Case 1:14-cr-00107-RCL Document 847 Filed 06/25/18 Page 1 of 16 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA United States of America ) ) ) Criminal No. 14-107 (RCL) v. ) ) Nicholas A. Slatten, ) ) Defendant. ) DEFENDANT’S OPPOSITION TO GOVERNMENT’S MOTION IN LIMINE TO PRECLUDE DEFENDANT’S PROFFERED EXPERT TESTIMONY The government’s motion to preclude Mr. Slatten’s proffered expert testimony is uniformly without merit. The opinions of Mr. Slatten’s firearms expert regarding the sounds produced by various rifles are reliable, relevant, and will be helpful to the jurors, who will lack knowledge of the sounds produced by military-grade rifles. The government’s argument that Mr. Slatten has failed to disclose the bases and reasons for the opinions of his ballistics expert is meritless, as Mr. Slatten’s expert reached the very same opinions and provided the very same reasons as the government’s own ballistics expert. And the government’s argument that Mr. Slatten has not adequately identified the bases and reasons for the opinions of his memory expert is nothing more than a complaint that his expert has written too many relevant publications on the subject matter of her testimony. The government’s motion should be denied. Case 1:14-cr-00107-RCL Document 847 Filed 06/25/18 Page 2 of 16 BACKGROUND On May 21, 2018, the defense disclosed to the government the following three expert opinions.1 A. Michael Green Michael Green is a firearms expert with over thirty years of experience in this field. Mr. Green began his career in the U.S. Army, where he completed Airborne School, Ranger School, and the Special Forces Qualification Course. He spent fifteen years in the Special Forces. Currently, Mr. Green serves as an Antiterrorism/Force Protection Specialist within a Department of Defense agency. He also owns a firearms training company. Mr. Green has been teaching tactical firearms training since 1992. A more detailed summary of Mr. Green’s qualifications is set forth in his expert disclosure and attached biography. See Ex. A at 1-2. As described in more detail in the defense’s expert disclosure, Mr. Green observed the firing of both an SR-25 and an M-4, during which contemporaneous recordings were made. (Those recordings were produced to the government on May 23.)2 The SR-25 (which is the type of rifle that Mr. Slatten had on September 16, 2007) was fired from (1) “inside a Bearcat out of one of the firing portals” and (2) “outside from the turret of a Bearcat.” Ex. A at 2. The M-4 (the type of rifle that Paul Slough had on September 16, 2007) was fired “outside from the turret of a Bearcat.” Id. Mr. Green listened to the rifle shots from atop a separate vehicle approximately 10 meters away, while wearing Peltors (a form of hearing protection). Id. 1 The due date for the defense’s expert disclosure in the scheduling order was May 18, but the parties agreed to extend the due date to May 21. 2 The government states in its motion that the defense produced only two recordings on May 23. ECF No. 810 at 2. That is incorrect. The defense produced .wav recordings of all three rifle shots discussed in Mr. Green’s disclosure on May 23. See Ex. B. 2 Case 1:14-cr-00107-RCL Document 847 Filed 06/25/18 Page 3 of 16 Mr. Green is prepared to offer the following two expert opinions. First, “[a]n SR-25 fired from inside an armored Bearcat through one of its portals sounds like an SR-25 fired from outside an armored Bearcat when the listener is wearing hearing protection atop a separate vehicle.” Id. at 2. Mr. Green will opine that “[a]n individual located on a separate vehicle from the Bearcat and wearing hearing protection would not be able to distinguish between the sounds accurately.” Id. at 3. He may also testify that the difficulty of distinguishing the sounds “would be significantly increased by a variety of factors,” such as the direction the individual is facing, the distance between the individual and the rifles, the ambient noise, and the level of hearing protection. Id. Second, “[a]n SR-25 sounds like an M-4 fired on semiautomatic mode when the listener is wearing hearing protection atop a separate vehicle.” Id. As with the first opinion, he will opine that “[a]n individual located on a separate vehicle and wearing hearing protection would not be able to distinguish between the sounds accurately” and that the difficulty of distinguishing the sounds would be increased by the factors set forth above. Id. B. Liam Hendrikse Liam Hendrikse has over a decade of experience as a ballistics and firearms specialist. He obtained his Master’s Degree in Forensic Science from King’s College in