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United States v. Wells

United States District Court, D. Alaska

July 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES MICHAEL WELLS, Defendant.

          ORDER RE: MOTIONS IN LIMINE TO EXCLUDE DEFENSE EXPERT WITNESSES

          SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE.

         Before the Court are six motions in limine filed by the government seeking exclusion of proposed defense expert witnesses.[1] The motions relate to Dr. Park Dietz, Jim Hoerricks, Dr. Daniel Reisberg, Chris Coleman, Steven Beck, and Gregg McCrary. Defendant James Michael Wells filed an opposition to each motion.[2] The government did not seek to file a reply to any of the oppositions.

         I. Legal standards

         Before a witness may testify as an expert, a district court must make three express findings. First, the court must find that the proposed witness is qualified to offer expert testimony. Second, the court must find that the witness has applied reliable principles. Third, the court must find that the witness's testimony may help the jury understand evidence or determine a fact at issue in the case. So long as an expert meets these threshold considerations, the expert may testify; it is up to the jury to determine the weight to give that testimony.[3] “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”[4] The proponent of the expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence.[5]

         Federal Rule of Evidence 702 provides that a person “qualified as an expert by knowledge, skill, experience, training or education” may provide expert testimony if he or she has “scientific, technical, or other specialized knowledge.”[6] That knowledge must “help the trier of fact to understand the evidence or determine a fact in issue”[7]-this requirement “goes primarily to relevance.”[8]

         Expert testimony must be reliable. That means it must be “based on sufficient facts or data, ” be “the product of reliable principles and methods, ” and the principles and methods must have been reliably applied to the facts of the case.[9] “[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”[10] The reliability requirement analyzes “whether the reasoning or methodology underlying the testimony is scientifically valid.”[11] The Supreme Court has identified four factors that bear on this analysis: (1) whether the theory can be and has been tested, (2) whether the theory has been peer reviewed and published, (3) what the theory's known or potential error rate is, and (4) whether the theory enjoys general acceptance in the applicable scientific community.[12] This same framework applies to both scientific and non-scientific opinion testimony.[13] However, this “list of specific factors neither necessarily nor exclusively applies to all experts or in every case”; it “was meant to be helpful, not definitive[.]”[14] Depending on the type of expertise and particular subject of the testimony, these factors may or may not assist in assessing reliability.[15] A district court may choose not to examine factors that are not “reasonable measures of reliability in a particular case.”[16] “[T]he trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case.”[17]

         Expert testimony must also be relevant and “fit” an issue in the case. Relevancy “simply requires that ‘[t]he evidence . . . logically advance a material aspect of the party's case.'”[18] The testimony does not have to be persuasive in order to be relevant.[19]However, the “fit” requirement is not merely a reiteration of the general relevancy requirement under Federal Rule of Evidence 402:[20] “[T]he standard for fit is higher than bare relevance.”[21] Scientific expert testimony introduces special dangers to the fact-finding process because it “can be both powerful and quite misleading because of the difficulty in evaluating it.”[22] Therefore, courts must ensure that proffered expert testimony speaks clearly and directly to an issue in dispute in the case and that it will not mislead the jury.[23]

         Even though “district courts are not required to consider all (or even any) of [the Daubert I] factors . . . [they] do not have ‘discretion to abandon the gatekeeping function' altogether.”[24] In exercising the gatekeeping function, district courts must assess the validity or methodology of proposed expert testimony and must explicitly find it to be both relevant and reliable before admitting the testimony.[25]

         II. Analysis

         The Court has reviewed and considered the legal arguments, expert qualifications, and expert reports filed by the parties as to each of the six government motions. The Court has also applied Rule 403's balancing test to each proposed expert.[26] The Court sets out its findings as to the experts' qualifications, reliability, and relevance, and its Rule 403 analyses below.

