United States v. Wilbern

• Decision Date: 06 September 2019
• Docket Number: 17-CR-6017 CJS
• Parties: UNITED STATES OF AMERICA, v. RICHARD WILBERN, Defendant.
• Court: U.S. District Court — Western District of New York

UNITED STATES OF AMERICA, v. RICHARD WILBERN, Defendant.

17-CR-6017 CJS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 6, 2019

CORRECTED DECISION AND ORDER¹

INTRODUCTION

The matter is now before the Court on Defendant's motion, ECF No. 81, to exclude DNA evidence and for a Daubert Hearing. For the reasons discussed below, the application is denied in its entirety.

BACKGROUND

During the investigation of the August 12, 2003, incident at the Xerox Federal Credit Union which is the subject the two counts contained in Indictment 17-CR-6017, forensic swabs were taken from an umbrella allegedly left behind by the perpetrator of the crimes. In that regard, the government intends to introduce at trial evidence that human Deoxyribonucleic Acid ("DNA"), sufficient for testing, was obtained at two specific locations on the umbrella. From each of these two locations, two separate swabs were taken by a criminalist at the Monroe County Public Safety Laboratory ("MC Lab"). Swabs labeled as 8.1 and 8.2 were obtained from one location, described as the umbrella's "external wrap-around closure and button." Swabs labeled as 8.3 and 8.4were obtained from the other location, described as the umbrella's "lower latch mechanism" found on the interior metal shaft of the umbrella. In subsequent testing, the MC Lab was able to detect human DNA on Swabs 8.1 and 8.3, but, as to these swabs, no DNA profiles were able to be developed. However, the two remaining swabs, 8.2 and 8.4, were allowed to dry and then packaged and stored at the MC Lab pursuant to their preservation protocols, which included maintenance in the Polymerase Chain Reaction ("PCR") freezer.

Thereafter, in 2011, armed with the knowledge that significant advances had been made in the field of DNA profiling, the MC Lab sent Swabs 8.2 and 8.4 to New York City's Office of the Chief Medical Examiner ("OCME"). Upon examining the swabs, OCME confirmed the presence of human DNA on both swabs. OCME was able to quantify the amount of DNA found at the locations - Swab 8.2 contained 88.2 picograms and Swab 8.4 contained 15.03 picograms. Given these amounts, the OCME utilized Low Copy Number ("LCN") DNA testing.² Based upon the testing, the OCME determined that, as to Swab 8.2, there was a mixture of DNA from at least two people. However, OCME was able to develop a profile for the major contributor to that DNA sample. As to Swab 8.4, OCME determined this to be the DNA of one person, and OCME was able to develop a profile for that single source sample. OCME then concluded that the DNA profile of Swab 8.4 was fully consistent with the profiledeveloped for Swab 8.2. In other words, it was consistent with being the same person. Reports relative to their conclusions were generated and both DNA profiles were maintained in the records of OCME.

In 2016, OCME was asked to compare the profiles which it developed in 2011 with respect to Swabs 8.4 and 8.2 to the DNA profile of Defendant, Richard Wilbern. As to Swab 8.2, OCME concluded that the DNA profile of the major contributor matched the DNA profile of Wilbern. According to OCME, the probability of finding that profile again in the general population is approximately 1 in 6.8 trillion people. As to Swab 8.4, the single source sample, OCME concluded that the profile was consistent with the DNA profile of Wilbern. Even though a lower number of loci had been determined at the Swab 8.4 location (10 versus 15), OCME was able to conclude that the probability of finding that match again in the general population was 1 in 138 million people.

What Defendant challenges in his application is the use of LCN by OCME. Defendant contends that, pursuant to Federal Rule of Evidence 702, the OCME results and conclusions obtained and arrived at by the utilization of LCN should be excluded outright or, at a minimum, that the Court should conduct a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). What Defendant does not contest is the PCR/STR methodology (see Fn. # 1, supra) or the use of the Forensic Statistical Tool (referenced infra).

