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United States v. Jackson

United States District Court, N.D. Georgia, Atlanta Division

July 12, 2018

UNITED STATES OF AMERICA,
v.
MARIO JACKSON, BRANDON REDMOND, DAYNA JOY LIVERMAN, and ANTHONY RICHARDSON Defendants.

          ORDER

          AMY TOTENBERG UNITED STATES DISTRICT JUDGE

         Magistrate Judge John Larkins' Non-Final Report and Recommendation (“R&R”) [Doc. 337] is currently before the Court. The R&R recommends the denial of Defendant Jackson's Motions to Exclude DNA Evidence and Request for Daubert Hearing [Doc. 72; Doc. 211] as well as the multiple Daubert Motions relating to the cell site evidence and expert [Docs. 252, 264, 294, 295] filed by Defendants Jackson, Richardson and Redmond. Defendants Richardson, Redmond, and Liverman have adopted Jackson's Motions Relating to the cell site testimony [Docs. 273, 291, 301, 302] and Defendant Jackson adopted motions filed by Defendants Richardson and Redmond [Doc. 293]. Defendants have filed objections to the Magistrate Judge's R&R that challenge the Magistrate Judge's factual and legal findings. Defendant Jackson challenges the R&R finding that the DNA evidence implicating him is admissible and that a Daubert Hearing on the DNA expert is not required. (Doc. 356 at 11.) All Defendants challenge the Magistrate Judge's finding that Agent Fitzgerald's expert testimony on cell site data is admissible. (Doc. 356 at 11; Doc. 343 at 7-8; Doc. 342 at 2-8; Doc. 355 at 1-8.)

         A district judge has broad discretion to accept, reject, or modify a magistrate judge's proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any portion of the R&R that is the subject of a proper objection on a de novo basis and any non-objected portion on a “clearly erroneous” standard. Accordingly, the Court has reviewed the Defendants' motions on a de novo basis.

         A. DNA Evidence and Daubert Hearing

         After he was arrested on July 9, 2015, officers obtained a search warrant for a DNA swab of Defendant Jackson's cheek. (Doc. 43-1.) These cheek swabs were tested against a black ski mask found at the scene of the January robbery in this case[1]. The DNA sample obtained from Jackson matched the DNA obtained from the mask. (Doc. 211-1.) The Government filed a pretrial expert disclosure along with a lab report from the Georgia Bureau of Investigation's (GBI) Division of Forensic Sciences. (Id.) This lab report details the methods and procedures used in comparing the mask and Jackson's DNA. (Id.)

         While Jackson does not object to the method of testing utilized, he argues that the DNA evidence is not admissible because the government has not shown that the collection methods were proper or “reasonably based on scientific principles.” (Doc. 221 at 4-5.) Additionally, he argues that any testimony flowing from this improper collection is also inadmissible. (Id.)

         The Magistrate Judge recommends denying Defendant's motion related to the DNA evidence and found that a Daubert Hearing was not necessary because Jackson supplied “little more than speculation that the masks were contaminated in a manner that would compromise DNA analysis.” (Doc. 337 at 71.) He further notes that concerns about DNA collection and transfer procedures go to the weight of the evidence rather than the reliability of the DNA testing itself. (Id.) Defendant Jackson objects to this conclusion and argues that collection speaks to chain of custody issues and thus to reliability, though he does not cite to any authority. (Doc. 356 at 11.)

         After conducting an independent review, the Court finds that the Magistrate' Judge's legal analysis is correct. Defendant has offered no reason to suspect that the mask was contaminated[2]. Additionally, as the Magistrate Judge noted, Defendant Jackson's objections speak to the weight of the evidence and not the well-established reliability of the DNA testing methodology and process. See United States v. Warnock, 1:14-CR-015-AT, 2015 WL 7272208 (N.D.Ga. Nov. 16, 2015) (Docket Entry 100). Defense counsel will have further opportunity to cast doubt on the evidence and testimony through cross-examination at trial. Though a court's decision of whether to conduct a Daubert Hearing is discretionary, the Court does not view it necessary on this issue, as the reliability of the GBI's DNA testing methods are “properly taken for granted.”[3] Kumho Tire Co., Ltd. v. Carmichael, 526 U.S 137, 152 (1999). Here, the GBI forensic biologist's specialized knowledge will help the trier of fact understand the evidence by explaining the DNA testing process; the testimony is based on the sufficient facts and data; the testimony is based on widely accepted DNA testing methods; and the lab report makes clear that the forensic biologist reliably applied the aforementioned accepted methods to specific facts here, that is the comparison of the mask and the cheek swabs. Under Rule 702, the Government's forensic biologist may present expert testimony as to the DNA evidence. The Court ADOPTS the Magistrate's recommendation [Doc. 337 at 72] and DENIES Defendant Jackson's Preliminary Motion to Set Daubert Hearing [Doc. 72] and DENIES his Perfected Motion to Exclude DNA Evidence and Request Daubert Hearing [Doc. 211].

