United States v. Garcia

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UNITED STATES OF AMERICA, Plaintiff, v. ADRIAN GARCIA, Defendant.

No. 22-CR-1171-JCH

United States District Court, D. New Mexico

October 3, 2024

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Adrian Garcia's Motion to Exclude Trial Witnesses for Federal Rule of Criminal Procedure 16 Violations (ECF No. 61). Defendant moves the Court under Rule 16 to exclude testimony from FBI Firearms and Toolmark Examiner Erich Smith and from any Albuquerque Police Department (“APD”) officers who wrote a report that has not yet been disclosed. Additionally, Defendant requested an evidentiary hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). After full briefing, this Court held an evidentiary hearing on the motion on March 26, August 28, and August 29, 2024. This Court heard testimony from the Government's proposed expert, Erich Smith, and from Dr Michael J. Salyards, who provided testimony for the defense on firearms and toolmark validation research studies. Having considered the motion, briefs, evidence, and applicable law the Court will grant in part and deny in part Defendant's motion. The Court will permit Mr. Smith to testify as an expert in the field of firearm and toolmark analysis and to give the opinion set forth in his report, including the grounds and reasoning in support. The Court, however, will grant the motion in part by limiting the scope of Mr Smith's testimony to the standards set forth in the United States Department of Justice Uniform Language for Testimony and Reports for the Forensic Firearms/Toolmarks Discipline Pattern Examination, which the Court finds excludes testimony that there is a “negligible” possibility that there could be another gun out there that produces the same patterns. Finally, the Court will deny as unripe Defendant's request to exclude reports made by any APD officer whose report has yet to be disclosed.

I. FACTUAL BACKGROUND

Defendant Adrian Garcia is charged in a three-count indictment: (Count 1) Carjacking in violation of 18 U.S.C. § 2119(1); (Count 2) Using and Carrying a Firearm During and in Relation to a Crime of Violence, and Possessing a Firearm in Furtherance of such Crime, and Discharging said Firearm in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and (Count 3) being a Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924. (See Indictment, ECF No. 4.) The charges arise from an alleged carjacking that occurred on May 22, 2022. (Id.) According to the Government, it will present evidence at trial that the offender possessed a firearm; he discharged the firearm in furtherance of the carjacking; and as he fled the scene, he discarded the firearm, which police recovered. (See Gov.'s Resp. 2, ECF No. 80.)

A. Notice of Proposed Expert Testimony of Erich D. Smith

The United States filed a Notice of Expert Testimony asking the Court to find that the proposed testimony of Firearms and Toolmark Examiner Erich Smith is admissible at trial. (Notice 1, ECF No. 48.) The Government stated that it provided to the defense Mr. Smith's Curriculum Vitae, listing his qualifications, publications authored in the previous 10 years, and a list of cases from the previous four years in which he testified as an expert. (Id.; see also Gov.'s Ex. 1 (Smith CV).) According to the Notice, Mr. Smith will describe the accreditation of FBI Laboratory facilities and the process of firearm and toolmark identification, including examining the firearm, using virtual comparison microscopy (“VCM”), and making microscopic comparisons between the cartridge cases and the known test fires to see whether the cartridges were fired from the same firearm. (Id. at 1-3.) Mr. Smith's opinion in this case is that, based on his examination of the pistol and cartridge casings recovered on the date of Defendant's arrest, the spent cartridge case recovered from the scene of the carjacking was fired from the firearm that was recovered by police. (See id. at 2.) Finally, Mr. Smith will testify that the cartridge cases were searched in NIBIN (the National Integrated Ballistic Information Network) and there was a NIBIN match. (Id. at 4.)^[1]

B. Procedural History and Timing of the Government's Expert Disclosures

Magistrate Judge B. Paul Briones entered a discovery order on August 25, 2022, in which Defendant was deemed to have requested discovery, giving the Government 14 days to provide Defendant with Rule 16 discovery. (Am. Order 1-2, ECF No. 21.) The Order said the Court would set a date before trial by which expert disclosures were due. (Id. at 2.)

After multiple defense motions to continue trial, (see, e.g., Def.'s Mots. to Continue, ECF Nos. 22, 24, 26), as relevant here, in November 2023, the Court set trial for February 20, 2024, (Order, ECF No. 36.) On November 15, 2023, the Government requested a firearm and toolmark analysis. (Def.'s Ex. G, ECF No. 61-7.) Mr. Smith finished his report on December 28, 2023, (Def.'s Ex. E, ECF No. 61-5), and sent the prosecution notes and records pertaining to his report around January 9, 2024, (see Def.'s Ex. H, ECF No. 61-8).

