United States v. Romero-Lobato
United States v. Romero-Lobato
Opinion of the Court
Defendant Eric Romero-Lobato has filed a motion to preclude the testimony of Steven Johnson, a supervising criminalist in the Forensic Science Division of the Washoe County Sheriff's Office. (ECF No 51 ). On April 23, 2019, the Court held a Daubert evidentiary hearing concerning Johnson's qualifications and the field of firearm and tool mark examination. (ECF No. 65 ). For the reasons stated below, the Court denies defendant's motion to preclude and qualifies Johnson as competent to testify in the field of firearm and tool mark identification.
I. Factual Background
Defendant has been indicted with seven felonies stemming out of two separate incidents that occurred approximately two months apart. On March 4, 2018, defendant is alleged to have participated in an attempted armed robbery at the Aguitas Bar and Grill in Sparks, Nevada. (ECF No. 11 at 2 ). During the attempted robbery, one of two robbers, alleged to be defendant, discharged a firearm (a Taurus PT111 G2) into the ceiling of the bar while making his escape. Stemming from that incident, defendant was charged with conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, discharging a firearm during a crime of violence, and being a felon in possession of a firearm. (Id. at 2-3). Neither of the two suspects involved in the Aguitas robbery was apprehended following the robbery. Approximately two months later on May 14, defendant allegedly carjacked an individual at gunpoint while she was cleaning her vehicle at a Reno-area carwash. Later that night, police officers located the vehicle, a 2001 GMC Yukon, and subsequently observed *1115defendant enter it and drive away. Defendant subsequently led officers on a high-speed chase, which ended with defendant crashing the Yukon. Defendant was forcibly removed from the crashed vehicle by the officers, and during their investigation of the vehicle, the officers found a Taurus PT111 G2 handgun on the front passenger's seat. The carjacking victim was subsequently brought to the scene of the accident and positively identified defendant as her attacker. Stemming from this incident, defendant was charged with carjacking, using or brandishing a firearm during a crime of violence, and being a felon in possession of a firearm. (Id. at 3-4).
On January 11, 2019, the government gave notice that it planned to call Johnson to testify as an expert witness in the field of firearm and tool mark analysis. (ECF No. 47 at 2 ). Johnson would testify, inter alia , that the Taurus handgun found in the stolen Yukon following the police chase is the same gun that was used to fire a round into the ceiling of Aguitas Bar and Grill. (Id. ) Defendant objected to qualifying Johnson as an expert (ECF No. 51 ), and the Court subsequently held a Daubert hearing to ascertain both his qualifications and the validity of his field of firearm and tool mark examination. (ECF No. 65 ). The Court heard testimony from Johnson on his background, training, and experience. He also testified regarding the process by which he linked the Aguitas bullet and the Taurus handgun found near defendant, commonly known as the Association of Firearm and Tool Mark Examiners method ("AFTE method"). Johnson also testified at length regarding recent developments and studies within the field prompted by two critical studies: a 2009 report from the National Research Council of the National Academy of Sciences ("NAS Report") and a 2016 report by the President's Council of Advisors on Science and Technology ("PCAST Report"). Following the hearing, the Court took the matter under advisement.
II. Legal Standard
Federal Rule of Evidence 702 governs the admissibility of expert testimony in federal courts. It provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Rule 702 requires expert testimony to be both "relevant and reliable." U.S. v. Vallejo ,
*1116III. Discussion
Defendant attacks the AFTE method on two separate grounds. First, the defense points to the critical NAS and PCAST Reports as evidence that "firearms analysis" is not scientifically valid and fails to meet the requisite threshold for admission under Daubert and Federal Rule of Evidence 702. (ECF No. 51 at 8 ). Second, the defense asserts that the government's notice of intent to call Johnson should be stricken because it does not provide sufficient detail about the basis behind Johnson's conclusions or even what those conclusions are. (Id. at 8-9). The latter issue was resolved through the Daubert hearing, as Johnson testified at length regarding his methodology and conclusions and was subject to substantial cross examination. Therefore, the Court will restrict its discussion to whether the AFTE methodology meets the relevance and reliability requirements of Daubert.
