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UNITED
STATES OF AMERICA, Plaintiff, v. Defendant.
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No.
CR 00-0000 ABC |
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BARRY
J. PORTMAN
Federal
Public Defender
Assistant
Federal Public Defender
450
Golden Gate Avenue
San
Francisco, CA 94102
Telephone: (415) 436-7700
Counsel
for Defendant XXXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA
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UNITED
STATES OF AMERICA, Plaintiff, v. Defendant.
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No.
CR 00-0000 ABC |
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Mr.
XXXX XXXX is charged with a violation of 18 USC ' 922(g)(1),
possession of a firearm after sustaining a felony conviction. A necessary element of this offense is that
the firearm and ammunition recovered traveled in interstate commerce. To prove this element, the government
intends to rely upon hearsay and opinion evidence, introduced through the
testimony of Alcohol and Tobacco Aexpert@ Anthony
Costakis. Mr. Costakis' qualifications fall far short of the expert
contemplated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579 (1993), and his testimony should accordingly be excluded under
that Court=s
recent decision in Kumho Tire Company, Ltd. v. Patrick Carmichael, No.
97-1709, 1999 WL 152455 (U.S. Mar. 23, 1999)
BACKGROUND
Special
Agent Anthony Costakis has recently testified before this Court in United
States v. XXXXX YYYY, CR 00-000 XXX.
In YYYY, Chief Assistant Federal Public Defender Geoffrey Hansen
explored the many shortcomings of Mr. Costakis= Aexpertise@ in the field of
interstate nexus research.
During
cross-examination, Mr. Costakis admitted that his expertise is akin to that of
a wine taster, in that Ahe
knows [interstate nexus] when he sees it.@[1] Mr. Costakis admitted that there were
several errors in the trace report of the firearm in the YYYY case. Among these errors was the fact that a gun
was reported as recovered in Alwa, Oklahoma, rather than
Alva, Oklahoma. Mr.
Costakis conceded that the report listed the wrong street address for the
residence where a gun was recovered. Of
greatest concern, Mr. Costakis could offer no methodology by which the data
entry of what were effectively word processors was checked for accuracy in the
trace reports.
As
will be discussed in greater depth in the following section, the Aexpert@ report of Mr.
Costakis in the present case is plagued with even greater inaccuracies.
ARGUMENT
To
secure a conviction in a case involving 18 USC ' 922(g), the
government must prove that Athe
firearm in question was possessed <in
or affecting commerce.=@ United States
v. Alvarez, 972 F.2d 1000, 1003 (9th Cir. 1991) (quoting 18 USC ' 992(g)).
Although
the interstate nexus of a firearm is a substantive element essential for a
conviction, the government has long been permitted to prove this fact through
the use of otherwise inadmissible hearsay and opinion evidence. In United States v. Gann, 732 F.2d
714 (9th Cir. 1984), the Ninth Circuit looked to the reasoning of a district
court in Delaware and held that viewing an ATF Agent as an expert was not Amanifestly
erroneous.@ Id. at 724-25. This lukewarm endorsement was quickly
exploited by the government, and has fostered evidentiary bad habits that have
devolved into ATF Agents speculating that guns manufactured abroad Amust have
traveled in interstate commerce.@ United States v. Clawson, 831 F.2d
909, 913 (9th Cir. 1987) (emphasis added).
ATF
Ainterstate
nexus experts@
thus enjoyed a unique evidentiary niche, effectively shielded from all
assurances of reliability. As Aexperts,@ they were not
constrained by the reliability guarantees secured by hearsay and opinion rules
of evidence. As non-scientists,
however, they were not subject to the rigorous demands of accuracy and
reliability imposed by Daubert.
Fortunately, the Supreme Court has eliminated this safe haven for bad
experts through its recent decision in Kumho Tire.
A. ATF AExperts@ After Kumho
Tire
In
its most significant decision on expert testimony since Daubert, the
Supreme Court in Kumho expanded the basic gatekeeping function of the
district court to Atechnical@ or Aother specialized
knowledge@
experts. Kumho, 1999 WL 152455
at *7. Like Mr. XXXX in the present
case, civil defendant Kumho Tire faced the questionable testimony of a
non-scientific Aexpert@ offered by the
plaintiff. Id. at *4. Kumho Tire moved to exclude the testimony of
this tire expert, and the district court applied the gatekeeping factors of Daubert.
Id. at *6. In its original order and in an order after
reconsideration, the district court found that the Daubert factors
argued against the reliability of the expert=s
testimony and granted the defendant's motion to exclude. Id. at *6-*7.
On
appeal, the Supreme Court began its analysis with Daubert and with the
foundation of that case; Federal Rule of Evidence 702. See id. at *7 (quoting Daubert,
509 U.S. at 589). The Court observed
that Rule 702 made no relevant distinction between Ascientific@ knowledge and Atechnical@ or Aother specialized
knowledge.@ Id. at *8. The Court in Kumho accordingly concluded that ADaubert=s general principals
apply to the expert matters described in Rule 702.@ Id. at *9.
These
Ageneral
principals@
may include the following Daubert factors:
--Whether
a Atheory
or technique . . . can be (and has
been) tested;@
--Whether
it Ahas
been subjected to peer review and publication;@
--Whether,
in respect to a particular technique, there is a high Aknown or
potential rate of error,@
and whether there are Astandards
controlling the technique=s
operation;@
and
--Whether
the theory or technique enjoys Ageneral
acceptance@
within a Arelevant
scientific community.@
Id.
at *9 (quoting Daubert, 509 U.S. at 592-94).
