Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 08-1044

UNITED STATES OF AMERICA,

Appellee,

v.

DARIO GIAMBRO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

 Lynch, Chief Judge,

Boudin, Circuit Judge,

and Schwarzer, District Judge. *

David J. Van Dyke with whom Hornblower Lynch Rabasco & Van

Dyke, P.A. was on brief for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief for appellee.

October 2, 2008
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LYNCH, Chief Judge. A jury convicted Dario Giambro on

one count of possessing a firearm, a 1914 "Marble Game Getter,"

that was not registered in the National Firearms Registration and

Transfer Record (NFRTR) as required by the National Firearms Act of

1934. See 26 U.S.C. §§ 5841, 5845(a), (e), 5861(d), 5871. He now

appeals his conviction.

Giambro challenges: (1) an order denying his Motion for

a Judgment of Acquittal under Fed. R. Crim. P. 29; (2) an order

denying his motion in limine to exclude Certificates of

Nonexistence of a Record (CNR) tending to show that his firearm was

not registered in the NFRTR; and (3) an order excluding the

testimony of Giambro's purported expert on inaccuracies in the

NFRTR. We review the first issue de novo and the second and third

for abuse of discretion. Giambro's appeal raises two basic themes:

that the evidence does not show he knew of the characteristics of

the weapon which made it subject to registration and that the NFRTR

is so unreliable that the district court erred in admitting

evidence that the weapon was not registered in the database. We

affirm his conviction.

I.

We describe the facts in the light most favorable to the

verdict in light of Giambro's challenge to the sufficiency of the

record.
The other weapon was a .22 caliber Winchester rifle with 1

a short barrel. The ATF determined that the Winchester was not

subject to the registration requirement.

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On the night of February 10, 2006, police were called to

Giambro's Auburn, Maine home. Giambro had been in an altercation

with Richard McClain, who had been involved in a dispute with

Giambro's son and had come to Giambro's house. Giambro claimed he

fired two warning shots, one of which ricocheted and hit McClain.

Giambro was arrested on state charges but the charges were later

dismissed when he was found to have acted in self-defense. 

After the shooting, officers obtained a search warrant

and seized 204 firearms from Giambro's home. Detective Chad

Syphers, who had worked for a licensed firearms dealer, suspected

that two of the guns had characteristics that required them to be

registered in the NFRTR. Syphers turned the weapons over to an

agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives

(ATF).

One of the two firearms, the subject of Giambro's

conviction, is a gun called the "Marble Game Getter," which was

manufactured by the Marble Safety Company in 1914. The Game 1

Getter has several distinctive features. It has two barrels -- a

rifle barrel which is on top of a shotgun barrel. Each barrel is

between twelve and eighteen inches long. The gun has a folding

stock that allows the user to fire the gun like a pistol. It also

has a lock on the loading end of the barrels that allows the user
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to fire a shot from either the top or bottom barrel without

reloading. The parties stipulated that the Game Getter's

characteristics subject it to the federal registration requirement.

The statute of conviction, 26 U.S.C. § 5845(a), extends the

registration requirement to "weapons with combination shotgun and

rifle barrels 12 inches or more, less than 18 inches in length,

from which only a single discharge can be made from either barrel

without manual reloading." Id. § 5845(e).

On December 22, 2006, the Auburn Police Department

returned all of the firearms to Giambro except for the two which

had been sent to the ATF. Giambro went to the precinct to retrieve

them. When the police laid out the firearms (excluding the Game

Getter and the Winchester) in front of Giambro, he said that two

were missing and that one of those was the Game Getter.

Although Giambro was acquitted on the state charge, on

April 25, 2007, he was indicted federally on one count of knowingly

possessing a firearm that was required to be registered in the

NFRTR under 26 U.S.C. § 5845 and was not registered to him. The

prosecution arranged for the ATF to prepare CNRs to show that there

was no record the Game Getter was registered to Giambro in the

NFRTR. Giambro filed a motion in limine on July 19, 2007 to

exclude the CNRs on the grounds that the NFRTR was unreliable. The

government replied that it intended to offer two CNRs from the ATF

stating that after a diligent search of its records, it had located
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no record of registration by Giambro of the firearm named in the

indictment and no record that he had registered any other weapon.

The district court denied Giambro's motion to exclude. The court

concluded that the CNR evidence was admissible under Rule 803(10),

Fed. R. Evid., and that Giambro had "failed to show that the NFRTR

is currently unreliable or is unreliable as it pertains to him."

United States v. Giambro, No. 07-41-P-S, 2007 WL 2386320, at *1 (D.

Me. Aug. 17, 2007). 