A. The Field of Firearm and Tool Mark Examination
For most of the twentieth century, courts generally allowed firearm examiners to testify, without many restrictions, that a bullet found at the scene of a crime was fired from a particular gun. David H. Kaye, Firearm-Mark Evidence: Looking Back and Looking Ahead , 68 CASE W. RES. L. REV. 723, 725-26 (2018). Some experts testified that that their judgments were not subject to any error rate and were essentially infallible, and others opined that it was merely possible for a particular bullet to have been fired by a particular gun.
But that is not to say that every federal court has allowed firearm examiners to have unfettered discretion in opining about their conclusions. In U.S. v. Monteiro , decided a year after Green , a different judge in the District of Massachusetts allowed a firearm examiner to testify with a "reasonable degree of certainty" that a particular gun fired two separate cartridges, but the examiner was prohibited from tying his conclusion to an exact statistical certainty.
*1117The cases surveyed by the Court indicate that some federal courts have recently become more hesitant to automatically accept expert testimony derived from the AFTE method. While no federal court (at least to the Court's knowledge) has found the AFTE method to be unreliable under Daubert , several have placed limitations on the manner in which the expert is allowed to testify. The general consensus is that firearm examiners should not testify that their conclusions are infallible or not subject to any rate of error, nor should they arbitrarily give a statistical probability for the accuracy of their conclusions. Several courts have also prohibited a firearm examiner from asserting that a particular bullet or shell casing could only have been discharged from a particular gun to the exclusion of all other guns in the world. These restrictions are in accord with guidelines issued by the Department of Justice for its own federal firearm examiners which went into effect in January 2019. (ECF No. 51-8 at 4 ). But it is also important to note that the courts that imposed limitations on firearm and toolmark expert testimony were the exception rather than the rule. David H. Kaye, Firearm-Mark Evidence: Looking Back and Looking Ahead , 68 CASE W. RES. L. REV. 723, 734 (2018). Many courts have continued to allow unfettered testimony from firearm examiners who have utilized the AFTE method.
Defendant rests much of his challenge on the NAS and PCAST Reports, so a brief explanation of both reports is necessary. The NAS Report, released in 2009, concluded that "[s]ufficient studies have not been done to understand the reliability and repeatability" of firearm and toolmark examination methods. (ECF No. 51-6 at 9 ). The Report's main issue with the AFTE method was that it did not provide a specific protocol for determining a match between a shell casing or bullet and a specific firearm. (Id. at 10). Instead, examiners were to rely on their training and experience to determine if there was a "sufficient agreement" (i.e. match) between the mark patterns on the casing or bullet and the firearm's barrel. (Id. ) During the Daubert hearing, Johnson testified about his field's response to the NAS Report, pointing to a 2013 study from Miami-Dade County ("Miami-Dade Study"). The Miami-Dade Study was conducted in direct response to the NAS Report and was designed as a blind study to test the potential error rate for matching fired bullets to specific guns.
In addition to the NAS Report, the defense also heavily relies on the PCAST Report in defendant's motion to preclude. That report, published in September 2016, concluded that there was only one study done that "was appropriately designed to test foundational validity and estimate reliability," the Ames Laboratory Study ("Ames Study"). (ECF No. 51-7 at 18 ). The Ames Study, which was reported in 2014, *1118reported a false-positive rate of 1.52%.
