United States v. Stafford, No. 12-3238 (6th Cir. June 11, 2013) (for publication). Panel of Judges Boggs, White, and McCalla (W.D. Tenn.).
Not a "new" case now, but worth noting.
Defendant (D) moved dist ct pre-trial to exclude gunshot-residue evidence, citing rules 702 and 403. D asked for Daubert hrg. Dist ct denied the motion.
On appeal, the defendant made "four arguments regarding the inadmissibility of the gunshot-residue evidence. First,
Stafford states that '[gunshot-residue] testing will not determine whether an
individual fired a gun, was present when a gun was fired by someone else, or was
merely in an environment in which [gunshot
residue] existed.' Stafford claims that because these three possible
outcomes summarize the testimony of the Government's expert Robert Lewis—and
because Lewis could not testify whether Stafford actually fired the weapon—Lewis
'could not reasonably make any conclusions as to the actual source of the six
[gunshot-residue] particles found,' and therefore Lewis's
testimony did not meet the standards of Daubert or Rule
702." Dist ct allowed defense expert to testify regarding the evidence, but the defense did not call him.
The defendant also argued that gunshot-residue evidence is imprecise. COA said five particles on D's hand meant the conclusion that the D had residue on his hand was reliable.
The argument that the particles could have been transferred inadvertantly was likewise unavailing. COA found the evidence sufficiently reliable. Defense cross-examined the gov expert on the point. As to whether the police used proper techniques to gather the evidence, COA found these arguments do not go to reliability. The arguments go to the weight of the evidence, not admissibility. Cross-examination allowed jury to consider the weight of the evidence.
Evidence not unfairly prejudicial under rule 403.
Opinion also addresses ACCA. Conviction for "aggravated riot" under Ohio law counts for ACCA purposes. And it touches on 3C1.2, reckless endangerment. 3C1.2 applied: defendant threw loaded gun against a building near a crowded street and nightclub.
