USA v. Arroyo et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CR-22-00239-JD
)
DANIEL OCHOA and 	)
KEVIN EARL TOOKS, 	)
)
Defendants. 	)
ORDER
Before the Court is Defendants Daniel Ochoa and Kevin Earl Tooks’ Joint
Daubert Motion (“Motion”) [Doc. No. 211]. Defendants request that the Court exclude
the proposed expert testimony of three witnesses the government intends to call at trial:
Drug Enforcement Administration (“DEA”) Forensic Chemist Julia Mejia and Oklahoma
Highway Patrol (“OHP”) Troopers Brady Webb and Michael Eckhardt. As required by
Federal Rule of Criminal Procedure 16, the government filed a Notice of Expert Witness
for each of these three witnesses. [Doc. Nos. 188, 193, and 199]. The government also
responded in opposition to the Motion. [Doc. No. 220].
BACKGROUND
Defendants Daniel Ochoa and Kevin Earl Tooks are charged, along with two other
co-defendants, in a two-count Indictment [Doc. No. 34] with Drug Conspiracy in
violation of 21 U.S.C. § 846 and Possession of Fentanyl with Intent to Distribute in
violation of 21 U.S.C. § 841(a)(1). In connection with Count 2, the Indictment also
alleges the aiding and abetting statute, 18 U.S.C. § 2.
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At trial, the government intends to elicit expert testimony from Ms. Mejia, the
DEA forensic chemist who performed analysis on the narcotics allegedly possessed by
Defendants, and from Troopers Webb and Eckhardt, who were involved in the traffic
stops by which the narcotics were ultimately discovered and seized.
Defendants request that Ms. Mejia’s expert testimony be excluded, but the Motion
merely references her name. It makes no challenge to her qualifications, analysis of the
narcotics, or opinions and conclusions.1
As for the troopers, Defendants argue that they are lay witnesses who are not
qualified to offer expert opinions and that since their “proposed testimony is not within
the realm of scientific evidence,” a hearing is necessary to determine whether the
troopers’ proposed testimony is reliable and relevant. Motion at 5. The government’s
Notices for the troopers do not provide the troopers’ proposed opinions themselves.
Rather, the Notices list the general and specific topics of expert testimony the troopers
may offer at trial.
Defendants also request that the Court exclude any expert testimony that is not
included in the government’s Notices under Federal Rule of Criminal Procedure 16 and
any expert testimony offering interpretation of the meaning of ambiguous language used
in intercepted telephone calls and text messages.2
1 Ms. Mejia’s Lab Report was submitted with the government’s response in
opposition to Defendants’ motion to dismiss as an exhibit. [Doc. No. 184-3].
2 The government’s Response provides no position on these matters. The Court
ordered the parties to be prepared the address these arguments at the hearing on August 7,
2023, at 9:00 a.m. See [Doc. No. 231] ¶ 4.
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The Court finds sufficient information in the record to issue a ruling on
Defendants’ perfunctory challenge to Ms. Mejia’s expert testimony and to adequately
perform the Court’s gatekeeping role under Federal Rule of Evidence 702 and related
case law. But since there is inadequate information regarding what the troopers will
testify to at trial, the Court will reserve ruling on all other aspects of the Motion pending
the hearing.
LEGAL STANDARD
Courts have broad discretion in determining the admissibility of expert testimony,
Taylor v. Cooper Tire & Rubber Co., 130 F.3d 1395, 1397 (10th Cir. 1997), and in
deciding “how to assess an expert’s reliability, including what procedures to utilize in
making that assessment, as well as in making the ultimate determination of reliability.”
Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003) (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999)). Federal Rule of Evidence 702 and the Supreme
Court’s opinions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) govern the admissibility of
expert testimony. See James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1215
n.1 (10th Cir. 2011) (“If expert testimony is not reliable under Daubert/Kumho Tire, it is
not admissible under Rule 702 . . . .”). Rule 702 provides:
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 or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
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(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
In deciding the admissibility of expert testimony, the court must determine
whether the expert is proposing to testify to scientific or other specialized knowledge that
will assist the trier of fact in understanding or determining a fact in issue. Daubert, 509
U.S. at 592. The court first determines whether the proposed expert “is qualified ‘by
knowledge, skill, experience, training, or education’ to render an opinion.” United States
v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc) (quoting Fed. R. Evid. 702).
The question before the court in determining expert qualification is “specific, not
general.” Kumho Tire, 526 U.S. at 156. The trial court must decide “whether this
particular expert ha[s] sufficient specialized knowledge to assist the jurors ‘in deciding
the particular issues in the case.’” Id. (citation omitted). An “expert’s qualifications must
be both (i) adequate in a general, qualitative sense (i.e., ‘knowledge, skill, experience,
training or education’ as required by Rule 702) and (ii) specific to the matters he
proposes to address as an expert.” Graves v. Mazda Motor Corp., 675 F. Supp. 2d 1082,
1093 (W.D. Okla. 2009).
After determining an expert’s qualification, the Court must next “determine if the
expert’s proffered testimony—whether it concerns scientific, technical, or other special
knowledge—has ‘a reliable basis in the knowledge and experience of his [or her]
discipline.’” Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232–33 (10th Cir. 2005)
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(quoting Daubert, 509 U.S. at 592). Proposed expert testimony must also be “sufficiently
‘relevant to the task at hand.’” Id. at 1234 (quoting Daubert, 509 U.S. at 597). “An
essential component of the relevance evaluation is the determination of whether the
proposed expert testimony fits the issues in the case.” Graves, 675 F. Supp. 2d at 1091.
