In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1820

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDDIE LEE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 04 CR 50048—Philip G. Reinhard, Judge.

____________

ARGUED FEBRUARY 9, 2007—DECIDED SEPTEMBER 17, 2007

____________

Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. A jury found Eddie Lee guilty

of possessing a firearm as a felon in violation of 18 U.S.C.

§ 922(g)(1). The district court sentenced Lee to 120 months’

imprisonment. On appeal, Lee argues that his conviction should be overturned because the district court erred

in making several evidentiary rulings. He also argues that

18 U.S.C. § 922(g)(1) exceeds the scope of Congress’

authority under the Commerce Clause. For the following

reasons, we affirm Lee’s conviction.
2 No. 06-1820

I. Background

On April 18, 2004, the Rockford Police Department

received a report that multiple gunshots had been fired in

the area of Garfield and Winnebago Streets at approximately 9:00 p.m. and that a white Ford Taurus was

involved. Officers Michael Garnhart and Amado Soria

were on patrol at approximately 2:23 a.m. on April 19,

2004 when they received a radio transmission stating

that gunshots had been fired in their immediate vicinity

and that a white Ford Taurus was involved. A few minutes

later, they saw a white Ford Taurus and followed it

until it pulled into a residential driveway at 622 Avon

Street.

When the officers activated the police vehicle’s overhead emergency lights, the driver of the Taurus, later

identified as Corey Francis, got out of the Taurus with a

black gun in his hand and fled. Officer Soria chased

Francis behind the residence. Lee got out of the passenger

side of the Taurus, and Officer Garnhart ordered him to

stop. When Lee turned around, Officer Garnhart saw him

holding a white “do-rag,” a cloth head-covering, in one of

his hands. Officer Garnhart ordered Lee to step forward

and lie on the ground. Lee complied, lying face down on the

ground between the sidewalk and the street. As Lee was

on the ground, Officer Garnhart received a radio call from

Officer Soria, who said that Francis had dropped his

handgun while running behind the residence. Officer Soria

recovered the gun dropped by Francis.

Meanwhile Officer Garnhart saw Francis running

from behind the house and placed Lee in handcuffs

and locked him in the back of the police vehicle. Officer

Garnhart then pursued Francis on foot.

Rockford Police Officer Melissa Sundly had heard the

traffic stop on her police radio when Officers Garnhart

and Soria initially pulled behind the Ford Taurus at
No. 06-1820 3

622 Avon Street. She arrived at 622 Avon Street a few

minutes after the other officers and secured the Taurus,

making sure that there was no one hiding in the vehicle

and that there were no weapons in view. She found a spent

shell casing in the passenger compartment of the vehicle

but no weapons. Approximately five minutes after she had

arrived at the scene, she observed two women come out

of the residence at 622 Avon Street. She also observed

a white do-rag on the ground near the Ford Taurus but

did not notice any firearm under the do-rag.

Officer Garnhart apprehended Francis with the help of

other officers and returned to 622 Avon Street approximately five minutes after locking Lee in the police vehicle.

As Officer Garnhart reached down to retrieve Lee’s

white do-rag, he observed a handgun on the ground

partially covered by the do-rag. The gun and do-rag were

in the same location where he had earlier ordered Lee

to lie face down on the ground. Officer Garnhart had not

searched Lee or the surrounding area prior to placing

him in the police vehicle and pursuing Francis.

After seeing the handgun underneath the do-rag, Officer

Garnhart took photographs of the gun and do-rag. Officer

Soria then picked up the gun, a Llama .32 caliber pistol,

and removed its ammunition. Officers Garnhart and

Soria searched Lee and took him to Winnebago County

Jail.

At trial, the parties stipulated that Lee had been convicted of a prior felony. In addition to the testimony of

Officers Garnhart, Sundly, and Soria, the government

presented the testimony of Special Agent John Richardson,

an expert in the interstate nexus of firearms, who testified that the handgun recovered from beneath the do-rag

had been manufactured in Spain and therefore had

traveled in interstate and foreign commerce prior to its

recovery in Illinois. The government presented evidence
4 No. 06-1820

that there was gunshot residue on the cuff of the denim

jacket that Lee was wearing at the time of his arrest. The

government also presented the testimony of a fingerprint

expert, who testified that a partial fingerprint found on the

handgun was not Francis’ print but could be Lee’s, the

police officers who had handled the gun, or millions

of other individuals who possess similar fingerprint

characteristics.

