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United States v. Romero-Lobato

United States District Court, D. Nevada

May 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ERIC ROMERO-LOBATO, Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         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 defendant 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, 237 F.3d 1008, 1019 (9th Cir. 2001). The relevancy hurdle is a low one to meet: it simply requires that the evidence “logically advance a material aspect of the party's case.” Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007). To determine if the principles and methods utilized are reliable, five factors have traditionally been used: (1) whether a theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate of the theory or technique; (4) whether there are standards controlling the technique's operation; and (5) whether the theory or technique enjoys general acceptance within the relevant scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94 (1993) (hereinafter “Daubert”). The reliability inquiry is not concerned with whether the expert's ultimate conclusions are “correct, ” but rather with the “soundness of his methodology.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010).

         III. 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. Id. But since the turn of the century, some federal courts have begun to question the AFTE methodology. In U.S. v. Green, the District of Massachusetts conducted a detailed inquiry into the AFTE method before ultimately concluding that the proposed expert's toolmark identification testimony was admissible under Daubert. 405 F.Supp.2d 104 (D. Mass. 2005). Although the court allowed the testimony into evidence, it limited the expert to only reporting his observations of the similarities and differences between the toolmarks. Id. at 124. He was prohibited from concluding that a spent shell casing came from the gun at issue in the case or even that it was likely that it did. Id. As Professor Kaye noted in his article, no other federal court has placed such severe restrictions on a firearm examiner's testimony, and the Court has not found any such cases in the year since the article was published.

         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. 407 F.Supp.2d 351, 355 (D. Mass. 2006). Three years later in U.S. v. Glynn, a judge in the Southern District of New York reached a similar conclusion. The court held that a firearm examiner could testify, but he was limited to opining that it was “more likely than not” that a particular gun fired a particular round; like the expert in Monteiro, he was prohibited from giving any degree of certainty to the validity of his conclusion. 578 F.Supp.2d 567, 574 (S.D.N.Y. 2009). In 2015, a judge in the Eastern District of New York reached the same conclusion as the Monteiro court, holding that a firearm examiner could testify, but he could not testify that he was “100% certain” that his conclusions were correct. U.S. v. Ashburn, 88 F.Supp.3d 239, 249 (E.D.N.Y. 2015). In each of these cases, including Green, the expert wishing to testify reached his conclusion through AFTE's methodology.

         The 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 ...


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