United States v. Johnson

UNITED STATES OF AMERICA, v. LATIQUE JOHNSON, et al. Defendants.

(S5) 16 Cr. 281 (PGG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 11, 2019

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

The Government alleges that Defendant Latique Johnson is the leader of the "Blood Hound Brims," a street gang operating primarily in New York City, upstate New York, and parts of Pennsylvania. Johnson is charged with racketeering conspiracy and narcotics conspiracy, two counts of assault and attempted murder in aid of racketeering, and using and carrying a firearm in connection with the racketeering and narcotics conspiracies. (S5 Indictment (Dkt. No. 418)) Trial of Johnson and two co-defendants - Brandon Green and Donnell Murray - began on February 19, 2019.

Count Two of the (S5) Indictment - one of the assault and attempted murder in aid of racketeering charges - alleges that on January 28, 2012, Johnson shot at members of a rival gang in a Bronx Restaurant (the "Bronx Restaurant Shooting").¹ (S5 Indictment (Dkt. No. 418) ¶ 14) On December 11, 2018, the Government notified Johnson that it had identified the firearm used in the Bronx Restaurant Shooting, and provided Johnson with ballistics analysis reports prepared by New York City Police Department ("NYPD") Detective Jonathan Fox. These reports conclude - based on "toolmark identification" analysis - that bullets collectedfrom the scene of the Bronx Restaurant Shooting in January 2012 were fired from an AK 47 semi-automatic assault rifle that was the subject of an undercover purchase in Westchester County. (See Johnson Br. (Dkt. No. 468) at 12; Govt. Opp. Br. (Dkt. No. 483) at 26-27)

Johnson moved in limine to preclude Detective Fox's testimony in its entirety or, in the alternative, from offering an opinion that the ballistics evidence he analyzed was fired from the AK 47 assault rifle.² (Johnson Reply Br. (Dkt. No. 490) at 27; Feb. 27, 2019 Trial Tr.at 981-82; Mar. 1, 2019 Johnson Ltr. (Dkt. No. 550) at 1) Johnson's motion relies primarily on scientific reports published in 2008, 2009, and 2016.

On February 27, 2019 - in the midst of trial - this Court conducted a Daubert hearing concerning the methodology Detective Fox employed to analyze the toolmark evidence in this case. For the reasons stated below, Johnson's motion to exclude Detective Fox's testimony will be denied.

BACKGROUND

I. DETECTIVE FOX'S INITIAL ANALYSIS

About one month after the Bronx Restaurant Shooting, Detective Fox analyzed bullets, bullet fragments, and cartridge casings recovered from the crime scene. His findings are set forth in a February 28, 2012 report. (See GX 610) Detective Fox concludes that (1) thirteen 7.62 x 39 mm. caliber cartridge casings collected from the scene were discharged from the same firearm; (2) four bullets and bullet fragments were discharged from the same firearm; and (3) the relationship between these four bullets and four other bullets recovered from the scene cannot be conclusively determined. While these bullets share the same "class characteristics, [there are] insufficient individual characteristics for identification." (Id.)

In an October 18, 2018 letter to Defendants, the Government disclosed that Detective Fox would testify as a ballistics expert, and would "explain the basics of firearms analysis and ballistics comparison, and the process by which firearms analysis and comparison reports are prepared and maintained in the normal course of the [NYPD] F[irearm] A[nalysis] S[ection]'s business." The Government further disclosed that Fox would "testify that . . . the 7.62 caliber shell casings and bullet fragments collected from the January 28, 2012 shooting were fired by one gun; and . . . 7.62 caliber shell casings such as the ones collected from theJanuary 28, 2012 shooting are used in semi-automatic assault rifles." (Oct. 18, 2018 Govt. Ltr. (Dkt. No. 483-1) at 3) Johnson did not object to this anticipated testimony. (Johnson Br. (Dkt. No. 468) at 12 n.1)

II. UNDERCOVER PURCHASE OF ASSAULT RIFLE ALLEGEDLY USED AT THE BRONX RESTAURANT SHOOTING, AND SUBSEQUENT DISCLOSURES

On September 25, 2013 - more than a year and a half after the Bronx Restaurant Shooting - an undercover officer of the Westchester County Police Department purchased an AK 47 semi-automatic assault rifle from Parrish Powell. (See Jan. 14, 2019 Govt. Ltr. (Dkt. No. 472) at 1) Powell - also known as "Scrams" - is a former member of the Blood Hound Brims. (Id.) According to the Government, the undercover purchase "was not part of the instant case or investigation, and was previously unknown by the NYPD or the agents and AUSAs investigating [Johnson's case]." (Id.)

