05-6036-cr(l) United States v. Williams

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 August Term 2006

5 (Argued: April 16, 2007 Decided: October 23, 2007)

6 Docket Nos. 05-6036-cr(L), 05-6038-cr(CON), 05-6065-cr(CON)

7 -----------------------------------------------------x

8 UNITED STATES OF AMERICA, 9 10 Appellee, 11 12 -- v. -- 13 14 ELIJAH BOBBY WILLIAMS, a.k.a. Bosco, a.k.a. Bobby 15 Torres, XAVIER WILLIAMS, a.k.a. X, a.k.a. Richie 16 Torres, REVEREND MICHAEL WILLIAMS, a.k.a. David 17 Michael Torres, a.k.a. Mike Torres, a.k.a. Mike

20 Defendants-Appellants. 21 22 -----------------------------------------------------x 23 24 B e f o r e : NEWMAN, WALKER, and STRAUB, Circuit Judges.

25 Appeals from judgments entered in the United States District

26 Court for the Southern District of New York (Naomi Reice

27 Buchwald, Judge), convicting and sentencing appellants for

28 various offenses, including narcotics trafficking, racketeering,

29 and murder.

30 AFFIRMED.

1 1 DAVID A. RUHNKE, Ruhnke & Barrett, 2 Montclair, New Jersey, for Elijah 3 Williams. 4 5 RICHARD B. LIND, New York, New 6 York, for Michael Williams. 7 8 DAVID STERN, Rothman Schneider 9 Soloway & Stern, LLP, New York, New 10 York, for Xavier Williams. 11 12 HELEN V. CANTWELL, Assistant United 13 States Attorney (Michael J. Garcia, 14 United States Attorney for the 15 Southern District of New York, Glen 16 G. McGorty and Robin L. Baker, 17 Assistant United States Attorneys, 18 on the brief), New York, New York. 19 20 21 JOHN M. WALKER, JR., Circuit Judge: 22 23 Defendants-appellants Elijah Bobby Williams (“Bobby”),

24 Michael Williams, (“Michael”), and Xavier Williams (“Xavier”)

25 appeal from judgments entered in the United States District Court

26 for the Southern District of New York (Naomi Reice Buchwald,

27 Judge), convicting them of and sentencing them for various

28 offenses, including narcotics trafficking, racketeering, and

29 murder. In a concurrently filed summary order, we address most

30 of appellants’ arguments and find them without merit. In this

31 opinion, we consider: (1) Michael’s contention that the district

32 court erred in admitting Bobby’s self-inculpatory out-of-court

33 statements that also implicated Michael, and (2) Bobby’s claim

34 that the district court abused its discretion in concluding that

35 the methodology employed by the government’s firearms

2 1 identification expert met the reliability standard set forth in

2 Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(1993). We hold that the district court did not err on either

4 score. Accordingly, we affirm the convictions and sentences.

5 BACKGROUND

6 On a gelid night in February 1996, residents along the 1100

7 block of Sperling Drive, a residential street in Wilkinsburg,

8 Pennsylvania, were startled by the ringing sound of gun shots.

9 One resident who rushed to see what had happened saw two people

10 shooting into a Ford Bronco parked alongside the street. Another

11 observed a mid-sized car darting away from the scene immediately

12 after the shooting ceased. But neither was able to describe the

13 shooters in detail.

14 Once the commotion passed, one of the residents approached

15 the Ford Bronco. Inside she found the bullet-riddled bodies of

16 Joel Moore, Timothy Moore, and Robert James. Law enforcement was

17 called, a crime scene was established, and an investigation

18 immediately ensued.

19 The indictments that followed charged appellants with

20 operating a violent criminal organization that existed for the

21 purpose of, among other things, enriching its members by

22 trafficking in cocaine and cocaine base in New York and

23 Pennsylvania. Because the government sought the death penalty

24 against Bobby and Michael for their roles in the triple homicide,

3 1 they were tried separately from Xavier on a superceding

2 indictment that charged fifteen counts: racketeering, in

3 violation of

(c) (Count One); racketeering

4 conspiracy, in violation of

(d) (Count Two);

5 conspiracy to murder in aid of racketeering activity, in

6 violation of

(a)(5) (Counts Three and Four);

7 murder in aid of racketeering activity, in violation of 18 U.S.C.