The Supreme Court in Daubert provided four non-exhaustive factors that a trial
court may consider in making its reliability assessment: (1) whether the expert’s
technique or theory can be and has been tested; (2) whether the theory has been subjected
to peer review or publication; (3) whether the technique has a known or potential rate of
error and whether there are standards controlling the technique’s operation; and (4)
whether the theory has been generally accepted in the relevant scientific community.
Daubert, 509 U.S. at 592–94; Kumho Tire, 526 U.S. at 149–50. “The Daubert factors are
‘meant to be helpful, not definitive,’ and not all of the factors will be pertinent in every
case.” United States v. Baines, 573 F.3d 979, 992 (10th Cir. 2009) (quoting Kumho Tire,
526 U.S. at 150–51). “Where an expert testifies based on experience, the tribunal reviews
the reliability of the testimony with reference to ‘the nature of the issue, the expert’s
particular expertise, and the subject of [the] testimony.’” F & H Coatings, LLC v. Acosta,
900 F.3d 1214, 1222 (10th Cir. 2018) (quoting Kumho Tire, 526 U.S. at 148–50).
When proposed expert testimony is challenged under Rule 702, the proponent of
the testimony bears the burden of showing the testimony is admissible by a
preponderance of the evidence. Nacchio, 555 F.3d at 1251 (“[T]he admissibility of all
expert testimony is governed by the principles of [Fed. R. Evid.] 104(a). Under that Rule,
the proponent has the burden of establishing that the pertinent admissibility requirements
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are met by a preponderance of the evidence.”) (quoting Fed. R. Evid. 702 advisory
committee’s note (2000)).
DISCUSSION
As stated, the record is insufficient to perform the Court’s gatekeeping role under
Rule 702 and Daubert and its progeny as to Troopers Webb and Eckhardt. The Court will
thus review only the cursory challenge to Ms. Mejia’s testimony by this Order.
While Defendants request in the Motion that Ms. Mejia’s expert testimony be
excluded, they make no specific objection or argument relating to her qualifications or
the methodology or relevance of Ms. Mejia’s proposed opinion testimony.3
As for these matters, the Court is not required to make detailed, or even explicit,
findings. See United States v. Avitia-Guillen, 680 F.3d 1253, 1260 (10th Cir. 2012)
(“When a party fails to object to an expert’s methodology, the district court need not
make explicit findings.”); Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083,
1088 n.2 (10th Cir. 2000). The Court, nevertheless, will fully and fairly perform its role
as gatekeeper of the expert testimony proposed by the government.
The government’s Notice of Expert Witness for Ms. Mejia [Doc. No. 188]
includes a summary of her proposed testimony and her curriculum vitae. Ms. Mejia holds
a Bachelor of Arts in Chemistry and is a Senior Forensic Chemist for the DEA. [Doc. No.
188-2] at 1–2. She has six years of experience working as a forensic chemist for the DEA
3 Rather than providing discussion of Ms. Mejia’s proposed testimony, the Motion
merely lists Ms. Mejia’s name four separate times. Defendants’ Omnibus Motion in
Limine also do not reference Ms. Mejia.
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and over eleven years in total as a forensic chemist, forensic scientist, or chemist,
experience which has included qualitative and quantitative “chemical analysis on exhibits
submitted for substance identification.” Id. at 2. She has also qualified and testified as an
expert witness numerous times in federal courts. See id. at 1.
Ms. Mejia analyzed the drugs allegedly possessed by Defendants. She explains in
her summary that she will testify regarding her analysis, which she conducted in a
manner and process consistent with “the publicly available Analysis of Drugs Manual
(ADM) and Laboratory Operations Manual (LOM),” which are both published by the
DEA Office of Forensic Sciences. 4 [Doc. No. 188-1] at 1. Ms. Mejia further explains that
the “analytical methods” she used in her testing of the narcotics “are validated and
verified according to [the DEA’s] assurance policy to ensure the methods are reliable and
fit-for-purpose and the techniques utilized are widely accepted and employed in the
scientific community.” Id. at 2.
As previously stated, Defendants do not lodge any objection to Ms. Mejia’s
qualifications or methodology, and they do not contend that her testimony would be
irrelevant to the issues at trial. Upon review of Ms. Mejia’s curriculum vitae, summary of
testimony, and Lab Report, the Court finds that she is qualified to offer the expert
testimony summarized in the government’s Notice [Doc. No. 188], which is the product
of reliable principles reliably applied and is relevant to issues in this matter.
4 These are available at https://www.dea.gov/resources/documents?f%5B0%5D=
publication_type%3A2596.
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CONCLUSION
For these reasons, the Court DENIES Defendants Daniel Ochoa and Kevin Earl
Tooks’ Joint Daubert Motion [Doc. No. 211] as it relates to DEA Forensic Chemist Julia
Mejia and RESERVES ruling on the Motion as it relates to OHP Troopers Brady Webb
and Michael Eckhardt and other arguments raised therein pending the Daubert hearing
set for Monday, August 7, 2023, at 9:00 a.m. At the pretrial conference on August 3,
2023, Defendants Ochoa and Tooks waived their right to appear at the Daubert hearing
with no objection by the government.
IT IS SO ORDERED this 7th day of August 2023.
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