         A. Dr. Park Dietz (Docket 975; opposition at Docket 991)

         The defense seeks to elicit the expert testimony of Dr. Park Dietz, a forensic psychiatrist and criminologist, regarding workplace violence.[27] The defense intends to call Dr. Dietz to rebut and critique government expert Robert Morton. Dr. Dietz's report outlines his points of disagreement with government experts Robert Morton and Dr. Reid Meloy.[28] Dr. Dietz's critiques include Mr. Morton's focus on a single theory of the case, Mr. Morton's conclusions regarding the sequence of gunshots and the possibility of verbal interaction between the perpetrator and the victims, [29] and Mr. Morton's conclusion that the homicides were a targeted “personal cause” crime.[30] The government objects to Dr. Dietz's testimony on the grounds that he is not qualified, that his methods are unreliable, and that his testimony is irrelevant.

         i. Qualifications

         The government maintains that Dr. Dietz is not qualified to testify as to workplace violence and that he is not qualified to rebut the opinion of expert Robert Morton.[31] The Court finds that Dr. Dietz is qualified to testify as an expert as to workplace violence and to rebut the opinion of Mr. Morton due to his extensive psychiatric background and experience teaching and presenting on the topic of workplace violence.[32] As the government itself noted, “Dr. Dietz appears to have experience/expertise in workplace violence[.]”[33]

         ii. Reliability

         Dr. Dietz based his conclusions on sufficient facts, having reviewed the crime scene and autopsy photographs, a diagram of the T-1 building, Mr. Morton's analysis, testimony, and supplemental report, and other information from the first trial of this case.[34]Dr. Dietz applied reliable principles and methods to reach his conclusions.

         iii. Relevance

         The government asserts that because it will not be using the term “workplace violence” at trial and will not be calling its workplace violence profiler (Dr. Meloy) from the first trial, Dr. Dietz's testimony about workplace violence is not relevant.[35] During the first trial in this case, the undisputed “intended role of [Dr. Meloy's] testimony . . . invited the jury to find a ‘fit' between Dr. Meloy's criminal profile and the lay witnesses' testimony concerning Wells' own character traits.”[36] The Ninth Circuit held that “[t]he probative value of Dr. Meloy's testimony is found only in its ability to answer the impermissible question of whether, based on his character profile, Wells acted in accordance therewith on the morning of [the homicides], ” and the admission of Dr. Meloy's testimony was reversable error.[37]

         Although the government maintains that it will not use the term “workplace violence” at trial, it has made clear through its motions and argument on remand that it intends to focus its motive evidence on the workplace culture, Mr. Wells' role in the workplace, Mr. Wells' relationship with his various co-workers, and his co-workers' opinions of Mr. Wells in relation to his place of work.[38] The government appears to be advancing a similar motive theory to that presented in the first trial: Mr. Wells' motive to kill two of his co-workers was directly tied to his diminishing professional status and strained relationships at his place of work. The Court is unaware of any alternative theory from the government that would seek to connect the homicides to anything other than Mr. Wells' workplace status and relationships.

         The jury will be asked to determine whether the motive for the killings was related to the workplace, because under the government's theory this makes it more likely that Mr. Wells committed the homicides. The absence of government expert profiling testimony directly tying Mr. Wells' characteristics to those of someone likely to commit workplace violence will not eliminate all references to the fact that the homicides occurred in the workplace and that the two victims were Mr. Wells' co-workers. As stated by the Ninth Circuit, “background information regarding Wells' relationships with his co-workers, his working environment and his work history . . . is relevant in a workplace homicide prosecution.”[39]

         Additionally, the government seeks to have Mr. Morton testify as an expert to explain why the homicides are “personal cause homicides.”[40] Mr. Morton's reasoning for concluding that the homicides were personal cause homicides rests in part on the fact that the homicides occurred in the victims' workplace and his opinion of the perpetrator's knowledge of that workplace.[41] The Court perceives little semantic difference between “workplace violence” and “personal cause homicide” in the factual context of this case. So long as foundational evidence is introduced to support the claim that the homicides were related to the workplace, the Court finds that Dr. Dietz's generalized testimony as to homicides in the workplace is relevant to and fits the issues in this case. Although the government is concerned that Dr. Dietz's testimony may open the door to a government rebuttal expert, [42] that is a risk for the defense to choose to take. However, because Dr. Meloy will not be testifying, Dr. Dietz shall not testify about or make reference to his critiques of Dr. Meloy's prior report and testimony.

         The Court has weighed the probative value of Dr. Dietz's proposed testimony and finds that it is not substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or the presentation of cumulative evidence.

