Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, 21-CR-255 (NSR)
-v.- OPINION & ORDER DARNELL KING,
Defendant.
NELSON S. ROMÁN, United States District Judge:
Defendant Darnell King (“Defendant”) was charged on April 7, 2021, with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Complaint, “Compl.,” ECF No. 2.) On July 5, 2022, Defendant filed the instant motion to suppress, seeking to (1) direct disclosure of identification procedures or a Wade hearing; (2) preclude or limit opinion testimony regarding firearm toolmark analysis; and (3) dismiss the indictment on the ground that 18 U.S.C. § 922(g)(1) is unconstitutional. (ECF No. 38.) For the following reasons, Defendant’s motion to suppress is DENIED.
BACKGROUND
The Complaint alleges that on or about March 12, 2021, an individual (“Victim-1”) was shot in the stomach and the leg in Mount Vernon. (Compl. ¶ 4.) Mount Vernon Police Department (“MVPD”) officers responded to reports of an individual having been shot. ( Id .) Upon arriving, the officers found Victim-1 on the floor of a bodega bleeding from his gunshot wounds. ( Id .) MVPD was able to identify security cameras and reviewed video footage. ( Id . ¶ 3.) From approximately 4:10 PM until 4:13 PM, a black male dressed in dark, ripped jeans, a black sweatshirt, and black ski mask (“Suspect-1”) is seen on security video removing his ski mask. ( Id . ¶ 4.) From approximately 4:13 PM through 4:17 PM, Suspect-1 is seen getting closer and closer to the shooting location. ( Id .) Once arriving at the location, Suspect-1 is seen hiding behind a parked car as Victim-1 crossed towards him. ( Id .) As Victim-1 approached the parked car, Suspect-1 emerged and grabbed Victim-1 by the collar and pulled him onto the sidewalk. ( Id .) The two struggled before Victim-1 tried to run away, grabbed his stomach, and then fell to the ground. ( Id .) At the same time, two bystanders ran from the area and ducked for cover. ( Id .) Suspect-1 then ran away. ( Id .) At approximately 4:19 PM he reappeared on video and is seen at the end of an alleyway that contained a small crawl space. ( Id .) He later jogs away. ( Id .)
Later that afternoon, MVPD officers responded to the alleyway, and recovered a firearm in the small crawl space. ( Id .) The firearm is a Taurus Model G2C pistol. ( Id .) MVPD also identified Suspect-1 to be Defendant. ( Id .) Two identifications took place. In the first identification, Victim-1 was shown a six-photo array, from which Victim-1 identified the picture of the Defendant. (ECF Nos. 43, 46.) In the second identification, a Mount Vernon Police Department (MVPD) detective was shown a still photograph captured from the security camera footage. (Gov. Opp. at 4, ECF No. 43.) The MVPD detective [1] identified the suspect in the photograph as Defendant. ( Id . at 5.)
Defendant was previously convicted of criminal possession of a weapon in the second degree and sentenced to nine years’ imprisonment, and criminal possession of a controlled substance in the fifth degree and sentenced to two years’ imprisonment. ( Id . ¶ 7.)
On April 7, 2021, Magistrate Judge Krause signed the Complaint charging Defendant with one count of being a felon in possession of a firearm in violation of Title 18, United States Code Section 922(g)(1). ( Id. at 6.) Defendant was arrested on April 8, 2021. ( Id. )
On July 5, 2022, Defendant filed the instant motion to suppress. (ECF No. 38.) The Government filed an opposition on August 9, 2022 (ECF No. 43), and Defendant filed a reply on August 23, 2022 (ECF No. 45.) On August 31, 2022, the Government provided the Court and Defendant with a copy of the video of Victim-1’s identification of Defendant. (ECF No. 46)
DISCUSSION
Defendant seeks to (1) suppress the two identifications or direct a Wade hearing; (2) preclude or limit opinion testimony regarding firearm toolmark analysis; and (3) dismiss the indictment on the ground that 18 U.S.C. § 922(g)(1) is unconstitutional. The Court examines each in turn.
A. Identification Procedures
Upon the Government’s disclosure of the identification video, Defendant avers that because Victim-1 only saw “a man with a ski mask” and recognized Defendant instead by his voice, the inclusion of Defendant’s photo in the identification array was unduly suggestive. The Court disagrees.
Due process protects criminal defendants from suggestive police identification procedures.
Simmons v. U.S.
