USA v. Moore

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JAYSHON MOORE,
Defendant.
Case No. 3:20-cr-00029-SLG
ORDER REGARDING MOTIONS TO EXCLUDE EXPERT WITNESS
TESTIMONY
Before the Court are two motions to exclude proposed expert witness
testimony. At Docket 128 is defendant Jayshon Moore’s Motion in Limine
Regarding the Government’s Proposed Expert Witness Testimony. The
government responded in opposition at Docket 134. At Docket 132 is the
government’s Motion in Limine to Exclude Expert Testimony. Mr. Moore
responded in opposition at Docket 140.
Mr. Moore is charged with Production of Child Pornography (18 U.S.C. §
2251(a), (e)); Possession of Child Pornography (18 U.S.C. § 2252A(a)(5)(B),
(b)(2)); and Sex Trafficking of a Minor (18 U.S.C. § 1591(a)(1)).1 The charges
stem from allegations that Mr. Moore initiated a sexual relationship with the alleged
1 Docket 2 (Indictment).
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victim when she was 15 years old, took sexual photographs of himself and the
alleged victim, and engaged in sex trafficking of the alleged victim by causing her
to engage in prostitution.
I. Legal standards
Before a witness may testify as an expert, a district court must make three
express findings. First, the court must find that the proposed witness is qualified
to offer expert testimony. Second, the court must find that the witness has applied
reliable principles. Third, the court must find that the witness’s testimony may help
the jury understand evidence or determine a fact at issue in the case. So long as
an expert meets these threshold considerations, the expert may testify; it is up to
the jury to determine the weight to give that testimony.2 “Shaky but admissible
evidence is to be attacked by cross examination, contrary evidence, and attention
to the burden of proof, not exclusion.”3 The proponent of the expert testimony
bears the burden of establishing its admissibility by a preponderance of the
evidence.4
Federal Rule of Evidence 702 provides that a person “qualified as an expert
by knowledge, skill, experience, training or education” may provide expert
2 Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010), as amended Apr. 27, 2010.
3 Id. (citing Daubert v. Merrell Dow Pharmaeuticals, Inc (Daubert I), 509 U.S. 579, 596 (1993)).
4 Daubert I, 509 U.S. at 592 n. 10; Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598
(9th Cir.1996).
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testimony if he or she has “scientific, technical, or other specialized knowledge.”5
That knowledge must “help the trier of fact to understand the evidence or
determine a fact in issue”6—this requirement “goes primarily to relevance.”7
Expert testimony must be reliable. That means it must be “based on
sufficient facts or data,” but this factor focuses “on foundation, not corroboration.”8
The testimony must also be “the product of reliable principles and methods,” and
the principles and methods must have been reliably applied to the facts of the
case.9 “[N]othing in either Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to existing data only by
the ipse dixit of the expert. A court may conclude that there is simply too great an
analytical gap between the data and the opinion proffered.”10 However, “Rule 702
does not license a court to engage in freeform factfinding, to select between
competing versions of the evidence, or to determine the veracity of the expert’s
conclusions at the admissibility stage.”11
5 Fed. R. Evid. 702(a).
6 Fed. R. Evid. 702(a).
7 Primiano, 598 F.3d at 564 (citing Daubert I, 509 U.S. at 591.
8 Elosu v. Middlefork Ranch, Inc., __ F.4th __, 2022 WL 534345, at *7 (9th Cir. Feb. 23, 2022).
9 Fed. R. Evid. 702(b), (c), (d).
10 Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
11 Elosu, 2022 WL 534345, at *7.
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The reliability requirement analyzes “whether the reasoning or methodology
underlying the testimony is scientifically valid.”12 The Supreme Court has identified
four factors that bear on this analysis: (1) whether the theory can be and has been
tested, (2) whether the theory has been peer reviewed and published, (3) what the
theory’s known or potential error rate is, and (4) whether the theory enjoys general
acceptance in the applicable scientific community.13 This same framework applies
to both scientific and non-scientific opinion testimony.14 However, this “list of
specific factors neither necessarily nor exclusively applies to all experts or in every
case”; it “was meant to be helpful, not definitive[.]”15 Depending on the type of
expertise and particular subject of the testimony, these factors may or may not
assist in assessing reliability.16 A district court may choose not to examine factors
that are not “reasonable measures of reliability in a particular case.”17 “[T]he trial
court has discretion to decide how to test an expert’s reliability as well as whether
12 Daubert I, 509 U.S. at 592–93.
13 Id. at 593–94.
14 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); see also White v. Ford Motor Co.,
312 F.3d 998, 1007 (9th Cir. 2002) (“Daubert and Kumho Tire did indeed require that the judge
apply his gatekeeping role under Daubert to all forms of expert testimony, not just scientific
testimony.”).
15 Primiano, 598 F.3d at 564 (citing Kumho Tire Co., 526 U.S. at 151).
16 Id. at 565 (quoting United States v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006)).
17 Murray v. Southern Route Maritime SA, 870 F.3d 915, 922–23 (9th Cir. 2017).
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the testimony is reliable, based on the particular circumstances of the particular
case.”18
Expert testimony must also be relevant and “fit” an issue in the case.