The government also called Nisheikia Foat to testify. She

resided at 622 Avon Street and was pregnant with Lee’s

child on the morning of Lee’s arrest. Foat testified that

she walked out of her residence when the police officer

had Lee on the ground. She testified that she did not

see any other individuals approach the area where the

gun was recovered from the time Lee was placed in the

police vehicle until the time Officer Garnhart recovered

the gun. Contrary to the officer’s testimony, she testified

that it took about an hour from the time she went outside until she saw the police officer pick up the do-rag. 

Foat also testified that she had received a letter from

Lee in the summer of 2004. In the letter, Lee asked Foat

to find witnesses to testify falsely that they had seen an

individual other than Lee run by and throw a gun on the

ground in the same location where the officers had recovered the gun.

Lee’s defense at trial was essentially that the recovered

handgun did not belong to him and that he was at the

wrong place at the wrong time on the morning of his

arrest. He claimed that he had met Francis just a few

minutes prior to his arrest and that he had been with

other people the entire day. He explained to the jury that

he was at a friend’s house at approximately 2:30 a.m.

when he asked some women that he knew to ask Francis

to give him a ride home. Lee said that Francis agreed and,

that as they approached Avon Street in Francis’ white

Ford Taurus, they saw a police van. Lee testified that
No. 06-1820 5

after seeing the police, Francis started “acting panicky”

and kept saying that he was ready to “high speed chase.”

Lee said that he then told Francis that he wanted to get

out of the car and to pull into the driveway at 622 Avon

Street. Lee testified that after Francis pulled into the

driveway, jumped out of the vehicle, and took off running,

he got out of the vehicle and obeyed the officer’s instructions: he lay down on his stomach with his hands extended in front of him. Lee denied that he was holding a

do-rag in his hands and denied that he had a gun when he

got out of the Taurus.

The jury did not believe Lee’s story; they found him

guilty of being a felon in possession of a firearm, and he

was sentenced to 120 months’ imprisonment on March 9,

2006. This timely appeal followed.

II. Discussion

On appeal, Lee argues that the district court abused it

discretion by (1) barring testimony regarding two shooting

incidents that occurred prior to his arrest; (2) permitting

testimony from the government’s gunshot residue expert

when the government failed to maintain a chain of custody

to protect Lee’s jacket from contamination; (3) barring

his witness from testifying as a gunshot residue or fingerprint expert; (4) permitting testimony from the government’s fingerprint expert; and (5) limiting the crossexamination of the government’s fingerprint expert. He

also argues that there is no sufficient nexus between the

charged offense and interstate commerce. We will address each issue in turn.

A. Relevancy of the Prior Shootings

Lee first argues that the district court erred in excluding

testimony from witnesses about shootings that occurred
6 No. 06-1820

prior to his arrest. At trial, Officers Garnhart and Soria

informed the jury that they stopped the Ford Taurus on

the morning of Lee’s arrest because they had received a

radio transmission to stop the vehicle for unrelated

reasons. The district court found that the evidence of the

two prior shootings was not relevant to why the car was

stopped and would not make the existence of any fact of

consequence more or less probable. We review rulings on

the admissibility of evidence for abuse of discretion;

further, even if the district court made a mistake, we

will not reverse if the error was harmless. United States

v. Holt, 460 F.3d 934, 936 (7th Cir. 2006).

Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Fed. R. Evid. 401.

Relevant evidence “may be excluded if its probative value

is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, waste of time, or misleading the jury. . . .” Fed. R. Evid. 403.

Lee contends that evidence that a white Ford Taurus

was involved in one or more shootings on April 18 and 19,

but that he was not present or involved in any such

shootings, would make it less probable that Lee possessed

a gun, fired a gun, or was present when a gun was fired on

the morning of his arrest. Lee is correct. However, the

testimony from the victims of the shootings would not

establish that Lee was not involved. The most that Lee

could establish was that none of the victims of the shootings implicated him in the shooting. We agree with the

district court that the evidence of the prior shootings

was not relevant to whether Lee possessed a firearm at

the time that he got out of the Taurus and was approached by Officer Garnhart.