, 390 U.S. 377, 384 (1968). In examining a motion to suppress identification
evidence, the Court must determine whether “the pretrial identification procedures were unduly
suggestive of the suspect’s guilt.”
United States v. Maldonado-Rivera,
In evaluating whether a photographic array was unduly suggestive, a court must consider
several factors, including the size of the array, the manner of presentation by the officers, and the
contents of the array.
United States v. Thai
, 29 F.3d at 808 (citing
See United States v.
Concepcion,
Here, the disclosed video shows that Victim-1 indicated that he saw a man in a ski mask,
and that he recognized the voice as Defendant’s because Victim-1 had known Defendant for 15
years. The detectives then read to Victim-1 the identification procedures instructions in a plain and
neutral fashion before showing Victim-1 a six-photo array. From the array Victim-1 identified one
photograph. There is nothing prejudicial about the detectives’ presentation of the photos, and
Defendant does not allege that the photos shown to Victim-1 so stood out from the other photos as
to suggest that Defendant was the culprit. The fact that Victim-1 first recognized the Defendant by
his voice goes to the identification’s weight, and not to its admissibility.
Thai
at 808. Indeed, if
there was “already such a definite image of the defendant in the witness’ mind” prior to any
allegedly suggestive identification procedures, the identification would be more—and not less, as
Defendant erroneously argues—reliable, for “it is the likelihood of misidentification which
violates the defendant’s right to due process.”
U. S. ex rel. John v. Casscles
,
Defendant’s challenge of the second identification by the MVPD detective is also misplaced. If the identifying detective, prior to being shown the single still capture photo, already had a definite image of the Defendant in his mind due to the detective’s familiarity with Defendant, such familiarity lowers the likelihood of misidentification. Casscles , 489 F.2d at 24. Stated differently, while Defendant is free to challenge the weight to be given to the MVPD detective’s identification, the alleged low quality of the photo alone does not make the identification unduly suggestive or inadmissible.
Accordingly, the Court finds that the disclosed identification procedures were not unduly suggestive and denies Defendant’s motion to preclude the identification. Because the identification is therefore “admissible without any further reliability inquiry,” Thai at 808, Defendant’s motion for a Wade hearing is also denied.
B. Admissibility of Ballistic Testimony
Defendant next sought to preclude toolmark comparison [2] testimony from a firearms examiner, MVPD Detective Arthur Holzman (“Detective Holzman”), or alternatively, to limit the scope of the Detective Holzman’s testimony.
Toolmark analysis is “a [forensic] procedure by which an examiner seeks to determine whether an evidentiary sample (e.g., from a crime scene) is or is not associated with a source sample (e.g., from a suspect) based on similar features.” United States v. Shipp , 422 F. Supp. 3d 762, 770 (E.D.N.Y. 2019) (internal citations and quotations omitted). In the instant case, the two samples compared by Detective Holzman are two spent shell casings. The first shell casing (Shell Casing #1) was recovered from the shooting scene. (Compl. ¶ 4.) The second shell casing (Shell Casing #2) was recovered from the chamber of a Taurus Model G2C pistol (“the Pistol”). ( Id .) The Pistol was in turn recovered from a small crawl space in which Defendant was videoed by the security camera. ( Id .)
Detective Holzman, after “microscopically examined and compared” the two shell casings in a toolmark analysis, determined that Shell Casing #1 was fired from the Taurus Model G2C pistol. (Compl. ¶ 5.) Detective Holzman concluded, in his report, that (1) the toolmarks of Shell Casing #1 and Shell Casing #2 “originated from the same source”; and (2) that such an “identification” constitutes Detective Holzman’s “opinion that the probability that the two toolmarks were made by different sources is so small that it is negligible.” (Gov. Opp. at 9.) Defendant seeks to preclude Detective Holzman from testifying to his opinion, “to any degree of certainty,” that Shell Casing #1 was fired from the Pistol. (Def. Reply at 4, ECF No. 45.)
Here, the Court need not engage in a
Daubert
analysis with respect to toolmark analysis
procedure, because, as the Government correctly points out in its opposition, “[e]very federal court
to have examined the issue in a written opinion. . . [has concluded] that ballistic toolmark analysis
is sufficiently plausible, relevant, and helpful to the jury to be admitted in some form.”
