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United States v. Trejo

United States District Court, D. New Mexico

September 28, 2018




         THIS MATTER comes before the Court on Defendant's Motion to Exclude Expert Testimony of Lester Roane (Doc. 37) and Motion to Exclude Expert Testimony of Special Agent Dennis King (Doc. 38), both filed on August 17, 2018. The Court held a hearing in this matter on September 25, 2018. (See Doc. 76.)

         Mr. Roberto Trejo (Defendant) is charged with two counts of being a felon in possession of a firearm. To date, the United States has not produced the firearms charged in the counts. Two experts are slated to offer opinions relevant to the missing firearms. Defendant argues that neither expert is qualified to render a reliable opinion because they have not examined the firearms at issue. There is evidence, however, that witnesses have given descriptions of the firearms sufficient for the experts to offer opinions that will shed light on facts in issue. Accordingly, the Court will deny Defendant's motions.

         I. Factual Background[1]

         Defendant is charged in Counts 1 and 2 of the Superseding Indictment with being a felon in possession of a firearm, and in Count 3 with being a felon in possession of ammunition, all in violation of 18 U.S.C. § 922(g)(1). (See Doc. 24.) To date, the United States has not produced the three firearms related to Counts 1 and 2. (See Doc. 38 at 1.) The charges stem from the following incidents:

         A. Count 1

         On the morning of May 6, 2016, Defendant took his girlfriend, Ms. Teresa Palacios, [2] to Mountain View Medical Center in Las Cruces. (Doc. 47 at 2.) Hospital staff treated Ms. Palacios for a gunshot wound to the back of her ankle and reported the shooting to the Doña Ana Sheriff's Office (DASO). (See id.; see also Doc. 48 at 1.)

         DASO Deputy Megan Dow arrived at the hospital to interview Defendant and Ms. Palacios around 7:45 a.m. (Doc. 47 at 2.) Deputy Dow accompanied Defendant to his Crown Victoria automobile to retrieve his identification, then the two returned to the hospital room to continue talking. (Id.) While Ms. Palacios did not know what type of gun caused her injury, “Defendant described the firearm as a black and gray 9 millimeter semiautomatic pistol.” (Id.) Defendant also “acknowledged that he is not allowed to possess firearms as a convicted felon.” (Id.) At some point, Deputy Dow stepped out of the room to make a phone call. (Id.) When she returned, she discovered that Defendant had left the hospital. (Id.) Deputy Dow then drove to Ms. Palacios's mother's house-where Ms. Palacios had sustained the gunshot wound-and saw Defendant's Crown Victoria parked at the house. (Id.) She knocked on the door and left when no one answered. (Id.)

         “ATF agents interviewed Defendant on May 11, 2016.” (Id.) Defendant told the agents that he was in the kitchen and Ms. Palacios was in the bedroom on the morning of May 6, 2016, when he heard Ms. Palacios say, “hey babe, come and check this out.” (Id. at 2-3.) He heard something hit the floor and then heard a gunshot, and when he entered the bedroom, Ms. Palacios was on the floor with a gunshot wound. (Id. at 3.) Defendant told the agents that he took Ms. Palacios to the hospital and did not do anything with the gun. (Id.) There was no one else home when the two left, and he did not tell anyone about the gun. (Id.) After Defendant left the hospital on the morning of May 6, 2016, he stopped by the house to drop off his car before going to work. (Id.) When he returned home from work, the door to the house was open and the gun was missing. (Id.)

         Ms. Palacios has described several different versions of the shooting. During her first interview with DASO, at the hospital in a joint interview with Defendant, she “stated that she had been moving some clothes around a dresser when a gun accidentally fell and shot her.” (Doc. 46 at 2.) Later, she informed staff at the hospital several times that “she accidentally shot herself.” (See id.) During a subsequent interview, Ms. Palacios told ATF agents that the night before her injury she had been fighting with Defendant, and in the morning when she demanded he leave her house, she turned her back to him and then felt a gunshot through her ankle. (See id.)