The prosecution filed its own motion in limine on August

27, 2007 to exclude the testimony of Giambro's proposed expert,

Eric Larson, who was employed as an analyst with the Government

Accountability Office and would testify in an unofficial capacity.

After a hearing, the court granted the motion and excluded Larson's

testimony under Rules 702 and 703, Fed. R. Evid., and independently

under Rule 403, in reasoning we detail below. 

At trial, Giambro moved for a judgment of acquittal at

the close of the prosecution's case and renewed the motion after

the jury's verdict. See Fed. R. Crim. P. 29. He argued that the

prosecution had failed to present any evidence that he knew the

length of the Game Getter's barrels, that he knew about its firing

mechanism, or that he had ever handled the gun. Absent such

evidence, Giambro argued, the prosecution had failed to prove the

knowledge requirement that the Supreme Court had read into the
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statute of conviction in Staples v. United States, 511 U.S. 600,

605, 618-19 (1994). The court denied Giambro's motion.

The court sentenced Giambro to five months imprisonment

and a $50,000 fine. This timely appeal followed.

II.

A. The Denial of Giambro's Rule 29 Motion

Review of a district court's denial of a Rule 29 motion

for a judgment of acquittal is de novo, taking the evidence in the

light most favorable to the government and making all reasonable

inferences in its favor. United States v. Nieves-Castaño, 480 F.3d

597, 599 (1st Cir. 2007). 

The statute of conviction, 26 U.S.C. § 5861(d), as

construed in Staples, requires only that a defendant have knowledge

that the weapon has the characteristics which subject it to

registration, rather than knowledge of the registration

requirement. Staples, 511 U.S. at 618-19. The prosecution thus

must prove only that the defendant knew "of the characteristics of

his weapon that br[ought] it within the scope of the Act," not that

the defendant knew the weapon was subject to a registration

requirement under federal law. Id. at 615 n.11; see also

Nieves-Castaño, 480 F.3d at 599 (employing mens rea analysis from

Staples in reviewing conviction for unlawful possession of a

machine gun under 18 U.S.C. § 922(o)).
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The characteristics as set forth in the statute are: "a

combination shotgun and rifle barrels 12 inches or more, less than

18 inches in length, from which only a single discharge can be made

from either barrel without manual reloading." 26 U.S.C. § 5845(e).

The mens rea for a charge of failing to register a weapon in the

NFRTR may be established by circumstantial evidence. Staples, 511

U.S. at 615 n.11; see also Nieves-Castaño, 480 F.3d at 601. The

Rule 29 issue here turns on sufficiency of the evidence and not on

an issue of law. 

Giambro has not met his burden of showing that a judgment

of acquittal was warranted. There was evidence in the record to

support a finding that Giambro had knowledge of each of the

statutory characteristics. The jury heard testimony that Giambro

recognized that two of his firearms were missing when the rest of

his collection was laid out in front of him and specifically asked

where the Game Getter was. From this the jury could conclude he

was familiar with this particular weapon. The jury also heard that

defendant had a large number of guns in his possession and could

reasonably infer he was a gun collector or had at least a

specialized knowledge and interest in firearms. 

The jury could reasonably infer that Giambro was well

aware of the Game Getter's particular characteristics. After all,

he specifically asked for it when it was not among the weapons

returned to him at the police station.
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Giambro concedes that the government did provide evidence

to support the inference that the Game Getter "had apparently at

least once been viewed by him, perhaps in the box, from which [he]

obtained an appreciation of what the 'Game-Getter' looked like."

Giambro argues that the statement he made when his other firearms

were returned proves only that he "could recognize/distinguish the

'Game-Getter' from his other firearms . . . [not] that he could

recognize that the 'Game-Getter' had characteristics which

subjected it to the registration requirement." However, the very

characteristics that distinguish the Game Getter from other guns --

namely its short barrel lengths, the fact that there were two

barrels, and its single trigger for two different barrels -- are

precisely those that subject it to the registration requirement.

All of these characteristics were evident from looking at the

weapon.

Further, the jury heard from Detective Sypher, who stated

that he recognized the Game Getter as a firearm that was subject to

the federal registration requirement "as soon as [he] saw it,"

based on the short barrels of the gun. The jury saw the weapon and

therefore could reach its own determination of whether the

characteristics were clear from simply looking at the Game Getter.