8 §§ 2, 1959 (a)(1) (Counts Five through Seven); conspiracy to

9 distribute narcotics, in violation of

(Count

10 Eight); murder while engaged in a narcotics conspiracy, in

11 violation of

and

(e) (Counts Nine

12 through Eleven); use of a firearm during and in relation to a

13 drug trafficking crime or crime of violence, in violation of 18

, 924(j) (Counts Twelve through Fourteen); and

15 conspiracy to launder money derived from narcotics trafficking,

16 in violation of

(h) (Count Fifteen). The jury

17 found Bobby and Michael guilty on all counts except Counts Three

18 and Four but determined that they should not receive the death

19 penalty. Bobby and Michael were sentenced principally to life

20 imprisonment.

21 Xavier was tried on a superceding indictment charging

22 fourteen counts that matched Bobby’s and Michael’s indictment

23 through Count Thirteen, omitted one of the firearm counts, and

24 charged the money laundering count as Count Fourteen instead of

4 1 Fifteen. Upon the government’s motion, the district court

2 dismissed Counts Five, Six, Seven, Nine, Ten, Eleven, and Twelve.

3 The jury found Xavier guilty on all remaining counts except Count

4 Four. He was sentenced principally to life imprisonment.

5 The remaining facts and procedural history are provided as

6 necessary for our analysis of the specific issues addressed in

7 this opinion.

8 DISCUSSION

9 I. Admission of Bobby’s Out-of-Court Statements

10 Prior to the trial of Bobby and Michael, the government

11 requested permission to introduce, against both defendants,

12 statements Bobby made to Carol Johnson, Earl Baldwin, and Julian

13 Brown about his involvement in the triple homicide. Michael

14 objected and moved for exclusion and, in the alternative,

15 requested a severance pursuant to Fed. R. Crim. P. 14. After

16 hearing from both sides, the district court denied the severance

17 and allowed Johnson and Baldwin, but not Brown, to testify about

18 Bobby’s statements, finding their testimony admissible under the

19 exception to the hearsay rule for statements against penal

20 interest. See Fed. R. Evid. 804(b)(3). The district court also

21 found no Confrontation Clause impediment to the admission of

22 Johnson’s and Baldwin’s testimony.

23 At trial, Baldwin testified that Bobby admitted to him on

24 two separate occasions that he participated in the triple

5 1 homicide. Bobby first told Baldwin that Timothy Moore was killed

2 because the “Dude owed” money. The second time, Bobby, speaking

3 about himself and Michael, stated: “[W]e gave it to them niggers.

4 . . . [W]e walked up to the truck, each of us on a side of the

5 truck and gave it to them niggers.” Johnson, echoing much of

6 Baldwin’s account, testified that Bobby told her that the victims

7 were shot because of their debts. She then explained that Bobby

8 told her that Michael shot the man in the driver’s seat while

9 Bobby shot at least one of the other passengers. Johnson’s

10 testimony did not account for the shooting of the third victim.

11 In this challenge to the district court’s pretrial ruling,

12 Michael argues again that the admission of Bobby’s out-of-court

13 statements violated both Rule 804(b)(3) and the Confrontation

14 Clause. We review the district court’s admissibility

15 determination under Rule 804(b)(3) for abuse of discretion and

16 its Confrontation Clause analysis de novo. United States v.

17 Tropeano,

(2d Cir. 2001).

18 A. Admissibility under Rule 804(b)(3)

19 Admission of a statement under Rule 804(b)(3) hinges on

20 “whether the statement was sufficiently against the declarant’s

21 penal interest ‘that a reasonable person in the declarant’s

22 position would not have made the statement unless believing it to

23 be true.’” Williamson v. United States,

, 603-04

24 (1994) (quoting Rule 804(b)(3)). Whether a challenged statement

6 1 is sufficiently self-inculpatory can only be answered by viewing

2 it in context.

