United States v. Shipp
| Decision Date | 26 November 2019 |
| Docket Number | 19-CR-029 (NGG) |
| Citation | 422 F.Supp.3d 762 |
| Parties | UNITED STATES of America, v. Alonzo SHIPP, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Philip Nathan Pilmar, DOJ-USAO, Brooklyn, NY, for United States of America.
Defendant Alonzo Shipp moves to exclude testimony from the Government’s proposed ballistics expert, Detective Sean Ring. (See Mot. to Exclude (Dkt. 33); Mem. in Supp. of Mot. to Exclude ("Mem.") (Dkt. 33-2).) In the alternative, Mr. Shipp requests that the court limit the expert testimony. (Mem. at 15-16). For the following reasons, the court DENIES Defendant’s motion to exclude, but GRANTS his request to limit Detective Ring’s testimony.
The parties agree that no court has entirely excluded expert testimony on firearms toolmark analysis, although courts frequently do place limitations on the level of certainty the expert may profess. To overcome this case law, Mr. Shipp relies primarily on a recent report from the President’s Council of Advisors on Science and Technology ("PCAST"), which reviewed the available research on firearms toolmark analysis and found that the method lacks foundational scientific validity.
The court has carefully considered the PCAST Report, the earlier National Research Council ("NRC") Report, other applicable scientific literature, and relevant case law, and has determined that Detective Ring may testify as an expert in the field of firearms toolmark analysis. However, because the PCAST Report’s findings cast considerable doubt on the reliability of the theory behind matching pieces of ballistics evidence, Detective Ring will be permitted to testify only that the toolmarks on the recovered bullet fragment and shell casing are consistent with having been fired from the recovered firearm. In other words, Detective Ring may testify that the recovered firearm cannot be excluded as the source of the recovered bullet fragment and shell casing, but not that the recovered firearm is, in fact, the source of the recovered fragment and shell casing. Additionally, Detective Ring may testify based on his knowledge, training, and experience about his method for analyzing and test firing the recovered firearm, the procedure for comparing the test fires to the recovered bullet fragment and shell casing, and the similarities he observed between the recovered ballistics evidence and the test fires from the recovered firearm.
On or about July 20, 2018, an unnamed individual, referred to herein as John Doe, was shot in the vicinity of 117-26 147th Street in Queens, New York. (Compl. (Dkt. 1) ¶ 2.) Doe then ran south down 147th Street and east on 119th Avenue to the corner of 119th Avenue and Sutphin Boulevard, where he collapsed. (Id. ) The NYPD later recovered a shell casing around 117-26 147th Street. (Id. )
Video footage then shows the gunman approaching Doe, taking an item out of his pants or waistband, standing over Doe, pointing an object at him, and then walking away. (Id. ¶¶ 5, 7.) Video recovered from a surveillance camera at the corner of Sutphin Boulevard and Foch Boulevard (roughly two blocks north of where Doe was found) shows an individual wearing similar clothes as the gunman walking north on Sutphin Boulevard and pausing outside a business located at the comer. (Id. ¶ 9.) The next morning, an employee of that business discovered a 9mm Sig Sauer handgun in the dumpster in front of the business. (Id. ¶ 10.) The firearm had "ten rounds in the magazine and one spent shell casing jammed in the ejection port." (Id. )
On January 2, 2019, Mr. Shipp was arrested and charged with possession of the firearm alleged to have been used in the July 20, 2018 incident. (See Indictment (Dkt. 7) ¶ 1.)
After the shooting, NYPD personnel collected and processed physical evidence from the crime scene, including bullet fragments and shell casings. (Gov't Mem. in Opp'n to Mot. to Exclude ("Gov't Opp'n") (Dkt. 34) at 3); (see also Decl. of Ashley M. Burrell in Supp. of Mot. to Exclude (Dkt. 33-1) ¶ 3). This evidence was analyzed by the Firearms Analysis Section of the NYPD Police Laboratory, including Detective Ring. (Gov't Opp'n at 3.)
