United States v. Williams, No. 05-6036 (2d Cir. 2007)

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05-6036-cr(l) United States v. Williams 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 August Term 2006 (Argued: April 16, 2007 Decided: October 23, 2007) Docket Nos. 05-6036-cr(L), 05-6038-cr(CON), 05-6065-cr(CON) -----------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -ELIJAH BOBBY WILLIAMS, a.k.a. Bosco, a.k.a. Bobby Torres, XAVIER WILLIAMS, a.k.a. X, a.k.a. Richie Torres, REVEREND MICHAEL WILLIAMS, a.k.a. David Michael Torres, a.k.a. Mike Torres, a.k.a. Mike Foster, Defendants-Appellants. -----------------------------------------------------x B e f o r e : NEWMAN, WALKER, and STRAUB, Circuit Judges. Appeals from judgments entered in the United States District 26 Court for the Southern District of New York (Naomi Reice 27 Buchwald, Judge), convicting and sentencing appellants for 28 various offenses, including narcotics trafficking, racketeering, 29 and murder. 30 AFFIRMED. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DAVID A. RUHNKE, Ruhnke & Barrett, Montclair, New Jersey, for Elijah Williams. RICHARD B. LIND, New York, New York, for Michael Williams. DAVID STERN, Rothman Schneider Soloway & Stern, LLP, New York, New York, for Xavier Williams. HELEN V. CANTWELL, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, Glen G. McGorty and Robin L. Baker, Assistant United States Attorneys, on the brief), New York, New York. JOHN M. WALKER, JR., Circuit Judge: Defendants-appellants Elijah Bobby Williams ( Bobby ), 24 Michael Williams, ( Michael ), and Xavier Williams ( Xavier ) 25 appeal from judgments entered in the United States District Court 26 for the Southern District of New York (Naomi Reice Buchwald, 27 Judge), convicting them of and sentencing them for various 28 offenses, including narcotics trafficking, racketeering, and 29 murder. 30 of appellants arguments and find them without merit. 31 opinion, we consider: (1) Michael s contention that the district 32 court erred in admitting Bobby s self-inculpatory out-of-court 33 statements that also implicated Michael, and (2) Bobby s claim 34 that the district court abused its discretion in concluding that 35 the methodology employed by the government s firearms In a concurrently filed summary order, we address most 2 In this 1 identification expert met the reliability standard set forth in 2 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 3 (1993). 4 score. We hold that the district court did not err on either Accordingly, we affirm the convictions and sentences. BACKGROUND 5 6 On a gelid night in February 1996, residents along the 1100 7 block of Sperling Drive, a residential street in Wilkinsburg, 8 Pennsylvania, were startled by the ringing sound of gun shots. 9 One resident who rushed to see what had happened saw two people 10 shooting into a Ford Bronco parked alongside the street. 11 observed a mid-sized car darting away from the scene immediately 12 after the shooting ceased. 13 shooters in detail. 14 Another But neither was able to describe the Once the commotion passed, one of the residents approached 15 the Ford Bronco. Inside she found the bullet-riddled bodies of 16 Joel Moore, Timothy Moore, and Robert James. 17 called, a crime scene was established, and an investigation 18 immediately ensued. Law enforcement was 19 The indictments that followed charged appellants with 20 operating a violent criminal organization that existed for the 21 purpose of, among other things, enriching its members by 22 trafficking in cocaine and cocaine base in New York and 23 Pennsylvania. 24 against Bobby and Michael for their roles in the triple homicide, Because the government sought the death penalty 3 1 they were tried separately from Xavier on a superceding 2 indictment that charged fifteen counts: racketeering, in 3 violation of 18 U.S.C. § 1962(c) (Count One); racketeering 4 conspiracy, in violation of 18 U.S.C. § 1962(d) (Count Two); 5 conspiracy to murder in aid of racketeering activity, in 6 violation of 18 U.S.C. § 1959(a)(5) (Counts Three and Four); 7 murder in aid of racketeering activity, in violation of 18 U.S.C. 8 §§ 2, 1959 (a)(1) (Counts Five through Seven); conspiracy to 9 distribute narcotics, in violation of 21 U.S.C. § 846 (Count 10 Eight); murder while engaged in a narcotics conspiracy, in 11 violation of 18 U.S.C. § 2 and 21 U.S.C. § 848(e) (Counts Nine 12 through Eleven); use of a firearm during and in relation to a 13 drug trafficking crime or crime of violence, in violation of 18 14 U.S.C. §§ 2, 924(j) (Counts Twelve through Fourteen); and 15 conspiracy to launder money derived from narcotics trafficking, 16 in violation of 18 U.S.C. § 1956(h) (Count Fifteen). 