London and was previously a Forensic Scientist with the Forensic Science Service in the United Kingdom. He has served as a lecturer, trainer, and course designer designing modules and lectures specific to the forensic examination of firearms. Since 2010, he has served as a registered expert in firearms and ballistics for the International Criminal Court. He also serves on a panel of expert witnesses in firearms for the County of Los Angeles Superior Court. A more detailed summary of Mr. Hendrikse’s qualifications is set forth in his expert disclosure and attached CV. See Ex. A at 3-4. Mr. Hendrikse examined two pieces of physical evidence in the possession of the government: a bullet jacket fragment in the white Kia steering wheel (item Q90.1) and a bullet 3 Case 1:14-cr-00107-RCL Document 847 Filed 06/25/18 Page 4 of 16 jacket fragment found in the white Kia (item Q121). Based on his education, training, and experience, he reached the following opinions: 1. The bullet core fragment (identified by the government as Q90.1) in the White Kia steering wheel is consistent with a steel penetrator tip that is found in the M- 855 cartridge and consistent with a 5.56mm caliber bullet. Mr. Hendrikse may testify that the steel penetrator found in the steering wheel of the White Kia is consistent with a 5.56mm caliber bullet. Mr. Hendrikse may also testify that two possible firearms which fire a 5.56mm caliber bullet are the M-4 and/or the M-249. Mr. Hendrikse may also testify that an SR-25 sniper rifle does not fire a 5.56mm caliber bullet. 2. The bullet jacket fragment (identified by the government as Q.121) found in the White Kia exhibit no marks of value for comparison purposes. Mr. Hendrikse may opine that the bullet jacket fragment found in the White Kia is from a conventional projectile but because of the size and condition of the fragment, it exhibits insufficient marks of value for comparison purposes. Ex. A at 4-5. Importantly, Mr. Hendrikse’s opinions regarding this evidence are identical to the opinions reached by the government’s own expert, Brandon Giroux. Before the prior trial, the government disclosed that it intended to call Brandon Giroux as an expert in firearms and toolmark identification and comparison. See Ex. C at 3. As relevant here, the government’s disclosure stated that Mr. Giroux would testify that “Q90” is “consistent with steel penetrator tips found in Q231 through Q250 (i.e., 5.56mm cartridges)” and that “Q121” is “consistent with bullet fragments or bullet jacket fragments.” Id. at 4. Attached to the government’s disclosure were Mr. Giroux’s lab reports, but those reports did not disclose any additional information about how he reached those opinions. See id. at 38, 55. Mr. Giroux offered this testimony at trial. See 8/14/07 (AM) at 83:4-84:5; 8/14/07 (PM) at 60:8-24; see also Ex. E. The amount of detail in Mr. Hendrikse’s original disclosure was virtually identical to that in Mr. Giroux’s disclosure reaching the same opinions. Attached hereto as Exhibit D is a chart comparing Mr. Hendrikse’s original disclosure to Mr. Giroux’s disclosure. Nevertheless, the 4 Case 1:14-cr-00107-RCL Document 847 Filed 06/25/18 Page 5 of 16 government insisted that the disclosure “does not satisfy Rule 16 and does not allow the government to prepare for his testimony” and asked the defense to explain “why” Mr. Hendrikse reached his opinions. Ex. F at 2. In response, the defense supplemented Mr. Hendrikse’s disclosure to provide even more information than the government had provided in Mr. Giroux’s earlier disclosure. In a May 30 supplement, the defense stated that, with respect to the bullet core fragment found in the steering wheel (Q90.1): Mr. Hendrikse’s analysis considered the dimensions and material of the bullet core fragment. Based on class characteristics, the bullet core fragment could be excluded as having been fired from an SR-25 barrel. Based on Mr. Hendrikse’s past analysis of and familiarity with the 5.56mm caliber bullet and M-855 cartridge [SS109 cartridge], Mr. Hendrikse concluded that the bullet core fragment is consistent with a steel penetrator tip that is found in the M-855 cartridge and consistent with a 5.56mm caliber bullet. Ex. G at 4. With respect to the bullet jacket fragment identified as Q121, the defense added: Mr. Hendrikse reviewed the bullet jacket fragment (Q121) and was unable to identify any representative lands and grooves. Based on the lack of these identifying characteristics, Mr. Hendrikse could not identify anything resembling a rifling profile which would ordinarily be the basis for subsequent comparison (class characteristics).