LAW

As the Second Circuit explained:

While the proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied, see Daubert, 509 U.S. at 593 n. 10, 113 S. Ct.2786, the district court is the ultimate "gatekeeper." See Fed. R. Evid. 104(a); United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004); see also Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir. 2000) (rejecting argument that opposing expert testimony is necessary to trigger the district court's obligation to analyze admissibility of expert testimony). The Federal Rules of Evidence assign to it "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597, 113 S. Ct. 2786.

In assessing reliability, "the district court should consider the indicia of reliability identified in Rule 702, namely, (1) that the testimony is grounded on sufficient facts or data; (2) that the testimony is the product of reliable principles and methods; and (3) that the witness has applied the principles and methods reliably to the facts of the case." Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (internal quotation marks omitted). But these criteria are not exhaustive. See Wills v. Amerada Hess Corp., 379 F.3d 32, 48 (2d Cir. 2004). Daubert enumerated a list of additional factors bearing on reliability that district courts may consider: (1) whether a theory or technique has been or can be tested; (2) "whether the theory or technique has been subjected to peer review and publication;" (3) the technique's "known or potential rate of error" and "the existence and maintenance of standards controlling the technique's operation;" and (4) whether a particular technique or theory has gained general acceptance in the relevant scientific community. See Daubert, 509 U.S. at 593-94, 113 S. Ct. 2786.

"Daubert's list of specific factors," however, "neither necessarily nor exclusively applies to all experts or in every case." Kumho Tire, 526 U.S. at 141, 119 S. Ct. 1167. Rather, the district court's inquiry into the reliability of expert testimony under Rule 702 is a "flexible one." Daubert, 509 U.S. at 594, 113 S. Ct. 2786. Accordingly, "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, 526 U.S. at 142, 119 S. Ct. 1167. Yet while the district court's discretion is considerable, it is not unfettered: It does not permit the district court "to perform the [gatekeeping] function inadequately." Id. at 158-59, 119 S. Ct. 1167 (Scalia, J., concurring) (noting that the majority opinion "makes clear that the discretion it endorses—trial-court discretion in choosing the manner of testing expert reliability—is not discretion to abandon the gatekeeping function").

United States v. Williams, 506 F.3d 151, 160-61 (2d Cir. 2007). A district court's gatekeeping function under Daubert is meant "to ensure that the courtroom doorremains closed to junk science." Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). In summary, Federal Rule of Evidence 702 requires the district court to ensure "that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. at 597.

Moreover,

While the gatekeeping function requires the district court to ascertain the reliability an expert's methodology, it does not necessarily require that a separate hearing be held in order to do so. See [Kumho Tire Company, LTD] at 152, 119 S. Ct. 1167 (district courts possess "latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability"); see also United States v. Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000) ("Nowhere . . . does the Supreme Court mandate the form that the inquiry into . . . reliability must take....").

United States v. Williams, 506 F.3d at 161. In addition,

"a slight modification of an otherwise reliable method will not render an expert's opinion per se inadmissible"—a "judge should only exclude the evidence if the flaw is large enough that the expert lacks 'good grounds' for his or her conclusions." [U.S. v. Amorgianos, 303 F.3d at 267. (internal quotations marks omitted). Instead, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S. Ct. 2786.

United States v. Morgan, 675 F. App'x 53, 54-56 (2d Cir.), cert. denied, 138 S. Ct. 176 (2017).

ANALYSIS

To begin with, the government has argued that, apart from its other submissions, Defendant's application to exclude LCN DNA test results and for a Daubert hearing should be denied based solely upon the holding in United States v. Morgan, supra. In that decision, the Second Circuit held that the district court did not abuse its discretion infinding, after an extensive Daubert hearing, that expert testimony regarding the results of LCN DNA testing were admissible. In that regard, the government maintains, that since the same forensic laboratory, OCME, and same expert, Dr. Craig O'Connor, were involved in Morgan as are involved here, this Court could and should summarily deny Defendant's motion in its entirety.

However, Defendant counters, pointing to the following language in Morgan: We express no opinion on the propriety of admitting the results of LCN testing in other cases and note that OCME is discontinuing its use of LCN testing in favor of newer technology that produces reliable results in most of the sensitivity range for which

...