Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Charley

United States District Court, D. New Mexico

January 14, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
BRANDON CHARLEY, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court on the Government's "Opposed Motion to Exclude Testimony by Defendant's Proposed Expert Witness, Joost Janssen." (ECF No. 121).

         I. BACKGROUND

         A. Factual Background

         According to the Government, Defendant murdered a man referred to in these proceedings as "John Doe." Both men grew up in Prewitt, New Mexico. A feud between the men's families began in the early 2000s, and several times violence has erupted in the community. On June 24, 2018, Defendant allegedly killed Doe from a distance of about fifty yards while using a Sig Sauer gun. Investigating officers never found a gun, but did recover .357-caliber casings at the scene. [1] On August 21, 2018 Defendant was charged by criminal complaint and then eventually indicted in March 2019. On November 20, 2019, a federal grand jury returned a two-count superseding indictment charging Defendant with first-degree murder in Indian country in violation of 18 U.S.C. §§ 1153 and 1111 (Count I) and using/carrying a firearm during and in relation to a crime of violence and during of the course of that crime causing death through discharge of a firearm in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and (j)(1) (Count II).

         B. Procedural Background

         On September 20, 2019, the Government filed an amended "Notice of Intent to Call Expert Witness Testimony" (ECF No. 102).[2] The Government intends to call Steven R. Watt (Randy), the Chief of Police of the Ogden, Utah Police Department as an expert in combat dynamics, firearms, and crime reconstruction. In his expert report, Chief Watt reviewed and analyzed documents given to him by the U.S. Attorney's Office. See ECF No. 105-1 at 4. Specifically, Chief Watt reviewed statements and reports from seven different fact witnesses who were present at or around the scene. In addition, Chief Watt visited the crime scene and reviewed crime scene photos and sketches.

         Chief Watt applied his personal education, training, and experience with firearms and shootings to this information and drew five conclusions. However, some of those conclusions violated the prohibition on expert opinion on whether a defendant had the mental state that constitutes an element of the crime charged. See Fed. R. Evid. 704(b).[3] Defendant moved under Fed.R.Evid. 704(b) to exclude parts of Chief Watt's opinions and argued that his testimony failed the Fed.R.Evid. 702 analysis set forth in Daubert v. MerrellDow Pharmaceuticals, Inc., 509 U.S. 579(1993).

         In response, the Government conceded that parts of Chief Watt's testimony were inadmissible under Rule 704(b) and told the Court that it will limit Chief Watt's testimony to three opinions.

         First, the Government proffers that Chief Watt will testify that it is hard to accurately shoot a human target with a Sig Sauer. 357 from roughly 50-yards away. In his report, Chief Watt opined that "[p]istols are challenge for the average shooter to shoot accurately, especially at distances beyond roughly 7 yards," because of their short sight plane combined with maintaining a trigger press. ECF No. 105-1 at 5. As shooting distance increases, Chief Watt explained that common shooter problems - misalignment of sights, flinches, jerks, etc. - create misfires. Id. Very few shooters can readily hit an intended target beyond 50 yards, and that Defendant successfully did so indicates a "very deliberate, focused effort on [Defendant's] part to shoot [Doe]." Id.

         Second, Chief Watt will opine on "the danger of discharging a firearm at a target that is in close proximity to unintended targets." ECF No. 106 at 3. "Bullets missing their intended targets will strike something," Chief Watt opined, and that is why the general firearm rules of safety tell a shooter to "[a]lways be sure of your target, including what's behind and to the sides." ECF No. 105-1 at 5. Misses at longer distances are common with pistols, Chief Watt wrote, and therefore Defendant jeopardized "the safety of the persons in the immediate area of [Defendant's] intended target... and placed them in grave danger ... especially given the extended distance and the use of the pistol." Id. at 5-6.

         Third and finally, the Government intends to elicit testimony from Chief Watt that the Sig Sauer is consistent with a firearm possessed by Defendant in December 2010. As noted earlier, officers did not find the gun at issue. However, officers did find an empty gun case for a Springfield XD pistol, caliber .357 Sig, with a serial number of US339053. The Government tells the Court that in December 2010, Albuquerque police responded to a disturbance at an apartment complex where a woman told officers that Defendant repeatedly hit her with a bag. Officers arrested Defendant, searched the bag, and located Sig .357 pistol with the same serial number, US339053. The Government wishes to call Chief Watt to opine that the gun from which the bullet was fired matches shell casings with the Sig .357 Serial Number US339053.

         Although Defendant filed aDaubert motion challenging Chief Watt's opinions, at the motion hearing, the disputes between the parties concerning the witness's testimony greatly narrowed. Defendant stipulated that Chief Watt is qualified by his knowledge, skill, experience, or training to render an opinion. See Mot. Hr.'g Tr., ECF No. 165, 11:2-4. Defendant briefly questioned Chief Watt about his first and second opinions and, once satisfied, told the Court that he "had no objections to Mr. Watt[] testifying to those two opinions," 14:11-12, and withdrew his Daubert motion regarding those opinions. Id. at 15:3-4.

         As to Chief Watt's third opinion - that the Sig Sauer is consistent with a firearm possessed by Defendant in December 2010 - Defendant objected that this issue is moot because Defendant stipulated that he fired a .357 Sig Sauer. In response, the Government maintained its need for Chief Watt's opinion concerning possession because "until the [D]efendant's case-in-chief without a stipulation, the burden will be on the United States to establish that the [D]efendant did shoot the victim," using the gun. Id. at 16:17-19.

         At the hearing, the Court told the parties that "if for some reason [the stipulation] falls apart, [the Court] can certainly take it up prior to the testimony and it sounds like it wouldn't take a whole lot of time." Id. at 17:21-24. Accordingly, the Court RESERVES RULING on the issue of Chief Watt's possible testimony concerning possession of the firearm.

         As for Opinions 1 and 2, given that Defendant has withdrawn his Daubert challenge, the Court sees no impediment to Chief Watt testifying on those matters. That pistols are challenging for the average shooter to shoot accurately at distances exceeding seven yards because of the weapon's short sight plane combined with maintaining a trigger press are matters that are probably not common knowledge. Nor is it necessarily common knowledge that increased distance and human error increases the likelihood of misfires or that very few shooters can readily hit an intended target beyond 50 yards. Laypersons may also not be familiar with general firearm rules. Therefore, because jurors may not have specialized knowledge about these matters, Chief Watt's testimony on Opinions 1 and 2 is relevant and admissible. See Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1156 (10th Cir. 2013) (citing Fed.R.Evid. 702(a) (expert testimony allowed if "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.")).

         II. THE GOVERNMENT'S DAUBERT MOTION

         A. Joost Janssen's Expert Report and Testimony

         On October 28, 2019, Defendant filed a "Notice of Intent to Offer Expert Testimony" (ECF No. 113) from Joost Janssen. Mr. Janssen is currently a military advisor to Hollywood, along with stuntman and cast-member in films, and the owner of two California businesses called Bodie International and Embark Wholesale. For about 19 years, Mr. Janssen worked for the federal government as an employee with the Central Intelligence Agency and as a Chief Petty Officer with the United States Navy Sea, Air, and Land (SEAL) Team. Before that, Mr. Janssen worked as a paramedic and emergency medical technician and holds diplomas and qualifications in those fields. Mr. Janssen has received several U.S. Navy and U.S Navy SEAL trainings, and holds military specialties in combat swimming, naval parachuting, and special operations in medical techniques. He has been a master training specialist, a military instructor, and has also instructed on small ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.