         Finally, when ATF interviewed Ms. Palacios again at her home, she “simply said that she remembers waking up, she remembers getting shot, and she remembers nothing else.” (See id.) Before the grand jury, Ms. Palacios testified that she suffers from post-traumatic stress disorder and doesn't remember anything about the shooting. (See Id. at 3.) Ms. Palacios also made several statements about herself to ATF investigators during these interviews, including “that she ‘has to protect herself . . . .'” (Id. at 2.) In response to the agents stating that they were gathering incriminating evidence about Defendant from various other sources, she stated, “Well, then use them and have them get shot, not me.” (See Id. (internal quotation marks omitted).)

         The Government theorizes that Defendant and Ms. Palacios argued[3] and Defendant shot his girlfriend. The Government also believes that Defendant disposed of the gun after the incident. (See Doc. 47 at 1-2.) It does not have the gun in evidence. Defendant theorizes that the gun accidentally discharged when Ms. Palacios dropped it. (See Doc. 37 at 1.)

         B. Count 2

         In May 2016, Defendant was on state probation following a 2013 felony conviction in Doña Ana County, New Mexico. (Docs. 45 at 2-3; 47 at 3.) Per the terms of his probation, Defendant “had a regularly scheduled meeting with his probation officer on May 11.” (Doc. 47 at 3.) “On or about May 9, while still staying with [Teresa Palacios's] mother, ” Defendant asked a neighbor, Mr. Francisco Lopez, to hold two pistols for him “because [he] was going away for a while and did not want police to find them.” (Id.) Mr. Lopez, who is a gun owner and is familiar with guns, agreed to store the pistols-a .22 caliber and a .40 caliber. (Id. at 3-4.) Mr. Lopez will testify that “[h]e remembers their exact calibers because he recalls seeing the caliber numbers etched into the pistols” as if “etched by a machine.” (Id. at 4.) Mr. Lopez “described the pistols as ‘normal' guns that appeared to have been made in a factory and sold in a store. Further, Mr. Lopez knew that the pistols were loaded when Defendant handed them over because Mr. Lopez removed the magazines and cleared the pistols.” (Id.) Mr. Lopez's partner also occasionally saw the pistols. (Id.) “About three months later, following Defendant's incarceration for a state probation violation, Defendant returned home and asked Mr. Lopez for the pistols.” (Id.) Mr. Lopez returned the guns, and his partner saw the exchange. (Id.)

         II. Legal Standards

         A. Rule 702

         Federal Rule of Evidence 702, which governs the admissibility of expert testimony, provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(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; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592- 97 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999). Rule 702 instructs courts “to admit specialized knowledge if it will assist the trier of fact in understanding the evidence[, and] . . . dictates a common-sense inquiry of whether a juror would be able to understand the evidence without specialized knowledge concerning the subject.” United States v. McDonald, 933 F.2d 1519, 1522 (10th Cir. 1991).

         “The proponent of the evidence has the burden of showing that expert evidence is admissible, by a preponderance of proof.” United States v. McCluskey, 954 F.Supp.2d 1224, 1237 (D.N.M. 2013) (citing Daubert, 509 U.S. at 592 n.10; United States v. Orr, 692 F.3d 1079, 1091 (10th Cir. 2012); Fed.R.Evid. 702 advisory committee's note to 2000 amendment). “The trial court has ‘wide latitude' in exercising its discretion to admit or exclude expert testimony.” Id. (quoting Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004); citing Kumho, 526 U.S. at 147 (finding the trial court has “‘broad latitude' in determining how to determine reliability and in ultimate reliability determination”)).

In Daubert, the Supreme Court set out a non-exhaustive set of factors that trial courts may consider in determining whether proposed expert testimony is based on reliable methods and principles: (1) whether the particular theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the technique has achieved general acceptance in the relevant scientific or expert community.

United States v. Taylor, 663 F.Supp.2d 1170, 1173 (D.N.M. 2009) (citing Daubert, 509 U.S. at 593-94). The Rule 702 inquiry is “flexible.” See ...

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