U.S. v. Glynn, 06 Cr. 580(JSR).

• Decision Date: 22 September 2008
• Docket Number: No. 06 Cr. 580(JSR).,06 Cr. 580(JSR).
• Citation: 578 F.Supp.2d 567
• Parties: UNITED STATES of America, v. Chaz GLYNN, Defendant.
• Court: U.S. District Court — Southern District of New York

578 F.Supp.2d 567

UNITED STATES of America, v. Chaz GLYNN, Defendant.

No. 06 Cr. 580(JSR).

United States District Court, S.D. New York.

September 22, 2008.

Jessica Ann Masella, Samidh Guha, U.S. Attorney's Office, SDNY (St. Andw's), New York, NY, for United States of America.

David Arthur Ruhnke, Ruhnke & Barrett, Montclair, NJ, Michael Alan Young, Michael A. Young, Esq., New York, NY, for Defendant.

OPINION AND ORDER

JED S. RAKOFF, District Judge.

Defendant Chaz Glynn is charged with murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1)-(2), murder in connection with drug trafficking in violation of 18 U.S.C. § 848(e)(1)(A) and murder through use of a firearm, in violation of 18 U.S.C. § 924(j). The charges were initially tried before a jury in June, but, after the jury announced that it was hopelessly deadlocked, the Court, at defendant's request, granted a mistrial and set the case down for a retrial, which will commence September 29, 2008. Barring unexpected developments, the Court expects to adhere at the retrial to the evidentiary rulings it made at the first trial, with one minor change set forth below. Accordingly, to guide counsel in preparing for the retrial, this Opinion and Order will set forth the reasons for the limitation the Court placed on the testimony of the Government's ballistics expert at the first trial and will reaffirm that that limitation, with one minor alteration, will govern such testimony at the retrial.

At the first trial, the Government sought to introduce expert testimony from Detective James Valenti, a New York City Police Department firearms analyst, to the effect that it was his opinion, "to a reasonable degree of ballistic certainty," that a bullet recovered from the victim's body and shell casings recovered from two related crime scenes came from firearms linked to Glynn. See transcript of the first trial ("tr.") 6/30/08, at 907-08, 991. Glynn moved to exclude the testimony primarily on the ground that the field of ballistics is not based on sufficiently reliable methods to satisfy the threshold requirements for admissibility under Rule 702 of the Federal Rules of Evidence. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); see also Memorandum in Support of Defendant Glynn's Motion to Preclude Certain Government Proposed Expert Testimony at 13-22.

Building on a ruling it had made two weeks earlier in another trial involving ballistics testimony, United States v. Damian Brown et al., 05 Cr. 538, the Court, following a "Daubert" hearing, ruled from the bench that Valenti could not testify that ballistics was a "science," nor could he claim that he reached his conclusions to any degree of "certainty," whether "ballistic certainty" or otherwise, see tr. 6/30/08 at 907.¹ The Court further ruled, however, that Valenti's methodology was sufficiently reliable that he could give an opinion that it was at least "more likely than not" that the bullet and casings came from the guns in question. See id. at 1000. This ruling was the product not only of the Daubert hearing held in Glynn but also the Daubert hearing held in Brown, which, by agreement of the parties in Glynn, was incorporated by reference in Glynn along with additional testimony and other evidence added in Glynn, most notably the testimony of Valenti himself.²

By way of general background, for many decades ballistics testimony was accepted almost without question in most federal courts in the United States. See, e.g., United States v. Hicks, 389 F.3d 514, 526 (5th Cir.2004) (stating that "the matching of spent shell casings to the weapon that fired them has been a recognized method of ballistics testing in this circuit for decades" and citing examples); United States v. Monteiro, 407 F.Supp.2d 351 (D.Mass. 2006) (describing admission of firearm identification testimony in prior years as "semi-automatic"); United States v. Foster, 300 F.Supp.2d 375, 377 n. 1 (D.Md. 2004) ("Ballistics evidence has been accepted in criminal cases for many years."). But, like many other forms of expert testimony, this practice was subjected to new scrutiny in light of Daubert and Kumho Tire and the subsequent amendment to Federal Rule of Evidence 702,³ which gave to the courts a more significant gatekeeper role with respect to the admissibility of scientific and technical evidence than courts previously had played. See, e.g., Advisory Committee Note to 2000 Amendments to Fed.R.Evid. 702 (explaining that the amendment "affirms the trial court's role as gatekeeper" that developed in response to Daubert and Kumho Tire, which "charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony").