Detective Ring initially analyzed two bullet fragments and one cartridge casing recovered from the crime scene. (See Shipp Discovery (Dkt. 33-5) Bates No. ASHIPP000293 ("Shipp 293").) His initial analysis determined that the casing and one fragment were suitable for microscopic comparison, while the second fragment lacked "discernible class and/or individual characteristics." (Id. ) Ring’s notes do not indicate the provenance of these pieces of evidence. (Id. at 295-96.) Ring later analyzed four additional bullet fragments that were recovered from Doe’s body. (Id. at 300.) He found them to be suitable for comparison, but, for reasons not apparent from the record, he apparently did not perform a comparison on these fragments. (Id. at 298-301.)
Detective Ring also test fired the recovered firearm and analyzed one casing and four bullets. (Id. at 289-92.) Ring then compared the test fires to the casing and bullet fragment recovered from the crime scene. (Id. at 279-84.) He concluded that the cartridge casing recovered at the crime scene was fired from the recovered firearm "based on the observed agreement of their class characteristics and sufficient agreement of their individual characteristics." (Id. at 279.) He concluded the bullet fragment was fired from the recovered firearm for identical reasons. (Id. ) The documents provided contain no additional information explaining which marks Ring relied on to conclude there was "sufficient agreement" of the individual characteristics between the test fires and the recovered ballistics evidence. (See id. at 279-284.)
On January 2, 2019, Mr. Shipp was arrested and charged with possession of the firearm alleged to have been used in the July 20, 2018 incident. (See Indictment (Dkt. 7) ¶ 1.) He was denied bail on January 10, 2019. (See Jan. 10, 2019 Min. Entry (Dkt. 4); Order of Detention (Dkt. 5).) Mr. Shipp was arraigned on February 1, 2019 before Magistrate Judge Scanlon, at which point he entered a plea of not guilty. (Feb. 1, 2019 Min. Entry (Dkt. 11).)
By letter on August 1, 2019, the Government disclosed its intent to call Detective Ring as a ballistics expert. (Aug. 1, 2019 Gov't Letter (Dkt. 32) at 1-2.) On August 16, 2019, Defendant moved to exclude Detective Ring’s testimony as unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and requested a Daubert hearing to determine the reliability of Detective Ring’s testimony. (See Mot.; Mem.) In the alternative, Defendant moved to limit Detective Ring’s testimony. (Mem. at 15-16.) The Government opposed the motion on September 13, 2019 (Gov't Opp'n.), and Defendant entered a reply on September 26, 2019 (Reply in Mem. in Support of Mot. to Exclude ("Reply") (Dkt. 35)).
The court heard oral argument on the motion on October 3, 2019 (see Oct. 3, 2019 Min. Entry) and ordered the government to provide any additional notes, written summaries or sketches related to Detective Ring’s conclusion in this case, as well as information about Detective Ring’s proficiency testing as a firearms toolmark examiner. (Id. ) Pursuant to this order, the Government filed a supplemental response on October 11, 2019 (Suppl. Submission in Resp. to Court Order (Dkt. 36)), and Defendant replied on October 18, 2019 .
The admissibility of Detective Ring’s testimony is governed by Federal Rule of Evidence 702. Under the Rule, a witness may testify as an expert if they are qualified "by knowledge, skill, experience, training, or education." Fed. R. Evid. 702. If a witness qualifies as an expert, Rule 702 allows for their testimony when:
Id. Daubert clarified that the district court holds the gatekeeping function of "ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand." 509 U.S. at 597, 113 S.Ct. 2786. The court’s gatekeeping role extends "not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (quoting Fed. R. Evid. 702 ).
To gauge the reliability of proffered testimony, "the district court should consider the indicia of reliability identified in Rule 702," which are not exhaustive. Wills v. Amerada Hess Corp., 379 F.3d 32, 48 (2d Cir. 2004). In doing so, "the district court has broad discretion in determining what method is appropriate for evaluating reliability under the circumstances of each case." Restivo v. Hessemann, 846 F.3d 547, 575 (2d Cir. 2017) (quoting Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002), cert. denied, ––– U.S. ––––, 138 S. Ct. 644, 199 L.Ed.2d 528 (2018) ). Courts routinely consider the five additional factors listed in Daubert as a starting point. These are: (1) "whether [the] theory or technique ... can be (and has been) tested;" (2) "whether the theory or technique has been subjected to peer review or publication;" (3) "in the case of a particular scientific technique, the known or potential rate of error," (4) "the existence and maintenance of standards controlling the technique’s operation;" and (5) whether a particular technique or theory...
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