17 found Bobby and Michael guilty on all counts except Counts Three 18 and Four but determined that they should not receive the death 19 penalty. 20 imprisonment. 21 The jury Bobby and Michael were sentenced principally to life Xavier was tried on a superceding indictment charging 22 fourteen counts that matched Bobby s and Michael s indictment 23 through Count Thirteen, omitted one of the firearm counts, and 24 charged the money laundering count as Count Fourteen instead of 4 1 Fifteen. 2 dismissed Counts Five, Six, Seven, Nine, Ten, Eleven, and Twelve. 3 The jury found Xavier guilty on all remaining counts except Count 4 Four. 5 Upon the government s motion, the district court He was sentenced principally to life imprisonment. The remaining facts and procedural history are provided as 6 necessary for our analysis of the specific issues addressed in 7 this opinion. DISCUSSION 8 9 10 I. Admission of Bobby s Out-of-Court Statements Prior to the trial of Bobby and Michael, the government 11 requested permission to introduce, against both defendants, 12 statements Bobby made to Carol Johnson, Earl Baldwin, and Julian 13 Brown about his involvement in the triple homicide. 14 objected and moved for exclusion and, in the alternative, 15 requested a severance pursuant to Fed. R. Crim. P. 14. 16 hearing from both sides, the district court denied the severance 17 and allowed Johnson and Baldwin, but not Brown, to testify about 18 Bobby s statements, finding their testimony admissible under the 19 exception to the hearsay rule for statements against penal 20 interest. 21 found no Confrontation Clause impediment to the admission of 22 Johnson s and Baldwin s testimony. 23 24 See Fed. R. Evid. 804(b)(3). Michael After The district court also At trial, Baldwin testified that Bobby admitted to him on two separate occasions that he participated in the triple 5 1 homicide. Bobby first told Baldwin that Timothy Moore was killed 2 because the Dude owed money. 3 about himself and Michael, stated: [W]e gave it to them niggers. 4 . . . [W]e walked up to the truck, each of us on a side of the 5 truck and gave it to them niggers. 6 Baldwin s account, testified that Bobby told her that the victims 7 were shot because of their debts. 8 told her that Michael shot the man in the driver s seat while 9 Bobby shot at least one of the other passengers. The second time, Bobby, speaking Johnson, echoing much of She then explained that Bobby Johnson s 10 testimony did not account for the shooting of the third victim. 11 In this challenge to the district court s pretrial ruling, 12 Michael argues again that the admission of Bobby s out-of-court 13 statements violated both Rule 804(b)(3) and the Confrontation 14 Clause. 15 determination under Rule 804(b)(3) for abuse of discretion and 16 its Confrontation Clause analysis de novo. 17 Tropeano, 252 F.3d 653, 657 (2d Cir. 2001). We review the district court s admissibility United States v. 18 A. Admissibility under Rule 804(b)(3) 19 Admission of a statement under Rule 804(b)(3) hinges on 20 whether the statement was sufficiently against the declarant s 21 penal interest that a reasonable person in the declarant s 22 position would not have made the statement unless believing it to 23 be true. 24 (1994) (quoting Rule 804(b)(3)). Williamson v. United States, 512 U.S. 594, 603-04 Whether a challenged statement 6 1 is sufficiently self-inculpatory can only be answered by viewing 2 it in context. 3 made on a case-by-case basis. Id. at 604. Thus, this determination must be See Tropeano, 252 F.3d at 658. 4 We find no abuse of discretion in the district court s 5 decision to admit the challenged statements under Rule 804(b)(3). 6 The first of Bobby s statements to Baldwin was plainly self- 7 inculpatory, and it did not on its face implicate Michael. 