. Thus, this determination must be

3 made on a case-by-case basis. See Tropeano,

.

4 We find no abuse of discretion in the district court’s

5 decision to admit the challenged statements under Rule 804(b)(3).

6 The first of Bobby’s statements to Baldwin was plainly self-

7 inculpatory, and it did not on its face implicate Michael. The

8 second of Bobby’s statements to Baldwin and his statement to

9 Johnson were also sufficiently self-inculpatory as they described

10 acts that he and Michael committed jointly. See United States v.

11 Saget,

(2d Cir. 2004) (finding that the bulk of

12 confessor’s statements were self-inculpatory because they

13 described acts that the defendant and the confessor committed

14 jointly). Moreover, the context of these statements shows that

15 Bobby was not attempting to minimize his own culpability, shift

16 blame onto Michael, or curry favor with authorities. Cf.

17 Williamson,

. To the contrary, in his second

18 statement to Baldwin, Bobby was boastful regarding his

19 participation in the murders, and in his remark to Johnson he

20 claimed an equal role, asserting that he and Michael each killed

21 one of the three victims.

22 B. Confrontation Clause Analysis

23 The Confrontation Clause states that “[i]n all criminal

24 prosecutions, the accused shall enjoy the right . . . to be

7 1 confronted with the witnesses against him.” U.S. Const. amend.

2 VI. In Crawford v. Washington,

(2004), the Supreme

3 Court held that the Confrontation Clause prohibits the admission

4 of out-of-court “testimonial” statements against a criminal

5 defendant, unless the declarant is unavailable and the defendant

6 had a prior opportunity to cross-examine the declarant.

7 Crawford’s per se bar on such testimonial statements displaced

8 that much of the “indicia of reliability” standard of Ohio v.

9 Roberts,

(1980), that had allowed into evidence, as

10 not violative of the Confrontation Clause, hearsay statements

11 that fell within a firmly rooted hearsay exception or contained

12 particularized guarantees of trustworthiness.

;

13 Crawford,

; Saget,

(explaining that

14 under Roberts, “[a]ny out-of-court statement was constitutionally

15 admissible so long as it fell within an exception to the hearsay

16 rule or, if that exception was not firmly rooted, the court found

17 that the statement was likely to be reliable”).

18 While Crawford’s per se bar did away with Roberts’

19 reliability analysis for testimonial statements, it left unclear

20 whether the admission of “nontestimonial” statements would still

21 implicate Confrontation Clause concerns because Crawford did not

22 explicitly overrule Roberts on that score. See Saget,

(“Crawford leaves the Roberts approach untouched with

24 respect to nontestimonial statements. . . . Accordingly, while

8 1 the continued viability of Roberts with respect to nontestimonial

2 statements is in doubt, we will assume for purposes of this

3 opinion that its reliability analysis continues to apply to

4 control nontestimonial hearsay . . . .”). However, in Davis v.

5 Washington,

(2006), the Court was required to

6 “decide . . . whether the Confrontation Clause applies only to

7 testimonial hearsay.”

(emphasis added). Answering

8 that question in the affirmative, the Court explained that

9 Crawford, even if it did not expressly so hold, pointed the way:

10 The text of the Confrontation Clause reflects this 11 focus on testimonial hearsay. It applies to witnesses 12 against the accused — in other words, those who bear 13 testimony. Testimony, in turn, is typically a solemn 14 declaration or affirmation made for the purpose of 15 establishing or proving some fact. An accuser who 16 makes a formal statement to government officers bears 17 testimony in a sense that a person who makes a casual 18 remark to an acquaintance does not. 19 20

“A limitation so clearly reflected in the text of the

21 constitutional provision,” the Court continued, “must fairly be

22 said to mark out not merely its ‘core,’ but its perimeter.”

23 Following Davis, we stated in United States v. Feliz, 467

(2d Cir. 2006), that Roberts’ reliability analysis plays

25 no role in a Confrontation Clause inquiry. See

.

