15‐2696‐cr United States v. Morgan UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of January, two thousand seventeen.

PRESENT: JOHN M. WALKER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 15‐2696‐cr

JOHNNY MORGAN, Defendant‐Appellant.

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FOR APPELLEE: ROBERT W. ALLEN, Assistant United States Attorney (Anna M. Skotko, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. FOR DEFENDANT‐APPELLANT: RICHARD PALMA, Law Office of Richard Palma, New York, New York.

FOR AMICUS CURIAE: DANIEL ADES (Richard Joselson, on the brief), The Legal Aid Society, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Marrero and Woods, JJ.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Johnny Morgan appeals an August 18, 2015

judgment of the district court, convicting him, after a jury trial, of illegally possessing a

firearm in violation of

(g)(1). The district court sentenced Morgan

principally to eighty‐four monthsʹ imprisonment and three yearsʹ supervised release.

On appeal, Morgan argues that the district court abused its discretion in admitting: (1)

reports and expert testimony concerning a Low Copy Number DNA analysis (ʺLCNʺ)

that showed the presence of DNA consistent with Morganʹs genetic profile on a .40

caliber pistol recovered by police in the vicinity of his arrest; and (2) testimony about a

911 call reporting a ʺman with a gunʺ near the same area. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

1. DNA Evidence

Morgan argues that the district court erred in admitting the governmentʹs

expert testimony and other evidence concerning LCN testing performed by the New

‐ 2 ‐ York Office of the Chief Medical Examiner (ʺOCMEʺ) because LCN testing is unreliable

in all cases, and, in any event, OCMEʹs testing methods cannot be reliably applied to the

sample obtained from the pistol in this case.

We review a district courtʹs decision to admit expert testimony for abuse

of discretion and will vacate the judgment only if any error was not harmless. United

States v. Litvak,

(2d Cir. 2015); United States v. Rea,

(2d Cir. 1992).

Although ʺthe proponent of expert testimony has the burden of

establishing by a preponderance of the evidence that the admissibility requirements

of Rule 702 are satisfied, the district court is the ultimate ʹgatekeeper.ʹʺ United States v.

Williams,

(2d Cir. 2007). At bottom, Federal Rule of Evidence 702

requires the district court to ensure ʺthat an expertʹs testimony both rests on a reliable

foundation and is relevant to the task at hand.ʺ Daubert v. Merrell Dow Pharm., Inc.,

(1993).

In assessing expert testimony and evidence, ʺthe district court should

consider the indicia of reliability identified in Rule 702, namely, (1) that the testimony is

grounded on sufficient facts or data; (2) that the testimony ʹis the product of reliable

principles and methodsʹ; and (3) that ʹthe witness has applied the principles and

methods reliably to the facts of the case.ʹʺ Amorgianos v. Natʹl R.R. Passenger Corp.,

(2d Cir. 2002) (quoting Fed. R. Evid. 702). Moreover, the district court may

‐ 3 ‐ consider other factors, including whether a theory or technique has been or can be

tested, ʺwhether the theory or technique has been subjected to peer review and

publication,ʺ the techniqueʹs ʺknown or potential rate of error,ʺ ʺthe existence and

maintenance of standards controlling the techniqueʹs operation,ʺ and whether the

technique has gained general acceptance in the relevant scientific community. See

Daubert, 509 U.S. at 593‐94.

We have held that to ʺwarrant admissibility . . . it is critical that an expertʹs

analysis be reliable at every step.ʺ Amorgianos,

. Indeed, ʺany step that

renders the [expertʹs] analysis unreliable under the Daubert factors renders the expertʹs

testimony inadmissibleʺ as a whole.

(quoting In re Paoli R.R. Yard PCB Litig.,

(3d Cir. 1994)). Still, ʺa slight modification of an otherwise reliable method will

not render an expertʹs opinion per se inadmissibleʺ ‐‐ a ʺjudge should only exclude the

evidence if the flaw is large enough that the expert lacks ʹgood groundsʹ for his or her

conclusions.ʺ

(internal quotations marks omitted). Instead, ʺ[v]igorous cross‐

examination, presentation of contrary evidence, and careful instruction on the burden of

proof are the traditional and appropriate means of attacking shaky but admissible

evidence.ʺ Daubert,

.