8 second of Bobby s statements to Baldwin and his statement to 9 Johnson were also sufficiently self-inculpatory as they described The 10 acts that he and Michael committed jointly. See United States v. 11 Saget, 377 F.3d 223, 231 (2d Cir. 2004) (finding that the bulk of 12 confessor s statements were self-inculpatory because they 13 described acts that the defendant and the confessor committed 14 jointly). 15 Bobby was not attempting to minimize his own culpability, shift 16 blame onto Michael, or curry favor with authorities. 17 Williamson, 512 U.S. at 601, 603. 18 statement to Baldwin, Bobby was boastful regarding his 19 participation in the murders, and in his remark to Johnson he 20 claimed an equal role, asserting that he and Michael each killed 21 one of the three victims. Moreover, the context of these statements shows that Cf. To the contrary, in his second 22 B. 23 The Confrontation Clause states that [i]n all criminal 24 Confrontation Clause Analysis prosecutions, the accused shall enjoy the right . . . to be 7 1 confronted with the witnesses against him. U.S. Const. amend. 2 VI. 3 Court held that the Confrontation Clause prohibits the admission 4 of out-of-court testimonial statements against a criminal 5 defendant, unless the declarant is unavailable and the defendant 6 had a prior opportunity to cross-examine the declarant. 7 Crawford s per se bar on such testimonial statements displaced 8 that much of the indicia of reliability standard of Ohio v. 9 Roberts, 448 U.S. 56 (1980), that had allowed into evidence, as In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme 10 not violative of the Confrontation Clause, hearsay statements 11 that fell within a firmly rooted hearsay exception or contained 12 particularized guarantees of trustworthiness. 13 Crawford, 541 U.S. at 60; Saget, 377 F.3d at 226 (explaining that 14 under Roberts, [a]ny out-of-court statement was constitutionally 15 admissible so long as it fell within an exception to the hearsay 16 rule or, if that exception was not firmly rooted, the court found 17 that the statement was likely to be reliable ). 18 Id. at 66; While Crawford s per se bar did away with Roberts 19 reliability analysis for testimonial statements, it left unclear 20 whether the admission of nontestimonial statements would still 21 implicate Confrontation Clause concerns because Crawford did not 22 explicitly overrule Roberts on that score. 23 at 227 ( Crawford leaves the Roberts approach untouched with 24 respect to nontestimonial statements. . . . Accordingly, while 8 See Saget, 377 F.3d 1 the continued viability of Roberts with respect to nontestimonial 2 statements is in doubt, we will assume for purposes of this 3 opinion that its reliability analysis continues to apply to 4 control nontestimonial hearsay . . . . ). 5 Washington, 126 S. Ct. 2266 (2006), the Court was required to 6 decide . . . whether the Confrontation Clause applies only to 7 testimonial hearsay. 8 that question in the affirmative, the Court explained that 9 Crawford, even if it did not expressly so hold, pointed the way: 10 11 12 13 14 15 16 17 18 19 20 The text of the Confrontation Clause reflects this focus on testimonial hearsay. It applies to witnesses against the accused in other words, those who bear testimony. Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. Id. 21 constitutional provision, the Court continued, must fairly be 22 said to mark out not merely its core, but its perimeter. 23 However, in Davis v. Id. at 2274 (emphasis added). Answering A limitation so clearly reflected in the text of the Id. Following Davis, we stated in United States v. Feliz, 467 24 F.3d 227 (2d Cir. 2006), that Roberts reliability analysis plays 25 no role in a Confrontation Clause inquiry. 26 It is plain from Davis that the right to confrontation only 27 extends to testimonial statements, or, put differently, the 28 Confrontation Clause simply has no application to nontestimonial 29 statements. See id. at 230-32. Feliz, 467 F.3d at 231; see Tom Lininger, 9 1 Reconceptualizing Confrontation After Davis, 85 Tex. L. Rev. 271, 2 280 (2006) ( Whereas Crawford called into question the reasoning 3 of Roberts, Davis sounded the death knell. 4 indicated plainly that the protections of the Confrontation 5 Clause are limited to testimonial hearsay. ). 