379 F. Supp. 3d 1111
D. Nev.2019Background
- Defendant Romero-Lobato is charged in two separate violent incidents (March 4 attempted armed robbery with a shot fired at Aguitas Bar; May 14 carjacking and high-speed chase where a Taurus PT111 G2 was recovered).
- Government disclosed expert Steven Johnson, a Washoe County supervising criminalist, to testify that the Taurus recovered from the crashed vehicle fired the bullet into the Aguitas ceiling.
- Defendant moved to exclude Johnson under Daubert, arguing (1) the AFTE "sufficient agreement" firearm/toolmark methodology is not scientifically reliable (relying on NAS and PCAST reports) and (2) the government’s notice lacked factual detail.
- The Court held a Daubert hearing where Johnson described his training, experience, the AFTE method, the CMS objective test, and relevant studies (Miami‑Dade, Ames), and was cross‑examined.
- The Court found the notice issue resolved by the hearing, evaluated the Daubert factors, and considered competing views in the literature and case law.
Issues
| Issue | Plaintiff's Argument (Gov) | Defendant's Argument (Romero‑Lobato) | Held |
|---|---|---|---|
| Admissibility of firearm/toolmark opinion under Rule 702/Daubert | Johnson’s opinion is relevant and based on AFTE methodology tested, published, accepted, and applied reliably to facts | AFTE is subjective, criticized by NAS/PCAST, lacks objective standards and known error rate; expert notice insufficient | Admitted: motion to exclude denied; Johnson qualified to testify |
| Reliability of AFTE "sufficient agreement" method | AFTE has been tested, peer‑reviewed (AFTE Journal), shows low error rates in studies (Miami‑Dade, Ames), and is generally accepted | AFTE relies on subjective judgment without objective, uniform criteria; PCAST/NAS raise foundational concerns | Reliable overall for admissibility: subjective nature noted but outweighed by testing, peer review, low measured error, and acceptance |
| Role and weight of error‑rate studies (black‑box requirement) | Studies showing low false positives/negatives (Miami‑Dade, Ames) support reliability; Daubert does not require only black‑box studies | PCAST argues only true black‑box studies are probative; other studies invalid under PCAST criteria | Court declines to adopt PCAST’s strict black‑box prerequisite; accepts available studies as probative |
| Competency of Steven Johnson as an expert | Johnson has relevant degree, formal training, AFTE involvement, supervisory role, laboratory testing experience, prior testimony | Defendant attacked method, not Johnson’s personal qualifications | Johnson is competent and qualified to testify in firearm/toolmark identification |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (framework for admissibility of expert scientific testimony under Rule 702)
- Vallejo, 237 F.3d 1008 (9th Cir. 2001) (expert testimony must be relevant and reliable)
- Cooper v. Brown, 510 F.3d 870 (9th Cir. 2007) (relevancy standard for expert evidence)
- Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010) (focus on methodology soundness, not correctness of conclusions)
- U.S. v. Green, 405 F. Supp. 2d 104 (D. Mass. 2005) (detailed Daubert inquiry into AFTE method; allowed testimony with limits)
- U.S. v. Monteiro, 407 F. Supp. 2d 351 (D. Mass. 2006) (AFTE‑based testimony admissible but limited as to certainty)
- U.S. v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2008) (admitted firearm identification testimony but restricted probabilistic claims)
- U.S. v. Ashburn, 88 F. Supp. 3d 239 (E.D.N.Y. 2015) (AFTE methodology has been tested; error rate appears low)
- U.S. v. Otero, 849 F. Supp. 2d 425 (D.N.J. 2012) (AFTE method subjected to peer review and testing)
- U.S. v. Taylor, 663 F. Supp. 2d 1170 (D.N.M. 2009) (court considers testing and error‑rate evidence concerning AFTE)
- U.S. v. Williams, 506 F.3d 151 (2d Cir. 2007) (qualifying a firearms examiner based on training, experience, and prior testimony)