B. Daubert Analysis
Turning to the Court's analysis under Daubert , Johnson's testimony will only be admissible if it is both relevant and reliable. U.S. v. Vallejo ,
Turning now to reliability, the first Daubert reliability factor asks whether a theory or technique can be tested. Daubert ,
The second Daubert reliability factor asks whether the technique has been subjected to peer review and publication. Daubert ,
The third Daubert reliability factor asks whether the technique has a known or potential rate of error. Daubert ,
Although it is not defendant's burden to submit evidence showing that the AFTE method has a high error rate, the defense has not submitted any studies to counter the studies proffered by Johnson and the government, which show that the error rate is very low. Instead, the defense relies upon the NAS and PCAST Reports, seemingly content to rest on their conclusions (or rather their non-conclusions in the case of the latter). While the Court is cognizant of the PCAST Report's repeated criticisms regarding the lack of true black box tests, the Court declines to adopt such a strict requirement for which studies are proper and which are not. Daubert does not mandate such a prerequisite for a technique to satisfy its error rate element. Therefore, this factor too weighs in favor of admissibility.
The fourth Daubert factor asks whether there are standards that control the technique's operation. Daubert ,
As to the AFTE method itself, a main criticism of both the NAS and PCAST Reports is that firearm examiners do not reach their conclusions via objective criteria. Instead, using their training and experience, examiners use a high-powered microscope to determine if there is "sufficient agreement" between the "unique surface contours" of two toolmarks.
*1121This "sufficient agreement" is related to the significant duplication of random toolmarks as evidence by the correspondence of a pattern or combination of patterns of surface contours. Significance is determined by the comparative examination of two or more sets of surface contour patterns comprised of individual peaks, ridges and furrows. Specifically, the relative height or depth, width, curvature and spatial relationship of the individual peaks, ridges and furrows within one set of surface contours are defined and compared to the corresponding features in the second set of surface contours. Agreement is significant when the agreement in individual characteristics exceeds the best agreement demonstrated between toolmarks known to have been produced by different tools and is consistent with agreement demonstrated by toolmarks known to have been produced by the same tool. 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.8
The AFTE itself recognizes that this method is inherently subjective.
Johnson testified that there is an objective method of identification used by some firearm examiners called the consecutive matching striae ("CMS") method. The CMS method, which is more commonly used in the western half of the country, was first introduced in 1959 by Al Biasotti in the Journal of Forensic Sciences. DANIEL L. CLARK , ET AL. , NAT'L RESEARCH COUNCIL OF THE NAT'L ACADEMIES , COMMITTEE TO ASSESS THE FEASIBILITY , ACCURACY , AND TECHNICAL CAPABILITY OF A NATIONAL BALLISTICS DATABASE 65 (2008). The CMS method was later modified and refined to establish a "conservative quantitative criteria for identification" when subclass characteristics are ruled out:
(1) In three-dimensional toolmarks when at least two different groups of at least three consecutive matching striae appear in the same relative position, or one group of six consecutive striae are in agreement in an evidence toolmark to a test toolmark.
(2) In two-dimensional toolmarks when at least two groups of at least five consecutive matching striae appear in the same relative position, or one group of eight consecutive matching striae are in agreement in an evidence toolmark compared to a test toolmark.
Id. at 66. In other words, if an examiner utilizing the CMS method observes two or more sets of three or more consecutive matching markings on a bullet or shell casing, then he can conclude that there is a match between the discharged bullet and firearm. The CMS method, standing alone, qualifies as an objective standard under Daubert. Johnson testified that in the instant case, he used CMS in addition to the *1122commonly used "sufficient agreement" AFTE criteria; in his practice, he utilizes CMS after already determining a match, and that CMS only adds additional support to his final conclusion. While the CMS method has been peer reviewed, published in scientific journals, and tested, it is not routinely used by firearm examiners across the country. The lack of uniform adoption and the fact that Johnson does not use it as his primary method of identification means that the CMS method cannot, in the Court's view, transform the subjective factor in the AFTE method to an objective one. The CMS method does, however, offer some objective validation to the AFTE Method.