26 It is plain from Davis “that the right to confrontation only

27 extends to testimonial statements, or, put differently, the

28 Confrontation Clause simply has no application to nontestimonial

29 statements.” Feliz, 467 F.3d at 231; see Tom Lininger,

9 1 Reconceptualizing Confrontation After Davis,

,

2 280 (2006) (“Whereas Crawford called into question the reasoning

3 of Roberts, Davis sounded the death knell. The Davis Court

4 indicated plainly that the protections of the Confrontation

5 Clause are limited to testimonial hearsay.”).

6 Now, after Crawford and Davis, indicia of reliability 7 play no role in the Confrontation Clause analysis. 8 Rather, the inquiry under the Confrontation Clause is 9 whether the statement at issue is testimonial. If so, 10 the Confrontation Clause requirements of unavailability 11 and prior cross-examination apply. If not, the 12 Confrontation Clause poses no bar to the statement’s 13 admission. 14 15 Feliz, 467 F.3d at 232.

16 Michael does not, nor could he, contend that Bobby’s

17 statements were testimonial; they bear none of the hallmarks of

18 testimonial statements identified in Crawford. See

51-52 (identifying as testimonial “ex parte in-court testimony,”

20 “extrajudicial statements . . . contained in formalized

21 testimonial materials, such as affidavits, depositions, prior

22 testimony, or confessions,” and “statements that were made under

23 circumstances which would lead an objective witness reasonably to

24 believe that the statement would be available for use at a later

25 trial” (internal quotation marks and citations omitted)); see

26 also Saget,

(identifying as testimonial under

27 Crawford “a declarant’s knowing responses to structured

28 questioning in an investigative environment or in a courtroom

29 setting where the declarant would reasonably expect that his or

10 1 her responses might be used in future judicial proceedings”).

2 Instead, relying on Roberts and its progeny, Michael asserts that

3 the statements lack particularized guarantees of trustworthiness.

4 Because the Confrontation Clause does not bar such nontestimonial

5 statements, whatever their guarantees of trustworthiness,

6 Michael’s argument fails and our Confrontation Clause inquiry is

7 at an end.

8 * * *

9 Accordingly, we conclude that the district court neither

10 abused its discretion in admitting Bobby’s out-of-court

11 statements under Rule 804(b)(3) nor violated the Confrontation

12 Clause in doing so.

13 II. The Government’s Firearms Identification Expert

14 Spent bullets, cartridge casings, and bullet fragments were

15 recovered from the scene of the triple homicide and the victims’

16 bodies. A subsequent search of Michael’s apartment in

17 Pittsburgh, Pennsylvania turned up two handguns, one of which was

18 a 9mm Bryco semiautomatic pistol. Shortly thereafter, this and

19 other ballistics evidence was turned over to Michelle Kuehner, a

20 firearms examiner in the Forensic Laboratory Division of the

21 Allegheny County Coroner’s Office (the “Forensic Lab”). Upon

22 comparing the ballistics evidence recovered from the crime scene

23 and the victims’ bodies with bullets and cartridge casings

24 produced from a test firing of the 9mm Bryco, Kuehner concluded

11 1 there was a “match.”1

2 Before trial, the government placed Bobby and Michael on

3 notice that it intended to call Kuehner as an expert witness.

4 Michael moved for a pretrial Daubert hearing to challenge

5 Kuehner’s testimony,2 contending that the government had yet to

6 establish its admissibility under Fed. R. Evid. 702.

7 In an order dated December 22, 2004, the district court

8 denied the motion without a hearing. It reasoned:

9 Judge Marrero of this Court has recently upheld the use 10 of ballistics as reliable under Rule 702. See United 11 States v. Santiago,

, 111-12 12 (S.D.N.Y. 2002). The Supreme Court has likewise cited 13 ballistics as a proper subject of expert testimony 14 because it aids the jury in understanding the evidence. 15 See United States v. Scheffer,

, 312-313 16 (1998) (“unlike expert witnesses who testify about 17 factual matters outside the juror’s knowledge, such as 18 the analysis of fingerprints, ballistics, or DNA found 19 at a crime scene, a polygraph expert can supply the 20 jury only with another opinion, in addition to its own, 21 about whether the witness was telling the truth”); see 22 also United States v. Foster,

