United States v. Graham

1

UNITED STATES OF AMERICA v. ISAAC JEROME GRAHAM, Defendant.

CRIMINAL ACTION No. 4:23-cr-00006

United States District Court, W.D. Virginia, Danville Division

February 20, 2024

MEMORANDUM OPINION

HON THOMAS T. CULLEN, UNITED STATES DISTRICT JUDGE.

On December 28, 2022, a masked man robbed a convenience store in Danville, Virginia. He fired a round from a handgun into the floor during the robbery. Police later arrested Defendant Isaac Jerome Graham, and, after he confessed to committing the robbery, recovered a Glock 19 pistol in his car. Police test-fired the Glock and sent the resulting two shell casings to the Virginia Department of Forensic Science (“DFS”) to compare the test-fired casings with a shell casing found at the convenience store. Applying her department's toolmark analysis methodology and years of experience, DFS Forensic Scientist Laura Hollenbeck (“Hollenbeck”) determined that the pistol recovered from Graham's car was used to fire the bullet into the convenience-store floor. The government intends to call Hollenbeck as an expert to testify to that effect at Graham's trial, scheduled to begin on April 15, 2024.

The matter is before the court on Graham's motion to exclude or alternatively to curtail, Hollenbeck's testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. (Def.'s Mot. Exclude [ECF No. 68].) The court conducted a Daubert hearing on November 30, 2023, during which Hollenbeck testified about her comparison and applied methodology. Following that hearing, Graham filed a renewed motion to exclude; the motion is now ripe for disposition.^[1]

At bottom, Graham argues that the field of firearm and toolmark analysis is inherently flawed, that Hollenbeck's opinion which is based on her application of the prevailing methodology in that field, is unreliable under Daubert, and, given recent scrutiny about the discipline, that Hollenbeck's testimony should be excluded. The court disagrees and will deny Graham's motion to exclude Hollenbeck's opinion. But based on Rule 702's recent amendments, the court will order that Hollenbeck's testimony conform with the U.S. Department of Justice's Uniform Language for Testimony of Reports for the Forensic Firearms/Toolmarks Discipline.

I. Standard of Review

Federal Rule of Evidence 702 governs the admissibility of expert-witness testimony, along with the Supreme Court's decisions in Daubert and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Collectively, these impose on the court a gatekeeping role in which it must ensure that proffered “expert evidence is sufficiently relevant and reliable when it is submitted to the jury.” Nease v. Ford Motor Co., 848 F.3d 219, 231 (4th Cir. 2017) (emphasis in original). Rule 702 provides that a qualified expert's opinion is admissible if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

Fed. R. Evid. 702. Ultimately, the court's objective “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152.

In this gatekeeping role, the court must balance “two guiding, and sometimes competing principles: Rule 702 was intended to liberalize the introduction of relevant expert evidence[,] and expert witnesses have the potential to be both powerful and quite misleading.” Hickerson v. Yamaha Motor Corp., 882 F.3d 476, 481 (4th Cir. 2018) (cleaned up). Daubert instructed, consistent with that balance, that “[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; see Kovari v. Brevard Extraditions, LLC, 461 F.Supp.3d 353, 369 (W.D. Va. 2020). But before the court may admit even “shaky” expert testimony, the proponent of that evidence must establish by a preponderance of evidence that the testimony is admissible. See Fed.R.Evid. 702. The court has “considerable leeway” in determining whether the proponent has carried his burden, see Hickerson, 882 F.3d at 480, but it may not “abandon the gatekeeping function.” Nease v. Ford Motor Co., 848 F.3d 219, 230 (4th Cir. 2017) (quoting Kumho Tire, 526 U.S. at 158-59 (Scalia, J., concurring)).

II. Analysis

Before opening the gate to Hollenbeck's testimony, the government must show that she is qualified and that her testimony is relevant and reliable. United States v. Peterson, No. 1:19-cr-00054, 2020 WL 5039504, at *4 (W.D. Va. Aug. 26, 2020). Graham does not meaningfully challenge Rule 702's threshold consideration, and the court finds Hollenbeck's years of experience qualifies her to testify as an expert in the field of firearm-toolmark analysis.^[2]Graham also does not contest that Hollenbeck's testimony is relevant. It is beyond dispute that her testimony “will help the trier of fact to understand the evidence or to determine a fact in issue”-specifically, whether the firearm recovered from Graham was discharged during the robbery. Fed.R.Evid. 702(a); (see Gov't Resp. at 13.)

