United States District Court, D. Colorado
LEWIS T. BABCOCK, District Judge.
This matter is before me on a Motion to Strike Proposed Expert Testimony [Doc #89] filed by Defendant Gregory Lynn Hopson, in which he asks that I strike certain portions of the proposed trial testimony of two of the Government's expert witnesses - Richard Kaplan and Special Agent Chris McGuckin. After consideration of the applicable legal authority and the parties' briefs, the motion is GRANTED IN PART, as follows, but I RESERVE RULING on the remainder of the motion until trial.
On October 24, 2012, the Grand Jury indicted Mr. Hopson on: (1) eight counts of Production of Child Pornography in violation of 18 U.S.C. §§ 2251(a), (e) & 3559(e); (2) two counts of Transportation of Child Pornography in violation of 18 U.S.C. § 2252A(a)(1), (b)(1); (3) four counts of Receipt of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2), (b)(1); and (4) two counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). A Superseding Indictment was subsequently filed on September 25, 2013, in which the Grand Jury charged Mr. Hopson with an additional count of Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2).
In its Notice of Intent to Use Evidence [Doc #87], the Government designated the witnesses it has identified to provide expert testimony at trial. Mr. Hopson, in this motion to strike, objects to a portion of the proposed testimony of two of those experts.
The admission of expert testimony is governed by Fed.R.Evid. 702, which provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The proponent of the expert testimony bears the burden of proving the foundational requirements of Fed.R.Evid. 702 by a preponderance of the evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 at n.10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (scientific knowledge); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)(technical and other specialized knowledge).
In addressing a challenge made under Fed.R.Evid. 702, I first determine whether the expert is qualified by "knowledge, skill, experience, training, or education" to render the proffered opinion. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). The expert is required to possess such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would aid the trier of fact in his search for truth. Squires ex rel. Squires v. Goodwin, 829 F.Supp.2d 1041, 1048 (D.Colo. 2011)( quoting LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004)).
If I determine that the expert is sufficiently qualified to render the proffered opinion, I then assess whether the opinion itself is reliable. 103 Investors v. Square D, supra, 470 F.3d at 990; United States v. Crabbe, 556 F.Supp.2d 1217, 1220 (D.Colo. 2008)("in addition to the witness having appropriate qualifications, the proponent of the witness' opinions must demonstrate that the process by which the witness derived his or her opinions is reliable"). This step focuses on the process or means by which the witness derived the opinion; it is referred to as an assessment of the methodology or application of principles. See Daubert v. Merrell Dow, supra, 509 U.S. at 593-94 (setting forth reliability factors).
Finally, I must also determine whether the proffered expert testimony will assist the trier of fact under Fed.R.Evid. 702. "In assessing whether testimony will assist the trier of fact, district courts consider several factors, including whether the testimony is within the juror's common knowledge and experience, and whether it will usurp the juror's role of evaluating a witness's credibility." United States v. Garcia, 635 F.3d 472, 476-77 (10th Cir. 2011)( quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006)). "[C]ourts must conduct a common-sense inquiry' into whether a juror would be able to understand certain evidence without specialized knowledge." U.S. v. Garcia, supra, 635 F.3d at 477 ( quoting United States v. Becker, 230 F.3d 1224, 1231 (10th Cir. 2000)). Doubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility, unless there are strong factors such as time or surprise favoring exclusions, as the jury is intelligent enough to ignore what is unhelpful in its deliberations. United States v. deLopez, 2014 WL 3765720, 9 (10th Cir. August 1, 2014)( quoting Robinson v. Missouri Pacific R. Co., 16 F.3d 1083, 1090 (10th Cir. 1994)). Ultimately, therefore, expert testimony is admissible under Rule 702(a) "if it will simply help the trier of fact to understand the facts already in the record, even if all it does is put those facts in context." U.S. v. de Lopez, supra ( quoting 4 Weinstein's Federal Evidence § 702.03).
III. MOTION TO STRIKE
In this motion, Mr. Hopson does not object to the proposed witness' qualifications as computer forensic examiners, and does not object to their proffered testimony about the imaging process and the forensic examination of the digital media (computers, disks, and external storage devices) that was seized in this case. Rather, Mr. Hopson raises narrow objections to the testimony as proffered by the Government. Specifically, he objects to the extent that the Government indicates that two of its experts, Mr. Kaplan and S.A. McGuckin, will testify about "evidence of files indicating a sexual interest in children" and "online behaviors in which those who trade and collect child pornography engage... [including] testimony about the websites they are known to visit, the evasion techniques they use, the software platforms they use and the trading and collection techniques in ...