United
States v. Willock
,
Under Fed. R. Evid. 702, an expert’s testimony must,
inter alia
, be “based upon sufficient
facts or data” and be “the product of reliable principles and methods” be admissible.
See Compania
Embotelladora Del Pacifico, S.A. v. Pepsi Cola Co.
, 650 F. Supp. 2d 314, 318–19 (S.D.N.Y.
2009),
aff’d
, 976 F.3d 239 (2d Cir. 2020) “When an expert opinion is based on data, a
methodology, or studies that are simply inadequate to support the conclusions reached,
Daubert
and Rule 702 mandate the exclusion of that unreliable opinion testimony.”
Amorgianos v.
Amtrak,
Here, Defendant, while extensively citing Shipp and Adams , does not argue that Detective Holzman reached his conclusion on inadequate data. (Def. Mem. at 9-10.) Thus, the Court has no basis to limit Detective Holzman’s testimony.
Accordingly, Defendant’s motion to preclude or to limit Detective Holzman’s ballistic testimony is denied.
C. Constitutionality of 18 U.S.C. § 922(g)(1)
Defendant lastly sought to dismiss the indictment on the ground that 18 U.S.C. Section 922(g)(1) is unconstitutional, both facially and as applied to Defendant. Both arguments fail to pass muster.
The Supreme Court unequivocally validated the felon disarmament laws in
McDonald v.
City of Chicago, Ill.
, 561 U.S. 742 (2010), and
D.C. v. Heller
, 554 U.S. 570 (2008), twice
reassuring that its decisions interpreting the Second Amendment should not “be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons[.]”
Heller
,
Here, Defendant essentially argues that
Bruen
should be taken to “cast doubt on
longstanding prohibitions on the possession of firearms by felons” in marked departure from
McDonald
and
Heller
.
Cf
.
McDonald
,
Defendant’s as-applied challenge also has no merit. Defendant has two felony convictions, both of which are crimes “punishable by imprisonment for a term exceeding one year,” 18 U.S.C.A. § 922 (West), and fall squarely within 18 U.S.C. Section 922(g)(1). Thus, Section 922(g)(1) is not unlawful as applied to Defendant.
Accordingly, Defendant’s motion to dismiss the indictment is denied.
CONCLUSION
For the foregoing reasons, Defendant’s motion to suppress is DENIED. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 38.
Dated: October 6, 2022 SO ORDERED: White Plains, New York
________________________________ NELSON S. ROMÁN United States District Judge
Notes
[1] The Government states that the MVPD detective is “familiar with the defendant from having observed him in Mount Vernon on ‘multiple occasions.’” (Gov. Opp. at 4-5, ECF No. 43.) The Government further provides that it is working to obtain a copy of the photograph that was shown to the detective and will promptly produce it to the Defendant. ( Id . at 5, n.3.)
[2] Specifically, firearm toolmark identification is “based on the theory that tools used in the manufacture of a firearm
leave distinct marks on various firearm components, such as the barrel, breech face or firing pin. The theory further
posits that the marks are individualized to a particular firearm through changes the tool undergoes each time it cuts
and scrapes metal to create an item in the production of the weapon. Toolmark identification thus rests on the premise
that any two manufactured products, even those produced consecutively off the same production line, will bear
microscopically different marks. With regard to firearms, these toolmarks are transferred to the surface of a bullet or
shell casing in the process of firearm discharge. Depending on the tool and the type of impact it makes on the bullet
or casing, these surface marks consist of either contour scratch lines, known as striations (or striae), or impressions.
For example, rifling (spiraled indentations) inside of a gun barrel will leave raised and depressed striae, known as
lands and grooves, on the bullet as it is fired from the weapon, whereas the striking of the firing pin against the base
of the cartridge, which initiates discharge of the ammunition, will leave an impression but not striae.
An examiner observes three types of characteristics on spent bullets or cartridges: class, subclass and
individual. Class characteristics are gross features common to most if not all bullets and cartridge cases fired from a
type of firearm, for example, the caliber and the number of lands and grooves on a bullet. Individual characteristics
are microscopic markings produced in the manufacturing process by the random imperfections of tool surfaces (the
constantly changing tool as described above) and by use of and/or damage to the gun post-manufacture.... Subclass
characteristics generally fill the gap between the class and individual characteristics categories. They are produced
incidental to manufacture but apply only to a subset of the firearms produced, for example, as may occur when a batch
of barrels is formed by the same irregular tool.”
United States v. Shipp
,