         In summary, the motion regarding Dr. Dietz at Docket 975 is DENIED with the following limitations: Dr. Dietz may testify about workplace violence and his critiques of Mr. Morton's methodology and conclusions. If Mr. Morton's testimony at trial does not address all of what will be permitted by the Court's order on the Morton motion in limine, the Court may narrow Dr. Dietz's testimony correspondingly.[43] Regardless of Mr. Morton's testimony, Dr. Dietz shall not refer to Dr. Meloy or his critiques of Dr. Meloy's prior report or testimony.

         B. Jim Hoerricks (Docket 976; opposition at Docket 992)

         The defense seeks to elicit the expert testimony of Jim Hoerricks, a forensic image and video analyst who uses photogrammetry[44] to analyze digital evidence. The defense proposes to have Mr. Hoerricks testify in three areas: (1) his conclusions based on his review of the surveillance video from the Coast Guard station, which shows a vehicle of interest entering and leaving the base close to the time of the homicides (the T-1 video); (2) his opinion as to whether government expert witnesses who analyzed the T-1 video adhered to recognized best practices guidelines; and (3) whether the investigative techniques used by those government witnesses were tainted by confirmation bias.[45]

         i. Qualifications

         The government does not contest Mr. Hoerricks' qualifications “in the fields of computer forensics, video/photographic analysis, surveillance set up[, ] etc.”[46] The Court agrees that Mr. Hoerricks' knowledge, skill, experience, and training qualify him to provide expert testimony with respect to his methodology, analysis, and conclusions based on the T-1 video.[47] His testimony may include explaining the distinction between forensic image analysis and other fields, such as traffic accident reconstruction.

         However, the government asserts that Mr. Hoerricks is not qualified to render an expert opinion as to vehicle identifications because his curriculum vitae does not demonstrate any background in vehicle identification.[48] In the Court's view, expertise in vehicle identification is not required to forensically analyze an image of a vehicle and compare it to the dimensions and features of a specific known vehicle. Otherwise, a forensic imaging expert would also need to be an expert in the subject of the images he reviewed be it facial recognition, animals, weapons, vehicles, or aircraft.[49] It does take a photogrammetry expert to utilize the methods and computer programs to properly enhance and measure an image to make the comparison. Because Mr. Hoerricks qualifies as a photogrammetry expert, he may testify as to his methodology and conclusions from comparing the images from the T-1 video to the characteristics of Hondas.[50]

         Mr. Hoerricks is also qualified by training and experience to testify as to the accepted methodology and best practices used by other image analysts and to opine as to whether those analysts used sound methods in reaching their conclusions.[51] Mr. Hoerricks' curriculum vitae demonstrates that he has received extensive training on the collection of digital evidence and has formulated the standardized procedures for collecting video evidence for the Los Angeles Police Department.[52] Review of his report demonstrates his familiarity with published best practices in forensic photogrammetry.[53]

         The government maintains that Mr. Hoerricks' opinions as to the qualifications of government experts cannot usurp the Court's role in determining who qualifies to give expert testimony.[54] A district court may not delegate its gatekeeping role.[55] Accordingly, the defense may not elicit testimony from Mr. Hoerricks as to whether other witnesses have the qualifications to testify as experts. However, once this Court fulfills its gatekeeping duties by making the necessary findings to allow other witnesses to testify as experts, Mr. Hoerricks may testify as to his opinion of the acceptability, accuracy, and reliability of the methods and techniques used by other experts and the adequacy of their qualifications.[56] This testimony goes to the weight the jury should accord the testimony of other experts.

         Mr. Hoerricks is not qualified to testify as to whether government witnesses' opinions were tainted by confirmation bias. His curriculum vitae shows no formal education or experience in assessing confirmation bias, no detailing of relevant knowledge or skills related to assessing confirmation bias, and only one ten-hour training related to confirmation bias.[57] The Court will be allowing the testimony of a defense expert psychologist on the concept of confirmation bias[58]; as compared to that expert, Mr. Hoerricks does not have the same knowledge, skill, experience, training, or education in the field of confirmation bias. Thus, while Mr. Hoerricks has extensive qualifications in the field of forensic video analysis, he does not have sufficient qualifications in the field of psychology or confirmation bias to testify as to whether other experts' opinions have been affected by confirmation bias. Pursuant to Evidence Rule 702, he is not qualified to give expert testimony regarding confirmation bias.