, 376 23 n.1 (D. Md. 2004) (stating that, “[i]n the years since 24 Daubert, numerous cases have confirmed the reliability 25 of ballistics identification,” and collecting cases); 26 [United States v. O’Driscoll, No. 4:CR-10-277,

1402040, at *2 (M.D. Pa. Feb. 10, 2003)] (“the field of 28 ballistics is a proper subject for expert testimony and

1 1 Apparently Bobby’s and Michael’s own firearms examiner came 2 to the same conclusion as Kuehner. 2 1 Though Bobby raises the issue on appeal and the parties 2 indicate that he was the one who requested a Daubert hearing, the 3 district court’s order states that it was, in fact, Michael who 4 made the request. United States v. Williams, No. 5 S100CR.1008(NRB),

, at *24 (S.D.N.Y. Dec. 22, 6 2004). This is of no moment, however, because appellants have 7 joined one another’s arguments pursuant to Fed. R. App. P. 28(i). 8

12 1 meets the requirements of Rule 702.”). . . . 2 Defendants have not offered any reason for us to depart 3 from the reasoning of these cases. Accordingly, the 4 request for a Daubert hearing to challenge the 5 government’s proposed ballistics . . . evidence is 6 denied. 7 8

WL 2980027, at *24.

9 At trial, the government called Kuehner as an expert. She

10 testified first about her background. Kuehner stated that she

11 had served as a firearms examiner within the firearms section of

12 the Forensic Lab for approximately twelve years. She testified

13 that, in addition to the “hands-on training” she received from

14 her section supervisor, Dr. Robert Levine, she attended seminars

15 on firearms identification, including annual workshops put on by

16 the Association of Firearm and Toolmark Examiners (the “AFTE”)

17 where firearms examiners from the United States and the

18 international community gather to present papers on current

19 topics within the field. Kuehner also explained that she and Dr.

20 Levine published a paper in the AFTE Journal matching a bullet to

21 the cartridge case from which it was discharged. Kuehner further

22 stated that she has given presentations on the subject of

23 firearms analysis at several AFTE meetings and for Duquesne

24 University’s forensic science and law programs. In addition,

25 Kuehner testified that she had examined approximately 2,800

26 different types of firearms and provided expert testimony on

27 between 20 and 30 occasions.

28 After establishing her background, training, and experience,

13 1 Kuehner went on to testify that she uses a firearms

2 identification methodology that is a subset of a broader forensic

3 discipline referred to as toolmark identification. Toolmark

4 examiners are trained to examine the marks left by tools on a

5 variety of surfaces in an attempt to “match” a toolmark to the

6 particular tool that made it. Firearms, she explained, are

7 simply the tools that impart marks on bullets and cartridge

8 cases.3

9 Kuehner then testified as to how the methodology enables her

10 to determine whether a given sample of ballistics components4 was

11 fired from the same gun. She starts by examining the components’

12 “class characteristics.” A spent bullet’s class characteristics

13 include its caliber, the number of its land and groove

3 1 For a thorough discussion of the firearms identification 2 methodology employed by Kuehner see Theory of Identification, 30 3 Am. Firearms and Toolmark Examiners J. 86 (1998). 4 1 The ballistics components relevant here include the spent 2 bullets and cartridge casings recovered from the crime scene and 3 the victims’ bodies. It suffices for our analysis to recount 4 Kuehner’s testimony regarding the process by which she examines 5 spent bullets, but we note that the process she employs in 6 examining spent cartridge cases involves many of the same 7 concepts.

14 1 impressions,5 the twist of its land and groove impressions, and

2 the width of its land and groove impressions. Class

3 characteristics, Kuehner explained, allow her to narrow the

4 universe of firearm possibilities to certain types of guns made

5 by certain manufacturers. For example, a spent 9mm bullet

6 exhibiting six land and groove impressions could only have been

7 expelled from a firearm with a 9mm gun barrel that has six lands

8 and grooves.

