United States v. Cloud

576 F.Supp.3d 827

UNITED STATES of America, Plaintiff,

v.James Dean CLOUD (01), and Donovan Quinn Carter Cloud (02), Defendants.

No. 1:19-cr-02032-SMJ-1, 1:19-cr-02032-SMJ-2

United States District Court, E.D. Washington.

Signed December 17, 2021

Richard Cassidy Burson, Thomas J. Hanlon, Assistant US Attorneys, U.S. Attorney's Office, Yakima, WA, for Plaintiff.

John Barto McEntire, IV, Lorinda Meier Youngcourt, Public Defenders, Federal Defenders, Spokane, WA, Jeremy B. Sporn, Public Defender, Federal Defenders, Yakima, WA, for Defendant James Dean Cloud.

Richard A. Smith, Smith Law Firm, Yakima, WA, Mark A. Larranaga, Walsh and Larranaga, Seattle, WA, for Defendant Donovan Quinn Carter Cloud.

ORDER ON DEFENDANTS’ DAUBERT MOTIONS

SALVADOR MENDOZA, JR., United States District Judge Before the Court are James Cloud's Motion to Exclude or Limit Toolmark Identification Evidence, ECF No. 325, and Donovan Cloud's Motion to Exclude or Limit Expert Testimony on Friction Ridge Analysis, ECF No. 347. After review of the file and three days of hearings on the motions, the Court grants each motion in part. More specifically, the Court finds sufficient scientific support for the firearm comparison techniques at issue in this case but will limit the expert's testimony to reflect only a level of confidence supported by the appropriate validation studies. And although the Court generally finds sufficient scientific support to allow expert testimony purporting to compare fingerprints, the Court declines to qualify the Government's witness as an expert in fingerprint analysis.

BACKGROUND

A. The Shootings and Carjacking

On June 8, 2018, seven people were shot at or near a Medicine Valley Road residence in White Swan on the Yakima Nation Reservation. ECF No. 155 at 6. Only two of those persons survived their wounds. Id. A short time later, a family's truck was car jacked from their property on Evans Road, approximately seven miles from the Medicine Valley Road residence. Id. at 7. In the course of the carjacking, a teenage member of the family had a gun placed to his head and was forced into the back of the truck, but he escaped as the truck was being driven away. Id. at 8.

B. Investigation and Forensic Examination

In the course of its investigation, law enforcement came to suspect the Clouds’ involvement, and the two are now indicted on a slew of criminal counts stemming from the shootings and carjacking. See ECF No. 285. Relevant to these motions, law enforcement recovered several pieces of forensic evidence, including a Ruger .22 rifle, seventeen .22 cartridge casings, and a latent fingerprint. Each of these items were examined by FBI Forensic Examiners working in Quantico, Virginia.

1. Ballistics Evidence

The ballistics evidence was examined by Forensic Examiner Michael Van Arsdale ("FE Van Arsdale"), who compared the recovered casings against casings that he test-fired using the recovered Ruger .22 rifle. ECF No. 325-3. FE Van Arsdale examined the casings using the AFTE theory of identification—a comparison methodology named after the Association of Firearm and Toolmark Examiners. As a result, FE Van Arsdale "identified" twelve of the recovered casings "as having been fired in the [.22 rifle]." Id.

The AFTE methodology—the most common methodology used to compare toolmark evidence—has several steps. First, the examiner compares "the class characteristics of the shell casings found at the crime scene and the firearm being tested, including the caliber of both, the general types of marks on the casings (linear or circular), any other features determined by the manufacturer, and the operability of the firearm."

United States v. Adams , 444 F. Supp. 3d 1248 (D. Or. 2020) (summarizing the AFTE methodology). "Class characteristics are gross features common to most if not all bullets and cartridge cases fired from a type of firearm, such as caliber and the number of lands and grooves on a bullet ...." United States v. Tibbs , No. 2016-CF1-19431, 2019 WL 4359486 at *2 (D.C. Super. Sep. 05, 2019) (cleaned up).

Second, the examiner test fires the gun being examined, allowing the "examiner to give his opinion as to the firearm's operability and provides the exemplars for comparison – i.e. the bullets and shell casings that can be compared to the suspected matches." Adams , 444 F. Supp. 3d at 1252–53.