Instead, Graham argues that the field of firearm-toolmark analysis and identification- and Hollenbeck's application of that methodology-are unreliable. (See generally Def.'s Mot. Exclude.)

A. Background on Firearm-Toolmark Analysis

Before analyzing Hollenbeck's testimony, the court takes a necessary detour to provide some background on the discipline at the heart of Graham's motion and how courts have previously treated testimony based on firearm-toolmark identification.^[3]

1. Firearm-Toolmark Analysis's Methodology

The assumption at the heart of firearm-toolmark analysis is common among forensic sciences: no two firearms are exactly alike. When a gun is assembled in the factory, the firearm manufacturing tools “wear during their use and change microscopically.” Jaimie A. Smith, Beretta Barrell Fired Bullet Validation Study, 66 J. Forensic Scis. 547, 547 (2020) (available at ECF No. 71-5) [hereinafter Smith study]; see Nat'l Rsch. Council, Strengthening Forensic Science in the United States: A Path Forward 150 (2009), https://www.ojp.gov/pdffiles1/nij/grants/228091.pdf (last visited February 20, 2024) [hereinafter 2009 NRC Report]. Because the tools that create firearms change microscopically with each metal-on-metal clash, they impart “random imperfections” on a gun's firing components, including its barrel and firing pin. Smith study at 547. Those microscopic imperfections essentially give each firearm its own uniquely identifiable fingerprint, which it impresses upon ammunition each time it is discharged. (Hr'g Tr. 17:4-5 [ECF No. 61]); see United States v. Pete, No. 3:22-cr-00048, 2023 WL 4928523, at *1 (N.D. Fla. July 21, 2023). Those impressions are referred to as “toolmarks.”

Some, but not all, toolmarks on a bullet or casing are unique to a single gun. Toolmarks fall into one of three categories, ranging from more to less common: (1) class characteristics; (2) subclass characteristics; and (3) individual characteristics. See United States v. Harris, 502 F.Supp.3d 28, 34-35 (D.D.C. 2020). A class characteristic is an intentional design feature that “will be present in all weapons of the same make and model.” United States v. Willock, 696 F.Supp.2d 536, 558 (D. Md. 2010) (citation omitted). Subclass characteristics are unintentional marks that will be present in a batch of guns “manufactured using the same equipment around the same time.” Pete, 2023 WL 4928523, at *1. Individual characteristics are those “unique, microscopic, random imperfections in the barrel or firing mechanism created by the manufacturing process and/or damage to the gun post-manufacture, such as striated and/or impressed marks, unique to a single gun.” Harris, 502 F.Supp.3d at 34-35.

Using a comparison microscope, firearm-toolmark examiners compare the marks on recovered ammunition to those on test-fired ammunition “to determine whether ammunition is or is not associated with a specific firearm.” President's Council of Advisors on Sci. & Tech Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods 104 (2016), https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/ PCAST/pcastforensicsciencereportfinal.pdf (last visited February 20, 2024) [hereinafter PCAST Report]. In conducting these comparisons, examiners typically follow the theory of identification propounded by the Association of Firearm and Tool Mark Examiners (“AFTE”). See United States v. Ashburn, 88 F.Supp.3d 239, 246 (E.D.N.Y. 2015) (noting the AFTE theory is “the field's established standard”). When properly conducted, the AFTE comparison method “permits an examiner to conclude that two bullets or two cartridges are of common origin . . . when the microscopic surface contours of their toolmarks are in ‘sufficient agreement.'” United States v. Otero, 849 F.Supp.2d 425, 431 (D.N.J. 2012). Sufficient agreement exists between two samples if “the agreement of individual characteristics is of a quantity and quality that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility.” AFTE, AFTE Theory of Identification as it Relates to Toolmarks, https://afte.org/about-us/what-is-...