         ii. Reliability

         The government asserts that Mr. Hoerricks' opinions as to the methodology and qualifications of government experts are unreliable.[59] The government breaks this assertion down into three parts: First, that Mr. Hoerricks “failed to reference the methods and principles” on which he relied; second, that he “fails to identify any rational foundation for his assertions”; and third, that he does not conduct his own testing using the methods to which he subscribes or analyze the video himself.[60] As of the date that the government filed its motion to exclude Mr. Hoerricks' testimony, Mr. Hoerricks had only submitted one report. However, four days after the government filed its motion, Mr. Hoerricks provided a second report, dated May 6, 2019, which indicates that he did complete his own forensic analysis of the T-1 video.[61] The government's motion, filed on May 2, 2019, understandably does not address this second report, but the second report details the methods and technologies Mr. Hoerricks used to reach his conclusions and the foundation for his opinions.[62] These are the same methods, technologies, and technical terminology that he contrasts with the methods, technologies, and terminology used by other experts in this case that are discussed in the April 1, 2019 report.[63] In both of his reports, Mr. Hoerricks adequately referenced best practices standards and used a reliable foundation to reach his conclusions.

         iii. Relevance

         The government contends that Mr. Hoerricks' testimony “is irrelevant because it will not assist the trier of fact in deciding a fact or consequence at issue.”[64] The government appears to be relying heavily on the T-1 video to support its theory that Mr. Wells is guilty of the homicides: The government has had the video reviewed, analyzed, or enhanced by at least eight people and will undoubtedly be calling some of them as witnesses at trial[65]; has recreated the T-1 video using the Wells' Honda[66]; and has retained a Honda engineer to compare the vehicle in the T-1 video to Honda vehicles.[67]The jury will be asked to determine whether the vehicle seen in the T-1 video is the Wells' Honda. This question is entwined with the government's theory that Mr. Wells drove his wife's vehicle to the rigger shop (the T-2 building) on the morning of the homicides and is entwined with Mr. Wells' defense that it was not his wife's vehicle seen in the T-1 video. Further, the government has provided notice of its intent to introduce its own experts to testify about identification of the vehicle seen in the T-1 video, [68] which makes Mr. Wells' rebuttal expert on the same topic relevant. Mr. Hoerricks' proposed testimony as to the T-1 video thus fits the issues in this case.

         The government's motion also asserts that Mr. Hoerricks' testimony “will result in confusion to the jury, and undue delay” but does not further explain this argument other than to posit that Mr. Hoerricks' analysis is “confusing” and that it would “obstruct the orderly adjudication of justice in this case.”[69] Although the analysis is highly technical, its exclusion is not warranted based on the risk of confusion or undue delay. The Court finds that the probative value of Mr. Hoerrick's proposed testimony is not substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or the presentation of cumulative evidence.

         In summary, the motion regarding Mr. Hoerricks at Docket 976 is GRANTED IN PART and DENIED IN PART as follows: Mr. Hoerricks may testify about the distinction between forensic image analysis and other fields, such as traffic accident reconstruction; his methodology and conclusions based on his review of the T-1 video; and his opinion as to whether government expert witnesses who analyzed the T-1 video adhered to recognized best practices guidelines and their professional qualifications (or lack thereof) that the jury should consider in weighing their testimony. Mr. Hoerricks shall not comment on the veracity of other witnesses. He shall not comment on whether other expert witnesses are qualified to testify as experts. He shall not testify as to whether the investigative techniques used by other witnesses were tainted by confirmation bias.

         C. Dr. Daniel Reisberg (Docket 977; opposition at Docket 993)

         The defense seeks to elicit the expert testimony of Dr. Daniel Reisberg, a psychologist who chairs the psychology department at Reed College. The defense proposes to have Dr. Reisberg testify in four areas: (1) the concept of confirmation bias, [70](2) the role of confirmation bias in forensic analysis and the concomitant increased risk in error when confirmation bias is present, (3) ways to avoid or minimize confirmation bias during investigations, and (4) how confirmation bias can affect someone's perception of visual images (such as the T-1 video and the government's proposed reenactment video).[71] Dr. Reisberg's report explains the concept of confirmation bias, reviews the potential for confirmation bias in Mr. Wells' case (specifically whether two government witnesses who viewed the T-1 video “were compromised to some extent by confirmation bias”), outlines studies researching confirmation bias in forensic settings, and explains the risk of “top-down” effects in the courtroom.[72]