Third, the examiner conducts a forensic comparison between the test-fired shells and the crime scene shells, typically using a comparison microscope that allows the examiner to view each cartridge case side-by-side in one field of vision, like a split screen. See id. at 1253. The images can then be magnified to varying degrees. Id. The examiner then searches for "impressed and striated toolmarks present on two cartridge cases to determine if patterns of similarity exist." ECF No. 325-3 at 5. Importantly, an examiner must work to distinguish subclass characteristics from individual characteristics. The subclass characteristics are those markings that "appear on a smaller subset of a particular make and model of firearm, such as a group of guns produced together at a particular place and time. They are produced incidental to manufacture, sometimes as the result of being manufactured by the same irregular tool." United States v. Shipp , 422 F. Supp. 3d 762, 779–80 (E.D.N.Y. 2019). Individual characteristics, on the other hand, are "microscopic markings produced during manufacture by the random and constantly-changing imperfections of tool surfaces as well as by subsequent use or damage to the firearm." Id. These markings are purported to be sufficiently unique such that an examiner would be unlikely to confuse subclass and individual characteristics and so unique as to permit an individualized source determination to the exclusion of all other firearms. Id.

Following the evaluation, the examiner expresses one of three opinions: (1) source exclusion, (2) source identification, or (3) inconclusive. Id. at 5–6; see also ECF No. 220-5.¹ Finally, after FE Van Arsdale reached his source identification conclusion, a qualified examiner reviewed the items, conducted their own comparison, and verified FE Van Arsdale's findings. See ECF No. 419 at 66.

2. Fingerprint Evidence

FBI forensic examiner Krystal N. Watts compared a recovered "latent print" (a complete or partial friction-ridge impression from an unknown subject) to Donovan's known fingerprint (fingerprints deliberately collected under a controlled setting from known subjects) and was "fully confident" "that the overall degree of correspondence and concomitant lack of discordance between the latent and known prints would not be observed if the prints had originated from different sources." ECF No. 347 at 14–15. Rather than express her identification in terms of ground truth or absolute certainty, FE Watts intends to assert there is "extremely strong support for the proposition that the two prints came from the same source and extremely weak support for the proposition that the two prints came from different sources." Id. at 15. Another examiner independently verified the comparison. ECF No. 430 at 68.

To perform this analysis, both examiners used the Analysis, Comparison, Evaluation, and Verification ("ACE-V") method, which requires an examiner to make a "series of subjective assessments." Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods , PCAST at 89, https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf (hereinafter "PCAST Report"). Using her subjective judgment, an examiner selects particular regions of a latent print to analyze. Id. Where, as here, a suspect's known print is available, the examiner "manually compares the latent print to the fingerprints of the specific person of interest" "and then comes to a subjective decision as to whether they are similar enough to declare a proposed identification." Id.² Finally, the opinion is verified by another examiner. Id.

C. Noteworthy Developments in Forensic Science

For much of the past century, forensic sciences, including toolmark evaluation and fingerprint comparison, have been widely accepted in and out of court. More recently, owing in part to the emergence of DNA analysis and the resulting exonerations, reports and studies have called into question these forensic disciplines. In 2009, the National Research Council, a division of the National Academy of Science, issued a report critical of the state of the forensic sciences, including toolmark and fingerprint comparison. See Strengthening Forensic Science in the United States: A Path Forward , Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council at 142–45, 154–55 (Aug. 2009), https://www.ojp.gov/pdffiles1/nij/grants/228091.pdf (hereinafter "NRC Report").

Then, in 2016, the President's Council of Advisors on Science and Technology, or "PCAST," issued another report on the state of forensic sciences, aimed at identifying any "additional steps on the scientific side, beyond those already taken" in the wake of the 2009 National Research Council report, "that could help ensure the validity of forensic evidence used in the Nation's legal system." PCAST Report at x. The PCAST Report identified "two important gaps: (1) the need for clarity about the scientific standards for the validity and reliability of forensic methods and (2) the need to evaluate specific forensic methods to determine whether they have been scientifically established to be valid and reliable." Id.

Thus, PCAST coined "foundational validity" for the purpose of helping evaluate from a scientific perspective the requirement under Rule 702(c) that testimony be the product of reliable principles and methods. Id. at 42. According to PCAST, foundational validity requires that a forensic feature-comparison method be "a reproducible and consistent procedure for (i) identifying features in evidence...