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United States v. Simmons

United States District Court, E.D. Virginia, Norfolk Division

January 12, 2018

UNITED STATES OF AMERICA
v.
ANTONIO SIMMONS, et al., Defendants.

          REPORT AND RECOMMENDATION

          Lawrence R. Leonard United States Magistrate Judge.

         This matter arises from a Second Superseding Indictment filed on August 23, 2017 ("the Indictment"), wherein it is alleged that Defendants Antonio Simmons ("Defendant Simmons"), Nathaniel Tyree Mitchell ("Defendant Mitchell"), and Malek Lassiter ("Defendant Lassiter") ("collectively "Defendants") are members of the Nine Trey Gangsters ("NTG"), reportedly a criminal street gang that is part of the "United Blood Nation, " a collective of East Coast-based Bloods gangs, which the Indictment alleges is a racketeering enterprise engaged in acts of murder, maiming, assault with firearms, and narcotics distribution. Specifically, the Indictment (ECF No. 121) charges Defendants with thirty-eight (38) counts related to their alleged participation in the affairs of NTG from the Fall of 2010 until August 23, 2017, to include a pattern of racketeering and individual, substantive crimes, punishable under various federal statutes, including the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO") and Violent Crimes in Aid of Racketeering statute ("VICAR").

         Before the Court is Defendant Mitchell's Motion to Exclude Bullets and Shell Casings (ECF No. 137) which requires disposition prior to jury trial on February 6, 2018. This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to a Referral Order from the United States District Judge. ECF No. 225; see also 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); E.D. Va. Local Civ. R. 72. On December 11, 2017, the Court held a hearing on the instant motion at which Andrew Bosse, Assistant United States Attorney appeared on behalf of the United States of America ("the Government"). Ms. Laura Tayman appeared on behalf of Defendant Simmons. Mr. Lawrence Woodward and Ms. Emily Munn appeared on behalf of Defendant Mitchell. Mr. Jason Dunn appeared on behalf of Defendant Lassiter. The Government offered the testimony of its firearm and toolmark expert witness, Ms. Therese Moynihan, Virginia Department of Forensic Science firearms and toolmark examiner ("Ms. Moynihan"). During the hearing, Ms. Moynihan was subject to direct examination by the Government, cross examination by Defendants, and questioning by the Court. At the conclusion of the hearing, the Court instructed the parties to order a transcript (ECF No. 264) and to file supplemental briefing on the issue. ECF No. 256. On December 22, 2017, Defendants filed their Joint Post-Hearing Brief, ECF No. 266, to which the Government filed its Response on January 3, 2018, ECF No. 282. For the foregoing reasons, the undersigned RECOMMENDS that Defendant Mitchell's Motion to Exclude Bullets and Shell Casings (ECF No. 137) be DENIED.

         I. Motion to Exclude Bullets and Shell Casings (ECF No. 137)

         Defendant Mitchell seeks the preclusion of Government evidence in the form of bullets and shell casings on the basis that the toolmark examination evidence is unreliable.[1] At trial, the Government seeks to offer Ms. Moynihan as an expert in firearms and toolmark examination, who will testify that the bullets and shell casings recovered from numerous crime scenes in this case were fired from the Glock .40 recovered from Co-Defendant Anthony Derrell Foye ("Co-Defendant Foye") and from a second, "as yet unrecovered" .380 handgun that the Government alleges was used by Defendant Mitchell in the commission of offenses charged in the Second Superseding Indictment. See ECF No. 186 at 1, 10.

         As previously noted, during the December 11, 2017 hearing, the Government presented the live testimony of Ms. Moynihan, a certified toolmark and firearm toolmark examiner employed by the Virginia Department of Forensic Sciences ("DFS"). In addition, Ms. Moynihan's testimony was aided by a PowerPoint presentation which included extensive background material illustrating and animating the mechanics of semiautomatic handguns, and focusing on the elements of the firing mechanism which produce the toolmarks at issue in the instant Motion to Exclude. Ms. Moynihan's testimony supplemented the background information presented by both parties regarding the history and explanation of the technical field of firearms and toolmark examination.