         B. Cell Site Evidence and Daubert Hearing

         The Government has disclosed that it intends to call FBI Special Agent Chad Fitzgerald to testify to the activity and general geographic location of the various Defendants' cell phones at specific times relevant to the crimes charged. (Doc. 264- 1.) Defendants object on various grounds. Defendants first argue that the Government failed to properly disclose Fitzgerald as an expert under Rule 16(a)(1)(G). (Doc. 252 at 2.) Defendants object to the Magistrate Judge's finding that the Government's disclosure, in a letter to defense counsel on Dec. 8, 2016 (Doc. 264-1), sufficiently describes the witness's opinion, the basis and reasons for those opinions, and the expert's qualifications as required by Rule 16(a)(1)(G).

         Defendants also argue that the Government's disclosure is insufficient as it was not supported by the testimony Agent Fitzgerald gave at the Daubert Hearing when he stated that he had not yet analyzed the phone records in this case. (Doc. 319 at 6.) The Magistrate Judge found that because Agent Fitzgerald described the methodology he will use and because the government has informed defense counsel what his anticipated opinion will be, there was no Rule 16 violation. (Doc. 337 at 76.) However, because Agent Fitzgerald had not yet applied his methods, the Magistrate Judge recommends that Defendants be allowed to renew their motions at trial upon Agent Fitzgerald's application. (Id. at 76 n. 10.)

         The Court, however, finds that this matter should be resolved prior to trial. Defendants must be given the opportunity to question Agent Fitzgerald on his analysis of the phone records involved in this case. Though defense counsel had opportunity to question Agent Fitzgerald at the Daubert hearing in front of the Magistrate Judge (Doc. 337 at 76.), they were not afforded the chance to cross-examine his interpretation of the specific facts at hand (as he had not yet reviewed the relevant records). As such, the Court will entertain a second Daubert hearing- after Agent Fitzgerald has reviewed the facts and records involved in this case- should defense counsel file a motion in pursuit of such a hearing.

         That being said, the Court is familiar with and has allowed expert testimony by Agent Fitzgerald in a prior case. The Court suspects that Agent Fitzgerald will similarly qualify as an expert here, once he has reviewed the pertinent records and been subject to cross-examination on his analysis of such records. Defendants question both Agent Fitzgerald's methodology and the use of historic cell site analysis in criminal cases more generally[4]. But historic cell site data analysis and testimony has become widely accepted as based on reliable methods in federal courts around the country and in the Northern District of Georgia. In the R&R, the Magistrate Judge details at length a number of cases in which historic cell site experts have been accepted. (Doc. 337 at 78-82.) In particular, the Magistrate Judge highlights some of the cases in which Agent Fitzgerald himself has testified as a cell site expert[5]. (Id.)

         As noted above, Agent Fitzgerald has been accepted as an expert before this Court after a thorough Daubert Hearing. See United States v. Thornton, 1:13-cr-466-AT (N.D.Ga. Dec. 19, 2014) (Docket Entry 65) (finding Agent Fitzgerald qualified as an expert to testify regarding the functioning of cellular communication networks, the fundamentals of cell site analysis, and the application of such analysis to the cell phones and cell tower data). In Thornton, this Court noted that it would have concerns if Agent Fitzgerald's testimony were to extend beyond the scope of his methodology and attempt to pinpoint precise street locations or make equally specific determinations. Id. at 2. The Government has stated that, in this case, Agent Fitzgerald will not ...


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