy of the dismissal

of the indictment."

C.

Jackson's final contention is that the two alleged

instances of government misconduct described above warrant

dismissal when considered together even if neither does when

considered on its own. That is so, Jackson contends, because

"[i]n a felony firearms prosecution, introduction of a non-

existent violent felony with a dangerous weapon conviction and

- 31 - characterization of Jackson as a non-cooperator who sought a lawyer

in the face of law enforcement questioning, in totality, biased

the grand jury against Jackson in performing its fact-finding

function." But, Jackson's bare and speculative assertion that

"the grand jury procedure was compromised" by the asserted

cumulative misconduct does not amount to the required showing that

the grand jury was substantially influenced by the alleged

misconduct in its decision to indict. See also Reyes-Echevarria,

("All but the most serious errors before the grand

jury are rendered harmless by a conviction at trial.").

IV.

For the foregoing reasons, Jackson's two convictions are

AFFIRMED.

- 32 -