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United States v. Mercado-Gracia

United States District Court, D. New Mexico

November 13, 2018



         THIS MATTER comes before the Court on Defendant Aaron Mercado-Gracia's request for a pretrial Daubert hearing, set forth in his Response in Opposition to Government's Notice of Intention to Offer Expert Testimony (ECF No. 113). In his Response to United States' Motion to Reconsider Daubert Hearing (ECF No. 133), Defendant asserts that Douglas Lloyd should not be allowed to testify as an expert. The Court held a Daubert hearing regarding the testimony of Douglas Lloyd (“Lloyd”) on October 29, 2018. The Court, having considered the briefs, record, evidence, testimony at the hearing, applicable law, and otherwise being fully advised, concludes that Defendant's request to exclude the expert testimony of Douglas Lloyd concerning fingerprint identification evidence under Daubert and Rule 702 will be denied.

         I. BACKGROUND

         The Government intends to prove the following facts at trial. On March 25, 2016, New Mexico State Police (“NMSP”) Canine Officer Ronald Wood was traveling westbound on Interstate-40 with his drug detection dog Arras when he observed a silver Dodge Charger traveling eastbound on I-40 seemingly driving faster than the posted 75 miles per hour speed limit. Mem. Op. and Order 1-3, ECF No. 107. During the encounter, Officer Wood developed reasonable suspicion that the driver, Defendant, may be engaged in criminal activity. See Id. at 14-19. Officer Wood detained Defendant and used his drug detection dog Arras to conduct a dog sniff of the outside of the car, during which Arras alerted to the vehicle. See Id. at 9-11, 20-21. Officer Wood and another sergeant searched the interior of the car driven by Defendant where they found two large bundles of heroin and a firearm. Id. at 12. The United States subsequently charged Defendant in a two-count Indictment (ECF No. 12) with Possession with Intent to Distribute 1 Kilogram and More of Heroin under 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and Using and Carrying a Firearm During and in Relation to a Drug Trafficking Crime and Possessing a Firearm in Furtherance of Such Crime under 18 U.S.C. § 924(c).

         On April 12, 2016, Deputy United States Marshal Justin Villareal obtained Defendant's fingerprints as part of a routine booking process. See United States' Opposed Mot. to Compel 1, ECF No. 127. Lloyd and Thomas Handley (“Handley”) work for the Department of Homeland Security Laboratories and Scientific Services as forensic scientists for latent print analysis. See Notice of Intent to Call Expert Witnesses Douglas Lloyd and Thomas Handley on Latent Print Analysis 1, ECF No. 65. The Government proffers that Handley will testify that he processed the firearm and magazines seized in this case for latent prints using a process called Cyanoacrylate fuming (“CAE”). See Id. at 2; Supp. Notice 7, ECF No. 126. CAE fuming involves heating a superglue to become gaseous, producing a polymer that adheres to the residue on a fingerprint. Supp. Notice 7, ECF No. 126. Handley heat vaporized the superglue under negative pressure in a vacuum chamber. Id. He then stained the prints using a fluorescent dye called Rhodamine 6G to better visualize them under laser light. Id. Using filters and fluorescent laser light, Handley examined and photographed the print glow. Id. at 7-8. He copied the images and stored the images for use by a latent print examiner. Id. at 8.[1]

         The Government further proffers that Lloyd viewed the images from Handley and determined that two of the eight images had sufficient value for further analysis using the ACE-V methodology. See Id. at 9. Lloyd is expected to testify that he viewed the digital images photographed by Handley, compared them to Defendant's fingerprint images, and identified fingerprints of value 4A and 5A as the right thumb and right index finger of Defendant. See Id. at 11. Defendant requests that Douglas Lloyd not be allowed to testify in this case as an expert. Def.'s Resp. 5, ECF No. 133.

         II. Latent Fingerprint Identification

         A latent print is an unintentional reproduction of the friction skin found on the palmer side of the hand. Hr'g Tr. 14:23-25. Friction skin is the raised skin of the fingers and palms. See Id. at 15:7-16:4. Sweat pores in the skin emit oils, water, and chemicals; the latent print is the debris from the sweat pores left on a surface. See Id. Latent prints are processed using a powder or chemicals to reveal the print. See Id. A known, or standard, print is the intentional reproduction of ridge endings of the fingers or palms by placing a small amount of ink on the ridges and applying it to a contrasting background such as a white card. See Id. at 15:25-16:9.

         For a latent print to have value to a latent print examiner, it must have certain levels of characteristics for use in the ACE-V method of analysis. See Id. at 16:25-17:7. ACE-V stands for analysis, comparison, evaluation, and verification. See Hr'g Tr. 27:10-16; United States v. Herrera, 704 F.3d 480, 484 (7th Cir. 2013). The ACE-V method has been described as follows:

The process begins with the analysis of the unknown friction ridge print (now often a digital image of a latent print). Many factors affect the quality and quantity of detail in the latent print and also introduce variability in the resulting impression.... If the examiner deems that there is sufficient detail in the latent print (and the known prints), the comparison of the latent print to the known prints begins.
Visual comparison consists of discerning, visually “measuring, ” and comparing- within the comparable areas of the latent print and the known prints-the details that correspond. The amount of friction ridge detail available for this step depends on the clarity of the two impressions. The details observed might include the overall shape of the latent print, anatomical aspects, ridge flows, ridge counts, shape of the core, delta location and shape, lengths of the ridges, minutia location and type, thickness of the ridges and furrows, shapes of the ridges, pore position, crease patterns and shapes, scar shapes, and temporary feature shapes (e.g., a wart).
At the completion of the comparison, the examiner performs an evaluation of the agreement of the friction ridge formations in the two prints and evaluates the sufficiency of the detail present to establish an identification (source determination). Source determination is made when the examiner concludes, based on his or her experience, that sufficient quantity and quality of friction ridge detail is in agreement between the latent print and the known print. Source exclusion is made when the process indicates sufficient disagreement between the latent print and known print. If neither an identification nor an exclusion can be reached, the result of the comparison is inconclusive. Verification occurs when another qualified examiner repeats the observations and comes to the same conclusion, although the second examiner may be aware of the conclusion of the first.

Herrera, 704 F.3d at 484 (quoting National Research Council of the National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward 137-38 (2009)). See also Hr'g Tr. 27:10-66:9. Often, an examiner will compare the latent and known prints using Photo Shop, a widely used computer program that allows an examiner to capture the print images, put images side-by-side, and enhance the coloring of the print and make markings. See Hr'g Tr. 17:18-18:2.

         III. ANALYSIS

         The Supreme Court has held that trial courts have a gatekeeping responsibility to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993). In Daubert, the Supreme Court provided a list of specific factors bearing on reliability that trial courts could consider in executing the gatekeeping obligation. See Id. at 592-93. These so-called Daubert factors can be summarized as follows: (1) whether a theory or technique has been or can be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the technique's known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and (4) whether a particular technique or theory has gained general acceptance in the relevant ...

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