9 Once Kuehner narrows the firearms possibilities by class,

10 she looks for specific random, microscopic imperfections in the

11 barrel caused by changes in the manufacturing tool as it makes

12 each barrel on the production line. These imperfections in turn

13 leave unique “striations” on each bullet as it moves through the

14 barrel. It is her examination of these unique marks, Kuehner

15 testified, that allows her to determine whether two bullets were

16 fired from the same gun.

17 Using a comparison microscope to view the two bullets side-

18 by-side, she compares the height, depth, width, length and

19 spatial relations of their striations. Significant similarity

5 1 When a handgun is fired, its barrel imparts “rifling” on the 2 bullet. Rifling places a twist on a bullet as it travels, thus 3 promoting flight accuracy. Rifling, which runs the length of the 4 barrel, consists of cuts called “grooves” and raised surfaces 5 called “lands.” As a bullet travels down the barrel, the raised 6 lands press into the surface of the bullet and it likewise 7 conforms to fill the recessed grooves. The corresponding marks 8 left on the bullet are referred to as land and groove 9 impressions.

15 1 between striations signals an “identification” or a “match” —

2 that is, the bullets were fired from the same firearm. The

3 striations need not be identical; they need only be in

4 “sufficient agreement” based on Kuehner‘s training and

5 experience. She explained:

6 So I am looking at the number of striations, . . . 7 their physical characteristics, their height, [and] 8 their depth. And when the pattern of agreement exceeds 9 the amount of agreement that I know exists in two 10 bullets that have not been fired from the same firearm, 11 then that is sufficient agreement. 12 13 * * * 14 15 You can’t really put numbers to it. It’s more, more 16 coming from experience, so, which is why . . . you test 17 bullets. So sufficient agreement meaning that you have 18 enough agreement [between the striations on the 19 bullets] than those that you know do not match. 20 21 Kuehner testified that, based on comparison of striations,

22 there are two conclusions she may reach other than a match. She

23 can make an “eliminat[ion],” concluding that the two bullets were

24 not fired from the same gun. Or, she can make an “inconclusive”

25 determination, meaning that, although the bullets exhibit similar

26 class characteristics, there is not enough agreement or

27 disagreement between their striations to conclude whether they

28 were or were not fired from the same gun. Kuehner further

29 explained that after she performs her examination, she documents

30 her conclusions in a report, which Dr. Levine reviews. Based on

31 her analysis in this case, Kuehner concluded that certain bullets

32 and cartridge casings recovered from the crime scene and the

16 1 victims’ bodies matched those she produced by test firing the 9mm

2 Bryco.

3 Bobby now challenges the district court’s decision to

4 permit Kuehner to testify as an expert. We understand his

5 argument to be that the district court abused its discretion by

6 (1) denying him a Daubert hearing and (2) failing to undertake an

7 adequate inquiry into the reliability of Kuehner’s firearms

8 identification methodology. The government counters that the

9 district court acted within its discretion under the

10 circumstances and that any error was harmless.6 We review the

11 district court’s decision to admit expert testimony under Rule

12 702 for abuse of discretion. Kumho Tire Co. v. Carmichael, 526

, 152 (1999). “A decision to admit scientific evidence

14 is not an abuse of discretion unless it is manifestly erroneous.”

15 United States v. Salameh,

(2d Cir. 1998)

16 (internal quotation marks omitted).

17 A. Gatekeeping under Daubert

18 While the proponent of expert testimony has the burden of

6 1 The government also contends that Bobby failed to preserve 2 his claim of error as to the reliability of Kuehner’s testimony 3 because his pretrial challenge lacked the necessary specificity, 4 which was never remedied by a further objection after Kuehner’s 5 trial testimony provided more persuasive grounds for objection. 6 Therefore, the government argues that the district court’s 7 decision should be reviewed for plain error only. But we need 8 not reach this point because we conclude that Bobby cannot 9 satisfy the lower burden of abuse of discretion according to the 10 record here. 11