Relevancy “simply requires that ‘[t]he evidence . . . logically advance a material
aspect of the party’s case.’”19 The testimony does not have to be persuasive in
order to be relevant.20 However, the “fit” requirement is not merely a reiteration of
the general relevancy requirement under Federal Rule of Evidence 402:21 “[T]he
standard for fit is higher than bare relevance.”22 Scientific expert testimony
introduces special dangers to the fact-finding process because it “can be both
powerful and quite misleading because of the difficulty in evaluating it.”23
Therefore, courts must ensure that proffered expert testimony speaks clearly and
directly to an issue in dispute in the case and that it will not mislead the jury.24
18 Primiano, 598 F.3d at 564 (citing Kumho Tire Co., 526 U.S. at 150, 152); see also United
States v. Hall, 93 F.3d 1337, 1342 (7th Cir. 1996) (“Social science in general, and psychological
evidence in particular, have posed both analytical and practical difficulties for courts attempting
to apply Rule 702 and Daubert.”).
19 Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (quoting Cooper v.
Brown, 510 F.3d 870, 942 (9th Cir. 2007) (alterations in Barabin).
20 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (“Daubert does not require
a court to admit or to exclude evidence based on its persuasiveness; rather it requires a court to
admit or exclude evidence based on its scientific reliability and relevance.”).
21 Daubert v. Merrell Dow Pharaceuticals, Inc. (Daubert II), 43 F.3d 1311, 1321 n. 17 (9th Cir.
1995).
22 In re Paoli R.R. Yard PCB Lit., 35 F.3d 717, 745 (3d Cir. 1994).
23 Daubert I, 509 U.S. at 595 (internal quotation marks and citation omitted).
24 Daubert II, 43 F.3d at 1321.
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Even though “district courts are not required to consider all (or even any) of
[the Daubert I] factors . . . [they] do not have ‘discretion to abandon the gatekeeping
function’ altogether.”25 In exercising the gatekeeping function, district courts must
assess the validity or methodology of proposed expert testimony and must
explicitly find it to be both relevant and reliable before admitting the testimony.26
However, the Ninth Circuit has recently “cautioned that the district court is a
‘gatekeeper, not a fact finder,’” and “it may not weigh the expert’s conclusions or
assume a factfinding role.”27
II. Government witness James Hardie
Mr. Moore challenges one government expert, FBI Supervisory Special
Agent James Hardie. The government seeks to admit Agent Hardie as an expert
on sex trafficking, including “how traffickers identify and groom minors to engage
in commercial sex acts,” “how sex trafficking victims may present to law
25 United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (quoting Kumho Tire,
526 U.S. at 158–59).
26 Id. at 1189–90.
27 Elosu v. Middlefork Ranch, Inc., __ F.4th __, 2022 WL 534345, at *2 (9th Cir. Feb. 23, 2022)
(quoting Primiano v. Cook, 598 F.3d 558, 568 (9th Cir. 2010)).
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enforcement,” and background information on jargon used in sex trafficking and
prostitution.28
Mr. Moore does not contend that SSA Hardie is not qualified as an expert or
that specialized jargon cannot be the subject of expert testimony. Instead, Mr.
Moore asserts that SSA Hardie’s testimony as to specialized vocabulary used in
prostitution and sex trafficking is conditionally relevant and should not be admitted
“until such specialized vocabulary [is] entered into evidence . . . along with . . .
evidence linking the Defendant to sex trafficking.”29 Mr. Moore contends that “the
admissible evidence will not include specialized sex-trade jargon,” and thus the
expert testimony cannot have met the requirement that an expert “has applied the
principles and methods reliably to the facts of the case.”30 Mr. Moore also asserts
28 Docket 96 at 2–4 (Amend. Notice of Government Expert).
29 Docket 128 at 2; accord Docket 128 at 3 (“[T]he admission of SSA Hardie’s testimony before
the government establishes evidence of sex-trafficking is not only speculative, but will unduly
influence the jury to believe that sex-trafficking must have occurred.”).
30 Docket 128 at 4 (citing Davis v. Carroll, 937 F. Supp. 2d. 390, 412 (S.D.N.Y. 2013) (emphasis
in original). Mr. Moore acknowledges that discovery includes a text message sent by the
alleged victim that purports to identify her “pimp.” Mr. Moore contends that “pimp” is not such a
specialized word that a jury needs expert testimony to understand it, and he contends that the
text was sent in 2018, prior to the period of time charged in the Indictment. Docket 128 at 5.