6 7 8 9 10 11 12 13 14 15 The Davis Court Now, after Crawford and Davis, indicia of reliability play no role in the Confrontation Clause analysis. Rather, the inquiry under the Confrontation Clause is whether the statement at issue is testimonial. If so, the Confrontation Clause requirements of unavailability and prior cross-examination apply. If not, the Confrontation Clause poses no bar to the statement s admission. Feliz, 467 F.3d at 232. 16 Michael does not, nor could he, contend that Bobby s 17 statements were testimonial; they bear none of the hallmarks of 18 testimonial statements identified in Crawford. 19 51-52 (identifying as testimonial ex parte in-court testimony, 20 extrajudicial statements . . . contained in formalized 21 testimonial materials, such as affidavits, depositions, prior 22 testimony, or confessions, and statements that were made under 23 circumstances which would lead an objective witness reasonably to 24 believe that the statement would be available for use at a later 25 trial (internal quotation marks and citations omitted)); see 26 also Saget, 377 F.3d at 228 (identifying as testimonial under 27 Crawford a declarant s knowing responses to structured 28 questioning in an investigative environment or in a courtroom 29 setting where the declarant would reasonably expect that his or 10 See 541 U.S. at 1 her responses might be used in future judicial proceedings ). 2 Instead, relying on Roberts and its progeny, Michael asserts that 3 the statements lack particularized guarantees of trustworthiness. 4 Because the Confrontation Clause does not bar such nontestimonial 5 statements, whatever their guarantees of trustworthiness, 6 Michael s argument fails and our Confrontation Clause inquiry is 7 at an end. 8 * * * 9 Accordingly, we conclude that the district court neither 10 abused its discretion in admitting Bobby s out-of-court 11 statements under Rule 804(b)(3) nor violated the Confrontation 12 Clause in doing so. 13 II. The Government s Firearms Identification Expert 14 Spent bullets, cartridge casings, and bullet fragments were 15 recovered from the scene of the triple homicide and the victims 16 bodies. 17 Pittsburgh, Pennsylvania turned up two handguns, one of which was 18 a 9mm Bryco semiautomatic pistol. 19 other ballistics evidence was turned over to Michelle Kuehner, a 20 firearms examiner in the Forensic Laboratory Division of the 21 Allegheny County Coroner s Office (the Forensic Lab ). 22 comparing the ballistics evidence recovered from the crime scene 23 and the victims bodies with bullets and cartridge casings 24 produced from a test firing of the 9mm Bryco, Kuehner concluded A subsequent search of Michael s apartment in 11 Shortly thereafter, this and Upon 1 there was a match. 1 2 Before trial, the government placed Bobby and Michael on 3 notice that it intended to call Kuehner as an expert witness. 4 Michael moved for a pretrial Daubert hearing to challenge 5 Kuehner s testimony,2 contending that the government had yet to 6 establish its admissibility under Fed. R. Evid. 702. 7 8 In an order dated December 22, 2004, the district court denied the motion without a hearing. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It reasoned: Judge Marrero of this Court has recently upheld the use of ballistics as reliable under Rule 702. See United States v. Santiago, 199 F. Supp. 2d 101, 111-12 (S.D.N.Y. 2002). The Supreme Court has likewise cited ballistics as a proper subject of expert testimony because it aids the jury in understanding the evidence. See United States v. Scheffer, 523 U.S. 303, 312-313 (1998) ( unlike expert witnesses who testify about factual matters outside the juror s knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth ); see also United States v. Foster, 300 F. Supp. 2d 375, 376 n.1 (D. Md. 2004) (stating that, [i]n the years since Daubert, numerous cases have confirmed the reliability of ballistics identification, and collecting cases); [United States v. O Driscoll, No. 4:CR-10-277, 2003 WL 1402040, at *2 (M.D. Pa. Feb. 10, 2003)] ( the field of ballistics is a proper subject for expert testimony and 1 2 1 1 2 3 4 5 6 7 8 2 Apparently Bobby s and Michael s own firearms examiner came to the same conclusion as Kuehner. Though Bobby raises the issue on appeal and the parties indicate that he was the one who requested a Daubert hearing, the district court s order states that it was, in fact, Michael who made the request. United States v. Williams, No. S100CR.1008(NRB), 2004 WL 2980027, at *24 (S.D.N.Y. Dec. 22, 2004). This is of no moment, however, because appellants have joined one another s arguments pursuant to Fed. R. App. P. 28(i). 