United States v. Harris, Criminal Action No. 19-358 (RC)

• Decision Date: 04 November 2020
• Docket Number: Criminal Action No. 19-358 (RC)
• Citation: 502 F.Supp.3d 28
• Parties: UNITED STATES of America, v. Demontra HARRIS, Defendant.
• Court: U.S. District Court — District of Columbia

502 F.Supp.3d 28

UNITED STATES of America,

v.Demontra HARRIS, Defendant.

Criminal Action No. 19-358 (RC)

United States District Court, District of Columbia.

Signed November 4, 2020

Laura E. Crane, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

MEMORANDUM OPINION

DENYING DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY AS TO FIREARM EXAMINATION TESTING

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Defendant Demontra Harris is charged with unlawful possession of a firearm as a person previously convicted of a felony, assault with a dangerous weapon, and possession of a firearm during a crime of violence. Superseding Indictment at 1–2, ECF No. 39. On July 24, 2019, the D.C. Metropolitan Police Department ("MPD") responded to a report of gunshots and recovered four 9mm shell casings from the incident scene, which were then entered into the National Integrated Ballistic Information Network ("NIBIN"). A witness later provided MPD with a video filmed that night that allegedly shows Mr. Harris holding and then discharging a firearm in the location where the shell casings were later discovered. No firearm was recovered at the time. Roughly six weeks later on September 8, 2019, during a response to a call for service for a person with a weapon, MPD recovered a Glock 17 Gen4 9x19 pistol ("Glock 17"). This recovered firearm was test-fired and the resulting casings were entered into the NIBIN, where a match was identified with the casings recovered on the night of July 24, 2019. The Government then submitted the relevant evidence to an independent firearms examiner for forensic examination. Chris Monturo, a tool mark examiner who operates the Ohio-based forensic services firm Precision Forensic Testing, examined the evidence and concluded in a report that he believed the four recovered casings from the July 24, 2019 incident scene were fired by the recovered Glock 17. See March 14, 2020 Report of Chris Monturo ("Monturo Report"), ECF No. 22-2. The Government intends to call Mr. Monturo to testify regarding these findings at the upcoming trial in this matter.

This opinion addresses Mr. Harris's motion in limine to Exclude Expert Testimony as to Firearm Examination Testing ("Def.’s Mot."), ECF No. 22, pursuant to Daubert v. Merrell Dow Pharm. Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Federal Rule of Evidence 702, and Federal Rule of Evidence 403. Def.’s Mot. at 1–2. The motion has been fully briefed, with both parties also filing supplemental motions. See generally Def.’s Mot.; Govt.’s Opp'n to Def.’s Mot. to Excl. Firearm and Toolmark Testimony ("Govt. Opp'n"), ECF No. 28; Def.’s Supp. Mot. to Excl. Expert Testimony as to Firearm Exam. Testing ("Def.’s Supp. Mot."), ECF No. 32; Govt.’s Opp'n to Def.’s Supp. to Excl. Firearm and Toolmark Testimony ("Govt. Supp. Opp'n"), ECF No. 33. In addition, the Court conducted a Daubert hearing on October 15, 2020 to consider this issue, taking the testimony of Todd Weller, an expert in the field. A jury trial in this matter is currently scheduled to begin on November 12, 2020.

Mr. Harris argues that the field of firearm and toolmark identification lacks a reliable scientific basis and is not premised on sufficient facts or data, is not the product of reliable principles and methods, and was not applied properly by Mr. Monturo to the facts of the case. Def.’s Mot. at 1–2. The Court disagrees, and will admit Mr. Monturo's testimony to the extent it falls within the Department of Justice's Uniform Language for Testimony of Reports for the Forensic Firearms/Toolmarks Discipline – Pattern Matching Examination ("DOJ ULTR"). While Mr. Harris raises important issues as to the reliability of firearm and toolmark identification, memorialized most notably by the 2016 President's Council of Advisors on Science and Technology Report ("PCAST Report"), these issues are for cross-examination, not exclusion, as recent advancements in the field in the four years since the PCAST Report address many of Mr. Harris's concerns. Mr. Harris also remains free to have his own expert examine the firearm and ballistics evidence and contradict the Government's case.

