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United States v. Davis

United States District Court, W.D. Virginia, Danville Division

September 11, 2019

UNITED STATES OF AMERICA
v.
MARCUS JAY DAVIS, et al., Defendants.

          MEMORANDUM OPINION

          Michael F. Urbanski Chief United States District Judge.

         Defendants challenge the admissibility of forensic toolmark and firearms identification evidence pursuant to Federal Rule of Evidence 702 and the requirements of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). ECF Nos. 570, 577, 581, & 612. Defendants raise these objections in the context of serious charges brought against them by the First Superseding Indictment-specifically, racketeering, murder, attempted murder, assault in aid of racketeering, and various related gun charges (pursuant to the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1962, Violent Crimes in Aid of Racketeering Act ('VICAR"), 18 U.S.C. § 1959, and 18 U.S.C. § 924(c)). ECF No. 207. The government responded to defendant's motions on August 27, 2019. ECF No. 671. The court conducted a Daubert hearing and heard evidence and argument on September 3 and 4, 2019. ECF Nos. 699 & 704. These issues are now ripe for decision.

         For the following reasons, the court GRANTS in part and DENIES in part defendants' motions, ECF Nos. 570, 577, 581, and 612, and will permit the testimony of the proposed experts, subject to the limiting instructions described below. Additionally, the court GRANTS in part and DENIES in part the government's motion in limine filed on September 6, 2019, the day after the Daubert hearing. ECF No. 713.

         I.

         This multi-defendant, multi-count RICO prosecution began on June 11, 2018 when a federal grand jury issued two indictments bringing charges against members of the Rollin 60s Crips gang and gang associates on violations of the RICO statute, 18 U.S.C. § 1962, VICAR statute, 18 U.S.C. § 1959, and several other factually related charges. ECF No. 1; ECF No. 207. The government alleges that, in the summer of 2016, members of the Rollin 60s and Milla Bloods collaborated to facilitate criminal activities in the Danville, Virginia area. See ECF No. 207 (describing alleged racketeering conspiracy). This collaboration resulted in: (1) the attempted murders of the "Philly Boys" at North Hills Court on June 15, 2016, resulting in the assault and attempted murder of Armonti Womack and Dwight Harris; (2) the attempted murder of Justion Wilson and murder of Christopher Modey at North Hills Court on August 20, 2016; and (3) the attempted murder of Tyliek Conway on August 24, 2016.

         The government proposes three experts in the field of firearms and toolmark identification: Wendy Gibson (a forensic scientist with the western lab of the Virginia Department of Forensic Science's ("DFS") Firearm and Toolmark section), Courtney Et2elmiller (a senior forensic scientist with the eastern lab of the Virginia Department of Forensic Science's Firearm and Toolmark section), and Scott McVeigh (a Senior Firearm and Toolmark Examiner with the Prince George's County, Maryland, Police Department Firearm Examination Unit). Gibson proposes to testify, based on DFS reports and supporting documentation, about the characteristics of spent shell casings found at numerous crime scenes and render an opinion that certain bullets and casings found at one crime scene can be associated with bullets, spent shell casings, or firearms recovered from other crime scenes. Etzelmiller proposes to testify, based on DFS reports and documentation, about the cartridge case found at the scene of the murder of Christopher Motley and that the casing found exhibited markings that "made it suitable for identification with the firearm from which it was fired." McVeigh proposes to testify, based on reports and his examination, that a recovered cartridge from the Motley murder was fired from a .40 caliber Smith & Wesson pistol recovered in Hyattsville, Maryland by the Maryland National Capital Park Police.

         Defendants raise objections to both the reports and qualifications of the government's proposed experts and the overall reliability of the field of firearm and toolmark identification. First, defendants point out that McVeigh is "a police officer with a Criminal Justice certificate from a two year college-not a trained scientist or engineer," and that Etzelmiller has a Masters Degree in forensic science with an area of emphasis in psychology, rather than a degree in materials engineering, metallurgical engineering, materials science, "or any other academic discipline which deals with the actual science of what happens to metal when it comes into contact with other metal." ECF No. 570, at 3-4. Second, defendants object to the reports offered by McVeigh, Gibson, and Etzelmiller, arguing that none of them provide sufficient information as to the bases and reasons they relied upon in reaching their conclusions. Defendants contend that more is required to satisfy Federal Rule of Criminal Procedure 16.