12 1 2 3 4 5 6 7 8 9 meets the requirements of Rule 702. ). . . . Defendants have not offered any reason for us to depart from the reasoning of these cases. Accordingly, the request for a Daubert hearing to challenge the government s proposed ballistics . . . evidence is denied. Williams, 2004 WL 2980027, at *24. At trial, the government called Kuehner as an expert. She 10 testified first about her background. 11 had served as a firearms examiner within the firearms section of 12 the Forensic Lab for approximately twelve years. 13 that, in addition to the hands-on training she received from 14 her section supervisor, Dr. Robert Levine, she attended seminars 15 on firearms identification, including annual workshops put on by 16 the Association of Firearm and Toolmark Examiners (the AFTE ) 17 where firearms examiners from the United States and the 18 international community gather to present papers on current 19 topics within the field. 20 Levine published a paper in the AFTE Journal matching a bullet to 21 the cartridge case from which it was discharged. 22 stated that she has given presentations on the subject of 23 firearms analysis at several AFTE meetings and for Duquesne 24 University s forensic science and law programs. 25 Kuehner testified that she had examined approximately 2,800 26 different types of firearms and provided expert testimony on 27 between 20 and 30 occasions. 28 Kuehner stated that she She testified Kuehner also explained that she and Dr. Kuehner further In addition, After establishing her background, training, and experience, 13 1 Kuehner went on to testify that she uses a firearms 2 identification methodology that is a subset of a broader forensic 3 discipline referred to as toolmark identification. 4 examiners are trained to examine the marks left by tools on a 5 variety of surfaces in an attempt to match a toolmark to the 6 particular tool that made it. 7 simply the tools that impart marks on bullets and cartridge 8 cases.3 Toolmark Firearms, she explained, are 9 Kuehner then testified as to how the methodology enables her 10 to determine whether a given sample of ballistics components4 was 11 fired from the same gun. She starts by examining the components 12 class characteristics. A spent bullet s class characteristics 13 include its caliber, the number of its land and groove 1 2 3 3 1 2 3 4 5 6 7 4 For a thorough discussion of the firearms identification methodology employed by Kuehner see Theory of Identification, 30 Am. Firearms and Toolmark Examiners J. 86 (1998). The ballistics components relevant here include the spent bullets and cartridge casings recovered from the crime scene and the victims bodies. It suffices for our analysis to recount Kuehner s testimony regarding the process by which she examines spent bullets, but we note that the process she employs in examining spent cartridge cases involves many of the same concepts. 14 1 impressions,5 the twist of its land and groove impressions, and 2 the width of its land and groove impressions. 3 characteristics, Kuehner explained, allow her to narrow the 4 universe of firearm possibilities to certain types of guns made 5 by certain manufacturers. 6 exhibiting six land and groove impressions could only have been 7 expelled from a firearm with a 9mm gun barrel that has six lands 8 and grooves. 9 Class For example, a spent 9mm bullet Once Kuehner narrows the firearms possibilities by class, 10 she looks for specific random, microscopic imperfections in the 11 barrel caused by changes in the manufacturing tool as it makes 12 each barrel on the production line. 13 leave unique striations on each bullet as it moves through the 14 barrel. 15 testified, that allows her to determine whether two bullets were 16 fired from the same gun. 17 These imperfections in turn It is her examination of these unique marks, Kuehner Using a comparison microscope to view the two bullets side- 18 by-side, she compares the height, depth, width, length and 19 spatial relations of their striations. 