After Defendant filed an unopposed motion to continue trial (ECF No. 37), two motions to suppress (ECF Nos. 38 and 39), and a motion to dismiss (ECF No. 40), this Court set trial for March 25, 2024, and set a deadline for the disclosure of expert testimony and reports on February 9, 2024, (Order, ECF No. 41). On January 31, 2023, the defense emailed the Government a disclosure request letter, purportedly asking for, among other things, all arrest reports from arresting officers and expert disclosures, including all records of examinations or tests. (Def.'s Ex. D, ECF No. 61-4; Def.'s Mot. 5, ECF No. 61.)

On February 9, 2024, the Government filed the Notice (ECF No. 48) regarding Mr. Smith's testimony. The same day, the Government disclosed a three-page laboratory report dated March 14, 2023, regarding the NIBIN lead and Mr. Smith's December 28, 2023, laboratory report. (Def.'s Ex. E, ECF No. 61-5.) The report included the results of the examination: “The Item 5 cartridge case was identified as having been fired in the Item 2 pistol.” (Id. at 1.) On February 16, 2024, the defense requested from the Government the underlying analyses and photographs for the reports. (Def.'s Ex. F, ECF No. 61-6.) Five days later, the defense received in discovery 42 media files and over a thousand pages in expert materials. (Def.'s Mot. 7, ECF No. 61.)

C. Rule 16 Motion and Subsequent Procedural History

Defendant filed his Motion to Exclude Trial Witnesses for Federal Rule of Criminal Procedure 16 Violations (ECF No. 61) on February 27, 2024. Defendant asserts that the Government belatedly requested its microscopic toolmark analysis from Mr. Smith, and that despite his completion of his report on December 28, 2023, the Government did not disclose to the defense all the materials underlying the report until February 21, 2024, shortly before the March 25, 2024, trial date. Defendant argues the Government violated Rule 16 because he did not receive the needed expert notes, evidence, and summaries until six days before Daubert motions were due. Additionally, Defendant argues that the disclosures are incomplete because the report does not contain what toolmarks Mr. Smith used to form his opinion, so the bases and reasons are absent.

This Court subsequently continued the March 25, 2024, trial because of the numerous motions filed in the case that required a hearing. (Order 1, ECF No. 75.) The Court held a Daubert hearing on the pending motion on March 26, 2024, but it held the hearing open to consider Defendant's Motion for Defense Expert at the Daubert Hearing (ECF No. 94), filed the same day as the hearing. (See 3/26/24 Hr'g Tr. 214:9-216:14.) Defendant requested time to retain his own expert, Dr. Michael J. Salyards, a forensic research scientist, to provide testimony on the scientific toolmark validation research studies that Mr. Smith relied on in the hearing and to explain why current validation studies could be masking higher false positive error rates. (See Order 1, ECF No. 102.) The Court subsequently granted the motion to allow Dr. Salyards to testify, (Order, ECF No. 102), and set the continuation of the hearing for August 28, 2024, based on the availability of the witnesses, (Order 1, ECF No. 107). Trial is currently set for October 15, 2024. (Order, ECF No. 122.)

D. Erich Smith's Testimony at the Daubert Hearing Regarding his Methodology and Opinion

At the Daubert hearing, Mr. Smith testified about how firearm manufacturing tools used to produce a firearm cause the firearm to make marks on bullets and cartridge cases. (See 3/26/24 Hr'g Tr. 36:2-54:7, ECF No. 99; Gov.'s Ex. 15 at 10.) Toolmarks are the alteration of the surface topography of an item created by the forceful contact with a harder surface called a tool. (Gov.'s Ex. 15 at 6.) Examiners in this field look at certain class characteristics: for cartridge cases, the caliber, type of breech face marks, and firing pin impression; and for bullets, the caliber/diameter, number and direction of lands/grooves, widths of lands/grooves, and weight. (See Gov.'s Ex. 15 at 8; 3/26/24 Hr'g Tr 45:11-47:22.) Examiners also look at individual characteristics and subclass characteristics. (See 3/26/24 Hr'g Tr. 48:3-57:17.) Individual characteristics are the marks produced by the random imperfections or irregularities of tool surfaces, viewed at the microscopic level, which are caused by the manufacturing process and/or from use and wear, damage, abuse, deterioration, and corrosion. (See id. at 48:3-56:3; Gov.'s Ex. 15 at 9, 13.). Subclass characteristics are a subset of a class that occur in certain types of manufacturing processes where they are...