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that expert testimony about background information relating to grooming minors
should be “subjected to particularized, gate-keeping scrutiny.”31
The government responds that it intends to call Agent Hardie as one of its
first witnesses and that Agent Hardie “is not familiar with the facts of this case and
will be providing educational testimony without reaching an opinion about this
specific case.”32 The government contends that because Mr. Moore’s trial strategy
is to undermine the alleged victim’s credibility, “expert testimony will help the jury
determine whether to believe [the alleged victim’s] trial testimony.”33
As to the conditional relevancy of specialized jargon, the Court agrees with
Mr. Moore. Agent Hardie’s expert knowledge of terminology used in sex trafficking
or prostitution is not relevant unless there will be evidence that the specific
terminology has been used in this case. If the terminology was not used in this
case, then there is no need for an expert to help the jury understand it.34 Moreover,
expert law enforcement testimony about sex-trafficking jargon or slang that does
not appear in other evidence in this case has almost no probative value and thus
31 Docket 128 at 2.
32 Docket 134 at 2.
33 Docket 134 at 6.
34 See Fed. R. Evid. 702(a). Even when an expert gives only generalized testimony, Rule 702
still requires that “the testimony address a subject matter on which the factfinder can be
assisted by an expert” and “‘fit’ the facts of the case.” Fed. R. Evid. 702, Committee Notes on
Rules-2000 Amendment.
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the value of that testimony is substantially outweighed by the risks of unfair
prejudice, misleading the jury, and wasting time.35
However, a court “may admit the proposed evidence on the condition that
the proof be introduced later”36 and elects to do so here. Agent Hardie may testify
about precise terminology if the government has a good faith belief that evidence
will later be admitted showing that the specific terminology was used in this case.
The motion will be granted to preclude testimony about terminology that the
government does not expect to show was actually used in this case. In addition,
prior to eliciting Mr. Hardie’s testimony about terminology, the government need
not present evidence “linking the Defendant to sex trafficking,” because whether
Mr. Moore was connected to sex trafficking is a question for the jury to determine
after considering evidence such as the use of specialized terminology.
As to Agent Hardie’s proposed testimony as to other background
information—such as “the dynamics of sex trafficking” and “the relationship
between traffickers and their victims”37—the Court finds that that Agent Hardie is
qualified in these topics and that his proposed testimony is both relevant and
reliable. The Ninth Circuit has held that the relationship between pimps and
prostitutes is a relevant subject of expert testimony in a case involving prostitution
35 Fed. R. Evid. 403.
36 Fed. R. Evid. 104(b).
37 Docket 134 at 2.
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because “the relationship between prostitutes and pimps is not the subject of
common knowledge” and a jury that “is in the dark about that relationship may be
unprepared to assess the veracity of an alleged pimp, prostitute, or other witness
testifying about prostitution.”38 Expert testimony in this field has also been held to
be relevant in child-sex trafficking cases.39 Agent Hardie shall not give expert
testimony about or opine on any specific facts of this case or comment on the
credibility of the defendant or of any other witness.
The Court has made a preliminary determination that the probative value of
this portion of Agent Hardie’s proposed testimony is not substantially outweighed
by a danger of unfair prejudice, confusion of the issues, misleading the jury, undue
delay, waste of time, or the presentation of cumulative evidence.40 However, this
is only a preliminary determination, and the defense may make application to the
Court outside the presence of the jury if it has Rule 403 objections to specific
testimony.
III. Defense witness Joshua Michel
The government challenges one defense expert, Mr. Joshua Michel. The
defense noticed Mr. Michel as an expert in digital forensic analysis.41 The
38 United States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001).
39 United States v. Brooks, 610 F.3d 1186, 1196 (9th Cir. 2010).
40 Fed. R. Evid. 403.
41 Docket 127.
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government does not challenge that Mr. Michel is qualified as an expert in digital
forensic examination but asserts that “the conclusions in the Forensic Report go
well outside this area of expertise and beyond the field of digital forensics.”42 The
government seeks to exclude any expert or lay testimony from Mr. Michel
regarding his interpretation of the digital conversations, videos, and photographs
and his opinions about whether they are related to prostitution.43
Mr. Moore responds that “the defense cannot predict the exact nature of its
expert’s testimony until [after] the government case.”44 He contends that the scope
of Mr. Michel’s expert testimony will depend on “what conclusions the government
witnesses are going to draw from the [the digital] raw data that Mr. Michel may
need to rebut.”45 Accordingly, Mr. Moore asks the Court to conduct a Daubert
hearing after the government’s case-in-chief.46
The Court will conduct a Daubert jury after the government’s case-in-chief
to determine the appropriate limits on Mr. Michel’s testimony in light of the
government’s theory and evidence at trial. However, the Court notes that Mr.
Michel does not appear to be qualified as an expert in child sex trafficking,
42 Docket 132 at 2.
43 Docket 132 at 3.
44 Docket 140 at 2.
45 Docket 140 at 2.
46 Docket 140 at 3.
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prostitution, or specialized jargon, and the Court intends to restrict this expert’s
testimony to his area of expertise—digital forensic examination.
In light of the foregoing, IT IS ORDERED that the defense motion at Docket
128 is GRANTED IN PART and DENIED IN PART as discussed herein. IT IS
FURTHER ORDERED that the government motion at Docket 132 is DENIED
WITHOUT PREJUDICE for the government to renew its objections after a Daubert
hearing.
DATED this 21st day of March, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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