Lee also contends that evidence that the Taurus had

been involved in prior shootings would make it more
No. 06-1820 7

probable that any gunshot residue found on his jacket

came from inside the Taurus and not while he was possessing a gun. Maybe. Evidence that the Ford Taurus had

been involved in prior shootings would be relevant to

establish that there may have been gunshot residue in the

interior of the vehicle, which would help explain how

Lee’s jacket could have contacted gunshot residue without Lee possessing or firing a handgun.

Nevertheless, any error was harmless. Indeed, Lee was

able to offer several explanations as to why he had gunshot residue on his jacket, including the fact that residue

could have gotten on his jacket while he was in the

Taurus. During the cross-examination of Officers Sundly

and Soria, Lee’s attorney elicited testimony that the

officers found a spent shell casing in the Ford Taurus. The

government’s gunshot residue expert told the jury that

he could not state for certain that the defendant possessed or fired a firearm on the morning of his arrest. He

explained that residue could have transferred to Lee’s

jacket if it had contacted residue in the interior of the

Ford Taurus; if Lee had been standing in close proximity

to someone else when he/she fired a gun; if the jacket had

contacted residue in a clothing bag at the jail; or if the

handcuffs that the police officers used on him had previously been exposed to gunshot residue.

Additionally, substantial evidence established Lee’s

guilt. Officer Garnhart testified that Lee got out of the

Taurus holding a white do-rag. The gun was found underneath the white do-rag in the same area where Lee had

been face down on the ground. Foat testified that she had

not seen any other individuals in the area where the

gun and do-rag had been recovered. Finally, Lee’s credibility was substantially impeached when he acknowledged

that he had asked Foat to locate one or two witnesses to

testify falsely that they saw an individual other than Lee

drop a gun in the area where he had been apprehended.

Considering the totality of the evidence against Lee, any
8 No. 06-1820

error in precluding evidence of the prior shootings was

harmless.

B. Chain of Custody of Lee’s Jacket

Lee next argues that the district court erred by admitting Lee’s jacket. He contends that the testimony of the

government’s gunshot residue expert, Robert Berk,

regarding the gunshot residue found on the cuff of his

jacket was unreliable because the government failed to

protect the jacket from contamination by maintaining a

proper chain of custody.

A district court’s evidentiary rulings concerning the

chain of custody for physical exhibits are reviewed for

abuse of discretion. United States v. Moore, 425 F.3d 1061,

1071 (7th Cir. 2005). “ ‘The standard for the admission of

exhibits into evidence is that there must be a showing

that the physical exhibit being offered is in substantially

the same condition as when the crime was committed.’”

Moore, 425 F.3d at 1071 (quoting United States v. Lott,

854 F.2d 244, 250 (7th Cir. 1988)). The government is

not required to prove a perfect chain of custody, as gaps

in the chain go to the weight of the evidence rather than

its admissibility. Id. “ ‘[T]he government need only show

that it took reasonable precautions to preserve the original

condition of the evidence, it does not have to exclude all

possibilities of tampering with the evidence . . . . [A]

presumption of regularity exists with respect to official

acts of public officers and, absent any evidence to the

contrary, the court presumes that their official duties

have been discharged properly.’ ” Id. (quoting Lott, 854

F.2d at 250).

After Lee’s arrest, his jacket was placed into a cloth,

personal property bag at Winnebago County Jail with all

of his personal belongings. The personal property bags at

the jail are reused from one inmate to the next without
No. 06-1820 9

being sterilized or laundered between each use. Lee’s

jacket was removed from the personal property bag and

placed into a plastic bag. It is unknown who removed Lee’s

property from the cloth bag, but a Rockford Police Department detective removed Lee’s property from the plastic

bag, inventoried the property, sealed the jacket in a

department evidence bag, and transferred the jacket to

the Illinois State Police to have it tested for gunshot

residue. Lee objected to the admission of the jacket,

arguing that the government had failed to take reasonable precautions to preserve its original condition. He

argued that gunshot residue could have transferred from

the personal property bag to his jacket and that his

personal property should not have been transferred from

the cloth bag to the plastic bag.