The Supreme Court made clear in Daubert that no purportedly scientific expert testimony could be admitted unless it met certain rigorous requirements. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786 (directing courts to examine: (1) whether the expert's theory or technique "can be (and has been) tested"; (2) "whether the theory or technique has been subjected to peer review and publication"; (3) "the known or potential rate of error" in the theory's application and "the existence and maintenance of standards controlling the technique's operation"; and (4) the "general acceptance" of the theory or technique in the relevant scientific community). In Kumho Tire, however, the Court also made clear that while the basic requirements of reliability—as they are now articulated in Rule 702—apply across the board to all expert testimony, the more particular standards for scientific evidence need not be met when the testimony offered does not purport to be "science." See Kumho Tire, 526 U.S. at 151-52, 119 S.Ct. 1167. This distinction was well-illustrated in Judge Louis Pollak's well-known decisions regarding fingerprinting evidence, in which he held in an initial opinion that fingerprinting did not rest on sufficiently "scientific" principles to be admitted under Daubert but subsequently held that the technique afforded sufficient practical reliability to be admissible, subject to the court's oversight, as expert testimony. See United States v. Plaza, 179 F.Supp.2d 492, 516-18 (E.D.Pa.2002); United States v. Plaza, 188 F.Supp.2d 549, 576 (E.D.Pa. 2002) (granting motion for reconsideration).

More recently, three federal judges have addressed the scientific status vel non of ballistics identification testimony, and all three have concluded that, in one respect or another, it does not have sufficient rigor to be received as science. See United States v. Monteiro, 407 F.Supp.2d 351, 355 (D.Mass.2006) (Saris, J.) (finding that while the underlying principles behind firearm identification may be scientifically valid, "there is no reliable ... scientific methodology which will currently permit the expert to testify that [a casing and a particular firearm are] a `match' to an absolute certainty, or to an arbitrary degree of statistical certainty."); United States v. Green, 405 F.Supp.2d 104, 120-22 (D.Mass. 2005) (Gertner, J.) (discussing ways in which ballistics evidence fails to meet Daubert criteria regarding, inter alia, testability, reliability, and error rates); United States v. Diaz, No. 05-167, 2007 WL 485967, at *11-12, 2007 U.S. Dist. LEXIS 13152, at *35-36 (N.D.Cal. Feb. 12, 2007) (Alsup, J.) (citing Monteiro's conclusion that no scientific methodology exists to support a finding of a match to an absolute certainty, but permitting testimony "to a reasonable degree of ballistic certainty"). All three, however, ruled that the expert testimony was sufficiently reliable to warrant admission in some qualified form. See Monteiro, 407 F.Supp.2d at 372; Green, 405 F.Supp.2d at 124; Diaz, 2007 WL 485967, at *13-14, 2007 U.S. Dist. LEXIS 13152, at *41-42.

Based on the Daubert hearings this Court conducted in Brown and Glynn, the Court very quickly concluded that whatever else ballistics identification analysis could be called, it could not fairly be called "science."⁴ For example, Valenti, when asked to define what constitutes "sufficient agreement" between two pieces of ballistic evidence to declare a match, admitted that the assessment is subjective, in that "it is an opinion of mine and whether or not someone else would agree with it is up to that individual." See Tr. 6/30/08 at 880.⁵ In light of this admission, the Government did not seriously contest the Court's conclusions that ballistics lacked the rigor of science and that, whatever else it might be, its methodology was too subjective to permit opinions to be stated to "a reasonable degree of ballistic certainty."

Those conclusions did not end the inquiry, however. The Court then had to determine whether firearm identification, though somewhat subjective, was nonetheless sufficiently reliable to qualify for admissibility under Kumho Tire, and if so, with what degree of confidence a ballistics expert could express his opinions. This latter issue is particularly important because, once expert testimony is admitted into evidence, juries are required to evaluate the expert's testimony and decide what weight to accord it, but are necessarily handicapped in doing so by their own lack of expertise. There is therefore is a special need in such circumstances for the Court, if it admits such testimony at all, to limit the degree of confidence which the expert is reasonably permitted to espouse.⁶

When, following the Daubert hearing in Brown and, subsequently, in Glynn, the Court confronted the first of these two questions, viz., whether the ballistics testimony should be admitted at all under Kumho Tire, the Court began by considering the field's basic theory of identification. The most succinct statement of this theory presented to the Court was the one appearing in the New York City Policy Department's Police...