         The government challenged Dr. Reisberg's testimony prior to the first trial in this case.[73] Magistrate Judge John Roberts held a hearing on the motion and limited the scope of Dr. Reisberg's testimony “to challenging a government's expert's methodology” but reserved ruling on the final scope of the testimony for the trial judge.[74] Dr. Reisberg did not testify in the first trial and no further rulings were made regarding the scope of his testimony.[75] The government now challenges two areas of Dr. Reisberg's proposed testimony: The effects confirmation bias may have had on the government's witnesses who reviewed the T-1 video and the reenactment video and the effects confirmation bias may have on the judge or on the jury as they view the T-1 video and reenactment video.

         i. Qualifications

         The government does not dispute that Dr. Reisberg is qualified to testify as an expert on confirmation bias. The Court agrees with the parties that Dr. Reisberg is qualified to give expert testimony on the topic of confirmation bias.

         ii. Reliability

         The government asserts that Dr. Reisberg's proposed testimony regarding government witnesses Angelo Toglia and Neil Schmidt is unreliable because he “failed to apply the specific facts of Toglia and Schmidt's analysis to his proposed methodology.”[76]The defense maintains that Dr. Reisberg reviewed the reports prepared by these government experts along with transcripts of their previous trial testimony.[77] Dr. Reisberg's report from 2014 expressly evaluates the methods used by Mr. Toglia and Mr. Schmidt as they reviewed the T-1 video.[78] Dr. Reisberg compares these methods to research scenarios where confirmation bias was demonstrated and thus applies reliable principles to the facts of this case.

         At trial, sufficient evidence must be introduced to support the inference that these two government witnesses each used methods that could trigger confirmation bias. If such evidence is introduced, Dr. Reisberg may testify about how confirmation bias and top-down effects can have an adverse effect on the reliability of a witness attempting to identify a vehicle seen in a video.[79] He shall not testify about his opinion as to the witnesses' credibility or the accuracy of their identification of the vehicle seen in the T-1 video.

         iii. Relevance

         The government contends that “Dr. Reisberg's opinions are not sufficiently related to the facts of this case and lack any tendency to make the existence of a fact of consequence, to wit, whether or not the video shows the defendant's vehicle, more or less probable than it would without the evidence.”[80] As explained supra at Section (B)(iii), the government's theory of the case relies on the jury finding that the T-1 video shows Mr. Wells driving the Honda to and from the T-2 building close to the time of the homicides. The government has retained experts, both in and out of law enforcement, to review, enhance, and/or recreate the T-1 video in order to try to persuade the jury that it shows Mr. Wells' vehicle. The government intends to call at least some of those witnesses at trial; their testimony will likely focus on explaining how and why they have concluded that the vehicle in the T-1 video is Mr. Wells' Honda. Dr. Reisberg's testimony challenging the reasoning of those witnesses due to confirmation bias fits with the issues in this case. As stated by the Magistrate Judge prior to the first trial, “it would address factors that have an adverse effect on the reliability of the government witness's identification of a vehicle closely associated with the defendant and his alibi defense.”[81]

         Dr. Reisberg's report also addresses the potential effect confirmation bias would have on the Court as it reviews the videos to make evidentiary rulings.[82] The Court agrees with Magistrate Judge Roberts that “Dr. Reisberg should not be permitted to tell the jury that the court has impeded it's [sic] ability to decide the case.”[83] It is not relevant to any fact at issue whether the jury believes that the Court's viewing of the T-1 video was affected by confirmation bias-the jury may not even know that the Court has viewed it.

         Dr. Reisberg's report also addresses the effect confirmation bias and the top-down effect-the potential for jurors to see in the T-1 video only what the government tells them they are “supposed” to see-may have on jurors as they view the videos: “Jurors will not be able to set aside the ideas gained from the enhanced video, and, if these ideas are misleading, this will undermine the juror's ability to see what is actually in the raw video.”[84]The defense has filed a motion seeking exclusion of the government's reenactment of the T-1 video.[85] The Court reserves ruling as to the scope of Dr. Reisberg's trial testimony regarding the jurors' perception of that reenactment video until after the motion at Docket 1012 is decided.

         The Court has weighed the probative value of Dr. Reisberg's proposed testimony and finds that it is not substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or the presentation of cumulative evidence.

