United States v. Dustin McLellan (11th Cir. May 2020)

Evidence/Expert Testimony – An officer is not testifying as an expert when he testifies that firearms are often involved in drug activity where such lay opinion testimony is based on his professional experiences.

Evidence/Rule 403 – Evidence of drug distribution and possession is relevant in unlawful possession of firearm cases where the element of knowledge is in dispute.

Firearm Offenses/922(g) – An indictment’s failure to allege the knowledge element of 922(g) does not deprive the district court of its jurisdiction.

Jury Instructions – Failure to instruct the jury on knowledge element of 922(g) was plain error but did not substantially affect defendant’s rights where there was overwhelming evidence of his knowledge of his unlawful status, including a stipulation and the evidence, not introduced at trial but that would be introduced in a retrial, that he had spent years in prison on other crimes.

Dustin McLellan was convicted of being a felon in possession of a firearm under 18 U.S.C. 922(g)(1). He was sentenced to 15 years under the ACCA based on his prior convictions for first-degree burglary under Alabama law.

On appeal, McLellan raised several claims. First, he argued that the trial court improperly allowed an arresting officer to testify as an “expert” regarding the correlation between guns and drug activity and erred in allowing the officer to testify that McLellan was selling drugs based on finding a “sellable amount” of meth. The core of this argument was that the Government’s evidence essentially alleged that McLellan was involved in selling drugs, which he was not charged with.

The Court disagreed, first holding that the officer’s testimony did not require any scientific, technical, or specialized knowledge, but was rather “lay opinion testimony based on his professional experiences.” The Court distinguished this from situations such as testifying officers summarizing phone calls between drug traffickers, which typically involve officers interpreting otherwise unambiguous phone calls in order to “spoon feed” their interpretations to the jury.

The Court also held that it was not error under 403 to allow the officer to testify that the under-a-gram of meth found in the case was a “sellable amount,” essentially alleging that McLellan was a drug dealer. While McLellan was not on trial for drug crimes, the Court noted that, in cases where a defendant denies knowingly possessing a gun, “evidence of possession of illegal drugs is relevant in determining whether a defendant knowingly possessed a weapon found in close proximity to drugs.” In other words, “the connection between drug-dealing and firearm possession is an appropriate one to be drawn during a felon-in-possession case.”

The Court also held that the pre-Rehaif indictment’s failure to allege McLellan’s knowledge of his felon status did not deprive the court of its jurisdiction since defects in an indictment are not generally jurisdictional. The Court also held that the trial court’s failure to instruct the jury on McLellan’s knowledge, while plain error, did not prejudice McLellan since 1) he had stipulated to it, and 2) in a retrial, the government would be able to introduce McLellan’s criminal history, which would make it “inconceivable” that he did not know he was a felon.

Appeal from the Southern District of Alabama

Opinion by Boggs (by designation from the 6th Cir.), joined by Rosenbaum and E. Carnes

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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