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United States v. Astarita

United States District Court, D. Oregon, Portland Division

June 11, 2018




         This matter is before the court on defendant's motion in limine to exclude from trial the reports, testimony and exhibits of government experts Frank Piazza, Victoria Dickerson, Michael Haag, Kevin Turpen, and Toby Terpstra [# 65] Defendant challenges the reliability of this evidence and contends it should be excluded under Fed.R.Evid. 702 and case law following Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), which as of June 1, 2018, has been cited 2149 times by the Supreme Court and in published opinions of the federal Courts of Appeals. In addition, defendant asserts that presenting this evidence to a jury would pose a danger of unfair prejudice that substantially outweighs its probative value so that it should be excluded under Fed.R.Evid. 403. For the following reasons, the motion is granted in part and denied in part.


         On the afternoon of January 26, 2016, members of the FBI Hostage Rescue Team (“HRT”) and the Oregon State Police Special Weapons and Tactics Team (“OSP”) stopped two vehicles carrying the leaders of the armed takeover of Malheur National Wildlife Refuge. One of the vehicles, a white Dodge pickup driven by Robert Lavoy Finicum sped away from the scene of the stop and headed north on Highway 395. OSP and HRT set up a roadblock on Highway 395 to stop Finicum's truck and apprehend its occupants, including Finicum, Ryan Bundy and Shawna Cox.

         As Finicum approached the roadblock at speeds up to 70 mph, an OSP officer (“OSP Operator 1”) fired three rounds, hitting Finicum's truck in the hood, grill, and driver's side mirror. Finicum drove off the road to the left of the roadblock and plowed into a deep snow bank, narrowly missing OSP Operator 1. Finicum opened the driver's side door and emerged from the truck with his hands spread. At that approximate time, two additional shots were fired (“shots 4 and 5”), one of which perforated the roof of Finicum's truck and shattered the left rear window. The other did not hit anything of significance for the present purposes.

         Finicum confronted two OSP operators, disregarding repeated commands to stop and get down on the ground. Two OSP officers shot Finicum a total of three times as he appeared to reach for a weapon in a pocket of his coat, where officers subsequently found a loaded handgun. Finicum died at the scene. The shooting occurred at approximately 4:30 p.m.

         These events were recorded by aerial video taken from two FBI fixed-wing aircraft circling approximately two miles from the scene (“FBI video”). Contemporaneously, Shawna Cox filmed the events from the back seat of Finicum's truck with a SLR camera that recorded both audio and video (“Cox video”).

         Approximately nine hours later, Deschutes County Deputy Sheriff Kevin Turpen, Oregon State Police Forensic Scientist Victoria Dickerson and others arrived to measure and reconstruct the shooting scene. They used a total station device to measure the location of Finicum's truck and the other evidence at the scene. Turpen used these measurements to create a computer assisted diagram of the scene. Examination of Finicum's truck revealed the bullet hole from shot 4 or 5 in the roof (“Impact W”), in addition to the three impacts from shots fired by OSP Operator 1 as the truck approached the roadblock. Dickerson estimated the trajectory of each round, including the round that caused Impact W. Turpen added Dickerson's trajectory estimates to his diagram to indicate the likely location from which each shot was fired. He did not make his own trajectory estimates.

         In the course of the investigation, all the shots fired by OSP operators were accounted for; the three that hit the front of Finicum's truck as it approached the roadblock and the three that hit Finicum after he emerged from his truck. No one admitted firing the shot that hit the roof of Finicum's truck or the one that missed. The allegations against defendant in this case are that he fired shots 4 and 5 and then falsely denied doing so.

         The government hired Frank Piazza as an audio/video expert to examine the FBI videos and the Cox video, synchronize the recordings and create a side-by-side playback. The government retained Michael Haag to examine Finicum's truck and determine whether a reliable trajectory estimate could be made for the bullet that caused Impact W.