         In summary, the motion regarding Dr. Reisberg at Docket 977 is DENIED with the following limitations: At trial, sufficient evidence must be introduced to support the inference that government witnesses used methods that could trigger confirmation bias. If such evidence is introduced, Dr. Reisberg may testify about how confirmation bias and top-down effects can have an adverse effect on the reliability of a witness attempting to identify a vehicle seen in a video. Dr. Reisberg shall not testify about his opinion as to the witnesses' credibility or the accuracy of their identification of the vehicle seen in the T-1 video. Dr. Reisberg shall not comment on the possible effect confirmation bias could have on a judge reviewing the videos. The Court reserves ruling as to the scope of Dr. Reisberg's trial testimony regarding the jurors' perception of the reenactment video until after the motion at Docket 1012 is decided.

         D. Chris Coleman (Docket 978; opposition at Docket 994)

         The defense seeks to elicit the expert testimony of Chris Coleman, a forensic scientist and employee at Forensic Analytical Sciences.[86] In the first trial of this case, the defense called Jaco Swanepoel, who was then an employee of Forensic Analytical Sciences, as an expert.[87] Mr. Swanepoel produced a report and testified about the nail found in Mr. Wells' tire and the “characteristics of the bullets recovered from the crime, the types of firearms potentially available that may create such characteristics, and general availability of such firearms.”[88] Mr. Swanepoel no longer works for Forensic Analytical Sciences, so for the second trial the defense seeks to have Mr. Coleman testify “regarding the work and findings of Mr. Swanepoel.”[89]

         The Court agrees with the parties that Mr. Coleman is qualified to give expert testimony in the field of forensic analysis.[90] The Court finds that Mr. Coleman's proposed testimony regarding ballistics analysis is relevant as to whether Mr. Wells had access to a firearm that could have been used to perpetrate the homicides. Mr. Coleman's proposed testimony regarding analysis of the nail found in Mr. Wells' truck tire is relevant as to the credibility of Mr. Wells' alibi.

         The government challenges the admissibility of Mr. Coleman on the bases that Mr. Coleman cannot testify “as a substitute expert witness for the defense” because Mr. Swanepoel is not unavailable to testify and because it is improper to substitute Mr. Coleman for Mr. Swanepoel.[91] The question of unavailability is not applicable here because the defense is not trying to admit Mr. Swanepoel's testimony on the basis that he is now unavailable.[92] Instead, the defense is seeking to admit the testimony of Mr. Coleman, which is based at least in part on the testing done by Mr. Swanepoel.

         Federal Rule of Evidence 703 allows an expert to base his opinion on facts, data, or opinions presented to him outside of court and other than by his own direct perception so long as “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”[93] However, while an expert may rely on information or conclusions provided by other experts in forming an opinion, an expert “may not simply ‘parrot the opinion' of another expert”[94] or act as another expert's “spokesperson.”[95] Put simply, “Rule 703 does not sanction the simple transmission of hearsay; it only permits an expert opinion based on hearsay.”[96]

         It is unclear from the filings in the record whether Mr. Coleman has reviewed Mr. Swanepoel's testimony and other materials in order to reach his own conclusions (which happen to match Mr. Swanepoel's conclusions) or whether he is simply acting as a conduit to convey Mr. Swanepoel's original testimony.[97] Mr. Coleman indicates he will be relying on “the identical material provided to Swanepoel” and on “Swanepoel's testing, analysis and prior testimony” and will not offer any opinion that was not offered by Mr. Swanepoel in the prior trial.[98]

         The defense states that as to the ballistics testimony, “Coleman will testify that he was informed by the report . . . to establish some of the factual and testing background that the report contained in forming his opinion.”[99] However, the defense also states that Mr. Coleman “will further indicate that he is unable to formulate any new opinions about a nail originally examined by Swanepoel . . . .”[100] Because Mr. Coleman has not produced a report detailing his own methodology and opinions, he has not met the Daubert standard to provide expert testimony.

