USA v. Tuttle et al.

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
FRANCISCO VILLANUEVA,
a/k/a “Gumby,” a/k/a “Pancho,”
ADAN JAMES CORONA,
a/k/a “Ace Boogie,”
Defendants.
CR. 17-50049-02 & 03-JLV
ORDER
INTRODUCTION
The government provided a supplemental notice of expert witness as to
Ms. Gerhardt-Whiddon.1 (Docket 565). Both defendants filed Daubert2
challenges to Ms. Gerhardt-Whiddon’s testimony. (Docket 583 & 588). The
government filed a response to defendants’ challenges. (Docket 616). For the
reasons stated below, defendants’ Daubert challenges are denied.
1The only difference between the initial notice and the supplemental
notice was the inclusion of one additional laboratory report dated November
10, 2020. Compare Dockets 394 at p. 3 & 565 at p. 3.
2Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993).
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ANALYSIS
LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence governs testimony by expert
witnesses and states as follows:
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 otherwise
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;
(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.
Id. “Rule 702 does not rank academic training over demonstrated practical
experience.” United States v. Roach, 644 F.3d 763, 764 (8th Cir. 2011).
The trial court must ensure that expert testimony or evidence admitted is
not only relevant, but reliable. Daubert, 509 U.S. at 589.3 Faced with a proffer
of expert testimony, the court must determine at the outset whether the expert
is proposing to testify to (1) scientific, technical, or other specialized knowledge
that (2) will assist the trier of fact to understand or determine a fact in issue.
Id. at 592. “Federal Rule of Evidence 702 provides that an expert may testify if
it will assist the trier of fact to understand the evidence or determine a fact in
3Although Daubert deals specifically with expert testimony based on
scientific knowledge, the Supreme Court extended the principles in Daubert to
all expert testimony. Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 141
(1999).
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issue.” United States v. Geddes, 844 F.3d 983, 991 (8th Cir. 2017) (internal
quotation marks and citation omitted). The trial court’s decision to admit
expert testimony is reviewed for an “abuse of discretion, according it
substantial deference.” United States v. Bailey, 571 F.3d 791, 803 (8th Cir.
2009).
Vigorous cross-examination, presentation of contrary evidence and
careful instruction on the government’s burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence. Daubert, 509
U.S. at 596. See also Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557 (8th
Cir. 2014) (same).
Relevant to this case, Ms. Gerhardt-Whiddon is a former forensic
examiner with the Evidence Section of the Rapid City Police Department.
(Docket 565 at p. 1). Her CV is attached to the original notice. (Docket 394-1).
The government points out Ms. Gerhardt-Whiddon holds certifications issued
by the International Association of Identification as a latent print examiner and
a crime scene analyst. Id. at p. 2.
The government’s notice indicates Ms. Gerhardt-Whiddon will testify the
absence of a positive latent fingerprint “does not mean the items were not
touched by a particular individual.” (Docket 565 at p. 2). “Ms. Gerhardt-
Whiddon will testify to the latent fingerprints and inked impressions she
examined in relation to this case. She will testify to her conclusions as to
whether latents were identified, whether they were used for comparison, and
whether persons were identified as donors of particular latent fingerprints.” Id.
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at pp. 2-3. Her four identified reports of fingerprint analyses were previously
provided to the defendants in discovery. Id. at p. 3.
Defendants’ Challenges
Both defendants filed Daubert challenges to Ms. Gerhardt-Whiddon’s
testimony. (Docket 583 & 588). Mr. Villanueva’s principal challenge asks the
government to amend its’ notice “to provide all expert conclusions that it
intends to have Ms. Gerhardt-Whiddon testify to.” (Docket 583 at p. 1). Mr.
Corona objects to the admission of the witness’ testimony “that the results of
fingerprint testing on items in this case does not mean the items were not
touched by a particular individual.” (Docket 588 at p. 1). He contends this
“proposed testimony . . . is misleading, it invites speculation and conjecture by
the jury, and is irrelevant to any material issue in dispute.” Id. at p. 2. Mr.
Corona suggests the statement seeks to ask the jury to “engage in speculation
and conjecture that he may have touched the item” when “the government
doesn’t have fingerprint evidence to prove Corona touched an item[.]” Id.