         The government retained Toby Terpstra to take the data provided by Piazza, Haag, and others to reconstruct the scene into a 3-D animation model. Terpstra took 3-D measurements of Finicum's truck and the shooting scene. He used twelve “camera matches” from photographs or still frames from videos to position the vehicles in his model and three camera matches to position the individuals. He then added Haag's trajectory data for the shot that caused Impact W. Terpstra's 3-D animation model places defendant within the area shown as the likely origin of the shot that caused Impact W.

         During a four-and-a-half day Daubert hearing, the court heard testimony from Piazza, Dickerson, Turpen, Haag, Terpstra and Professor Jeffrey Smith. The defense put on experts Bruce Koenig, Andrew Bray, Matthew Noedel, Eugene Liscio and Clifford Mugnier, to challenge the work of the plaintiff's experts, but not to create reconstructions of their own.


         A person qualified as an expert by knowledge, skill, experience, training or education may provide expert testimony if his or her specialized knowledge will help the trier of fact to understand the evidence or to determine an issue of fact. Fed.R.Evid. 702. The expert testimony must be both relevant and reliable. Daubert, 509 U.S. at 589. The proponent of the expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence. Daubert, 509 U.S. at 592 n.10.

         The Ninth Circuit Court of Appeals recently summed up Daubert and its progeny in Murray v. Southern Route Maritime SA, 870 F.3d 915, 922-23 (9th Cir. 2017):

The Court in Daubert . . . constructed a flexible test examining the “reliability” and “fit” of the offered expert testimony. See Id. at 589-92, 113 S.Ct. at 2786.
The question of reliability probes “whether the reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592-93, 113 S.Ct. 2786. To give shape to the inquiry, the court identified four factors that may bear on the analysis: (1) whether the theory can be and has been tested, (2) whether the theory has been peer reviewed and published, (3) what the theory's known or potential error rate is, and (4) whether the theory enjoys general acceptance in the applicable scientific community. See Id. at 593-94, 113 S.Ct. 2786. But the Court was quick to emphasize that the factors are not “a definitive checklist or test” and that the reliability analysis remains a malleable one tied to the facts of each case. Id. at 591, 593, 113 S.Ct. 2786. Later cases have reiterated that the Daubert factors are exemplary, not constraining. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Id. at 159, 119 S.Ct. 1167 (Scalia, J., concurring) (“[T]he Daubert factors are not holy writ . . .”).
It is important to remember that the factors are not “equally applicable (or applicable at all) in every case.” Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 13176 (9th Cir. 1995). Applicability “depend[s] on the nature of the issue, the expert's particular expertise, and the subject of his testimony.” Kumho Tire Co., 526 U.S. at 150, 119 S.Ct. 1167 (citation omitted). A district court may permissibly choose not to examine factors that are not “reasonable measures of reliability in a particular case.” Id. at 153, 119 S.Ct. 1167.
Because of the fluid and contextual nature of the inquiry, district courts are vested with “broad latitude” to “decid[e] how to test an expert's reliability” and “whether or not [an] expert's relevant testimony is reliable.” Id. at 152-53, 119 S.Ct.1167. District judges play an active and important role as gatekeepers examining the full picture of the experts' methodology and preventing shoddy expert testimony and junk science from reaching the jury. See Daubert, 509 U.S. at 595-97, 113 S.Ct. 2786.

870 F.3d at 922-23.

         This gatekeeping function applies to any expert testimony, not only scientific opinions. Primiano v. Cook, 598 F.3d 558, 564-65 (9th Cir. 2010). The district court's role is limited to ensuring the soundness of the expert's methods and does not include finding facts about the correctness of the expert's conclusions nor the credibility of the witness. Primiano, 598 F.3d at 564-65; Daubert, 43 F.3d at 1318. Shaky but admissible evidence is to be attacked at trial by cross examination, impeachment, opposing expert testimony, contrary evidence, and proper application of the burden of proof, not by pretrial exclusion. Primiano, 598 F.3d at 564.


         I. Frank Piazza

         The government seeks to elicit the expert opinion of Frank Piazza, an audio engineer who owns and operates a forensic audio-video company. The government summarized his work as follows.