         Finally, and perhaps most significantly, defendants object to the type of testimony offered, arguing that "firearm identification evidence is scientifically bankrupt, completely subjective, and almost always favors law enforcement." ECF No. 582, at 5. In support, they cite three reports, the first published in 2008 by the National Research Council ("NRC"), the second in 2009 again by the NRC, and the third in 2016 by the President's Council of Advisors on Science and Technology ("PCAST"), all of which point out weaknesses in the field questioning the reliability of such evidence. Defendants argue that firearm identification is "based primarily on a visual inspection of patterns of toolmarks and is largely a subjective determination based on experience and expertise." United States v. Monteiro, 407 F.Supp.2d 351, 355 (D. Mass. 2006). They contend that attempts to standardize the field and establish standard practices have not yet been generally accepted. ECF No. 582, at 6. Defendants argue that recent caselaw indicates that federal courts are no longer as accepting of firearm identification testimony as they once were, and that the granting of their motions would be the logical next step in the current progression of the law. Defendants ask for the exclusion of all evidence of this type from trial. In lieu of this, defendants request a limiting instruction preventing the witnesses from expressing a specific degree of certainty in their conclusions.

         The government responds that no court has ever excluded toolmark examination expert testimony under Daubert or any other standard, and that there is no scientific or legal basis to exclude the evidence the government intends to offer. ECF No. 673, at 20. See United States v. Santiago, 199 F.Supp.2d 101, 111 (S.D.N.Y. 2002) ("The Court has not found a single case . . . that would suggest that the entire field of ballistics identification is unreliable."). The government asserts that all three objected-to experts are extremely qualified through training and experience. Further, the field of forensic firearm and toolmark identification "continues to undergo testing in the form of (1) technical research; (2) validation studies; and (3) proficiency testing." ECF No. 673, at 10. The government concedes that courts have found the maintenance of standards and controls to be the weakest of the Daubert factors in firearm identification. Monteiro, 407 F.Supp.2d at 371-72; United States v. Green, 405 F.Supp.2d 104, 114 (D. Mass. 2005); United States v. Glynn, 578 F.Supp.2d 567, 572 (S.D.N.Y. 2008). However, the government posits that "nothing in hundreds of peer-reviewed journal articles to date has invalidated the foundational premise that a trained examiner can reliably identify a cartridge case/bullet to a particular gun or a case to another case." ECF No. 673, at 29.

         II.

         Federal Rule of Evidence 702 states 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 the following four criteria are established:

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.

         The Supreme Court of the United States has held that Rule 702 "clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify." Daubert, 509 U.S. at 589. Accordingly, the Supreme Court in Daubert expounded upon the relevancy and reliability requirements of Rule 702. First, to establish "a standard of evidentiary reliability," an expert must testify about scientific knowledge." Id. at 589-90. This means that the testimony must, be "grounded in the methods and procedures of science" and must consist of "more than subjective belief or unsupported speculation." Id. at 590. Second, in order to ensure relevancy, the expert's evidence or testimony must '"assist the trier of fact to understand the evidence or to determine a fact in issue.'" Id. at 591 (quoting Fed.R.Evid. 702).

         This "'helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition of admissibility." Daubert, 509 U.S. at 591-92. When faced with potential expert testimony, then, the trial judge must make a "preliminary assessment of whether the reasoning or methodology can be applied to the facts in issue." Id., at 592-93. The proponent of the evidence bears the burden of proof by a preponderance of the evidence. Daubert, 509 U.S. at 593 n. 10.

         III.

         Before the court is an evidentiary issue of increasing interest and controversy. The questions posed by these motions have been addressed by several courts, resulting in a heightened apprehension in the scientific reliability and admission of this evidence. See Green, 405 F.Supp.2d at 109 ("This reliance on long-standing use of ballistics evidence in the courts is troubling."). The series of reports issued on this subject reflects the ever-growing number of members of the legal and scientific communities who recognize problematic aspects of this discipline. Any discussion of this subject, however, must be based in a foundational knowledge of the specific technical variety ...


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