The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Rule 702 of the Federal Rules of Evidence effectively codifies the Supreme Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). In Daubert, the Court charged trial judges with the responsibility of acting as "gatekeepers" to shield unreliable or irrelevant expert testimony and evidence from the jury. In Kumho the Court made clear that the gatekeeper function applies to all expert testimony, not just scientifically-based testimony. Rule 702 therefore provides that if the Court finds that scientific, technical or other specialized knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue," and if the Court finds that the witness is qualified as an expert "by knowledge, skill, experience, training, or education," then the Court may permit the witness to testify -- so long as the witness' testimony is based on "sufficient facts or data," the testimony "is the product of reliable principles and methods," and the witness has "applied the principles and methodology reliably to the facts of the case." FED. R. EVID. 702.
As the D.C. Circuit has explained, the twin requirements for the admissibility of expert testimony are evidentiary reliability and relevance. See Ambrosini v. LaBarraque, 101 F.3d 129, 133 (D.C. Cir. 1996); see also United States v. Libby, ___ F. Supp. 2d ___, 2006 WL 3095680 *2-3 (D.D.C. Nov. 2, 2006); McReynolds v. Sodexho, 349 F. Supp. 2d 30, 34-35 (D.D.C. 2004); Groobert v. Georgetown College, 219 F. Supp. 2d 1, 6 (D.D.C. 2002). With respect to evidentiary reliability, the Court's focus must be on the methodology or reasoning employed by application of the factors in Rule 702 and the non-exhaustive lists of factors set forth in Daubert and Kumho. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 595 (the "focus, of course, must be solely on principles and methodology, not on the conclusions they generate"); Ambrosini v. LaBarraque, 101 F.3d 129, 140 (D.C. Cir. 1996) ("the admissibility inquiry focuses not on conclusions but on approaches"). With respect to relevance, the Court must determine whether the proffered testimony is sufficiently tied to the facts of the case and whether it will aid the jury in resolving a factual dispute. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. at 592-93.
In this case, the defendant has proffered four experts, and the government has proffered one. On November 8, 2006, pursuant to this Court's Scheduling Order, the defendant provided expert disclosures under Rule 16(b)(1)(C) of the Federal Rules of Criminal Procedure for three proposed experts: Michael G. Wolff, Bruce G. Dubinsky and Mark W. Foster, as well as the "Laboratory Report" of his fourth proposed expert, Douglas S. Lacey. On December 15, 2006, the defendant provided expert witness summaries (each five pages or less), along with the curriculum vitae for each of the same four proposed experts. Similarly, the government filed its expert report under Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure for its one proffered expert, Tamara Miles Ogier, on November 8, 2006. It provided a brief witness summary for Ms. Ogier on December 15, 2006 and, pursuant to this Court's minute order of December 19, 2006, a more extensive witness summary on December 22, 2006. Pursuant to the Court's Memorandum Opinion and Order of January 5, 2007, and its minute order of January 9, 2007, the defendant provided all of the underlying documents on which three of its four proffered experts relied on January 8, 2007, and did the same with respect to its fourth proffered expert, Mr. Foster, on January 16, 2007.*fn1 The Court conducted Daubert hearings on January 8, 2007, January 10, 2007, and January 18, 2007. The Court has considered the submissions of the parties, the testimony of the witnesses at the Daubert hearings, and the arguments of counsel with respect to why the proponent believes the testimony of each proffered expert should be admitted and why the opponent believes it should not. The Court's rulings follow.
Douglas S. Lacey is a forensic audio/video examiner with BEK TEK LLC, a company that provides consultations, examinations, research and instruction in criminal, civil investigative and administrative matters involving laboratory analyses of audio and video recordings. Mr. Lacey has a Bachelor of Science degree in Electrical Engineering from the Audio Engineering Program at the University of Miami. From September 1996 through June 2003, he worked as an electronics engineer at the Forensic Laboratory of the Federal Bureau of Investigation in Quantico, Virginia, where he served as a forensic audio examiner. Since October 1999, he has been with BEK TEK. In both his government and private sector positions, Mr. Lacey has conducted forensic examinations of audio and video recordings, including the authentication of recordings, intelligibility enhancement, and identification and classification of voice and non-voice signals. Over the course of his career, Mr. Lacey has conducted examinations on over 2,200 separate audio and video recordings, has testified as an expert witness, and has authored six articles in the fields of forensic audio and video analyses.
In this case, Mr. Lacey was retained by the defense to analyze the audio recording of the Creditors Meeting held on May 23, 2000 with respect to Mr. Naegele's Chapter 7 bankruptcy. Count 10 of the indictment charges that the defendant made a material false statement under oath at the Creditors Meeting, in violation of 18 U.S.C. § 152(2) -- specifically, that he "falsely testify[ied] under oath that he had only rental vehicles when, in truth and in fact as he then well knew, he possessed a model year 2000 Chevrolet Malibu which he had acquired on or about April 17, 2000." The transcript of the Creditors Meeting prepared by the government includes the following exchange:
MR. MERVIS: Do you have a car sir?
DEFENDANT: No. Ah, I've, I've been renting a car from National Car (UI).
MR. MERVIS: In Florida and LA and here or?
DEFENDANT: In LA primarily. Ah, here, here, ah, ah, when I'm in Washington I often use the Metro.
MR. MERVIS: Do you know what your, your automobile rental payments are?
DEFENDANT: They've been running about a thousand a month.
Government's Draft Transcript, Wolff Exhibit 2, Tab 6 at 7. The question that Mr. Lacey was asked to address in his expert report was whether Mr. Naegele actually said "No" before he said "I've been renting a car from National Car (UI)."
According to Mr. Lacey's report and testimony, he analyzed that specific segment of the tape recording of the Creditors Meeting to determine whether intelligible voice information was present and could be reliably transcribed. In the course of this work, he enhanced the audio recording and repeatedly listened, with the aid of head phones, to both the enhanced and unenhanced versions. In addition to listening numerous times to both versions of the recording -- a methodology described by Mr. Lacey as "critical listening" -- Mr. Lacey also used the methodologies of time waveform analysis and spectrographic analysis. He described the former as a methodology that shows time, amplitude and volume and the latter as a methodology that shows time and (sound) frequency. In the course of his spectrographic analysis, he compared the designated portion with certain other portions of the audio recording where the word "no" also allegedly was used. In some cases, he found similar characteristics to the low level speech segment of the designated portion and therefore concluded that these ...