United States v. Blackman

• Decision Date: 12 May 2023
• Docket Number: 18-CR-00728
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ROMEO BLACKMAN, TERRANCE SMITH, JOLICIOUS TURMAN, and NATHANIEL MCELROY Defendants.
• Court: U.S. District Court — Northern District of Illinois

1

UNITED STATES OF AMERICA, Plaintiff, v. ROMEO BLACKMAN, TERRANCE SMITH, JOLICIOUS TURMAN, and NATHANIEL MCELROY Defendants.

No. 18-CR-00728

United States District Court, N.D. Illinois, Eastern Division

May 12, 2023

MEMORANDUM OPINION AND ORDER

John Robert Blakey United States District Judge

This case comes before the Court upon Defendants' joint motion to exclude the Government's Ballistics/Toolmarks Experts [256]. Defendants Romeo Blackman, Terrance Smith, Jolicious Turman, and Nathaniel McElroy together move to bar or limit the testimony of four government ballistics and toolmarks experts pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); and Federal Rules of Evidence 702 and 403. For the reasons explained, the Court denies the motion to exclude, but grants, to the degree set forth herein, the motion to limit testimony.

The Court may exercise its discretion and admit expert testimony without conducting a Daubert hearing. Kumho Tire, 526 U.S. at 152-53. The parties agreed no hearing was necessary here, and thus the Court rules based upon the subject matter and content of the written submissions.^[1][256]; [267].

I. Proposed Firearms and Toolmarks Identification Testimony

Firearms and toolmark identification constitutes a forensic discipline in which examiners seek to evaluate, through comparison whether an evidentiary sample is or is not associated with a source sample. The Association of Firearms and Toolmark Examiners (“AFTE”), a professional organization for practitioners of firearm and toolmark identification, has developed a theory that an examiner's identification should fall within one of four categories: (1) identification, meaning that the pieces of evidence come from the same source; (2) elimination, meaning that they come from different sources; (3) inconclusive, meaning there is not enough evidence for the examiner to reach either of the first two conclusions; and (4) unsuitable, meaning that the recovered evidence lacks discernable class and individual characteristics. United States v. Shipp, 422 F.Supp.3d 762, 771 (E.D.N.Y. 2019) (internal citations omitted).

The theory relies upon the premise that “tools used in the manufacture of a firearm leave distinct marks on various firearm components, such as the barrel, breech face or firing pin.” United States v. Otero, 849 F.Supp.2d 425 (D.N.J. 2012). The theory further posits that:

[T]he marks are individualized to a particular firearm through changes the tool undergoes each time it cuts and scrapes metal to create an item in the production of the weapon. Toolmark identification thus rests on the premise that any two manufactured products, even those produced consecutively off the same production line, will bear microscopically different marks. With regard to firearms, these toolmarks are transferred to the surface of a bullet or shell casing in the process of firearm discharge. Depending on the tool and the type of impact it makes on the bullet or casing, these surface marks consist of either contour scratch lines, known as striations (or striae), or impressions. For example, rifling (spiraled indentations) inside of a gun barrel will leave raised and depressed striae, known as lands and grooves, on the bullet as it is fired from the weapon, whereas the striking of the firing pin against the base of the cartridge, which initiates discharge of the ammunition, will leave an impression but not striae.

Comparing a test bullet or cartridge fired from a firearm of known origin to another bullet or cartridge of unknown origin, the examiner seeks to determine congruence in the pattern of marks left on the examined specimens. This process is known as “pattern matching.” ... An examiner observes three types of characteristics on spent bullets or cartridges: class, subclass and individual. Class characteristics are gross features common to most if not all bullets and cartridge cases fired from a type of firearm, for example, the caliber and the number of lands and grooves on a bullet. Individual characteristics are microscopic markings produced in the manufacturing process by the random imperfections of tool surfaces (the constantly changing tool as described above) and by use of and/or damage to the gun post-manufacture. According to the theory of toolmark identification espoused by the Association of Firearms and Toolmarks Examiners (“AFTE”), individual characteristics “are unique to that tool and distinguish it from all other tools.” Subclass characteristics generally fill the gap between the class and individual characteristics categories. They are produced incidental to manufacture but apply only to a subset of the firearms produced, for example, as may occur when a batch of barrels is formed by the same irregular tool.

