United States v. Adams

• Decision Date: 16 March 2020
• Docket Number: Case No. 3:19-cr-00009-MO-1
• Parties: UNITED STATES of America, v. Odell Tony ADAMS, Defendant.
• Court: U.S. District Court — District of Oregon

444 F.Supp.3d 1248

UNITED STATES of America,

v.Odell Tony ADAMS, Defendant.

Case No. 3:19-cr-00009-MO-1

United States District Court, D. Oregon.

Signed March 16, 2020

Paul T. Maloney, U.S. Attorney's Office, Portland, OR, for United State of America.

OPINION AND ORDER

MICHAEL W. MOSMAN, United States District Judge

Defendant, Odell Tony Adams, filed this Motion in Limine [ECF 55] to consider the admissibility of scientific expert testimony relating to toolmark comparison evidence under Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As explained below, I GRANT Defendant's motion in part and exclude most of the disputed evidence.

FACTUAL BACKGROUND

Mr. Adams is charged with one count of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). Second Superseding Indictment [ECF 65] at 1. The charge stems from two distinct acts of possession of two different firearms, which Mr. Adams allegedly possessed on different days in different locations. Id. at 1-2; Compl. [ECF 1] at 3-4. One of the firearms is a Taurus model PD 24/7 Pro .40 caliber handgun. Indictment [65] at 2. The other is a Ruger model SR-40 .40 caliber handgun. Id.

The Government alleges that Mr. Adams shot at someone at the Speakeasy Lounge in east Portland on the night of October 5, 2018, after which he fled the scene. Gov't. Trial Br. [ECF 82] at 2-9. He was not caught on the night of the shooting, but officers and investigators from the Portland Police Bureau (PPB) responded to the scene. Id. at 9; Compl. [ECF 1] ¶ 5. They took witness statements and seized a number of shell casings,¹ which corresponded to the number of bullet strikes found on an SUV and a Buick in the Speakeasy parking lot. Trial Br. [82] at 9. PPB officers then used surveillance videos from the Speakeasy to identify the individuals present at the scene, including Mr. Adams himself. Id. They then obtained his address and cell phone number from his federal probation officer. Id.

On October 31, 2018, PPB obtained a search warrant for Mr. Adams's residence, which authorized the seizure of Mr. Adams for his DNA and any evidence related to the Speakeasy shooting. Compl. [1] ¶ 5. Officers executed that search warrant on November 2, 2018. Id. ¶ 6. They arrested Mr. Adams and swabbed his DNA. Id. His roommates showed the officers to Mr. Adams's room and asserted that none of them owned or possessed any firearms. Id. In the bedroom, officers found clothing matching the description of that worn by the shooter, and they opened a crawlspace access panel located on the wall of the bedroom. Id. ¶¶ 7-8. Inside, they found the Taurus and Ruger handguns. Id. ¶ 8.

Investigators submitted the guns for forensic comparison to the shell casings found at the scene, with somewhat inconsistent results. The initial comparison test done by the National Integrated Ballistic Information Network (NIBIN) showed that, although the casings at the Speakeasy were .40 caliber, they were not shot from either the Taurus or the Ruger found in Mr. Adams's bedroom. Compl. [1] ¶ 9; Def.'s Mot. Ex. 3 [ECF 55-3] ("Police Report") at 1. PPB resubmitted the casings for testing by the NIBIN after discovering a possible error during the initial test. Police Report [55-3] at 7. The second test concluded that the casings were a "presumptive match" to the Taurus. Id. The PPB then submitted the casings for further forensic comparison testing at the Oregon State Police Crime Lab. Id.

Forensic scientist Travis D. Gover conducted the comparison testing for the OSP lab. Expert Witness Summ. [ECF 53] at 2. Mr. Gover concluded that the Taurus was an operable firearm and that the shell casings at the scene had been fired by the Taurus. Gov't. Ex. A-1 [ECF 53-2] at 1. In reaching that conclusion, Mr. Gover used what is known as the "AFTE methodology," which is used by members of the Association of Firearm and Toolmark Experts. Tr. [ECF 70] at 20. This methodology takes place in several steps.

The first step is to compare the class characteristics of the shell casings found at the crime scene and the firearm being tested, including the caliber of both, the general types of marks on the casings (linear or circular), any other features determined by the manufacturer, and the operability of the firearm. Id. at 20-21. The first step typically allows the examiner, by informed observation, to determine the manufacturer, the model, and the caliber of the firearm that expelled the shell casings. The second step is to test fire the gun being examined. Id. at 21. Mr. Gover said he does this by firing the gun into a water tank and collecting the bullets and casings expelled by the firearm. Id.