         In summary, the motion regarding Mr. Coleman at Docket 978 is GRANTED without prejudice for the defense to submit to the government a report authored by Mr. Coleman that contains all of his methodology and opinions within 14 days of the date of this order and to file with the Court a motion to reconsider within seven days thereafter.[101]

         E. Steven Beck (Docket 979; opposition at Docket 990)

         The defense seeks to elicit the testimony of Steven Beck, a forensic audio analysis expert.[102] In the first trial of this case, lay witness Don Rudat testified that he was walking near the building where the homicides occurred (the T-2 building) while wearing earbud headphones and listening to music.[103] At 7:12 a.m., he heard a sound he likened to metal falling on concrete, which he thought came from the T-2 building.[104] The defense proposes to have Mr. Beck testify in two areas: First, adopting Mr. Rudat's observation and description of the sound as accurate, that it is likely that the sound did not come from the T-2 building but instead from a nearby water treatment facility where construction was underway.[105] Second, that the sound Mr. Rudat described is inconsistent with the sound of multiple gunshots being fired inside the T-2 building.[106]

         i. Qualifications

         The government asserts that Mr. Beck is not qualified as an expert “in how humans react to noises such as described here.”[107] But Mr. Beck is not proposing to testify about how humans react to noises-he is proposing to testify as to the acoustic qualities of a .44 caliber gun fired multiple times inside a concrete building, how the gunshots would sound to an earwitness outside of the building, and “whether an earwitness could distinguish between the sound of a gunshot, the sounds of a metal trashcan, and sound of a large metal tank.”[108] Mr. Beck is qualified by knowledge, skill, training, and experience in the fields of sound perception and source localization. He has presented papers related to audio analysis of gunshot and related to the physics of earwitness accounts.[109] He was the principal investigator and chief consulting contractor for the FBI's Forensic Audio and Video Analysis Unit on acoustic gunshot analysis for five years.[110]The fact that many of his previous studies involved reviewing existing recordings of gunfire does not mean he is unqualified as a forensic audio analyst. Mr. Beck is extrapolating from his previous studies of recordings of gunfire and live gunfire to opine as to what acoustic properties the live gunfire in this case could have produced. Thus, he is properly “proposing to testify about matters growing naturally and directly out of research [he has] conducted independent of the litigation . . . .”[111]

         ii. Reliability

         The government next contends that Mr. Beck's analysis is flawed because he relies on an acoustical study of outdoor gunshots from 22 years ago, did not do any acoustical testing inside of the T-2 building, and did not consider the terrain in the area.[112]Despite these limitations, the Court finds that Mr. Beck's proposed testimony is still based on sufficient data-including the type of weapon, the relevant distances, the temperature, the witness's use of earbud headphones to listen to music, and consideration and calculation of sound traveling through concrete walls-even if it is not based on all possible data.[113] Mr. Beck used tested principles and applied them to the facts in this case, he relied on peer-reviewed literature in reaching his conclusions, and the methodology underlying his conclusions is valid. Even if the literature is old, it can still be valid. The government's concerns regarding reliability are areas for cross-examination and do not require exclusion.

         iii. Relevance

         Mr. Beck's proposed testimony fits the issues in this case: The jury will be asked to determine at what time the homicides occurred. If the sound Mr. Rudat heard was one or more gunshots, this places the homicides at approximately 7:12 a.m. This timing conforms to the government's theory-and the video purportedly showing-that Mr. Wells drove his wife's Honda to the T-2 building at 7:09 a.m. on the morning of the homicides and drove away at 7:14 a.m.[114] However, if the sound Mr. Rudat heard was not one or more gunshots, this opens up the possibility that the homicides occurred at a different time and supports Mr. Wells' defense that he was not at the T-2 building when the homicides occurred.

         The government maintains that Mr. Beck “is being offered solely to discredit a percipient witness's testimony.”[115] But even if this accurately described the purpose of Mr. Beck's testimony, it does not require excluding him as a witness. Parties routinely call witnesses to challenge percipient eyewitnesses' testimony (for example, challenges to suspect line-ups or photo throwdowns and challenges to the ability of the witness to perceive what they are testifying about either due to physical limitations such as eyesight or inhibitions to their senses due to drug or alcohol use).[116] Here the defense is challenging an earwitness's identification of a particular noise. Notably, the defense is not utilizing Mr. Beck to discredit or disprove the character or veracity of Mr. Rudat. Instead, the defense is adopting Mr. Rudat's explanation of what sound he heard and providing an alternate explanation for the source of the sound.[117] The Court finds that Mr. Rudat's testimony is relevant.

         The Court has weighed the probative value of Mr. Beck's proposed testimony and finds that it is not substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue ...


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