05-6036-cr l United States v. Williams 1 UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term…

05-6036-cr(l)
United States v. Williams
1
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2006 4
(Argued: April 16, 2007 Decided: October 23, 2007) 5
Docket Nos. 05-6036-cr(L), 05-6038-cr(CON), 05-6065-cr(CON) 6
-----------------------------------------------------x 7
UNITED STATES OF AMERICA, 8
9
Appellee, 10
11
-- v. -- 12
13
ELIJAH BOBBY WILLIAMS, a.k.a. Bosco, a.k.a. Bobby 14
Torres, XAVIER WILLIAMS, a.k.a. X, a.k.a. Richie 15
Torres, REVEREND MICHAEL WILLIAMS, a.k.a. David 16
Michael Torres, a.k.a. Mike Torres, a.k.a. Mike 17
Foster, 18
19
Defendants-Appellants. 20
21
-----------------------------------------------------x 22
23
B e f o r e : NEWMAN, WALKER, and STRAUB, Circuit Judges. 24
Appeals from judgments entered in the United States District 25
Court for the Southern District of New York (Naomi Reice 26
Buchwald, Judge), convicting and sentencing appellants for 27
various offenses, including narcotics trafficking, racketeering, 28
and murder. 29
AFFIRMED. 30

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2
DAVID A. RUHNKE, Ruhnke & Barrett, 1
Montclair, New Jersey, for Elijah 2
Williams. 3
4
RICHARD B. LIND, New York, New 5
York, for Michael Williams. 6
7
DAVID STERN, Rothman Schneider 8
Soloway & Stern, LLP, New York, New 9
York, for Xavier Williams. 10
11
HELEN V. CANTWELL, Assistant United 12
States Attorney (Michael J. Garcia, 13
United States Attorney for the 14
Southern District of New York, Glen 15
G. McGorty and Robin L. Baker, 16
Assistant United States Attorneys, 17
on the brief), New York, New York. 18
19
20
JOHN M. WALKER, JR., Circuit Judge: 21
22
Defendants-appellants Elijah Bobby Williams (“Bobby”), 23
Michael Williams, (“Michael”), and Xavier Williams (“Xavier”) 24
appeal from judgments entered in the United States District Court 25
for the Southern District of New York (Naomi Reice Buchwald, 26
Judge), convicting them of and sentencing them for various 27
offenses, including narcotics trafficking, racketeering, and 28
murder. In a concurrently filed summary order, we address most 29
of appellants’ arguments and find them without merit. In this 30
opinion, we consider: (1) Michael’s contention that the district 31
court erred in admitting Bobby’s self-inculpatory out-of-court 32
statements that also implicated Michael, and (2) Bobby’s claim 33
that the district court abused its discretion in concluding that 34
the methodology employed by the government’s firearms 35

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3
identification expert met the reliability standard set forth in 1
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 2
(1993). We hold that the district court did not err on either 3
score. Accordingly, we affirm the convictions and sentences. 4
BACKGROUND 5
On a gelid night in February 1996, residents along the 1100 6
block of Sperling Drive, a residential street in Wilkinsburg, 7
Pennsylvania, were startled by the ringing sound of gun shots. 8
One resident who rushed to see what had happened saw two people 9
shooting into a Ford Bronco parked alongside the street. Another 10
observed a mid-sized car darting away from the scene immediately 11
after the shooting ceased. But neither was able to describe the 12
shooters in detail. 13
Once the commotion passed, one of the residents approached 14
the Ford Bronco. Inside she found the bullet-riddled bodies of 15
Joel Moore, Timothy Moore, and Robert James. Law enforcement was 16
called, a crime scene was established, and an investigation 17
immediately ensued. 18
The indictments that followed charged appellants with 19
operating a violent criminal organization that existed for the 20
purpose of, among other things, enriching its members by 21
trafficking in cocaine and cocaine base in New York and 22
Pennsylvania. Because the government sought the death penalty 23
against Bobby and Michael for their roles in the triple homicide, 24