Our recent opinion in Nieves-Castaño does not help

Giambro. There, we reversed the defendant's conviction for

unlawfully possessing a machine gun, see 18 U.S.C. § 922(o),
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because the evidence was insufficient to show that the defendant

had viewed the weapon, which was inside a bag. Moreover, even if

defendant had ever viewed the weapon, the characteristic that

rendered possession of the weapon unlawful -- the fact that it had

been altered to allow fully automatic firing -- would not be

apparent to the defendant, who had no demonstrated expertise with

firearms. Nieves-Castaño, 480 F.3d at 600-01. Instead, the only

external evidence was a small hole or mark between the weapon's

fire and safety settings, a characteristic that would not have

informed a layperson, like the defendant, of the weapon's

distinctive capabilities. Here, by contrast, the "external

indications signaling the nature of the weapon," id. at 601

(quoting Staples, 511 U.S. at 615 n.11), were sufficient to put

even a layperson on notice that the Game Getter had the

characteristics required by the statute.

Our conclusion on the Rule 29 issue does not dispose of

the case. Even if the evidence were sufficient to support the

conviction, we would reverse if there were prejudicial trial error.

B. The Court's Admission of Certificates of the Nonexistence

of a Record of Registration with the NFRTR

Giambro also challenges the district court's refusal to

exclude testimony regarding the nonexistence of a registration for

the Game Getter in the NFRTR. We review challenges to a district

court's decision to admit or exclude testimony for abuse of

discretion. United States v. Newbert, 504 F.3d 180, 184 (1st Cir.
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2007); United States v. Sebaggala, 256 F.3d 59, 66 (1st Cir. 2001).

Giambro argues the court misapplied Rule 803(10); he does not make

a Confrontation Clause challenge. Cf. United States v. Earle, 488

F.3d 537, 541 (1st Cir. 2007) (considering challenge to CNRs as

testimony presented without opportunity for cross-examination by

the defendant).

At trial, the government presented both the CNRs and the

testimony of Gary Schaible, an ATF Program Manager. Schaible

testified about the NFRTR and about the procedures that the agency

used in searching for records that Giambro had registered the Game

Getter. Schaible testified that a search had been made and that

there was no record of Giambro having registered the Game Getter.

He also testified about audits that found errors in the ATF's

administration of the NFRTR.

Giambro's argument is that because of alleged

shortcomings in the NFRTR, the evidence does not meet a threshold

standard of reliability to qualify for the exceptions to the

hearsay rule outlined in Rule 803(10) (absence of public records).

The district court refused to exclude the CNRs because it concluded

that Giambro had neither demonstrated the NFRTR was currently

unreliable nor unreliable as it pertained to him. Giambro, 2007 WL

2386320, at *1. It also found that Giambro failed to show that the

ATF had conducted a "less than diligent search of the NFRTR." Id.

The district court denied defendant's pre-trial motion in limine
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without prejudice. At trial, the court overruled defendant's

objection to admission of the CNRs.

The government submitted the CNRs and the testimony from

Schaible to meet its burden to prove a negative: that Giambro had

not registered the Game Getter. Cf. Earle, 488 F.3d at 541 (noting

the government's similar burden in showing lack of authorization

for reentry from the Attorney General in prosecutions for illegal

reentry after deportation, 8 U.S.C. § 1326, and upholding

admissibility of CNRs and testimony). As in Earle, the

government's evidence was of the circumstances of the records

search and the results of the search. At trial, Schaible's

testimony described the NFRTR, which consists of a series of

databases that the ATF uses to track whether gun owners have

registered their firearms. He also described how searches of the

NFRTR are typically conducted. The ATF performs database searches

by a person's last name, including variations, and narrows results

by state. A search of ATF records in the NFRTR for Dario Giambro

revealed that no firearm had been registered to him for as long as

the database has existed, since 1934. Schaible also testified that

the ATF searched for records of a registration of the Game Getter,

for which only the serial number of the gun was available. A

search of the serial number produced information about three other

weapons but no registration record for the Game Getter. After this
He also refers to a study, which is an undated, 2

unpublished article authored by a private attorney that was not

made part of the record. Even if we were to consider the article,

it would not establish that the district court abused its

discretion in admitting the CNRs.

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testimony, the district court admitted the CNRs into evidence over

Giambro's objection.

On appeal, Giambro bases his argument on Larson's

testimony at the hearing on the government's motion in limine.2

Giambro has offered nothing to show that evidence about the

nonexistence of records of his registering the Game Getter is not

admissible under an exception to the hearsay rule because "the

circumstances indicate a lack of trustworthiness." United States

v. Robinson, 544 F.2d 110, 115 (2d Cir. 1976). Giambro's challenge

focuses only on "general evidence that there may have been problems

with the NFRTR in the past." Giambro, 2007 WL 2386320, at *1. 