1 2 3 4 5 6 7 8 9 5 Significant similarity When a handgun is fired, its barrel imparts rifling on the bullet. Rifling places a twist on a bullet as it travels, thus promoting flight accuracy. Rifling, which runs the length of the barrel, consists of cuts called grooves and raised surfaces called lands. As a bullet travels down the barrel, the raised lands press into the surface of the bullet and it likewise conforms to fill the recessed grooves. The corresponding marks left on the bullet are referred to as land and groove impressions. 15 1 between striations signals an identification or a match 2 that is, the bullets were fired from the same firearm. 3 striations need not be identical; they need only be in 4 sufficient agreement based on Kuehner s training and 5 experience. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The She explained: So I am looking at the number of striations, . . . their physical characteristics, their height, [and] their depth. And when the pattern of agreement exceeds the amount of agreement that I know exists in two bullets that have not been fired from the same firearm, then that is sufficient agreement. * * * You can t really put numbers to it. It s more, more coming from experience, so, which is why . . . you test bullets. So sufficient agreement meaning that you have enough agreement [between the striations on the bullets] than those that you know do not match. Kuehner testified that, based on comparison of striations, 22 there are two conclusions she may reach other than a match. She 23 can make an eliminat[ion], concluding that the two bullets were 24 not fired from the same gun. 25 determination, meaning that, although the bullets exhibit similar 26 class characteristics, there is not enough agreement or 27 disagreement between their striations to conclude whether they 28 were or were not fired from the same gun. 29 explained that after she performs her examination, she documents 30 her conclusions in a report, which Dr. Levine reviews. 31 her analysis in this case, Kuehner concluded that certain bullets 32 and cartridge casings recovered from the crime scene and the Or, she can make an inconclusive 16 Kuehner further Based on 1 victims bodies matched those she produced by test firing the 9mm 2 Bryco. 3 Bobby now challenges the district court s decision to 4 permit Kuehner to testify as an expert. We understand his 5 argument to be that the district court abused its discretion by 6 (1) denying him a Daubert hearing and (2) failing to undertake an 7 adequate inquiry into the reliability of Kuehner s firearms 8 identification methodology. 9 district court acted within its discretion under the The government counters that the 10 circumstances and that any error was harmless.6 11 district court s decision to admit expert testimony under Rule 12 702 for abuse of discretion. 13 U.S. 137, 152 (1999). 14 is not an abuse of discretion unless it is manifestly erroneous. 15 United States v. Salameh, 152 F.3d 88, 129 (2d Cir. 1998) 16 (internal quotation marks omitted). We review the Kumho Tire Co. v. Carmichael, 526 A decision to admit scientific evidence 17 A. 18 While the proponent of expert testimony has the burden of 1 2 3 4 5 6 7 8 9 10 11 Gatekeeping under Daubert 6 The government also contends that Bobby failed to preserve his claim of error as to the reliability of Kuehner s testimony because his pretrial challenge lacked the necessary specificity, which was never remedied by a further objection after Kuehner s trial testimony provided more persuasive grounds for objection. Therefore, the government argues that the district court s decision should be reviewed for plain error only. But we need not reach this point because we conclude that Bobby cannot satisfy the lower burden of abuse of discretion according to the record here. 17 1 establishing by a preponderance of the evidence that the 2 admissibility requirements of Rule 702 are satisfied, see 3 Daubert, 509 U.S. at 593 n.10, the district court is the ultimate 4 gatekeeper. 5 363 F.3d 187, 192 (2d Cir. 2004); see also Brooks v. Outboard 6 Marine Corp., 234 F.3d 89, 91 (2d Cir. 2000) (rejecting argument 7 that opposing expert testimony is necessary to trigger the 8 district court s obligation to analyze admissibility of expert 9 testimony). See Fed. R. Evid. 104(a); United States v. Cruz, The Federal Rules of Evidence assign to it the task 10 of ensuring that an expert s testimony both rests on a reliable 11 foundation and is relevant to the task at hand. 12 U.S. at 597. 