Powell was arrested on October 28, 2013, and later pled guilty to felon-in-possession, in violation of 18 U.S.C. § 922(g)(1). (See 13 Cr. 927 (KMK) (Dec. 3, 2013 Minute Entry); Information, 13 Cr. 927 (KMK) (Dkt. No. 5)) The information to which Powell pled guilty charged that he had possessed "a loaded semi-automatic 7.62/39 mm rifle and ammunition." (See Information, 13 Cr. 927 (KMK) (Dkt. No. 5)) Powell told law enforcement after his arrest that he "had purchased the firearm from an Arab man." (Jan. 14, 2019 Govt. Ltr. (Dkt. No. 472) at 2 n.1) At sentencing, Powell stated that he "knew of the firearm's availab[ility] because people in M[t]. Vernon talked about another person want[ing] to sell it for fairly cheap." (See 13 Cr. 927 (KMK) Def. Br. (Dkt. No. 8) at 6)

In September 2018, five years after the undercover buy that led to Powell's arrest, "a cooperating witness [in the instant case] told the Government about a rumor that 'Scrams' . . . had sold an AK-47 to law enforcement, and that the gun was the same one used by Johnsonduring the [Bronx] Restaurant Shooting." (Jan. 14, 2019 Govt. Ltr. (Dkt. No. 472) at 1) The Government obtained the weapon from the Westchester County Police Department, and then provided it to the NYPD for purposes of conducting ballistics tests. (Id. at 1-2)

Detective Fox received test fires of the AK-47 assault rifle obtained from the Westchester County Police Department and compared cartridges casings and bullets from the test fires to the cartridge casings, bullets, and bullet fragments that are the subject of his February 28, 2012 ballistics report. (See Feb. 27, 2019 Trial Tr. at 902)

On December 5, 2018, Detective Fox issued a microscopic analysis report concerning his findings. (See GX 611) Detective Fox concludes that the cartridge casings produced from the test fires were "discharged from the SAME firearm" as the thirteen cartridge casings recovered from the scene of the Bronx Restaurant Shooting, "based on the observed agreement of their class characteristics and sufficient agreement of their individual characteristics." (Id.) (emphasis in original)

Detective Fox further concludes that the bullets produced from the test fires were "discharged from the SAME firearm" as the four bullets and bullet fragments - discussed in his February 28, 2012 report - that were fired from the same weapon. Detective Fox's opinion is "based on the observed agreement of their class characteristics and sufficient agreement of their individual characteristics." (Id.)

Finally, as to the four bullets designated as "INCONCLUSIVE" in Detective Fox's February 28, 2012 report, Detective Fox found that there was "agreement of their class characteristics but insufficient agreement or disagreement of their individual characteristics to either identify or eliminate the items [as] having been discharged from the same firearm." (Id.)

Detective Fox provided his December 5, 2018 report to the Government on December 6, 2018. (Jan. 14, 2019 Govt. Ltr. (Dkt. No. 472) at 2) The Government provided the new ballistics report to Johnson on December 11, 2018, along with documents concerning Parrish Powell's arrest. (Id.) On December 28, 2018, Johnson "requested further discovery as to Detective Fox" from the Government. (Johnson Br. (Dkt. No. 468) at 12)

On January 6, 2019, the Government provided Johnson with an amended summary of Detective Fox's anticipated testimony. This summary states:

The Government expects that Det. Fox will testify about (i) his training, qualifications, and experience in the field of firearms and ballistics examination; (ii) the foundations of the field of firearms and ballistics examination, including the operation of firearms, the effects of the manufacturing process on firearms and ballistics evidence, toolmark identification, and use of the comparison microscope; (iii) his opinions regarding the ballistics evidence collected from the January 28, 2012 shooting and the Norinco 7.62 caliber semi-automatic rifle, and (iv) the basis for his opinions, which includes the application of his training and experience to the results of a microscopic examination and comparison of toolmarks and ballistics impressions on the evidence.

(See Jan. 6, 2019 Govt. Ltr. (Dkt. No, 483-1) at 5) The Government also provided Johnson with (1) copies of Detective Fox's February 28, 2012 and December 5, 2018 reports, which had been produced to Johnson previously; (2) copies of Detective Fox's underlying notes and documentation of his analysis; and (3) Detective Fox's testimony in United States v. White, No. 17 CR. 611 (RWS). (Id. at 5-6)

III. JOHNSON'S MOTION TO PRECLUDE OR LIMIT DETECTIVE FOX'S TESTIMONY

On January 11, 2019, Johnson moved to preclude Detective Fox's testimony. (See Johnson Br. (Dkt. No. 468)) Johnson's counsel subsequently acknowledged that "no court has excluded toolmark evidence in its entirety," however, and clarified that Johnson only sought to "limit Detective Fox's testimony to a factual description of the method he applied and hisobservation of similarities and differences he found between sets of ballistics." (Johnson Reply Br. (Dkt. No. 490) at 26-27) As discussed above, Johnson's counsel confirmed before and after the Daubert hearing that Johnson was not seeking complete preclusion of Detective...