United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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).
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.  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
September 20, 2019, the Government filed an amended
"Notice of Intent to Call Expert Witness Testimony"
(ECF No. 102). 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.
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). 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).
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.
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
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.
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.
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.
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.
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
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.")).
THE GOVERNMENT'S DAUBERT MOTION
Joost Janssen's Expert Report and Testimony
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 ...