United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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).
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.
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
Latent Fingerprint Identification
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.
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
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.
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 ...