United States v. Romero-Lobato

379 F. Supp. 3d 1111
CourtDistrict Court, D. Nevada
DecidedMay 16, 2019
DocketCase No. 3:18-cr-00049-LRH-CBC
StatusPublished
Cited by7 cases

This text of 379 F. Supp. 3d 1111 (United States v. Romero-Lobato) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Romero-Lobato, 379 F. Supp. 3d 1111 (D. Nev. 2019).

Opinion

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

Defendant Eric Romero-Lobato has filed a motion to preclude the testimony of Steven Johnson, a supervising criminalist in the Forensic Science Division of the Washoe County Sheriff's Office. (ECF No 51 ). On April 23, 2019, the Court held a Daubert evidentiary hearing concerning Johnson's qualifications and the field of firearm and tool mark examination. (ECF No. 65 ). For the reasons stated below, the Court denies defendant's motion to preclude and qualifies Johnson as competent to testify in the field of firearm and tool mark identification.

I. Factual Background

Defendant has been indicted with seven felonies stemming out of two separate incidents that occurred approximately two months apart. On March 4, 2018, defendant is alleged to have participated in an attempted armed robbery at the Aguitas Bar and Grill in Sparks, Nevada. (ECF No. 11 at 2 ). During the attempted robbery, one of two robbers, alleged to be defendant, discharged a firearm (a Taurus PT111 G2) into the ceiling of the bar while making his escape. Stemming from that incident, defendant was charged with conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, discharging a firearm during a crime of violence, and being a felon in possession of a firearm. (Id. at 2-3). Neither of the two suspects involved in the Aguitas robbery was apprehended following the robbery. Approximately two months later on May 14, defendant allegedly carjacked an individual at gunpoint while she was cleaning her vehicle at a Reno-area carwash. Later that night, police officers located the vehicle, a 2001 GMC Yukon, and subsequently observed *1115defendant enter it and drive away. Defendant subsequently led officers on a high-speed chase, which ended with defendant crashing the Yukon. Defendant was forcibly removed from the crashed vehicle by the officers, and during their investigation of the vehicle, the officers found a Taurus PT111 G2 handgun on the front passenger's seat. The carjacking victim was subsequently brought to the scene of the accident and positively identified defendant as her attacker. Stemming from this incident, defendant was charged with carjacking, using or brandishing a firearm during a crime of violence, and being a felon in possession of a firearm. (Id. at 3-4).

On January 11, 2019, the government gave notice that it planned to call Johnson to testify as an expert witness in the field of firearm and tool mark analysis. (ECF No. 47 at 2 ). Johnson would testify, inter alia , that the Taurus handgun found in the stolen Yukon following the police chase is the same gun that was used to fire a round into the ceiling of Aguitas Bar and Grill. (Id. ) Defendant objected to qualifying Johnson as an expert (ECF No. 51 ), and the Court subsequently held a Daubert hearing to ascertain both his qualifications and the validity of his field of firearm and tool mark examination. (ECF No. 65 ). The Court heard testimony from Johnson on his background, training, and experience. He also testified regarding the process by which he linked the Aguitas bullet and the Taurus handgun found near defendant, commonly known as the Association of Firearm and Tool Mark Examiners method ("AFTE method"). Johnson also testified at length regarding recent developments and studies within the field prompted by two critical studies: a 2009 report from the National Research Council of the National Academy of Sciences ("NAS Report") and a 2016 report by the President's Council of Advisors on Science and Technology ("PCAST Report"). Following the hearing, the Court took the matter under advisement.

II. Legal Standard

Federal Rule of Evidence 702 governs the admissibility of expert testimony in federal courts. It provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Rule 702 requires expert testimony to be both "relevant and reliable." U.S. v. Vallejo , 237 F.3d 1008, 1019 (9th Cir. 2001). The relevancy hurdle is a low one to meet: it simply requires that the evidence "logically advance a material aspect of the party's case." Cooper v. Brown , 510 F.3d 870, 942 (9th Cir. 2007). To determine if the principles and methods utilized are reliable, five factors have traditionally been used: (1) whether a theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate of the theory or technique; (4) whether there are standards controlling the technique's operation; and (5) whether the theory or technique enjoys general acceptance within the relevant scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (hereinafter " Daubert "). The reliability inquiry is not concerned with whether the expert's ultimate conclusions are "correct," but rather with the "soundness of his methodology." Primiano v. Cook , 598 F.3d 558, 564 (9th Cir. 2010).

*1116III. Discussion

Defendant attacks the AFTE method on two separate grounds. First, the defense points to the critical NAS and PCAST Reports as evidence that "firearms analysis" is not scientifically valid and fails to meet the requisite threshold for admission under Daubert and Federal Rule of Evidence 702. (ECF No. 51 at 8 ). Second, the defense asserts that the government's notice of intent to call Johnson should be stricken because it does not provide sufficient detail about the basis behind Johnson's conclusions or even what those conclusions are. (Id. at 8-9). The latter issue was resolved through the Daubert

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Bluebook (online)
379 F. Supp. 3d 1111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-romero-lobato-nvd-2019.