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4
they were tried separately from Xavier on a superceding 1
indictment that charged fifteen counts: racketeering, in 2
violation of 18 U.S.C. § 1962(c) (Count One); racketeering 3
conspiracy, in violation of 18 U.S.C. § 1962(d) (Count Two); 4
conspiracy to murder in aid of racketeering activity, in 5
violation of 18 U.S.C. § 1959(a)(5) (Counts Three and Four); 6
murder in aid of racketeering activity, in violation of 18 U.S.C. 7
§§ 2, 1959 (a)(1) (Counts Five through Seven); conspiracy to 8
distribute narcotics, in violation of 21 U.S.C. § 846 (Count 9
Eight); murder while engaged in a narcotics conspiracy, in 10
violation of 18 U.S.C. § 2 and 21 U.S.C. § 848(e) (Counts Nine 11
through Eleven); use of a firearm during and in relation to a 12
drug trafficking crime or crime of violence, in violation of 18 13
U.S.C. §§ 2, 924(j) (Counts Twelve through Fourteen); and 14
conspiracy to launder money derived from narcotics trafficking, 15
in violation of 18 U.S.C. § 1956(h) (Count Fifteen). The jury 16
found Bobby and Michael guilty on all counts except Counts Three 17
and Four but determined that they should not receive the death 18
penalty. Bobby and Michael were sentenced principally to life 19
imprisonment. 20
Xavier was tried on a superceding indictment charging 21
fourteen counts that matched Bobby’s and Michael’s indictment 22
through Count Thirteen, omitted one of the firearm counts, and 23
charged the money laundering count as Count Fourteen instead of 24

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5
Fifteen. Upon the government’s motion, the district court 1
dismissed Counts Five, Six, Seven, Nine, Ten, Eleven, and Twelve. 2
The jury found Xavier guilty on all remaining counts except Count 3
Four. He was sentenced principally to life imprisonment. 4
The remaining facts and procedural history are provided as 5
necessary for our analysis of the specific issues addressed in 6
this opinion. 7
DISCUSSION 8
I. Admission of Bobby’s Out-of-Court Statements 9
Prior to the trial of Bobby and Michael, the government 10
requested permission to introduce, against both defendants, 11
statements Bobby made to Carol Johnson, Earl Baldwin, and Julian 12
Brown about his involvement in the triple homicide. Michael 13
objected and moved for exclusion and, in the alternative, 14
requested a severance pursuant to Fed. R. Crim. P. 14. After 15
hearing from both sides, the district court denied the severance 16
and allowed Johnson and Baldwin, but not Brown, to testify about 17
Bobby’s statements, finding their testimony admissible under the 18
exception to the hearsay rule for statements against penal 19
interest. See Fed. R. Evid. 804(b)(3). The district court also 20
found no Confrontation Clause impediment to the admission of 21
Johnson’s and Baldwin’s testimony. 22
At trial, Baldwin testified that Bobby admitted to him on 23
two separate occasions that he participated in the triple 24

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6
homicide. Bobby first told Baldwin that Timothy Moore was killed 1
because the “Dude owed” money. The second time, Bobby, speaking 2
about himself and Michael, stated: “[W]e gave it to them niggers. 3
. . . [W]e walked up to the truck, each of us on a side of the 4
truck and gave it to them niggers.” Johnson, echoing much of 5
Baldwin’s account, testified that Bobby told her that the victims 6
were shot because of their debts. She then explained that Bobby 7
told her that Michael shot the man in the driver’s seat while 8
Bobby shot at least one of the other passengers. Johnson’s 9
testimony did not account for the shooting of the third victim. 10
In this challenge to the district court’s pretrial ruling, 11
Michael argues again that the admission of Bobby’s out-of-court 12
statements violated both Rule 804(b)(3) and the Confrontation 13
Clause. We review the district court’s admissibility 14
determination under Rule 804(b)(3) for abuse of discretion and 15
its Confrontation Clause analysis de novo. United States v. 16
Tropeano, 252 F.3d 653, 657 (2d Cir. 2001). 17
A. Admissibility under Rule 804(b)(3) 18
Admission of a statement under Rule 804(b)(3) hinges on 19
“whether the statement was sufficiently against the declarant’s 20
penal interest ‘that a reasonable person in the declarant’s 21
position would not have made the statement unless believing it to 22
be true.’” Williamson v. United States, 512 U.S. 594, 603-04 23
(1994) (quoting Rule 804(b)(3)). Whether a challenged statement 24