17 1 establishing by a preponderance of the evidence that the

2 admissibility requirements of Rule 702 are satisfied, see

3 Daubert,

n.10, the district court is the ultimate

4 “gatekeeper.” See Fed. R. Evid. 104(a); United States v. Cruz,

5

(2d Cir. 2004); see also Brooks v. Outboard

6 Marine Corp.,

(2d Cir. 2000) (rejecting argument

7 that opposing expert testimony is necessary to trigger the

8 district court’s obligation to analyze admissibility of expert

9 testimony). The Federal Rules of Evidence assign to it “the task

10 of ensuring that an expert’s testimony both rests on a reliable

11 foundation and is relevant to the task at hand.” Daubert, 509

12 U.S. at 597.

13 In assessing reliability, “the district court should

14 consider the indicia of reliability identified in Rule 702,

15 namely, (1) that the testimony is grounded on sufficient facts or

16 data; (2) that the testimony is the product of reliable

17 principles and methods; and (3) that the witness has applied the

18 principles and methods reliably to the facts of the case.”

19 Amorgianos v. Nat’l R.R. Passenger Corp.,

(2d

20 Cir. 2002) (internal quotation marks omitted). But these

21 criteria are not exhaustive. See Wills v. Amerada Hess Corp.,

22

(2d Cir. 2004). Daubert enumerated a list of

23 additional factors bearing on reliability that district courts

24 may consider: (1) whether a theory or technique has been or can

18 1 be tested; (2) “whether the theory or technique has been

2 subjected to peer review and publication;” (3) the technique’s

3 “known or potential rate of error” and “the existence and

4 maintenance of standards controlling the technique’s operation;”

5 and (4) whether a particular technique or theory has gained

6 general acceptance in the relevant scientific community. See

7 Daubert,

.

8 “Daubert’s list of specific factors,” however, “neither

9 necessarily nor exclusively applies to all experts or in every

10 case.” Kumho Tire, 526 U.S. at 141. Rather, the district

11 court’s inquiry into the reliability of expert testimony under

12 Rule 702 is a “flexible one.” Daubert,

.

13 Accordingly, “the law grants a district court the same broad

14 latitude when it decides how to determine reliability as it

15 enjoys in respect to its ultimate reliability determination.”

16 Kumho Tire, 526 U.S. at 142. Yet while the district court’s

17 discretion is considerable, it is not unfettered: It does not

18 permit the district court “to perform the [gatekeeping] function

19 inadequately.” Id. at 158-59 (Scalia, J., concurring) (noting

20 that the majority opinion “makes clear that the discretion it

21 endorses — trial-court discretion in choosing the manner of

22 testing expert reliability — is not discretion to abandon the

23 gatekeeping function”).

24 As an initial matter, we reject Bobby’s contention that the

19 1 district court abused its discretion by denying his request for a

2 hearing. While the gatekeeping function requires the district

3 court to ascertain the reliability of Kuehner’s methodology, it

4 does not necessarily require that a separate hearing be held in

5 order to do so. See id. at 152 (district courts possess

6 “latitude in deciding how to test an expert’s reliability, and to

7 decide whether or when special briefing or other proceedings are

8 needed to investigate reliability”); see also United States v.

9 Alatorre,

(9th Cir. 2000) (“Nowhere . . .

10 does the Supreme Court mandate the form that the inquiry into . .

11 . reliability must take. . . .”). This is particularly true if,

12 at the time the expert testimony is presented to the jury, a

13 sufficient basis for allowing the testimony is on the record.

14 See 4 Weinstein’s Federal Evidence § 702.02[2] (Joseph M.

15 McLaughlin ed., 2d ed. 2006).

16 The remaining question, then, is whether there was a

17 sufficient foundational basis in the record to support the trial

18 court’s decision to admit Kuehner as an expert?

19 First, the district court noted with approval the decision

20 in Santiago rejecting a challenge to the reliability of the

21 government expert’s firearms identification methodology as

22 “pseudo-science.”

. The Santiago court

23 stated that the government had submitted a letter describing,

24 among other things, the method that the expert used to “match

20 1 particular guns to the bullets in question.”

