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United States v. Tucker

United States District Court, E.D. New York

January 8, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
TAMBHIA TUCKER, Defendant.

          RICHARD P. DONOGHUE United States Attorney Eastern District of New York By: F. Turner Buford Attorney for the Plaintiff

          ALLEGRA GLASHAUSSER Federal Defenders of New York, Inc. Attorney for Tambhia Tucker

          MEMORANDUM AND ORDER

          STERLING JOHNSON, JR., U.S.D.J.

         Tambhia Tucker ("Defendant" or "Tucker") is charged with Conspiracy to Commit Hobbs Act Robbery and Attempted Hobbs Act Robbery under 18 U.S.C. § 1951 as well as with Possessing, Brandishing and Discharging a Firearm During Crimes of Violence under 18 U.S.C. § 924(c)(1)(A) stemming from a robbery that took place on August 14, 2017 at a Brooklyn gas station and auto repair shop. Tucker moves to preclude the Government from introducing ballistics and DNA evidence through expert testimony, citing concerns over the reliability of the methods used. In making this challenge, the Defendant relies largely on a report by the President's I Council of Advisors on Science and Technology ("PCAST"), which highlights important shortcomings in the field of forensic science, including ballistics and DNA testing. Tucker also moves this court to dismiss the 924(c) count ("Count Three") from the indictment on the grounds that neither conspiracy to commit or attempted Hobbs Act robbery are categorically crimes of violence following U.S. v. Davis, 139 S.Ct. 2319 (2019). Based on the following reasons, the parties' submissions, and arguments made on the record, the Defendant's motions to exclude the Government's ballistics and DNA expert testimony are DENIED and the Defendant's motion to dismiss Count Three is GRANTED.

         I. Relevant Background

         Tucker is alleged to have been one of two perpetrators of an attempted armed robbery of a Brooklyn gas station on August 14, 2017. (Dkt. No. 8.) The Government alleges Tucker and his co-conspirator engaged in a shootout with the owner of the gas station before fleeing the scene. (Dkt. No. 37.) Fired bullets, casings, and bullet fragments from the shootout were collected and analyzed by the New York City Police Department ("NYPD"). (Id.) The NYPD also recovered a hat and bandana allegedly worn by the | perpetrator of the attempted robbery which were later tested by the Office of | the Chief Medical Examiner for New York City ("OCME"). (Id.) The OCME determined with a high degree of certainty that Tucker was included as a I contributor to the DNA recovered from both the hat and the bandana. (Id.) Defense now seeks to preclude Government expert testimony introducing this evidence on the grounds that both the ballistics and DNA analyses are I unreliable.

         II. Defendant's Motions to Preclude Evidence

         a. Legal Standard Governing Expert Opinion

         Federal Rule of Evidence 702 allows for the admission of a qualified expert's testimony when:

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 has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. At issue is the reliability of the ballistics and DNA analysis procedures used in the instant investigation. In determining reliability, the Court employs a "flexible" inquiry that considers the following factors:

[a] the theory's testability;
[b] the extent to which it has been subjected to peer review and publication;
[c] the extent to which a technique is subject to standards controlling the technique's operation;
[d] the known or potential rate of error; and [e] the degree of acceptance within the relevant ...

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