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United States v. Morgan

United States District Court, S.D. New York

October 2, 2014


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For Johnny Morgan, Defendants: Rita Marie Glavin, LEAD ATTORNEY, David Jeremy Driscoll, Michael Benjamin Weitman, Seward & Kissel LLP, New York, N.Y. USA; William Joseph Stampur, Hurwitz Stampur & Roth (NY), New York, N.Y. USA.

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VICTOR MARRERO, United States District Judge.

By Complaint dated March 2, 2012, defendant Johnny Morgan (" Morgan" ) was charged with possessing a firearm after being convicted of a felony, in violation of Title 18, United States Code, Section 922(g), and on March 15, 2012 a grand jury indicted Morgan on the same charge.

Morgan moved, pursuant to Federal Rules of Evidence 104(a), 401, 402, 403, and 702, to exclude any evidence at trial of low copy number (" LCN" ) DNA test results of samples taken from the gun at issue here, and requested a hearing under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its progeny. (Dkt. No. 66.) The Court granted the request for a Daubert hearing by endorsement dated January 24, 2014 (Dkt. No. 74) and held such hearing during a period of three days beginning January 29, 2014 (the " Hearing" ).

The Court has reviewed the extensive record in this matter, which includes: the parties' submissions (Def.'s Mem. in Supp. of Mot. to Exclude Evidence of Low Copy Number DNA Test Results and Request for a Daubert Hearing (" Def.'s Mem." ), dated December 23, 2013, Dkt. No. 68; Gov't's Mem. in Opp. to Def.'s Mot. to Exclude Evidence of Low Copy Number DNA Test Results and Request for a Daubert Hearing (" Gov't's Mem." ), dated January 23, 2014, Dkt. No. 72; Def.'s Reply Mem. in Further Supp. of Mot. to Exclude Evidence of Low Copy Number DNA Test Results and Request for a Daubert Hearing (" Def.'s Reply" ), dated January 27, 2014, Dkt. No. 75), the testimony of Dr. Craig O'Connor and Dr. Allan Jamieson at the Hearing, and the exhibits introduced into the record at the Hearing. In the time that has elapsed since the initial Hearing, the parties have submitted numerous letters and briefs, all of which were considered by the Court. Also, on February 14, 2014, Morgan moved for sanctions and the exclusion of evidence, or, alternatively, to re-open the Hearing record (Dkt. No. 86) and the parties fully briefed that motion (Dkt. Nos. 100, 103).

Upon consideration of the record as of September 18, 2014, on that date the Court issued an Order (Dkt. No. 160) closing the record and denying Morgan's motion to exclude evidence at trial of LCN test results (Dkt. No. 66), as well as his motions for sanctions and to reopen the record (Dkt. No. 86). In the instant Decision and Order, the Court states its reasoning and findings in reaching the determination that the methods of LCN DNA testing that the New York City Office of the Chief Medical Examiner (" OCME" ) employed are sufficiently reliable to satisfy the Daubert standard.



The indictment alleges that Morgan -- after having previously been convicted of a felony -- on or about February 20, 2012 possessed a .40 caliber, semi-automatic Glock pistol. (Dkt. No. 5.)

The following facts, which are in dispute, are culled from the testimony at the first trial in this case, which the Court held beginning September 30, 2013, and which resulted in a hung jury and mistrial.

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Several eyewitnesses testified at trial that on February 20, 2012, Morgan had been at the Pompeii Lounge, a nightclub in the Bronx, New York. (Transcript of September 30, 2013 Trial, at 58, 66-67, 106, United States v. Johnny Morgan, 12-cr-223 (" Trial Tr." ).) A member of the Pompeii Lounge's security detail testified that after he observed Morgan attempting to smoke a cigarette inside the nightclub, he told Morgan that it was closing time and asked Morgan to leave the premises. (Id. at 61.) Morgan was " upset [,]" " looked kind of irate[,]" and " didn't leave willingly." (Id. at 61, 160-61.) Having been escorted toward a foyer and out the door, Morgan then returned to the foyer of the nightclub and, after an exchange of words with the owner of the nightclub, pulled out a pistol and pointed it at the owner. (Id. at 62-64, 105-08, 117, 164.) Morgan was again escorted outside the nightclub, and two to three minutes thereafter, individuals inside the nightclub heard two gunshots. (Id. at 66, 114.)