II. ANALYSIS

A. Legal Standard

"Motions in limine are designed to narrow the evidentiary issues at trial." Williams v. Johnson , 747 F. Supp. 2d 10, 14 (D.D.C. 2010). "While neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence expressly provide for motions in limine, the Court may allow such motions ‘pursuant to the district court's inherent authority to manage the course of trials.’ " Barnes v. District of Columbia , 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States , 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) ).

Federal Rule of Evidence 702 provides that qualified expert testimony is admissible if "(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702. "In general, Rule 702 has been interpreted to favor admissibility." Khairkhwa v. Obama , 793 F. Supp. 2d 1, 10 (D.D.C. 2011) (citing Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ); Fed. R. Evid. 702 advisory committee's note to 2000 amendment ("A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule."). Indeed, the Supreme Court has clarified that it is not exclusion, but rather "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof" that "are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert , 509 U.S. at 596, 113 S.Ct. 2786.

When considering the admissibility of expert evidence under Federal Rule of Evidence 702, district courts are required to "assume a ‘gatekeeping role,’ ensuring that the methodology underlying an expert's testimony is valid and the expert's conclusions are based on ‘good grounds.’ " Chesapeake Climate Action Network v. Export-Import Bank of the U.S. , 78 F. Supp. 3d 208, 219 (D.D.C. 2015) (quoting Daubert , 509 U.S. at 590–97, 113 S.Ct. 2786 ). This gatekeeping analysis is "flexible," and "the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141–42, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (emphasis omitted). While district courts may apply a variety of different factors to assess reliability, in Daubert the Supreme Court provided a non-exhaustive list of five factors to guide the determination, including: (1) whether the technique has been or can be tested; (2) whether the technique has a known or potential rate of error; (3) if the technique has been subject to peer review and publishing; (4) the existence of controls that govern the technique's operation; and (5) whether the technique has been generally accepted within the relevant scientific community. See Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786. In contrast, expert testimony "that rests solely on ‘subjective belief or unsupported speculation’ is not reliable." Groobert v. President & Directors of Georgetown Coll. , 219 F. Supp. 2d 1, 6 (D.D.C. 2002) (citing Daubert , 509 U.S. at 590, 113 S.Ct. 2786 ).

"The burden is on the proponent of [expert] testimony to show by a preponderance of the evidence that ... the testimony is reliable." Sykes v. Napolitano , 634 F. Supp. 2d 1, 6 (D.D.C. 2009) (citing Meister v. Med. Eng'g Corp. , 267 F.3d 1123, 1127 n.9 (D.C. Cir. 2001) ). Even if the proposed expert testimony is reliable, the Court may nonetheless exclude it "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403 ; see Bazarian Int'l Fin. Assocs., LLC v. Desarrolos Aerohotelco, C.A. , 315 F. Supp. 3d 101, 128 (D.D.C. 2018) (analyzing expert testimony under Rule 403 ).

B. Firearm and Toolmark Identification

1. Firearm and Toolmark Identification Science

Mr. Harris's motion challenges the reliability of the Government's proposed use of firearm toolmark identification as a discipline for expert testimony. Firearm identification began as a forensic discipline in the 1920s, see James E. Hamby, The History of Firearm and Toolmark Identification , 31 Ass'n of Firearm and Tool Mark Examiners J. 266, 266–284 (1999), and "for decades" has been routinely admitted as appropriate expert testimony in district courts. United States v. Taylor , 663 F. Supp. 2d 1170, 1175 (D.N.M. 2009) ; see also United States v. Brown , 973 F.3d 667, 704 (7th Cir. 2020) (noting firearm and toolmark identification has been "almost uniformly accepted by federal courts") (citations omitted).

Firearm and toolmark identification "is used to determine whether a bullet or casing was fired from a particular firearm." Brown , 973 F.3d at 704. A firearm and toolmark examiner will make this determination "by looking through a microscope to see markings that are imprinted on the bullet or casing by the firearm during the firing process," which will include marks left on the bullet by the firing pin as well as scratches that occur when the bullet travels down the barrel. Id.

A firearm examiner is trained to observe and classify these marks into three types of characteristics during a firearm toolmark examination, which include:

(1) Class characteristics: i.e., the weight or caliber of the bullet, the number of lands and grooves, the

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