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United States of America v. Dontae Sebbern and Dexter Waiters

November 29, 2012

UNITED STATES OF AMERICA,
v.
DONTAE SEBBERN AND DEXTER WAITERS,
DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge:

MEMORANDUM AND ORDER

Defendant Dontae Sebbern ("Mr. Sebbern") moves this Court pursuant to Rule 702 of the Federal Rules of Evidence for an order precluding the government from introducing "any testimony from a so-called firearms identification expert" or, in the alterative, for a pre-trial hearing at which this Court "can make a pre-trial determination of the admissibility of the proposed testimony." Defendant Sebbern's Memorandum of Law dated May 24, 2012 (Document #61) ("Sebbern's Memo") at 4. Mr. Sebbern also seeks certain discovery pursuant to Rule 16(a)(1)(G) of the Federal Rules of Civil Procedure. In response, the government represents that it has provided the requested discovery and urges this Court to deny Mr. Sebbern's motion in all other respects. For the reasons set forth below, this Court denies Mr. Sebbern's motion for preclusion but grants, in part, his request for a hearing.

BACKGROUND

In the early morning of November 7, 2009, Jermaine Dickersen was shot and killed in the parking lot of the Holland Houses on Staten Island. Shortly thereafter, police officers responding to the scene of the shooting stopped an automobile occupied by defendants Dontae Sebbern and Dexter Waiters ("Mr. Waiters"). Mr. Sebbern and Mr. Waiters both fled from the vehicle, only to be apprehended after a brief chase. According to the government, both men dropped handguns as they ran. Mr. Sebbern allegedly dropped a .32 caliber revolver and Mr. Waiters allegedly dropped a 9 millimeter semi-automatic pistol.

Both of the handguns were sent to the New York City Police Laboratory's Firearms Analysis Section, a forensics laboratory. There, firearm examiners test-fired both guns. The cartridge casings and bullets recovered in this process were then compared to casings recovered from the scene and to a 9 millimeter bullet recovered from Mr. Dickersen's body.

On March 24, 2010, the government provided Mr. Sebbern with microscopic analysis reports summarizing the results of these comparisons. The firearm examiners concluded, inter alia, that several of the casings recovered from the scene and the bullet recovered from Mr. Dickersen's ribs came from the 9 millimeter handgun allegedly dropped by Mr. Waiters. By motion dated May 24, 2012, Mr. Sebbern moved to preclude expert testimony concerning these conclusions.

DISCUSSION

Before addressing the specifics of Mr. Sebbern's motion, this Court must briefly review the law relating to the admissibility of expert testimony, which has undergone considerable changes over the last forty years. Prior to the mid 1970's, the admissibility of expert testimony was determined by the so-called "Frye test," which evaluated whether the technique used by the proposed expert was "generally accepted" in the relevant scientific or expert "community." See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). However, that standard was not incorporated into the Federal Rules of Evidence when they were adopted in 1975. Rather, Federal Rule of Evidence 702, as originally enacted, provided:

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.

For several decades following the enactment of Rule 702, there was some disagreement between circuits and between commentators over whether the Frye test survived the adoption of the Federal Rules of Evidence. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 587 n.5 (1993) (citing authorities). In Daubert, the Supreme Court resolved those disagreements, holding that the Frye test was superceded by the adoption of the Federal Rules of Evidence. Id. at 587. However, while Daubert made "plain that Rule 702 embodies a more liberal standard of admissibility for expert opinions than did Frye," United States v. Williams, 506 F.3d 151, 161-62 (2d Cir. 2007), Daubert expressly rejected the notion "that the Rules themselves place no limits on the admissibility of purportedly scientific evidence." 509 U.S. at 589. The Supreme Court held that trial courts retained a "gatekeeping responsibility": to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589, n.7.

Daubert provided a list of specific factors bearing on reliability that trial courts could consider in executing the gatekeeping obligation. These factors -- sometimes referred to as the "Daubert factors" -- can be summarized as follows:

(1) whether a theory or technique has been or can be tested; (2) "whether the theory or technique has been subjected to peer review and publication;" (3) the technique's "known or potential rate of error" and "the existence and maintenance of standards controlling the technique's operation;" and (4) whether a particular technique or theory has gained general acceptance in the relevant scientific community.

Williams, 506 F.3d at 160 (citing Daubert, 509 U.S. at 593-94). However, the Daubert Court did not "presume to set out a definitive checklist or test," noting that "[m]any factors" might bear on the Rule 702 inquiry. Daubert, 509 U.S. at 593.

In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court addressed the question of "how Daubert applies to the testimony of engineers and other experts who are not scientists." Id. at 141. The Supreme Court clarified that the "gatekeeping" obligation applied "not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge." Id. However, while Kumho Tire held that trial courts considering the reliability of the testimony of non-scientists could consider the Daubert Factors, it reminded trial courts that they were not required to do so because the "list of factors was meant to be helpful, not definitive." Id. at 151.

In 2000, Rule 702 was amended in response to Daubert and "the many cases applying [it], including Kumho Tire . . . ." Advisory Committee Notes relating to the 2000 Amendments to Rule 702. As amended, Rule 702 provided:

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 was further amended in 2011, and currently reads as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the ...


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