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7
is sufficiently self-inculpatory can only be answered by viewing 1
it in context. Id. at 604. Thus, this determination must be 2
made on a case-by-case basis. See Tropeano, 252 F.3d at 658. 3
We find no abuse of discretion in the district court’s 4
decision to admit the challenged statements under Rule 804(b)(3). 5
The first of Bobby’s statements to Baldwin was plainly self- 6
inculpatory, and it did not on its face implicate Michael. The 7
second of Bobby’s statements to Baldwin and his statement to 8
Johnson were also sufficiently self-inculpatory as they described 9
acts that he and Michael committed jointly. See United States v. 10
Saget, 377 F.3d 223, 231 (2d Cir. 2004) (finding that the bulk of 11
confessor’s statements were self-inculpatory because they 12
described acts that the defendant and the confessor committed 13
jointly). Moreover, the context of these statements shows that 14
Bobby was not attempting to minimize his own culpability, shift 15
blame onto Michael, or curry favor with authorities. Cf. 16
Williamson, 512 U.S. at 601, 603. To the contrary, in his second 17
statement to Baldwin, Bobby was boastful regarding his 18
participation in the murders, and in his remark to Johnson he 19
claimed an equal role, asserting that he and Michael each killed 20
one of the three victims. 21
B. Confrontation Clause Analysis 22
The Confrontation Clause states that “[i]n all criminal 23
prosecutions, the accused shall enjoy the right . . . to be 24

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8
confronted with the witnesses against him.” U.S. Const. amend. 1
VI. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme 2
Court held that the Confrontation Clause prohibits the admission 3
of out-of-court “testimonial” statements against a criminal 4
defendant, unless the declarant is unavailable and the defendant 5
had a prior opportunity to cross-examine the declarant. 6
Crawford’s per se bar on such testimonial statements displaced 7
that much of the “indicia of reliability” standard of Ohio v. 8
Roberts, 448 U.S. 56 (1980), that had allowed into evidence, as 9
not violative of the Confrontation Clause, hearsay statements 10
that fell within a firmly rooted hearsay exception or contained 11
particularized guarantees of trustworthiness. Id. at 66; 12
Crawford, 541 U.S. at 60; Saget, 377 F.3d at 226 (explaining that 13
under Roberts, “[a]ny out-of-court statement was constitutionally 14
admissible so long as it fell within an exception to the hearsay 15
rule or, if that exception was not firmly rooted, the court found 16
that the statement was likely to be reliable”). 17
While Crawford’s per se bar did away with Roberts’ 18
reliability analysis for testimonial statements, it left unclear 19
whether the admission of “nontestimonial” statements would still 20
implicate Confrontation Clause concerns because Crawford did not 21
explicitly overrule Roberts on that score. See Saget, 377 F.3d 22
at 227 (“Crawford leaves the Roberts approach untouched with 23
respect to nontestimonial statements. . . . Accordingly, while 24

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9
the continued viability of Roberts with respect to nontestimonial 1
statements is in doubt, we will assume for purposes of this 2
opinion that its reliability analysis continues to apply to 3
control nontestimonial hearsay . . . .”). However, in Davis v. 4
Washington, 126 S. Ct. 2266 (2006), the Court was required to 5
“decide . . . whether the Confrontation Clause applies only to 6
testimonial hearsay.” Id. at 2274 (emphasis added). Answering 7
that question in the affirmative, the Court explained that 8
Crawford, even if it did not expressly so hold, pointed the way: 9
The text of the Confrontation Clause reflects this 10
focus on testimonial hearsay. It applies to witnesses 11
against the accused — in other words, those who bear 12
testimony. Testimony, in turn, is typically a solemn 13
declaration or affirmation made for the purpose of 14
establishing or proving some fact. An accuser who 15
makes a formal statement to government officers bears 16
testimony in a sense that a person who makes a casual 17
remark to an acquaintance does not. 18
19
Id. “A limitation so clearly reflected in the text of the 20
constitutional provision,” the Court continued, “must fairly be 21
said to mark out not merely its ‘core,’ but its perimeter.” Id. 22
Following Davis, we stated in United States v. Feliz, 467 23
F.3d 227 (2d Cir. 2006), that Roberts’ reliability analysis plays 24
no role in a Confrontation Clause inquiry. See id. at 230-32. 25
It is plain from Davis “that the right to confrontation only 26
extends to testimonial statements, or, put differently, the 27
Confrontation Clause simply has no application to nontestimonial 28
statements.” Feliz, 467 F.3d at 231; see Tom Lininger, 29