Government’s Response
The government represents that every report authored by Ms. Gerhardt-
Whiddon “has been disclosed to the defense.” (Docket 616 at p. 1). Among the
most important conclusions reached by the witness, the government submits
“she will testify to locating Villanueva’s fingerprint on the gold Honda
associated with the murder and in which [Mr. Brewer’s] blood was also
located.” Id. The government contends Mr. Villanueva does not “raise any
issues regarding the standards set forth in Daubert and its progeny regarding
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Ms. Gerhardt-Whiddon’s testimony and his Daubert challenge should be
denied.” Id. at p. 2.
In response to Mr. Corona’s challenge, the government submits the
Eighth Circuit “found that ‘[i]t is not an abuse of discretion to allow an expert
witness to testify as [to] a lack of physical evidence as long as the expert’s
opinion does not usurp the jury’s role of assessing whether the event
occasioning the evidence actually occurred.’ ” Id. at pp. 2-3 (citing United
States v. Conroy, 424 F.3d 833, 839 (8th Cir. 2005) (quoting United States v.
Kirkie, 261 F.3d 761, 766 (8th Cir. 2001)). The government acknowledges “the
evidence will be that Corona’s fingerprints were not located on the 9mm
weapon or its magazines and ammunition, despite eyewitness testimony that
[it] was the gun he fired at [Mr.] Brewer.” Id. at p. 3. Despite the lack of
fingerprint evidence, the government argues “[i]t is essential the jury not be
misled into believing that the lack of fingerprints exonerates him, which is
likely what the defendant
will argue.” Id. Rather, the government argues the defendants will be
permitted to cross-examine the witness “during trial regarding her
qualifications, methods, findings, and peer review and the jury will make the
determination if her testimony is credible.” Id. at p. 4.
Ruling
“[E]xpert testimony regarding fingerprint evidence should, subject to
sufficient trial court oversight, be regarded as satisfying Daubert and Kumho
Tire Co. v. Carmichael, 526 U.S. 137 . . . (1999).” United States v. Hernandez,
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299 F.3d 984, 991 (8th Cir. 2002). “Fingerprint evidence and analysis is
generally accepted.” United States v. Janis, 387 F.3d 682, 689 (8th Cir. 2004)
(citing United States v. Collins, 340 F.3d 672, 682 (8th Cir. 2003)). “While the
principles underlying fingerprint identification have not attained the status of
scientific law, they nonetheless bear the imprimatur of a strong general
acceptance, not only in the expert community, but in the courts as well.” Id. at
690 (citing United States v. Crisp, 324 F.3d 261, 268 (4th Cir. 2003)).
“[D]ifferent agencies may require different degrees of correlation before
permitting a positive identification, fingerprint analysts are held to a consistent
‘points and characteristics’ approach to identification. Analysts are also
consistently subjected to testing and proficiency requirements.” Crisp,
324 F.3d at 269.
By her CV, Ms. Gerhardt-Whiddon has the education, training and
experience to testify regarding fingerprint identification. (Docket 394-1). Her
certifications with the International Association of Identification are indices of
her peer-group testing, accuracy proficiency and qualification. Id. at p. 2.
Defendants’ Daubert challenge is overruled.
The absence of fingerprint evidence is permitted in expert witness
testimony. “We see little difference between a forensic expert testifying as to
the reasons for not finding bodily fluid evidence on a rug, and the common
situation of a fingerprint expert testifying as to the reasons for not finding a
defendant’s fingerprints on an object in question.” Conroy, 424 F.3d at 839.
See also United States v. Ellis, 817 F.3d 570, 577 (8th Cir. 2016) (“[T]he
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government’s experts explained why DNA and fingerprint evidence may be
difficult to recover from a firearm, and the jury was entitled to consider these
explanations in reaching its conclusion that Ellis possessed the firearm despite
the absence of DNA and fingerprint evidence.”); United States v. Bridgeforth,
772 Fed. Appx. 371, 373 (8th Cir. 2019) (“As a government witness explained,
firearms rarely provide fingerprint evidence[.]”).
Ms. Gerhardt-Whiddon’s testimony regarding the absence of fingerprints
on the firearm and ammunition magazine will help the jury understand the
evidence or absence of evidence and then “determine a fact in issue.” Geddes,
844 F.3d at 991. Defendants’ challenge to the subject matter of Ms. Gerhardt-
Whiddon’s testimony is overruled.
ORDER
Based on the above analysis, it is
ORDERED that defendants’ Daubert challenges (Docket 583 & 588) are
denied.
Dated September 8, 2021.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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