Responding to a 911 call in which a caller reported hearing gunshots, a law enforcement officer observed an unidentified man walking on the sidewalk of a dark street in the Bronx, New York. (Id. at 191-93.) After the law enforcement officer directed the man to stop, the man made an arm motion consistent with tossing an object under or between parked cars and onto the street. The law enforcement officer also heard a noise as if something metal or plastic had been dropped on the ground. (Id. at 195-98.) Shortly thereafter, the man was apprehended ten to fifteen feet away and did not have a weapon in his possession. (Id. at 199-200, 203). That man was later identified as Morgan. (Id. at 206, 261-62.) Another law enforcement officer subsequently located a gun in the area where the first officer had observed Morgan's arm motion and heard the noise of something striking the pavement. (Id. at 218, 254-55.) That gun was a .40 caliber Glock pistol. (Id. at 245.)

Law enforcement obtained three DNA swabs from the gun: one from the trigger and trigger guard; a second from the front strap, back strap, and side grip grooves; and a third from the slide grip grooves and release area. (Gov't's Mem. at 9.) An oral DNA swab was also collected from Morgan. Id.

At issue in this motion is OCME's report concerning the DNA testing performed on the gun swabs and the comparison of those results to Morgan's DNA profile.


While traditional methods of DNA testing -- starting with plentiful DNA source material and using that DNA to generate a DNA profile -- have been nearly universally accepted by courts as reliable, the particular form of DNA testing at issue in this case relates to LCN DNA.[1] OCME is the only publicly funded lab in the United States that performs LCN testing. (Def.'s Mem. at 1.) It uses its LCN DNA testing protocols when the amount of source material is less than 100 picograms (" pg" ) of DNA, as distinguished from what it calls high copy number (" HCN" ) DNA analysis, which uses samples containing more than

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100 pg of DNA. (Gov't's Mem. at 8.) OCME's analysis of the gun swab in this case was based on approximately 14 pg of DNA (Transcript of January 29, 2014 Daubert Hearing, at 14 0, United States v. Johnny Morgan, 12-cr-223 (" Hearing Tr." ).) Thus, under OCME's own definitions, the DNA analysis performed in this case was LCN DNA testing.[2]

OCME's LCN testing uses the same basic steps as HCN testing: (1) extraction of DNA from the sample (e.g., blood, bone, hair, saliva, semen, or skin cells), (2) quantitation of the amount of DNA extracted from the sample, (3) amplification of the DNA using polymerase chain reaction (" PCR" ),[3] and (4) analysis. (Gov't's Mem. at 7-8.) The primary differences between HCN and LCN DNA testing are at the stages of amplification and analysis. (Id.)

The difference in the amplification step is that HCN DNA testing employs 28 " rounds" of PCR amplification whereas LCN DNA testing employs 31 rounds. (Def.'s Mem. at 6; Gov't's Mem. at 8; Hearing Tr. at 56.) The small quantity of starting material in conjunction with the increased number of rounds of PCR can result in an increase in " stochastic effects," which are random errors that create inaccuracies in DNA testing. (Hearing Tr. at 41.) The four most common stochastic effects, each in turn detailed below, are: allelic drop-in, allelic drop-out, stutter, and heterozygote peak imbalance. (Id. at 42.)

Allelic drop-in refers to the phenomenon that occurs when alleles[4] not originating from the principal DNA donors show up in a DNA profile. It can arise due to the increased sensitivity of LCN testing, which leads to the detection of low levels of extraneous DNA contamination that would not normally appear in HCN testing. (Id. at 45.)

Allelic drop-out occurs when alleles from the principal DNA donors fail to appear in the DNA profile, a result frequently caused by the failure of the LCN testing to detect an allele because of the small size of the sample. (Id.)

Stutter is a phenomenon that can occur during the amplification stage: when the

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DNA is replicated, some of the alleles may become altered, creating a small amount of a different allele that is then detected in the analysis of the sample. Thus, when stutter occurs a false allele will be present in the resulting DNA profile that ...

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