Lee’s arguments regarding the chain of custody and

potential contamination of his jacket go to the weight of

the evidence, not its admissibility. Moore, 425 F.3d at

1071. The district court did not err in admitting the

evidence of Lee’s jacket. The court allowed Lee to argue

to the jury that they should place little weight on the

gunshot residue testimony due to the alleged lack of

proper chain of custody and the potential contamination

caused by the use of the “dirty” cloth bag to store his

jacket. Lee’s lawyer pointed out to the jury that on crossexamination Berk had admitted that the gunshot residue

found on Lee’s jacket could have transferred to the jacket

after coming into contact with gunshot residue in the

personal property bag at the jail.

C. Expert Witnesses

1. Lee’s tendered Gunshot Residue and Fingerprint Expert

Lee next argues that the district court abused its

discretion by refusing to allow his tendered expert, Wayne
10 No. 06-1820

Hill, to testify as either a gunshot residue or fingerprint

expert. Hill has an associate degree in police science

and had worked as a law enforcement officer for 14 years.

After leaving law enforcement, he started his own business that focused on homicide scene reconstruction.

The admissibility of expert testimony is governed by

Federal Rule of Evidence 702, which establishes two

admissibility requirements for expert testimony: (1) the

expert must be qualified, and (2) the subject matter of the

expert’s testimony must consist of specialized knowledge

that will be helpful or essential to the trier of fact in

deciding the case. United States v. Lanzotti, 205F.3d 951,

956 (7th Cir. 2000). The district court has broad discretion in determining the competency of a witness as an

expert. Id. We review a district court’s decision to admit expert testimony for an abuse of discretion. United

States v. Young, 316 F.3d 649, 656 (7th Cir. 2002).

The district court determined that Hill lacked the

experience and training necessary to assist the jury in

understanding how gunshot residue can transfer from

one surface to another and how gunshot residue found

only on the right cuff of Lee’s jacket suggests that he

had not recently fired a gun. We agree. Hill testified that

he had never been asked to conduct testing for purposes

of ascertaining the properties or characteristics of gunshot residue and that he had neither the training nor

experience necessary to conduct the actual testing of an

object for the presence of gunshot residue.

We also agree with the district court’s refusal to allow

Hill to testify that the partial fingerprint found on the

recovered gun was unsuitable for comparison. Hill was not

a qualified expert; he had no formalized training or

experience in the analysis of fingerprints. Hill admitted

during voir dire that he did not have the necessary experience to render an opinion as to whether the latent print

lifted from the handgun was suitable for comparison.
No. 06-1820 11

1 Lee also argues that the district court erred by refusing his

request that the police officers involved in the investigation

submit their fingerprints for analysis. We disagree. The fingerprint on the handgun recovered by the police was suitable for

(continued...)

Because Hill was not qualified as either a gunshot

residue or fingerprint expert, the district court did not

err in barring his testimony.

2. The Government’s Fingerprint Expert

Lee next contends that the district court erred in allowing the testimony of the government’s fingerprint expert,

Stephanie Bodine. The fingerprint on the handgun recovered by the police was a partial fingerprint, suitable for

comparison but not for identification purposes. Bodine

testified that based on her comparison of the latent print

on the firearm with Francis’ fingerprints, she was able to

eliminate Francis as the individual who left the print on

the gun. After comparing the latent print to Lee’s fingerprint, Bodine was unable to exclude or identify Lee as

the individual who left the print on the gun. Lee argues

that Bodine’s testimony was irrelevant because it would

not demonstrate that it was more probable that Lee

possessed the gun.

The district court disagreed and found Bodine’s testimony relevant. The district court ruled that the government could present evidence that the partial print was

suitable for comparison rather than identification purposes, that Francis had been eliminated as the individual who left the print on the gun, and that Lee had

not. We agree with the district court that the fact that

Francis had been excluded as the individual who left the

partial fingerprint on the gun was relevant.1
12 No. 06-1820

1 (...continued)

comparison but not for identification. Thus, comparing the

latent print on the gun to the officer’s fingerprints only could

have excluded the possibility that the print was left by one of

the officers, which would have been detrimental to Lee’s case.