Id. at 427-28 (quoting Theory of Identification as it Relates to Toolmarks, 30 AFTE J. 1, 87 (Winter 1998)).

The AFTE theory of toolmark comparison permits an examiner to conclude that two bullets or two cartridges are of common origin if the microscopic surface contours of their toolmarks are in “sufficient agreement.” In turn, “sufficient agreement” requires:

significant duplication of random toolmarks as evidenced by the correspondence of a pattern or combination of patterns of surface contours. Significance is determined by the comparative examination of two or more sets of surface contour patterns comprised of individual peaks, ridges and furrows. Specifically, the relative height or depth width, curvature and spatial relationship of the individual peaks, ridges and furrows within one set of surface contours are defined and compared to the corresponding features in the second set of surface contours. Agreement is significant when the agreement in individual characteristics exceeds the best agreement demonstrated between toolmarks known to have been produced by different tools and is consistent with agreement demonstrated by toolmarks known to have been produced by the same tool. The statement that “sufficient agreement” exists between two toolmarks means the agreement of individual characteristics is of a quantity and quality that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility.

Ass'n of Firearm & Tool Mark Examiners, Theory of Identification as it Relates to Tool Marks: Revised, 43 AFTE J. 287 (2011); see also Keith L. Monson, et al., Planning, Design and Logistics of a Decision Analysis Study: The FBI/Ames Study Involving Forensic Firearms Examiners, Forensic Sci. Int'l: Synergy 4 (2022) (hereinafter “Monson et al.”) (“The Theory allows for an opinion of common origin (identification) when the surface contours of two toolmarks are in ‘sufficient agreement.' Sufficient agreement is decided when the level of microscopic agreement is similar to the microscopic agreement seen from specimens known to have originated from the same source and exceeds microscopic agreement occurring between the Best-Known Non-Match (worst case scenario).”). The AFTE agrees that the interpretation of individualization/identification is subjective in nature, although it emphasizes that it remains “founded on scientific principles and based on the examiner's training and experience.” 43 AFTE J. 287 (2011).

Here, the Government seeks to offer four experts to testify about cartridge casings recovered from the scenes of several murders and whether they “were fired” from particular firearms recovered by law enforcement during their investigation. [267] at 4-5. More specifically, the parties anticipate that: (1) Gregory Hickey will testify that “casings associated with the bullets that killed Krystal Jackson ‘were fired from' a gun recovered from Quincent Hayes;” (2) Aimee Stevens will testify that “cartridges found near the scene of the Davon Horace murder ‘were fired' from a certain weapon;” (3) Diana Pratt will testify that “a cartridge found near the scene of the Stanley Bobo murder ‘was fired' from a certain weapon;” and (4) Brian Sokeniewicz will testify that “cartridge casings found near the scene of the Andre Donner murder ‘were fired' from a certain weapon.” Id. at 6; [256-1]. Notably, the Government does not intend to elicit testimony that the experts' testing would be “100% certain” or “to the exclusion of any other firearm in the world.” [267] at 2. Instead, each will testify as noted above and that based upon their training and experience, they “would not expect another firearm to make the exact same marks that were identified on a shell casing, cartridge, or bullet.” Id. at 3.

Hickey, Stevens, and Pratt work as forensic scientists for the Illinois State Police, while Sokeniewicz works at the Chicago Police Department Forensic Science Unit. See [267-1]. Both laboratories are accredited, employ AFTE methodology, and require peer review of all identifications. [267] at 13.

II. Rule 702 Analysis

Federal Rule of Evidence 702 provides that a person may testify as an expert if: (1) the testimony will “help the trier of fact to understand the evidence or to determine a fact in issue”; (2) the testimony is “based on sufficient facts or data”; (3) the testimony is “the product of reliable principles and methods”; and (4) the expert has “reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702. Under this rule the district courts serve a gatekeeping function to prevent the admission of irrelevant or unreliable testimony. See Daubert, 509 U.S. at 597; Lapsley v. Xtek, Inc., 689 F.3d 802, 809 (7th Cir. 2012). The proponent of the evidence bears the burden of establishing its admissibility by a preponderance of the evidence. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th...