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10
Reconceptualizing Confrontation After Davis, 85 Tex. L. Rev. 271, 1
280 (2006) (“Whereas Crawford called into question the reasoning 2
of Roberts, Davis sounded the death knell. The Davis Court 3
indicated plainly that the protections of the Confrontation 4
Clause are limited to testimonial hearsay.”). 5
Now, after Crawford and Davis, indicia of reliability 6
play no role in the Confrontation Clause analysis. 7
Rather, the inquiry under the Confrontation Clause is 8
whether the statement at issue is testimonial. If so, 9
the Confrontation Clause requirements of unavailability 10
and prior cross-examination apply. If not, the 11
Confrontation Clause poses no bar to the statement’s 12
admission. 13
14
Feliz, 467 F.3d at 232. 15
Michael does not, nor could he, contend that Bobby’s 16
statements were testimonial; they bear none of the hallmarks of 17
testimonial statements identified in Crawford. See 541 U.S. at 18
51-52 (identifying as testimonial “ex parte in-court testimony,” 19
“extrajudicial statements . . . contained in formalized 20
testimonial materials, such as affidavits, depositions, prior 21
testimony, or confessions,” and “statements that were made under 22
circumstances which would lead an objective witness reasonably to 23
believe that the statement would be available for use at a later 24
trial” (internal quotation marks and citations omitted)); see 25
also Saget, 377 F.3d at 228 (identifying as testimonial under 26
Crawford “a declarant’s knowing responses to structured 27
questioning in an investigative environment or in a courtroom 28
setting where the declarant would reasonably expect that his or 29

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11
her responses might be used in future judicial proceedings”). 1
Instead, relying on Roberts and its progeny, Michael asserts that 2
the statements lack particularized guarantees of trustworthiness. 3
Because the Confrontation Clause does not bar such nontestimonial 4
statements, whatever their guarantees of trustworthiness, 5
Michael’s argument fails and our Confrontation Clause inquiry is 6
at an end. 7
* * * 8
Accordingly, we conclude that the district court neither 9
abused its discretion in admitting Bobby’s out-of-court 10
statements under Rule 804(b)(3) nor violated the Confrontation 11
Clause in doing so. 12
II. The Government’s Firearms Identification Expert 13
Spent bullets, cartridge casings, and bullet fragments were 14
recovered from the scene of the triple homicide and the victims’ 15
bodies. A subsequent search of Michael’s apartment in 16
Pittsburgh, Pennsylvania turned up two handguns, one of which was 17
a 9mm Bryco semiautomatic pistol. Shortly thereafter, this and 18
other ballistics evidence was turned over to Michelle Kuehner, a 19
firearms examiner in the Forensic Laboratory Division of the 20
Allegheny County Coroner’s Office (the “Forensic Lab”). Upon 21
comparing the ballistics evidence recovered from the crime scene 22
and the victims’ bodies with bullets and cartridge casings 23
produced from a test firing of the 9mm Bryco, Kuehner concluded 24

