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United States v. Velarde-Pavia

United States District Court, D. New Mexico

August 2, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE VELARDE-PAVIA, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court on the United States' Motion to Allow Expert Witness Testimony, filed April 16, 2019, an Amended Motion to Allow Expert Witness Testimony, filed April 19, 2019, and a Notice of Second Amended Motion to Allow Expert Witness Testimony, filed May 17, 2019 (collectively, Motion to Admit). (Docs. 81, 90, and 122).[1] Defendant Jose Velarde-Pavia (Defendant) filed his cross Motion to Exclude or Limit Expert Testimony and, in the Alternative, a Daubert Hearing (Motion to Exclude), on April 18, 2019, but did not formally respond to any iteration of the United States' Motion to Admit. (Doc. 86). The United States filed its response to Defendant's Motion to Exclude on April 26, 2019. (Doc. 101). Having considered the record, the briefing, and the applicable law, the Court grants the Motion to Admit and denies the Motion to Exclude.

         I. Background

         The Court addressed the factual background of this case in the contemporaneously filed Memorandum Opinion and Order denying Defendant's Second Motion to Suppress, and will not repeat the same herein.

         The United States intends to call the following expert witnesses at trial:

1. Andrew Barber, Supervising Scientist, New Mexico Department of Public Safety Forensic Laboratories. Expected to testify regarding examination of white crystalline substance seized in this case using various tests, including determination that the substance was methamphetamine weighing 125.662 ± 0.008g net weight, with purity of 89 ± 3%, and confidence level of 95.45%.
2. Laura Gaydosh-Combs, Forensic Scientist 2, New Mexico Department of Public Safety Forensic Laboratories. Expected to testify regarding her technical review of another forensic scientist's DNA analysis of the handgun and the plastic baggie found in the truck. Handgun revealed DNA mixture of at least five individuals and no interpretation could be made. Baggie revealed partial DNA mixture of at least two individuals and no interpretation could be made.
3. Matthew Kepp, Forensic Scientist, New Mexico Department of Public Safety Forensic Laboratories. Expected to testify regarding a Firearm Function Test of the handgun he conducted and that the firearm was functional when test fired.
4. Bonnie Knoll, Forensic Scientist, New Mexico Department of Public Safety Forensic Laboratories. Expected to testify regarding Latent Print/AFIS examination she conducted of the handgun and the bullet magazine, including visual inspection, and reasons why no latent impressions were found or developed.
5. Joseph Montoya, Special Agent, Drug Enforcement Administration. Expected to testify regarding the value of methamphetamine seized in this case and the means/methods of drug traffickers, not including the use of cellphones.

(Doc. 81) at 4-6; (Doc. 90) at 2 (amending Knoll's disclosure to include reasons latent prints may not have been found); (Doc. 90) at 6-7 (amending value of methamphetamine for SA Montoya's testimony; removing testimony regarding cell phones); (Doc. 122) (substituting Andrew Barber for originally disclosed expert, Alex Moninger, as Ms. Moninger will be unavailable for trial).

         II. Analysis

         Defendant seeks to exclude or limit SA Montoya's testimony and to “exclude any testimony that states an opinion, directly or by implication, that [Defendant] had the mental state alleged in the charged offenses.” (Doc. 86) at 1.

         The proponent of expert testimony bears the burden of proving the foundational requirements of Federal Rule of Evidence 702 by a preponderance of the evidence. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). Rule 702 requires:

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 ...

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