United States v. Gil
680 F. App'x 11
| 2d Cir. | 2017Background
- Defendant Kelvin (Kalvin) Gil was convicted after a jury trial of being a felon in possession of a firearm/ammunition under 18 U.S.C. § 922(g)(1), based in part on two armed robberies during which ballistics linked him to a shooting; he was sentenced to 84 months.
- On appeal, Gil challenged the district court’s admission of the government’s ballistics expert testimony; this was his sole substantive basis for reversing the conviction.
- The district court admitted the expert after finding the ballistics technique was governed by standardized principles, had low error rates (about 1%), and the expert had sufficient training and experience; the court relied on written submissions and oral argument rather than a separate Daubert hearing.
- Gil argued the district court abdicated its Daubert gatekeeping role, failed to account for National Academy of Sciences critiques calling ballistics subjective, erred by not holding a live Daubert hearing, and improperly allowed the expert to testify to a "reasonable degree of certainty."
- The Second Circuit reviewed the evidentiary rulings for abuse of discretion and affirmed, holding the district court adequately assessed reliability and appropriately left subjective concerns to cross-examination and the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abdicated Daubert gatekeeping by relying on prior testimony/admissions | Expert admissible because technique rests on standardized, tested methods with low error rate; witness credentials established | District court improperly relied on frequency of prior admissions and witness’s history rather than independent reliability analysis | No abuse of discretion; district court gave reasoned reliability findings and could note consistent prior admissions as support |
| Whether NAS reports criticizing ballistics as subjective required exclusion | Government: ballistics need not be as objective as DNA; low false positive rate and expert’s training support admissibility | Gil: NAS reports show methodology is subjective and unreliable, warranting exclusion | Court: NAS critiques go to weight, not admissibility; low error rate and expert experience support admission |
| Whether district court erred by not holding an evidentiary (Daubert) hearing | Government: a separate hearing not required if sufficient record exists from submissions and argument | Gil: absence of live hearing deprived court of full gatekeeping review | Court: No error; separate hearing unnecessary where adequate record exists to assess reliability |
| Whether allowing testimony "to a reasonable degree of certainty" was improper | Government: phrase communicates proper degree of confidence for subjective expert fields | Gil: formulation overstated certainty or conferred undue scientific imprimatur | Court: Permitted; formulation acceptable to convey subjective nature and has precedent in expert contexts |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (gatekeeping standard for expert admissibility)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to non-scientific expert testimony; reliability may depend on experience)
- United States v. Williams, 506 F.3d 151 (2d Cir. 2007) (district court need not hold separate Daubert hearing if sufficient record exists)
- United States v. Romano, 794 F.3d 317 (2d Cir. 2015) (methods not fully replicable can be admissible when grounded in experience)
- United States v. McGinn, 787 F.3d 116 (2d Cir. 2015) (standard of review for evidentiary rulings)
- In re Pfizer Inc. Sec. Litig., 819 F.3d 642 (2d Cir. 2016) (review of district court’s reliability determinations for expert testimony)
- United States v. Litvak, 808 F.3d 160 (2d Cir. 2015) (expert testimony need not rest on traditional scientific methods)
- McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995) (approval of "reasonable medical certainty" formulation for experts)