Mr. Piazza identified where in the Shawna Cox video the fourth and fifth shots rang out. He relied on more than just visual cues in making that determination. He listened critically to the audio track on the Cox video using professional grade headphones in a controlled environment. He listened at different playback speeds, and coupled what he heard with spectrographic analysis and visual cues from the video - shrapnel or debris coming through the headliner of Finicum's pickup truck, and the left rear window shattering - to locate the gunshots.
Mr. Piazza synchronized the Cox video and the FBI video. He converted both to a format suitable for editing, set both to run at 30 frames per second, and used professional editing software to narrow the time frame in both videos to focus on pertinent events. He looked for and matched fixed points visible in both videos, including Finicum's truck passing a post on the left side of the road, and Finicum opening the driver's door and emerging from the truck while raising his hands. He produced a single video that plays the synchronized videos together, with the Cox video playing in the lower left corner of the FBI surveillance video.
He … noted the elapsed time counter for the matching frames in each video - to 1/100th of a second. Professor Smith reviewed Mr. Piazza's work and confirmed that his synchronization was well within an acceptable range of error. He also confirmed that Mr. Piazza's methodology in locating shots four and five on the Cox video, and in synchronizing the Cox video with the FBI video, were scientifically sound. Mr. Piazza initially estimated an error rate for the synchronized video of ± 3 frames. In preparing for the hearing, however, he discovered a glitch in the Cox video that occurred approximately 20 seconds after the last rounds were fired. At that point, the two videos were off by approximately 10 frames (1/3 of one second). When shots four and five were fired, the two videos were properly synched.
Mr. Piazza enhanced the FBI surveillance video to aid in tracking the movements of the operators at the shooting scene. He adjusted the lighting, contrast, and color. He manually stabilized the video, sharpened the video (being mindful of the adverse effect caused by over-sharpening), slowed its playback, and placed colored circles around the various operators. The enhanced videos are reliable, relevant, and helpful to the jury, because they help track the movements of various operators at the scene. Notably, neither the synchronized video nor the video Toby Terpstra used to create his camera-matched 3-D scene re-creation were enhanced.

         The defense contends Piazza erroneously synchronized the FBI and Cox videos and altered the edges of objects in the video he sharpened. The defense summarized their objections as follows.

Deputy Turpen's diagrams and Mr. Terpstra's model purport to position people and other objects at the precise moment at which the shot that struck the Finicum truck was fired. Both Turpen and Terpstra admitted that their analyses depend on accurately selecting the precise frame from the overhead FBI video that captures that moment. The government hired Frank Piazza to identify that frame by analyzing the “Cox video” and synchronizing that video with the FBI video . . . He never submitted a meaningful report documenting his methods and failed to maintain notes of his work or screen captures documenting his settings on any of the (at least three) software programs he used.
In its brief, the government promised that Mr. Piazza would testify that his sync “may be off by a frame at most, and likely less” (emphasis in original). But Mr. Piazza admitted on direct examination that his sync might actually be off by as many as ten frames in either direction. On cross-examination, that error rate expanded to eleven frames in either direction (a 23-frame range). And another government expert, Professor Jeff Smith, was only willing to label as “reliable” a synchronization range of 34 frames. This is critical because the positions of all of the individuals in those frames-not just Special Agent Astarita-are essential to understanding who may have been in a position to shoot. And during the 34-frame loop that the government played during the hearing, several people were seen materially changing position, underscoring the need to identify the precise frame depicting those individuals' positions when the key shot was fired. But neither Mr. Piazza, Dr. Smith, nor any other expert was able to do so.


         Piazza is qualified by training and experience to identify sounds on audio recordings, synchronize video recordings depicting the same content from different vantage points, and to apply filters and other software tools to enhance video images. He is qualified to provide expert testimony with respect to those matters.

         With respect to the synchronization error of one-third of a second, I suspect asking whether a person can move an appreciable distance in that brief instant is akin to an intellectual speculation from the old adage “how many angels can dance on the head of a needle.” Because of a potential error range, the prosecution must show that the operators depicted in the synchronized video did not alter their positions materially during the pertinent time. The corrected Piazza synchronized video demonstrates at 34:46 the first three shots hit Finicum's truck, at 34:54 shots 4 and ...

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