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1 Apparently Bobby’s and Michael’s own firearms examiner came 1
to the same conclusion as Kuehner. 2
2 Though Bobby raises the issue on appeal and the parties 1
indicate that he was the one who requested a Daubert hearing, the 2
district court’s order states that it was, in fact, Michael who 3
made the request. United States v. Williams, No. 4
S100CR.1008(NRB), 2004 WL 2980027, at *24 (S.D.N.Y. Dec. 22, 5
2004). This is of no moment, however, because appellants have 6
joined one another’s arguments pursuant to Fed. R. App. P. 28(i). 7
8
12
there was a “match.”1
1
Before trial, the government placed Bobby and Michael on 2
notice that it intended to call Kuehner as an expert witness. 3
Michael moved for a pretrial Daubert hearing to challenge 4
Kuehner’s testimony,2 contending that the government had yet to 5
establish its admissibility under Fed. R. Evid. 702. 6
In an order dated December 22, 2004, the district court 7
denied the motion without a hearing. It reasoned: 8
Judge Marrero of this Court has recently upheld the use 9
of ballistics as reliable under Rule 702. See United 10
States v. Santiago, 199 F. Supp. 2d 101, 111-12 11
(S.D.N.Y. 2002). The Supreme Court has likewise cited 12
ballistics as a proper subject of expert testimony 13
because it aids the jury in understanding the evidence. 14
See United States v. Scheffer, 523 U.S. 303, 312-313 15
(1998) (“unlike expert witnesses who testify about 16
factual matters outside the juror’s knowledge, such as 17
the analysis of fingerprints, ballistics, or DNA found 18
at a crime scene, a polygraph expert can supply the 19
jury only with another opinion, in addition to its own, 20
about whether the witness was telling the truth”); see 21
also United States v. Foster, 300 F. Supp. 2d 375, 376 22
n.1 (D. Md. 2004) (stating that, “[i]n the years since 23
Daubert, numerous cases have confirmed the reliability 24
of ballistics identification,” and collecting cases); 25
[United States v. O’Driscoll, No. 4:CR-10-277, 2003 WL 26
1402040, at *2 (M.D. Pa. Feb. 10, 2003)] (“the field of 27
ballistics is a proper subject for expert testimony and 28

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13
meets the requirements of Rule 702.”). . . . 1
Defendants have not offered any reason for us to depart 2
from the reasoning of these cases. Accordingly, the 3
request for a Daubert hearing to challenge the 4
government’s proposed ballistics . . . evidence is 5
denied. 6
7
Williams, 2004 WL 2980027, at *24. 8
At trial, the government called Kuehner as an expert. She 9
testified first about her background. Kuehner stated that she 10
had served as a firearms examiner within the firearms section of 11
the Forensic Lab for approximately twelve years. She testified 12
that, in addition to the “hands-on training” she received from 13
her section supervisor, Dr. Robert Levine, she attended seminars 14
on firearms identification, including annual workshops put on by 15
the Association of Firearm and Toolmark Examiners (the “AFTE”) 16
where firearms examiners from the United States and the 17
international community gather to present papers on current 18
topics within the field. Kuehner also explained that she and Dr. 19
Levine published a paper in the AFTE Journal matching a bullet to 20
the cartridge case from which it was discharged. Kuehner further 21
stated that she has given presentations on the subject of 22
firearms analysis at several AFTE meetings and for Duquesne 23
University’s forensic science and law programs. In addition, 24
Kuehner testified that she had examined approximately 2,800 25
different types of firearms and provided expert testimony on 26
between 20 and 30 occasions. 27
After establishing her background, training, and experience, 28

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3 For a thorough discussion of the firearms identification 1
methodology employed by Kuehner see Theory of Identification, 30 2
Am. Firearms and Toolmark Examiners J. 86 (1998). 3
4 The ballistics components relevant here include the spent 1
bullets and cartridge casings recovered from the crime scene and 2
the victims’ bodies. It suffices for our analysis to recount 3
Kuehner’s testimony regarding the process by which she examines 4
spent bullets, but we note that the process she employs in 5
examining spent cartridge cases involves many of the same 6
concepts. 7
14
Kuehner went on to testify that she uses a firearms 1
identification methodology that is a subset of a broader forensic 2
discipline referred to as toolmark identification. Toolmark 3
examiners are trained to examine the marks left by tools on a 4
variety of surfaces in an attempt to “match” a toolmark to the 5
particular tool that made it. Firearms, she explained, are 6
simply the tools that impart marks on bullets and cartridge 7
cases.3
8
Kuehner then testified as to how the methodology enables her 9
to determine whether a given sample of ballistics components4 was 10
fired from the same gun. She starts by examining the components’ 11
“class characteristics.” A spent bullet’s class characteristics 12
include its caliber, the number of its land and groove 13