The fifth and final Daubert factor asks whether the theory or technique enjoys general acceptance within the relevant community. Daubert ,
Balancing the Daubert factors, the Court finds that Johnson's testimony derived from the AFTE method is reliable and therefore admissible. The only factor that does not support the admission of the testimony is the lack of objective criteria governing the application of the AFTE method. But this lack of objective criteria is countered by the method's relatively low rate of error, widespread acceptance in the scientific community, testability, and frequent publication in scientific journals. The balance of the factors therefore weighs strongly in favor of the admission of Johnson's testimony. The Court also notes that the defense has not cited to a single case where a federal court has completely prohibited firearms identification testimony on the basis that it fails the Daubert reliability analysis. The lack of such authority indicates to the Court that defendant's request to exclude Johnson's testimony wholesale is unprecedented, and when such a request is made, a defendant must make a remarkable argument supported by remarkable evidence. Defendant has not done so here.
C. Johnson's Competency to Testify at Trial
Having found that the AFTE method is relevant and reliable, the Court now turns to whether Johnson is competent to testify in the field. The government has provided Johnson's CV, which indicates that he holds a Bachelor of Science *1123degree in chemistry from the University of Nevada, Reno. (ECF 55-1 at 6). Johnson has worked in the Washoe County Sheriff's Office since 2010, and he has been supervising the firearms and toolmark section since November 2015. (Id. ) From December 2012 to March 2015, he trained at the California Department of Justice's Firearms and Toolmark Examiner Academy and at the Washoe County Sheriff's Office, Forensic Science Division. (Id. at 6-7). He has also attended related conferences and workshops in the latter half of 2015, 2016, 2017, and 2018. (Id. at 6-7). During his training, he took several armorer courses for common gun types and manufacturers and went on over two dozen tours of manufacturing facilities. (Id. at 7). Johnson has also been a provisional member of AFTE since October 2014, and he testified that he should be a full member by the end of 2019.
During the Daubert hearing, Johnson testified confidently and demonstrated that he had a comprehensive and detailed understanding of the field of firearm and tool mark examination. Given his substantial training and experience, there is little doubt that he is competent to testify. See U.S. v. Williams ,
IV. Conclusion
IT IS THEREFORE ORDERED that defendant's motion to exclude the testimony of Steven Johnson (ECF No. 51 ) is DENIED .
IT IS FURTHER ORDERED that Johnson is competent to testify at trial in the field of firearm and tool mark examination.
IT IS SO ORDERED.
Thomas G. Fadul , Jr. , et al. , An Empirical Study to Improve the Scientific Foundation of Forensic Firearm and Tool Mark Identification Utilizing Consecutively Manufactured Glock EBIS Barrels with the Same EBIS Pattern (2013), available at https://www.ncjrs.gov/pdffiles1/nij/grants/244232.pdf.
David P. Baldwin , et al. , A Study of False-Positive and False-Negative Error Rates in Cartridge Case Comparisons (2014), available at https://www.ncjrs.gov/pdffiles1/nij/249874.pdf.
There are very few federal court decisions discussing the PCAST Report in regard to the admissibility of opinions derived from the AFTE method. In one 2016 order that was not published and does not appear to be readily available, the Northern District of Illinois considered the PCAST Report in response to the defendant's motion in limine to preclude expert testimony. Aliza B. Kaplan & Janis C. Puracal, It's Not a Match: Why the Law Can't Let Go of Junk Science ,
Peer Review Process , The Association of Firearm and Tool Mark Examiners , https://afte.org/afte-journal/afte-journal-peer-review-process (last visited May 1, 2019).
What is the Journal? , The Association of Firearm and Tool Mark Examiners , https://afte.org/afte-journal/what-is-the-journal (last visited May 1, 2019).
AFTE Theory of Identification , The Association of Firearm and Tool Mark Examiners , available at https://afte.org/about-us/what-is-afte/afte-theory-of-identification (last visited May 1, 2019).
According to AFTE's website, a provisional member has the same privileges and responsibilities as a full member save for the fact that they cannot be elected to office positions or vote in the elections. Membership Requirements , The Association of Firearm and Tool Mark Examiners , available at https://afte.org/membership/membership-requirements (last visited May 1, 2019).
Reference
- Full Case Name
- United States v. Eric ROMERO-LOBATO
- Cited By
- 7 cases
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- Published