The second step allows the examiner to give his opinion as to the firearm's operability and provides the exemplars for comparison – i.e. the bullets and shell casings that can be compared to the suspected matches. Mr. Adams did not object to the methods or the conclusions involved in the first two steps.

The third step is to conduct the forensic comparison between the test-fired shells and the crime scene shells. Id. Mr. Gover said this is done by using a three-dimensional comparison microscope, which has two stages² connected to an optical bridge that allows the view to see each cartridge case side-by-side in one field of vision, like a split screen. Id. The images can then be magnified to varying degrees. Id. Mr. Gover said he first examines the test-fired shell casings for unique striations on the rim, where the hammer strikes the primer. Striations are marks that are specific to that firearm that would be reproduced on any shell casing fired from that gun. Id. at 21-22. He then compares the test-fired shell casings to the casings from the crime scene in order to see if they have striations or other characteristics that correspond to each other. Id. at 22.

If the examiner finds what is called "sufficient agreement," then he concludes there is a match—i.e., the shells from the crime scene were fired from the gun used in the test fire. The concept of sufficient agreement turned out to be the central problem with Mr. Gover's testimony. It starts with a comparator; something called the "best known non-match." In order to determine whether the degree of correspondence between the test-fire shells and the crime scene shells amounts to sufficient agreement, the starting point is that it must exceed the degree of correspondence of the best known non-match. The best known non-match, in a case involving shells, would be shells fired from two different firearms of the same manufacturer, model, and caliber made at the same plant on the same day, in immediate sequence—one right after the other. The underlying concept, as Mr. Gover explained it, is that this would produce two shells from two different firearms with the least possible degree of variation. Id. at 23-24. The examiner finds sufficient agreement, and therefore a match, if the test fired shells and the crime scene shells have greater correspondence than the best known non-match.

Mr. Gover used this methodology to determine that the shell casings from the Speakeasy shooting matched the Taurus found in Mr. Adams's bedroom wall, and the government offered his testimony and his report as evidence. Gov't. Expert Witness Summ. [ECF 53]; Gov't. Ex. A-1 [ECF 53-2] at 1.

PROCEDURAL BACKGROUND

As described above, the Government charged Mr. Adams with one count of Felon in Possession of a Firearm, alleging that Mr. Adams possessed two weapons of different makes—the Taurus and the Ruger handguns found in Mr. Adams's bedroom wall. Indictment [65] at 1-2; 18 U.S.C. § 922(g)(1). In preparation for trial, the Government intended to rely on Mr. Gover and his testimony to prove that Mr. Adams had possessed the Taurus firearm. Gov't. Expert Witness Summ. [ECF 53] at 2-3.

Mr. Adams filed a Motion in Limine in response to the Government's proffer of Mr. Gover as an expert witness, seeking a hearing pursuant to Federal Rule of Evidence 702³ and Daubert to determine the admissibility of Mr. Gover's expert testimony and his ultimate conclusion that the shell casings matched the Taurus. Def.'s Mot. [55] at 1-2; Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Mr. Adams argued that the kind of test Mr. Gover conducted is inherently subjective⁴ and has been shown to lack reliability, which should disqualify it as expert scientific testimony. Def.'s Mot. [55] at 11. He requested that Mr. Gover's testimony be either limited in scope or excluded entirely. Id. at 2.

This court held a total of four hearings pursuant to Federal Rule of Evidence 702 and Daubert . Min. of Proceedings [ECF 61, 64, 75, 112]. At the first hearing, on December 4, 2019, Mr. Gover attempted to explain to the court how he arrived at his conclusion that the shell casings at the scene of the Speakeasy shooting were a match to the Taurus handgun found at Mr. Adams's residence. Tr. [ECF 70] at 12-66. In explaining his methodology, Mr. Gover struggled to articulate an objective basis for his conclusion or any means of measurement. In fact, he and the Government both referred to his methodology as "subjective" multiple times when pressed for a concrete explanation. For example:

[PROSECUTOR]: And is it fair to say that AFTE [Association of Firearm and Toolmark Experts] has described the sufficient agreement as being a subjective standard?

MR. GOVER: Yes. The interpretation of the objective observations, which is viewing those contours, surface contours of the toolmarks, being able to line up the peaks and valleys and ridges and furrows, that's—those are all objective observations. The interpretation of the observation is what is the subjective aspect of the firearms identification.

Tr. [70] at 26.

...

[PROSECUTOR]: Yeah. Why isn't there a numeric – why can't we qualify this with numbers?

MR. GOVER: Part of it for me, to understand that quantifiable is almost another subjective aspect of

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