Further, because Giambro challenges the overall

reliability of the NFRTR, he faces an additional hurdle. Other

circuits have upheld the NFRTR against challenges to its

reliability. In United States v. Rith, 164 F.3d 1323, 1334-35

(10th Cir. 1999), for example, the court noted that the ATF had

lowered the critical-error rate for searches and had provided for

a second level of review for registration checks within the agency.

Id. at 1336; see also United States v. Metzger, 778 F.2d 1195,

1202-03 (6th Cir. 1985) (finding adequate indicia of reliability

for Sixth Amendment purposes); cf. United States v. Rigsby, 943
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F.2d 631, 639 (6th Cir. 1991) (admitting CNRs from NFRTR search

over unrelated objection); United States v. Combs, 762 F.2d 1343,

1347-48 (9th Cir. 1985) (same). Although both the Rith court and

the district court here acknowledged past problems with the NFRTR,

both emphasized that the ATF has addressed problems with the

database and improved its reliability.

The district court did not abuse its discretion in

concluding that Giambro failed to show the NFRTR was unreliable as

to him.

C. The Court's Exclusion of Giambro's Proffered Expert

Testimony

Giambro next argues the court erred in excluding

testimony from Eric Larson, Giambro's proffered expert. Larson

would have testified to inaccuracies and incompleteness in the

NFRTR, in order for defendant to argue the government had not met

its burden of showing that the Game Getter was unregistered. We

review the district court's decision to admit or exclude purported

expert testimony for abuse of discretion. Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 152 (1999); Newbert, 504 F.3d at 184;

Sebaggala, 256 F.3d at 66. 

The district court relied on two independent grounds to

exclude the evidence. It held that Larson did not qualify as an

expert under Rules 702 and 703, Fed. R. Evid., and also held that

the testimony could be excluded under Rule 403, Fed. R. Evid.,
Larson also reviewed data on filings of Forms 1 and 4467, 3

which are used to register original ownership of firearms, and

found similar patterns.

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because it would "mislead the jury and cause confusion." The court

did not abuse its discretion as to either ground. 

The court fully considered Giambro's proffer and held a

hearing on the motion in which Larson testified at length. Larson

described the nature of the NFRTR and discussed his analysis of the

database's reliability. Through a Freedom of Information Act

request, Larson had obtained reports from the ATF that provided

yearly transaction data on registrations. In particular, Larson

focused on filings of "Form 4," the form by which owners register

transfers with the agency. He analyzed data from 1992 to 1996 and

concluded that "Form 4's were being added back into the NFRTR."3

Larson testified that one explanation for this finding could be

that ATF was doing so in response to errors and omissions in the

NFRTR.

In support of his conclusion, Larson cited the experience

of two gun owners, one who had been involved in a state civil suit

against the ATF in 1992, and one who had communicated with the ATF

in 1999 after the agency misplaced his ownership records. Larson

also relied on his own conversations with ATF personnel, who told

him they assumed the agency added records if mistakes were

discovered, and a 1998 audit of the NFRTR that concluded agency
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personnel did not adhere to procedures for processing registration

documents in every case.

The district court concluded that the testimony was not

"based upon sufficient facts or data" and was not "the product of

reliable principles and methods," and that Larson had not "applied

the principles and methods reliably to the facts of the case." See

Fed. R. Evid. 702. The court stated that "suppositions . . . and

conjecture abound[ed]" in the testimony, and that Larsen had relied

on "underlying data [that was] purely anecdotal and without

scientific basis."

The court further found that certain aspects of Larson's

work undercut the reliability of his testimony. See generally

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-95 (1993);

Kumho Tire, 526 U.S. at 147. The court found that the techniques

Larson used -- his statistical analysis of the ATF's annual data,

and his correspondence with gun owners and ATF personnel -- were

untested and lacked peer-review. Larson had also failed to provide

the known or potential rate of error for his statistical analysis.

The court found that the conclusion he drew represented "an

unfounded extrapolation from the underlying data." Finally, the

court found Larson was unable to establish why the conclusion he

reached demonstrated that previous registrations had been destroyed

or that, if previous registrations had been misplaced, ATF

personnel could not find them through a records search.
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Giambro asserts the district court erred because

"[i]ndisputably, applied statistics represents an objective and

scientifically-precise (and measurable) science" and "indisputably,

Mr. Larson identified measurable . . . incompleteness/inaccuracies

with the NFRTR." The district court was well within its discretion

to conclude that, regardless of whether applied statistics as a

field is a science, Larson's particular use of the technique to

reach his conclusion did not present sufficient indicia of

reliability and that the data on which Larson based his analysis

was "purely anecdotal."

III.

The judgment of conviction is affirmed.