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5 When a handgun is fired, its barrel imparts “rifling” on the 1
bullet. Rifling places a twist on a bullet as it travels, thus 2
promoting flight accuracy. Rifling, which runs the length of the 3
barrel, consists of cuts called “grooves” and raised surfaces 4
called “lands.” As a bullet travels down the barrel, the raised 5
lands press into the surface of the bullet and it likewise 6
conforms to fill the recessed grooves. The corresponding marks 7
left on the bullet are referred to as land and groove 8
impressions. 9
15
impressions,5 the twist of its land and groove impressions, and 1
the width of its land and groove impressions. Class 2
characteristics, Kuehner explained, allow her to narrow the 3
universe of firearm possibilities to certain types of guns made 4
by certain manufacturers. For example, a spent 9mm bullet 5
exhibiting six land and groove impressions could only have been 6
expelled from a firearm with a 9mm gun barrel that has six lands 7
and grooves. 8
Once Kuehner narrows the firearms possibilities by class, 9
she looks for specific random, microscopic imperfections in the 10
barrel caused by changes in the manufacturing tool as it makes 11
each barrel on the production line. These imperfections in turn 12
leave unique “striations” on each bullet as it moves through the 13
barrel. It is her examination of these unique marks, Kuehner 14
testified, that allows her to determine whether two bullets were 15
fired from the same gun. 16
Using a comparison microscope to view the two bullets side- 17
by-side, she compares the height, depth, width, length and 18
spatial relations of their striations. Significant similarity 19

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16
between striations signals an “identification” or a “match” — 1
that is, the bullets were fired from the same firearm. The 2
striations need not be identical; they need only be in 3
“sufficient agreement” based on Kuehner‘s training and 4
experience. She explained: 5
So I am looking at the number of striations, . . . 6
their physical characteristics, their height, [and] 7
their depth. And when the pattern of agreement exceeds 8
the amount of agreement that I know exists in two 9
bullets that have not been fired from the same firearm, 10
then that is sufficient agreement. 11
12
* * * 13
14
You can’t really put numbers to it. It’s more, more 15
coming from experience, so, which is why . . . you test 16
bullets. So sufficient agreement meaning that you have 17
enough agreement [between the striations on the 18
bullets] than those that you know do not match. 19
20
Kuehner testified that, based on comparison of striations, 21
there are two conclusions she may reach other than a match. She 22
can make an “eliminat[ion],” concluding that the two bullets were 23
not fired from the same gun. Or, she can make an “inconclusive” 24
determination, meaning that, although the bullets exhibit similar 25
class characteristics, there is not enough agreement or 26
disagreement between their striations to conclude whether they 27
were or were not fired from the same gun. Kuehner further 28
explained that after she performs her examination, she documents 29
her conclusions in a report, which Dr. Levine reviews. Based on 30
her analysis in this case, Kuehner concluded that certain bullets 31
and cartridge casings recovered from the crime scene and the 32

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6 The government also contends that Bobby failed to preserve 1
his claim of error as to the reliability of Kuehner’s testimony 2
because his pretrial challenge lacked the necessary specificity, 3
which was never remedied by a further objection after Kuehner’s 4
trial testimony provided more persuasive grounds for objection. 5
Therefore, the government argues that the district court’s 6
decision should be reviewed for plain error only. But we need 7
not reach this point because we conclude that Bobby cannot 8
satisfy the lower burden of abuse of discretion according to the 9
record here. 10
11
17
victims’ bodies matched those she produced by test firing the 9mm 1
Bryco. 2
Bobby now challenges the district court’s decision to 3
permit Kuehner to testify as an expert. We understand his 4
argument to be that the district court abused its discretion by 5
(1) denying him a Daubert hearing and (2) failing to undertake an 6
adequate inquiry into the reliability of Kuehner’s firearms 7
identification methodology. The government counters that the 8
district court acted within its discretion under the 9
circumstances and that any error was harmless.6 We review the 10
district court’s decision to admit expert testimony under Rule 11
702 for abuse of discretion. Kumho Tire Co. v. Carmichael, 526 12
U.S. 137, 152 (1999). “A decision to admit scientific evidence 13
is not an abuse of discretion unless it is manifestly erroneous.” 14
United States v. Salameh, 152 F.3d 88, 129 (2d Cir. 1998) 15
(internal quotation marks omitted). 16
A. Gatekeeping under Daubert 17
While the proponent of expert testimony has the burden of 18