         A. Background

         The Court finds it necessary to provide some introductory context to the instant Motion by way of abbreviated background. In toolmark identification, the primary objective is to relate one physical object with another by determining if a toolmark was made by a particular implement. Firearm toolmark examination is a subsection of toolmark examination and compares bullets with bullets and cartridge cases with cartridge cases. In the context of firearms, a toolmark is the physical mark that results when the hard internal elements of a firearm make contact with a relatively softer object (the lead and brass that comprise the components of ammunition, namely, a bullet and shell casing). When a bullet is fired from a semiautomatic handgun, identifiable marks (such as striations and impressions) are produced on the bullets and the shell casings by the firing mechanism (the propulsion of the bullet and casing through the barrel), on the primer of the bullet by the firing pin ignition process, and on the shell casings by the extractor. The work of a firearm toolmark examiner is to analyze these physical markings on bullets and shell casings to determine whether "sufficient agreement" exists between the identifiable types of physical characteristics that ammunition was fired by the same firearm. This theory of identification is promulgated by the Association of Firearm and Toolmark Examiners ("ATFE")[2]. See ECF No. 264 at 107:2-8. See also ECF No. 264 at 50:15-23 ("[T]he theory of identification is the theory that underlies the entire field. And it basically is saying that opinions of common origin or that two tool marks were produced by same tool can be made when the marks present within that toolmark are in sufficient agreement."). Sufficient agreement describes a situation when the agreement in individual characteristics exceeds the best agreement demonstrated between toolmarks known to have been produced by different tools (known non-match) and is consistent with agreement demonstrated by toolmarks known to have been produced by the same tool (known match). The statement that sufficient agreement exists between two toolmarks means that the agreement of individual characteristics is of a quantity and quality that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility. ECF No. 186 at 5-6 (citing AFTE Journal, Volume 43, No. 4, Fall 2011 at 287). See also ECF No. 264 at 52:1-11 ("So per the theory, sufficient agreement is significant when doing a comparative examination of two toolmarks. So let's say I'm comparing two bullets to one another. I'm comparing those unique ridges, furrows, the height, the width, the depth of those peaks and furrows, as well as their spatial relationship on the bullet themselves. And all of that makes up a pattern on a land impression, say, of a bullet. So I'm comparing the unique pattern on one bullet to the pattern on a second bullet to determine if those patterns bear agreement that is sufficient to call them » or to say that they were identified as having been produced by the same firearm."). As previously noted, this ATFE theory of identification and determination of "sufficient agreement" involves assessing the physical characteristics of various marks imprinted on ammunition components. Firearm toolmark examiners are trained to recognize and evaluate the following three types of characteristics: (1) class characteristics; (2) subclass characteristics; and (3) individual characteristics. The first type, "class characteristics, " such as caliber, number of land and grooves, etc., are predetermined during the manufacturing process. For a fired bullet, class characteristics include the number of land and groove impressions, the direction of twist of the land and groove impressions, and the width of the land and groove impressions. For a fired cartridge case, class characteristics are typically limited to the firing pin impression on the primer, which can appear in various shapes, including circular, rectangular, hemispherical, and elliptical shapes, and to the shape of the firing pin aperture and the type of breech face impression, which can be in different shapes and orientations, e.g., arched, circular, parallel, etc. These are measurable features of a specimen that indicate a restricted group source. They result from design factors and are determined prior to manufacture. See ECF No. 186 at 3-4 (citing AFTE Glossary, 6th ed.). An example of a "class characteristic" is that a Glock pistol leaves an oval firing pin impression on a cartridge case, as opposed to a round or circular firing pin impression. Thus, when a firearm toolmark examiner observes an oval firing pin impression on a cartridge, he or she can conclude that the bullet was fired by a Glock. See ECF No. 264 at 39:25 to 40:1-12. Regarding the second type, "sub-class characteristics, " Ms. Moynihan testified that

sub-class characteristics are more restrictive than class characteristics in that they may be produced by a tool in a certain state of wear. And they are of concern to the firearm and toolmark examiner because they can be produced over multiple tools. What you're seeing on the bottom left here is a Smith & Wesson firing pin.
What we know about the way Smith & Wesson produces their firing pins is that they're cast in a mold. So let's assume that the same mold was used to cast 100 firing pins. You would expect that those firing pins would bear the same marks because they're cast in the same mold.

ECF No. 264 at 50:15-23. See also ECF No. 186 at 4 ("These characteristics typically exist within a particular production run in the manufacturing process and occasionally arise from (1) imperfections in a machine tool that persist during the production of multiple firearm components; or (2) extreme hardness differences between the machine tool and the workpieces."). As Ms. Moynihan noted during her hearing testimony, "[w]e have to have agreement of all class characteristics in order to move on to the comparison of individual characteristics." ECF No. 264 at 104:24-25 to 105:1. With respect to the third and final type of characteristics, "[a]n individual characteristic is a random microscopic imperfection that is produced incidental or accidently by the manufacturer during the manufacturing process. Again, they're random, microscopic and can be used to individualize a toolmark to a tool." ECF No. 264 at 45:10-14. "Using this methodology for examining toolmarked surfaces, there are four conclusions that examiners reach when conducting an examination: (1) identification, (2) inconclusive, (3) elimination, and (4) unsuitable for comparison." ECF No. 186 at 7. See also ECF No. 264 at 63:8-12 (testifying that the three conclusion options are identification, exclusion or inconclusive). Courts that have accepted toolmark examination testimony often require that if an identification conclusion was reached, that conclusion cannot be presented to the jury unless it was verified by an independent analysis performed by a second qualified examiner. See United States v. Taylor, 663 F.Supp.2d 1170, 1176 (D. N.M. 2009) ("Mr. Nichols testified that industry standards generally require an examiner to document in detail, through note-taking and photographs, the basis for his findings. Mr. Nichols also testified that industry standards require confirmation by at least one other examiner when the first examiner reaches an identification."). See also United States v. Monteiro, 407 F.Supp.2d 351, 368 (D. Mass. 2006) (same); United States v. Diaz, 2007 WL 485967 at *5 (N.D. Cal. 2007) (same).

         B. Applicable Standard

         The parties' (seemingly) sole point of agreement on the matter is that the Court's determination regarding the admissibility or inadmissibility of Ms. Moynihan's testimony is governed by Fed.R.Evid. 702, as well as Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and its progeny. See United States v. White, 309 Fed.Appx. 772, 774-75 (4th Cir. 2009) ("The admission of expert witness testimony is controlled by Rule 702 of the Federal Rules of Evidence and the Supreme Court's decision in Daubert"). Fed. R. Evid. 702 codifies the standard for admissibility of an expert witness, as explained by Daubert and Kuhmo Tire, and 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 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.

Fed. R. Evid. 702. See Nease v. Ford Motor Co., 848 F.3d 219, 230 (4th Cir. 2017), cert, denied, 137 S.Ct. 2250, 198 L.Ed.2d 680 (2017) ("The Kumho Court concluded that Rule 702 'applies to all expert testimony' as its 'language makes no relevant distinction between 'scientific' knowledge and 'technical' or 'other specialized' knowledge. It makes clear that any such knowledge might become the subject of expert testimony.") (quoting Kumho Tire Co. v. Carmichael,526 U.S. 137, 141, 147 (1999) ("This case requires us to decide how Daubert applies to the testimony of engineers and other experts who are not scientists.")). ...


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