13 Daubert, 509 In assessing reliability, the district court should 14 consider the indicia of reliability identified in Rule 702, 15 namely, (1) that the testimony is grounded on sufficient facts or 16 data; (2) that the testimony is the product of reliable 17 principles and methods; and (3) that the witness has applied the 18 principles and methods reliably to the facts of the case. 19 Amorgianos v. Nat l R.R. Passenger Corp., 303 F.3d 256, 265 (2d 20 Cir. 2002) (internal quotation marks omitted). 21 criteria are not exhaustive. 22 379 F.3d 32, 48 (2d Cir. 2004). 23 additional factors bearing on reliability that district courts 24 may consider: (1) whether a theory or technique has been or can But these See Wills v. Amerada Hess Corp., Daubert enumerated a list of 18 1 be tested; (2) whether the theory or technique has been 2 subjected to peer review and publication; (3) the technique s 3 known or potential rate of error and the existence and 4 maintenance of standards controlling the technique s operation; 5 and (4) whether a particular technique or theory has gained 6 general acceptance in the relevant scientific community. 7 Daubert, 509 U.S. at 593-94. 8 9 See Daubert s list of specific factors, however, neither necessarily nor exclusively applies to all experts or in every 10 case. 11 court s inquiry into the reliability of expert testimony under 12 Rule 702 is a flexible one. 13 Accordingly, the law grants a district court the same broad 14 latitude when it decides how to determine reliability as it 15 enjoys in respect to its ultimate reliability determination. 16 Kumho Tire, 526 U.S. at 142. 17 discretion is considerable, it is not unfettered: It does not 18 permit the district court to perform the [gatekeeping] function 19 inadequately. 20 that the majority opinion makes clear that the discretion it 21 endorses trial-court discretion in choosing the manner of 22 testing expert reliability is not discretion to abandon the 23 gatekeeping function ). 24 Kumho Tire, 526 U.S. at 141. Rather, the district Daubert, 509 U.S. at 594. Yet while the district court s Id. at 158-59 (Scalia, J., concurring) (noting As an initial matter, we reject Bobby s contention that the 19 1 district court abused its discretion by denying his request for a 2 hearing. 3 court to ascertain the reliability of Kuehner s methodology, it 4 does not necessarily require that a separate hearing be held in 5 order to do so. 6 latitude in deciding how to test an expert s reliability, and to 7 decide whether or when special briefing or other proceedings are 8 needed to investigate reliability ); see also United States v. 9 Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000) ( Nowhere . . . While the gatekeeping function requires the district See id. at 152 (district courts possess 10 does the Supreme Court mandate the form that the inquiry into . . 11 . reliability must take. . . . ). 12 at the time the expert testimony is presented to the jury, a 13 sufficient basis for allowing the testimony is on the record. 14 See 4 Weinstein s Federal Evidence § 702.02[2] (Joseph M. 15 McLaughlin ed., 2d ed. 2006). 16 This is particularly true if, The remaining question, then, is whether there was a 17 sufficient foundational basis in the record to support the trial 18 court s decision to admit Kuehner as an expert? 19 First, the district court noted with approval the decision 20 in Santiago rejecting a challenge to the reliability of the 21 government expert s firearms identification methodology as 22 pseudo-science. 23 stated that the government had submitted a letter describing, 24 among other things, the method that the expert used to match 199 F. Supp. 2d at 111. 20 The Santiago court 1 particular guns to the bullets in question. Id. Moreover, the 2 preliminary ruling below in Santiago had accepted that much of 3 the reliability inquiry would occur when the government laid the 4 foundation preliminary to the district court s admitting the 5 expert s testimony. 6 addition to expecting the government to ask about the expert s 7 training, experience, qualifications, and the methods he used to 8 match the bullets with the guns in question, the court was 9 interested to learn how often [the expert s] identifications See 199 F. Supp. 2d at 112 (noting that in 10 have been wrong in the past and the degree to which his 11 methodology has been accepted in the community of forensics 12 experts ). 