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18
establishing by a preponderance of the evidence that the 1
admissibility requirements of Rule 702 are satisfied, see 2
Daubert, 509 U.S. at 593 n.10, the district court is the ultimate 3
“gatekeeper.” See Fed. R. Evid. 104(a); United States v. Cruz, 4
363 F.3d 187, 192 (2d Cir. 2004); see also Brooks v. Outboard 5
Marine Corp., 234 F.3d 89, 91 (2d Cir. 2000) (rejecting argument 6
that opposing expert testimony is necessary to trigger the 7
district court’s obligation to analyze admissibility of expert 8
testimony). The Federal Rules of Evidence assign to it “the task 9
of ensuring that an expert’s testimony both rests on a reliable 10
foundation and is relevant to the task at hand.” Daubert, 509 11
U.S. at 597. 12
In assessing reliability, “the district court should 13
consider the indicia of reliability identified in Rule 702, 14
namely, (1) that the testimony is grounded on sufficient facts or 15
data; (2) that the testimony is the product of reliable 16
principles and methods; and (3) that the witness has applied the 17
principles and methods reliably to the facts of the case.” 18
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d 19
Cir. 2002) (internal quotation marks omitted). But these 20
criteria are not exhaustive. See Wills v. Amerada Hess Corp., 21
379 F.3d 32, 48 (2d Cir. 2004). Daubert enumerated a list of 22
additional factors bearing on reliability that district courts 23
may consider: (1) whether a theory or technique has been or can 24

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19
be tested; (2) “whether the theory or technique has been 1
subjected to peer review and publication;” (3) the technique’s 2
“known or potential rate of error” and “the existence and 3
maintenance of standards controlling the technique’s operation;” 4
and (4) whether a particular technique or theory has gained 5
general acceptance in the relevant scientific community. See 6
Daubert, 509 U.S. at 593-94. 7
“Daubert’s list of specific factors,” however, “neither 8
necessarily nor exclusively applies to all experts or in every 9
case.” Kumho Tire, 526 U.S. at 141. Rather, the district 10
court’s inquiry into the reliability of expert testimony under 11
Rule 702 is a “flexible one.” Daubert, 509 U.S. at 594. 12
Accordingly, “the law grants a district court the same broad 13
latitude when it decides how to determine reliability as it 14
enjoys in respect to its ultimate reliability determination.” 15
Kumho Tire, 526 U.S. at 142. Yet while the district court’s 16
discretion is considerable, it is not unfettered: It does not 17
permit the district court “to perform the [gatekeeping] function 18
inadequately.” Id. at 158-59 (Scalia, J., concurring) (noting 19
that the majority opinion “makes clear that the discretion it 20
endorses — trial-court discretion in choosing the manner of 21
testing expert reliability — is not discretion to abandon the 22
gatekeeping function”). 23
As an initial matter, we reject Bobby’s contention that the 24

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20
district court abused its discretion by denying his request for a 1
hearing. While the gatekeeping function requires the district 2
court to ascertain the reliability of Kuehner’s methodology, it 3
does not necessarily require that a separate hearing be held in 4
order to do so. See id. at 152 (district courts possess 5
“latitude in deciding how to test an expert’s reliability, and to 6
decide whether or when special briefing or other proceedings are 7
needed to investigate reliability”); see also United States v. 8
Alatorre, 222 F.3d 1098, 1102 (9th Cir. 2000) (“Nowhere . . . 9
does the Supreme Court mandate the form that the inquiry into . . 10
. reliability must take. . . .”). This is particularly true if, 11
at the time the expert testimony is presented to the jury, a 12
sufficient basis for allowing the testimony is on the record. 13
See 4 Weinstein’s Federal Evidence § 702.02[2] (Joseph M. 14
McLaughlin ed., 2d ed. 2006). 15
The remaining question, then, is whether there was a 16
sufficient foundational basis in the record to support the trial 17
court’s decision to admit Kuehner as an expert? 18
First, the district court noted with approval the decision 19
in Santiago rejecting a challenge to the reliability of the 20
government expert’s firearms identification methodology as 21
“pseudo-science.” 199 F. Supp. 2d at 111. The Santiago court 22
stated that the government had submitted a letter describing, 23
among other things, the method that the expert used to “match 24