Moreover, the

2 preliminary ruling below in Santiago had accepted that much of

3 the reliability inquiry would occur when the government laid the

4 foundation preliminary to the district court’s admitting the

5 expert’s testimony. See

(noting that in

6 addition to expecting the government to ask about the expert’s

7 “training, experience, qualifications, and the methods he used to

8 match the bullets with the guns in question,” the court was

9 “interested to learn how often [the expert’s] identifications

10 have been wrong in the past and the degree to which his

11 methodology has been accepted in the community of forensics

12 experts”).

13 We think that Daubert was satisfied here. When the district

14 court denied a separate hearing it went through the exercise of

15 considering the use of ballistic expert testimony in other cases.

16 Then, before the expert’s testimony was presented to the jury,

17 the government provided an exhaustive foundation for Kuehner’s

18 expertise including: her service as a firearms examiner for

19 approximately twelve years; her receipt of “hands-on training”

20 from her section supervisor; attendance at seminars on firearms

21 identification, where firearms examiners from the United States

22 and the international community gather to present papers on

23 current topics within the field; publication of her writings in a

24 peer review journal; her obvious expertise with toolmark

21 1 identification; her experience examining approximately 2,800

2 different types of firearms; and her prior expert testimony on

3 between 20 and 30 occasions. Under the circumstances, we are

4 satisfied that the district court effectively fulfilled its

5 gatekeeping function under Daubert. The trial court’s admission

6 of Kuehner’s testimony constituted an implicit determination that

7 there was a sufficient basis for doing so. The formality of a

8 separate hearing was not required and we find no abuse of

9 discretion.

10 We do not wish this opinion to be taken as saying that any

11 proffered ballistic expert should be routinely admitted. Daubert

12 did make plain that Rule 702 embodies a more liberal standard of

13 admissibility for expert opinions than did Frye v. United States,

14

(D.C. Cir. 1923). See Daubert,

15 (holding that the Frye test of general acceptance in the

16 scientific community was superceded by the Federal Rules); see

17 also Amorgianos,

(observing departure, under

18 Federal Rule, from the Frye standard). But this shift to a more

19 permissive approach to expert testimony did not abrogate the

20 district court’s gatekeeping function. Nimely v. City of New

F.3d 381, 396 (2d Cir. 2005). Nor did it “grandfather”

22 or protect from Daubert scrutiny evidence that had previously

23 been admitted under Frye. See United States v. Crisp,

(4th Cir. 2003) (Michael, J., dissenting); see also

22 1 United States v. Saelee,

(D. Alaska

2 2001) (“[T]he fact that [expert] evidence has been generally

3 accepted in the past by courts does not mean that it should be

4 generally accepted now, after Daubert and Kumho [Tire].”). Thus,

5 expert testimony long assumed reliable before Rule 702 must

6 nonetheless be subject to the careful examination that Daubert

7 and Kumho Tire require. See Daubert,

(explaining

8 that Rule 702 requires district courts to ensure that “any and

9 all scientific testimony or evidence admitted is not only

10 relevant, but reliable”);

at 592 n.11 (“Although the Frye

11 decision itself focused exclusively on ‘novel’ scientific

12 techniques, we do not read the requirements of Rule 702 to apply

13 specially or exclusively to unconventional evidence. Of course,

14 well-established propositions are less likely to be challenged

15 than those that are novel, and they are more handily defended.”);

16 see also Kumho Tire, 526 U.S. at 152 (explaining that whether a

17 witness’s area of expertise is technical, scientific, or more

18 generally “experience-based,” Rule 702 requires the district

19 court to fulfill the gatekeeping function of ensuring that his or

20 her testimony is reliable). Because the district court’s inquiry

21 here did not stop when the separate hearing was denied, but went

22 on with an extensive consideration of the expert’s credentials

23 and methods, the jury could, if it chose to do so, rely on her

24 testimony which was relevant to the issues in the case. We find

23 1 that the gatekeeping function of Daubert was satisfied and that

2 there was no abuse of discretion.

3

4 CONCLUSION

5 For the foregoing reasons and those provided in the

6 concurrently filed summary order, appellants’ convictions and

7 sentences are AFFIRMED.

8

9

24