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.
- 2 -

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 18 U.S.C. §§ 922(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.
- 3 -

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 
- 4 -

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 18 U.S.C. §§ 922(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." 
- 5 -

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 18 U.S.C. § 924(a)(8).
- 6 -

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 
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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.
- 8 -

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 

3 Jackson 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 18 U.S.C. §§ 922(a)(6), 924(a)(2), 

but those charges were later dismissed by the District Court with 

prejudice. 
- 9 -

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?
- 10 -

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 . . . 
- 11 -

[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.
- 12 -

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 
- 13 -

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 
- 14 -

issued a published order explaining its reasoning on January 4, 

2022. See United States v. Jackson, 578 F. Supp. 3d 240 (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, 19 F.4th 512, 516 (1st 

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

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

Id. at 519 (citing United States v. Fuentes-Lopez, 994 F.3d 66, 71 

(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, 778 F.3d 367, 371 (1st Cir. 2015) (internal 

quotations omitted). 

4 Jackson does not renew his challenge to the sufficiency of 

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.
- 15 -

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, 289 F.3d 16, 25 (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, 578 F. Supp. 3d at 250. 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 id. 
- 16 -

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." Id. 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, 689 F.2d 752, 755-56 (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, 778 F.3d at 371. 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 18 U.S.C. § 922(g)(1). The 

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

testimony, the record would not suffice to permit a rational juror 
- 17 -

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, 33 F.4th 20, 27 (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. 

Id. (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 
- 18 -

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., 509 U.S. 579, 597 

(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," id. at 595, "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, 522 U.S. 136, 146 (1997). 

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

analytical gap between the data and the opinion proffered." Id. 

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, 
- 19 -

33 F.4th at 24 (quoting Milward v. Acuity Specialty Prods. Grp., 

Inc., 639 F.3d 11, 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, 33 F.4th at 27.5 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, 40 F.4th 50, 55 (1st Cir.) (noting that this Court 

has "repeatedly . . . rejected similar arguments"), cert. denied, 

143 S. Ct. 271 (2022).
- 20 -

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, 207 F.3d 84, 89-91 (1st Cir. 

2000); United States v. Cormier, 468 F.3d 63, 72-73 (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, 468 F.3d at 72-73; see also, e.g., United

States v. Cortez-Oropeza, 40 F.4th 50, 53 (1st Cir.), cert. denied, 
- 21 -

143 S. Ct. 271 (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, 33 F.4th at 24 (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, 971 F.3d 891, 900-03 (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 
- 22 -

-- 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 971 F.3d at 900. 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, 2018 WL 1165726, 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 id. at *4, 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 
- 23 -

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, 578 F. Supp. 3d at 254-55. We agree with the District 

Court.

 Forte testified that he always checks the variance 

database when he is conducting an interstate nexus analysis. See

id. 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." Id. at 255. 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." Id.

The District Court interpreted Forte's affirmative 

response to this question as including the variance database, id., 

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 
- 24 -

variance database that Agent Forte had discussed just minutes 

prior." Id. 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 id. 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, 578 

F. Supp. 3d at 256. 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.
- 25 -

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, 458 U.S. 858, 872 (1982); 

United States v. Anzalone, 923 F.3d 1, 5 (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, 

668 F.2d 566, 583 (1st Cir. 1981) (emphasis added) (citing United 

States v. Calandra, 414 U.S. 338, 346 (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, 345 F.3d 1, 4 (1st Cir. 2003); United States v. 

Giorgi, 840 F.2d 1022, 1030 (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, 840 F.2d at 1030, 
- 26 -

dismissal of the indictment may be warranted, see ReyesEchevarria, 345 F.3d at 4. 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, 

668 F.2d at 583. 

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, 775 

F.3d 483, 492 (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, 345 F.3d at 4;

United States v. Flores-Rivera, 56 F.3d 319, 328 (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, 487 U.S. 250, 256 (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 
- 27 -

of such violations." Bank of Nova Scotia, 487 U.S. at 256

(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, 487 U.S. at 256, see Reyes-Echevarria, 345 

F.3d at 4 (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, 487 U.S. at

256-58 (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).
- 28 -

We bypass Jackson's claim that the government elicited 

improper testimony and hold that he cannot show that he was 

prejudiced. See Reyes-Echevarria, 345 F.3d at 4.

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 18 U.S.C. § 922(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 
- 29 -

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, 396 F. Supp. 3d 992, 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.
- 30 -

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, 2012 WL 1909350, 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, 83 

F.3d 1235, 1245 (10th Cir. 1996); see also United States v. 

Barbour, 393 F.3d 82, 90 (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 
- 31 -

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 nonexistent violent felony with a dangerous weapon conviction and 
- 32 -

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, 

345 F.3d at 4 ("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.