Here, the district court admitted the challenged evidence only after

reviewing the partiesʹ extensive briefing and conducting a hearing in which it received

documentary evidence and testimony concerning LCN testing and OCMEʹs methods

‐ 4 ‐ from both the governmentʹs and Morganʹs expert witnesses. See United States v. Morgan,

, 734‐39 (S.D.N.Y. 2014). The government presented evidence that

OCME conducted validation studies of its testing methods, the results of which were

published in a peer‐reviewed journal, and that the DNA Subcommittee of the New York

Commission on Forensic Science approved OCMEʹs use of LCN testing in criminal

casework.

at 737‐39. Morgan, for his part, challenged the accuracy of OCMEʹs

testing, emphasizing, among other indicia of unreliability, the limitations of OCMEʹs

validation studies, the increased risk of error in LCN analysis as compared to traditional

DNA analysis, that no other publicly funded lab in the country performs forensic LCN

analysis, and that the FBI does not accept the results of such analysis in its national

DNA database, the Combined DNA Index System.

at 741‐46.

Upon review of the record, we conclude that, although LCN analysis is

supported by significantly weaker evidence of reliability than traditional DNA analysis,

the district court did not abuse its discretion in this case in holding that the proffered

expert evidence met the reliability standards of Rule 702: We cannot say that its ruling

here was ʺmanifestly erroneous.ʺ Amorgianos,

. We express no opinion

on the propriety of admitting the results of LCN testing in other cases and note that

OCME is discontinuing its use of LCN testing in favor of newer technology that

produces reliable results in most of the sensitivity range for which it previously

employed LCN testing. See Timothy D. Kupferschmid, NYC Office of the Chief Medical

‐ 5 ‐ Examiner, Department of Forensic Biology is Implementing New Technologies ‐‐ a New STR

Kit, a New STR Analysis Software and a New Probabilistic Genotyping Software 2 (Sept. 19,

2016).

2. 911 Call

Morgan also argues that testimony from two police officers concerning a

911 call reporting a ʺman with a gunʺ in the vicinity where he was arrested was unduly

prejudicial and should have been excluded under Federal Rule of Evidence 403.

Like the district courtʹs Rule 702 determination, we review its other

evidentiary rulings for abuse of discretion and will vacate the conviction only for error

that is not harmless. United States v. Curley,

, 56‐58 (2d Cir. 2011); United

States v. Mercado,

(2d Cir. 2009). ʺ[S]o long as the district court has

conscientiously balanced the proffered evidenceʹs probative value with the risk for

prejudice,ʺ a determination under Federal Rule of Evidence 403 ʺwill be disturbed only

if it is arbitrary or irrational.ʺ United States v. Awadallah,

(2d Cir. 2006).

The district court did not abuse its discretion here. It allowed the officers

to testify that they were responding to a 911 call about ʺa person with a gun,ʺ but it gave

the jury the following limiting instruction to reduce any risk of unfair prejudice:

[Y]ou heard some testimony about officersʹ receipt of a 911 dispatch call for [a] man with a gun. That information was introduced solely for the purpose of you understanding why it was the officer reported to the scene. You should not take that evidence as indicating that there was in fact a man with a gun at the scene. You should not take that information for

‐ 6 ‐ the truth of the matter. The reason why is that information came in strictly to understand why it was that the officer reported to the scene, and you should not use it for any other purpose in your deliberations.

App. at 1622.

ʺGenerally, we presume that juries follow limiting instructionsʺ unless

ʺthere is an overwhelming probability that the jury will be unable to follow the courtʹs

instructions and the evidence is devastating to the defense.ʺ United States v. Becker,

(2d Cir. 2007) (internal quotation marks omitted). Morgan has not

overcome this presumption. Although the jury asked to rehear the testimony of the

ʺperson who stated [sic] the second 911 callʺ during its deliberations and the district

court granted that request, the district court also issued the limiting instruction

excerpted above a second time and provided the written transcript of the instruction to

the jury along with the requested testimony. App. at 2296‐97. Morgan has not shown

that there is an overwhelming probability that the jury was unable to follow an

instruction that the district court gave, in effect, three times. Therefore, we reject his

challenge to the district courtʹs evidentiary ruling on this matter.

‐ 7 ‐ We have reviewed Morganʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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