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21
particular guns to the bullets in question.” Id. Moreover, the 1
preliminary ruling below in Santiago had accepted that much of 2
the reliability inquiry would occur when the government laid the 3
foundation preliminary to the district court’s admitting the 4
expert’s testimony. See 199 F. Supp. 2d at 112 (noting that in 5
addition to expecting the government to ask about the expert’s 6
“training, experience, qualifications, and the methods he used to 7
match the bullets with the guns in question,” the court was 8
“interested to learn how often [the expert’s] identifications 9
have been wrong in the past and the degree to which his 10
methodology has been accepted in the community of forensics 11
experts”). 12
We think that Daubert was satisfied here. When the district 13
court denied a separate hearing it went through the exercise of 14
considering the use of ballistic expert testimony in other cases. 15
Then, before the expert’s testimony was presented to the jury, 16
the government provided an exhaustive foundation for Kuehner’s 17
expertise including: her service as a firearms examiner for 18
approximately twelve years; her receipt of “hands-on training” 19
from her section supervisor; attendance at seminars on firearms 20
identification, where firearms examiners from the United States 21
and the international community gather to present papers on 22
current topics within the field; publication of her writings in a 23
peer review journal; her obvious expertise with toolmark 24

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22
identification; her experience examining approximately 2,800 1
different types of firearms; and her prior expert testimony on 2
between 20 and 30 occasions. Under the circumstances, we are 3
satisfied that the district court effectively fulfilled its 4
gatekeeping function under Daubert. The trial court’s admission 5
of Kuehner’s testimony constituted an implicit determination that 6
there was a sufficient basis for doing so. The formality of a 7
separate hearing was not required and we find no abuse of 8
discretion. 9
We do not wish this opinion to be taken as saying that any 10
proffered ballistic expert should be routinely admitted. Daubert 11
did make plain that Rule 702 embodies a more liberal standard of 12
admissibility for expert opinions than did Frye v. United States, 13
293 F. 1013, 1014 (D.C. Cir. 1923). See Daubert, 509 U.S. at 588 14
(holding that the Frye test of general acceptance in the 15
scientific community was superceded by the Federal Rules); see 16
also Amorgianos, 303 F.3d at 265 (observing departure, under 17
Federal Rule, from the Frye standard). But this shift to a more 18
permissive approach to expert testimony did not abrogate the 19
district court’s gatekeeping function. Nimely v. City of New 20
York, 414 F.3d 381, 396 (2d Cir. 2005). Nor did it “grandfather” 21
or protect from Daubert scrutiny evidence that had previously 22
been admitted under Frye. See United States v. Crisp, 324 F.3d 23
261, 272 (4th Cir. 2003) (Michael, J., dissenting); see also 24

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23
United States v. Saelee, 162 F. Supp. 2d 1097, 1105 (D. Alaska 1
2001) (“[T]he fact that [expert] evidence has been generally 2
accepted in the past by courts does not mean that it should be 3
generally accepted now, after Daubert and Kumho [Tire].”). Thus, 4
expert testimony long assumed reliable before Rule 702 must 5
nonetheless be subject to the careful examination that Daubert 6
and Kumho Tire require. See Daubert, 509 U.S. at 589 (explaining 7
that Rule 702 requires district courts to ensure that “any and 8
all scientific testimony or evidence admitted is not only 9
relevant, but reliable”); id. at 592 n.11 (“Although the Frye 10
decision itself focused exclusively on ‘novel’ scientific 11
techniques, we do not read the requirements of Rule 702 to apply 12
specially or exclusively to unconventional evidence. Of course, 13
well-established propositions are less likely to be challenged 14
than those that are novel, and they are more handily defended.”); 15
see also Kumho Tire, 526 U.S. at 152 (explaining that whether a 16
witness’s area of expertise is technical, scientific, or more 17
generally “experience-based,” Rule 702 requires the district 18
court to fulfill the gatekeeping function of ensuring that his or 19
her testimony is reliable). Because the district court’s inquiry 20
here did not stop when the separate hearing was denied, but went 21
on with an extensive consideration of the expert’s credentials 22
and methods, the jury could, if it chose to do so, rely on her 23
testimony which was relevant to the issues in the case. We find 24

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that the gatekeeping function of Daubert was satisfied and that 1
there was no abuse of discretion. 2
3
CONCLUSION 4
For the foregoing reasons and those provided in the 5
concurrently filed summary order, appellants’ convictions and 6
sentences are AFFIRMED. 7
8
9

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