The
Court in Kumho spoke to assurances of accuracy that had previously been
missing from non-scientific experts: AThe objective of
[Daubert=s
gatekeeping] requirement is to ensure the reliability and relevancy of expert
testimony.@ Id. at *10. The goal of this gatekeeping process is critical for any tribunal
seeking truth: AIt
is to make certain that an expert, whether basing testimony upon professional
studies or personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant
field.@ Id. (emphasis added).
Even
under the most charitable of views, Aintellectual
rigor@
is not a phrase that can be used to characterize Mr. Costakis= testimony. His methodology is inaccurate and
unverified, his testimony, speculative.
Mr. Costakis' testimony should be accordingly excluded under Kumho.
B. Application of the Daubert Factors
and Kumho Analysis Requires Exclusion of Mr. Costakis= Testimony
Application
of the Daubert factors, and of the flexible analysis of Kumho,
requires exclusion of the testimony of Mr. Costakis.
The
first Daubert factor echoed in Kumho is Awhether a . . .
technique . . . can be (and has been) tested.@ Id. at *9 (quoting Daubert,
509 U.S. at 593). Mr. Costakis has and
will testify regarding a technique for Atracing@ a firearm
through interstate commerce and into the hands of a criminal defendant. He has not, and will not testify to any
testing that has taken place to confirm the accuracy of these trace reports or
of the reference works upon which he relies.
The
second Daubert factor is whether the technique has been Asubjected to peer
review and publication.@ Id.
APeer
review@
does not include methodology manuals published by other ATF agents. The Supreme Court=s high
expectation of peer review is telling: A[S]ubmission
to the scrutiny of the scientific community is a component of <good science,= in part because
it increases the likelihood that substantive flaws in methodology will be
detected.@ Daubert, 509 U.S. at 593. Under Daubert and Kumho,
before he testifies Mr. Costakis=
methodology should have withstood the scrutiny of statisticians, computer
analysts or database experts, or industrial engineers and marketing
specialists. It has not.
The
Court in Daubert and Kumho next looked to the Aknown or
potential rate of error,@
and the Astandards
controlling the technique=s
operation.@ Kumho, 1999 WL 152455 at *9. In the extremely small statistical pool of
two cases before this Court, Mr. Costakis has displayed an appalling proven
rate of error. As described above, in
the YYYY case Mr. Costakis testified based on a trace report that had
the wrong residence address, the wrong town, and the wrong address for the gun=s (then) current
location at the main post office building in San Francisco.
In
the present case, the ATF trace report states that the gun was recovered in the
possession of an individual other than the defendant. Compare Trace Report, Appendix A at Bates 11 (reporting ARany XXXX@ as the
individual in possession of the firearm), with Indictment (titled
United States v. XXXX D. XXXX).
Mr. Costakis also errs in his recitation of the firearm=s serial number;
the single most important identifying attribute of a gun. Compare Report of Investigation, Appendix
A at Bates 5 par. 1 A (AHarrington
& Richardson .32 caliber revolver, model 733, serial number 5574.@) with Firearms
Trace Report, Appendix A at Bates 12 (ADescription
of Firearm . . . Serial Number: AS
3557.@)
Moreover,
Mr. Costakis has previously testified that no system or standards exist
controlling the operation of the trace report technique. In the absence of such standards, the
computer programer=s
maxim, AG.I.G.O.@ best describes
the ATF Trace Report; AGarbage
In, Garbage Out.@
No
other scientific, technical, or engineering expert would be permitted to
testify as an expert under Daubert with such glaringly high error rates,
and with non-existent quality control.
Until his methodology reaches accuracy rates akin to that of other
experts, Mr. Costakis=
testimony must be excluded under Kumho.
The
ultimate Daubert factor, Ageneral
acceptance@
within a Arelevant
scientific community@
is also absent. Mr. Costakis will be
unable to identify any community or discipline that endorses the ATF
methodology, outside of the ATF and Department of Justice.
Kumho=s analysis did
not, however, end with a mechanical application of the Daubert
factors. See Kumho, 1999 WL
152455 at *12. The Court in Kumho
also endorsed the district court=s
distrust of the expert=s
Asubjective[]
. . . mode of analysis in response to questions seeking specific information
regarding how he could differentiate [between tires].@ Id.
This disfavored subjective analysis is the essence of the methodology of
Mr. Costakis who, like a wine taster, Aknows
it when he sees it.@
Finally,
it should be noted that the present challenge does not preclude the government
from proving the interstate nexus element.
The government is free to call another, more reliable, ATF expert, to
subject Mr. Costakis=
methodology to the rigors demanded by Daubert, or to call the
manufacturer of the firearm, (which is presumably an out-of-state
business). Instead, this motion simply
requests the guarantees of reliability contemplated in Federal Rule of Evidence
702, and articulated in Kumho.
CONCLUSION
For
the foregoing reasons, Mr. XXXX respectfully requests that this Court exclude
the Aexpert@ testimony of Mr.
Anthony Costakis or, in the alternative, hold an in limine evidentiary hearing
to evaluate the admissibility of his testimony under Daubert and Kumho.
Respectfully
submitted,
BARRY
J. PORTMAN
Federal
Public Defender
STEVEN
G. KALAR
Assistant
Federal Public Defender
[1] Quotations are based upon the notes
and recollection of undersigned counsel.
Counsel for Mr. XXXX have attempted to secure an expedited transcript of
the cross examination of Mr. Costakis, but the court reporter has unfortunately
been unavailable. The court reporter
anticipates completing the transcript on Friday, April 16. Counsel for Mr. XXXX will supplement the
present motion with the YYYY transcript when it becomes available.
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