13 We think that Daubert was satisfied here. When the district 14 court denied a separate hearing it went through the exercise of 15 considering the use of ballistic expert testimony in other cases. 16 Then, before the expert s testimony was presented to the jury, 17 the government provided an exhaustive foundation for Kuehner s 18 expertise including: her service as a firearms examiner for 19 approximately twelve years; her receipt of hands-on training 20 from her section supervisor; attendance at seminars on firearms 21 identification, where firearms examiners from the United States 22 and the international community gather to present papers on 23 current topics within the field; publication of her writings in a 24 peer review journal; her obvious expertise with toolmark 21 1 identification; her experience examining approximately 2,800 2 different types of firearms; and her prior expert testimony on 3 between 20 and 30 occasions. 4 satisfied that the district court effectively fulfilled its 5 gatekeeping function under Daubert. 6 of Kuehner s testimony constituted an implicit determination that 7 there was a sufficient basis for doing so. 8 separate hearing was not required and we find no abuse of 9 discretion. 10 Under the circumstances, we are The trial court s admission The formality of a We do not wish this opinion to be taken as saying that any 11 proffered ballistic expert should be routinely admitted. Daubert 12 did make plain that Rule 702 embodies a more liberal standard of 13 admissibility for expert opinions than did Frye v. United States, 14 293 F. 1013, 1014 (D.C. Cir. 1923). 15 (holding that the Frye test of general acceptance in the 16 scientific community was superceded by the Federal Rules); see 17 also Amorgianos, 303 F.3d at 265 (observing departure, under 18 Federal Rule, from the Frye standard). 19 permissive approach to expert testimony did not abrogate the 20 district court s gatekeeping function. 21 York, 414 F.3d 381, 396 (2d Cir. 2005). 22 or protect from Daubert scrutiny evidence that had previously 23 been admitted under Frye. 24 261, 272 (4th Cir. 2003) (Michael, J., dissenting); see also See Daubert, 509 U.S. at 588 But this shift to a more Nimely v. City of New Nor did it grandfather See United States v. Crisp, 324 F.3d 22 1 United States v. Saelee, 162 F. Supp. 2d 1097, 1105 (D. Alaska 2 2001) ( [T]he fact that [expert] evidence has been generally 3 accepted in the past by courts does not mean that it should be 4 generally accepted now, after Daubert and Kumho [Tire]. ). 5 expert testimony long assumed reliable before Rule 702 must 6 nonetheless be subject to the careful examination that Daubert 7 and Kumho Tire require. 8 that Rule 702 requires district courts to ensure that any and 9 all scientific testimony or evidence admitted is not only Thus, See Daubert, 509 U.S. at 589 (explaining 10 relevant, but reliable ); id. at 592 n.11 ( Although the Frye 11 decision itself focused exclusively on novel scientific 12 techniques, we do not read the requirements of Rule 702 to apply 13 specially or exclusively to unconventional evidence. 14 well-established propositions are less likely to be challenged 15 than those that are novel, and they are more handily defended. ); 16 see also Kumho Tire, 526 U.S. at 152 (explaining that whether a 17 witness s area of expertise is technical, scientific, or more 18 generally experience-based, Rule 702 requires the district 19 court to fulfill the gatekeeping function of ensuring that his or 20 her testimony is reliable). 21 here did not stop when the separate hearing was denied, but went 22 on with an extensive consideration of the expert s credentials 23 and methods, the jury could, if it chose to do so, rely on her 24 testimony which was relevant to the issues in the case. Of course, Because the district court s inquiry 23 We find 1 that the gatekeeping function of Daubert was satisfied and that 2 there was no abuse of discretion. 3 CONCLUSION 4 5 For the foregoing reasons and those provided in the 6 concurrently filed summary order, appellants convictions and 7 sentences are AFFIRMED. 8 9 24

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