Lee next argues that the district court erred by precluding him from cross-examining Bodine concerning

the fact that she had asked six other scientists at her

laboratory to review the partial fingerprint from the

recovered gun and one of those analysts believed that the

partial print was not suitable for comparison. When Lee’s

counsel indicated to the court that he intended to crossexamine Bodine on the fact that she had consulted with

the other fingerprint analysts, the government made a

hearsay objection, arguing that cross-examination on this

point would only be admissible if Bodine’s consultation

with the other analysts was part of the basis of her

opinion. We review district court rulings on hearsay

objections for an abuse of discretion. United States v.

Dumeisi, 424 F.3d 566, 574 (7th Cir. 2005).

Federal Rule of Evidence 705 provides that an “expert

may testify in terms of opinion or inference and give

reasons therefor without first testifying to the underlying

facts or data, unless the court requires otherwise. The

expert may in any event be required to disclose the

underlying facts or data on cross-examination.” The

bases of opinion testimony by experts is governed by

Federal Rule of Evidence 703, which in part provides:

The facts or data in the particular case upon which an

expert bases an opinion or inference may be those

perceived by or made known to the expert at or before

the hearing. If of a type reasonably relied upon by

experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not
No. 06-1820 13

be admissible in evidence in order for the opinion or

inference to be admitted.

The district court conducted voir dire to determine

whether Lee could conduct cross-examination of Bodine

on this point. Bodine stated that after she concluded

that one of the latent prints on the firearm was suitable

for comparison, she asked six other analysts in her laboratory to review the print. She testified that she had considered the opinions of the six analysts in reaching her

conclusion that the print was suitable for comparison.

Here, the district court barred Lee from cross-examining

Bodine regarding the opinions she obtained from the

other fingerprint analysts. The court found that such

opinions were inadmissable hearsay:

[I]n many cases the expert is relying on his or her

own opinion, and that is proper. In some cases the

expert relies on outside data that is used to form her

conclusion. In this case [Bodine] is using the same

data that these other experts in her same office use.

There’s nothing new in terms of the evidence that

this expert relied on. She is just confirming her own

expert opinion by asking other experts to look over

the same information and give her a confirming

opinion or not.

In my opinion that is not what is contemplated by

admission of this evidence under Rule 703, and it

is therefore hearsay, and I would deny cross-examination . . . . And I say that because the government could

in every case piggy back its own expert’s opinion by

saying, well, we always have a second fingerprint

expert look at it, as well, and that confirmed my

examination.

Bodine testified that she considered the opinions of the

other analysts but did not base her conclusion—that one

of the prints on the gun was suitable for comparison—on
14 No. 06-1820

the other analysts’ opinions. Rather, she confirmed her

conclusion. Although the call is close, we find that the

district court did not abuse its discretion in barring Lee

from cross-examining Bodine regarding the opinions of

the six analysts.

At any rate, any harm from denying cross-examination

on this point was limited and does not warrant reversal.

Bodine explained to the jury that the partial fingerprint

left on the gun could have been left by Lee, the police

officers who had handled the gun, or millions of other

individuals with similar fingerprint characteristics.

D. Interstate Commerce

Finally, Lee argues that the charged offense did not

affect interstate commerce. In order to violate 18 U.S.C.

§ 922(g)(1), a defendant must have a prior felony conviction, posses a firearm, and the firearm must have

traveled in interstate commerce prior to the defendant’s

possession of it. United States v. Ortiz, 474 F.3d 976, 982

(7th Cir. 2007). Lee does not dispute Special Agent Richardson’s testimony that the firearm recovered from underneath the do-rag had been manufactured in Spain and

therefore had traveled in interstate and foreign commerce

prior to its recovery in Illinois. “Movement in interstate

commerce is all the Supreme Court requires under the

statute.” United States v. Jackson, 479 F.3d 485, 492 (7th

Cir. 2007) (citing Scarborough v. United States, 431 U.S.

563, 577, 97 S. Ct. 1963, 52 L. Ed. 582 (1977); United

States v. Williams, 410 F.3d 397, 400 (7th Cir. 2005)).

III. Conclusion

For the foregoing reasons, the judgment of the district

court is AFFIRMED.
No. 06-1820 15

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-17-07