Opinion
CRIMINAL ACTION NO. 99-238 SECTION "N"
May 22, 2001
ORDER AND REASONS
Before the Court is defendant Sydney Joseph's Motion in Limine to Exclude Expert Firearm Testimony Based on Government's Failure to SatisfyDaubert Requirements for Admission. For the following reasons, the defendant's motion is DENIED.
LAW AND ANALYSIS
On April 6, 2001, the grand jury for the Eastern District of Louisiana returned a superseding indictment charging defendant Sydney Joseph with three counts of bank robbery, three counts of brandishing a firearm, four counts of felony possession of a firearm, two counts of carjacking, and one count of possession of a firearm with an obliterated serial number. Joseph has pled not guilty to these charges.
During its case-in-chief, the Government seeks to introduce the testimony of F.B.I. Special Agent Michael Eberhardt as a firearms expert. Eberhardt intends to examine the surveillance photos taken during the bank robberies and identify the firearms in the possession of the perpetrator. Although the defendant does not contest Eberhardt's qualifications, he contends that Eberhardt's methodology is unacceptable under the Supreme Court's standards as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786. Specifically, the defendant claims that Eberhardt's use of surveillance photographs as the basis of his opinion is inappropriate.
The Court notes several cases which have held that it is not necessary for an expert to identify a weapon in a surveillance photograph as being a real gun, especially when eyewitnesses can testify as to the presence of the firearm. See United States v. Jones, 907 F.2d 456, 460 (4th Cir. 1990); United States v. Floyd, 81 F.3d 1517, 1526 (10th Cir. 1996) (stating that "[c]redible witness testimony is sufficient to establish that a defendant possessed a firearm during the commission of a crime"); United States v. Taylor, 54 F.3d 967, 976 (1st Cir. 1995).
The Court does not find that the defendant's contention rises to the level of a Daubert challenge. It is not uncommon for experts to rely on photographs of an item in offering their opinions. See United States v. Gardner, 211 F.3d 1049, 1054 (7th Cir. 2000). See, also, United States v. Brink, 39 F.3d 419, 421 (3rd Cir. 1994) (allowing a firearms expert to testify that the gun in surveillance photographs was a revolver); United States v. Quinn, 18 F.3d 1461, 1465 (9th Cir. 1994) (allowing expert to offer opinion that gun used in a robbery, as identified by experts from surveillance photographs, was similar to the gun found in the home of the defendant's girlfriend).
The defendant has the right to cross-examine Special Agent Eberhardt and point out any weaknesses in his testimony. However, the Court does not find that the defendant has raised grounds for a Daubert challenge; and his motion in limine is DENIED.