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April 11, 2002


The opinion of the court was delivered by: Joyner, Judge.



This case has a long procedural background that includes two jury trials and an appeal to the Third Circuit. See United States v. Mitchell, 145 F.3d 572 (3d Cir. 1998). Aside from the anonymous notes which, pursuant to the Third Circuit's ruling, were not introduced in Mitchell's second trial, the underlying facts of the armored truck robbery and the subsequent facts leading to Mitchell's arrest remain the same as those set forth by the Third Circuit at 145 F.3d 572. Familiarity with those facts is presumed.

Pursuant to the Third Circuit's ruling, the Court conducted a second jury trial in this case. At trial, the Government presented expert testimony of latent fingerprint examiners who made positive identifications of the latent prints found in the abandoned vehicle used in the robbery as matching those of Mitchell. The Defense presented expert testimony challenging that a positive identification could be made with the latent prints in this case. At the conclusion of the trial, the jury returned a guilty verdict on all counts.

Prior to the second jury trial, the Defendant filed a motion to exclude the Government's fingerprint identification evidence and pursuant to the Government's response, the Court held a Daubert hearing. At the Daubert hearing, the Government and Defense put on numerous witnesses to discuss the validity and reliability of fingerprint technology. At the conclusion of that hearing, we found that the Government's experts met the Daubert/Kumho requirements. See N.T. 9/13/99, pgs. 3-8; see also F.R.E. 702; Daubert v. Merrell Dow, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). We further found that all of the Government's expert witnesses were permitted to testify as latent fingerprint experts at trial. N.T. 9/13/99 at pg. 4, lines 8-13. Likewise, we allowed Mitchell to call latent fingerprint experts to challenge that an identification could be made from the latent prints at issue in this case. Id. at pg. 4, lines 14-20. However, we excluded any evidence at trial as to whether or not fingerprint identification technology is reliable pursuant to the Daubert/Kumho standards. Id. at pg. 4, lines 14-24. We clarified that the only issue for the experts to discuss at the Mitchell trial was whether or not an identification could be made by examination of the specific latent fingerprints and the record of this case. Id. at pgs. 4-5.

In the present post-trial motion, the Defense attempts to revisit the Daubert ruling and to call into question the reliability of testimony regarding fingerprint identification technology. The Defense bases their motion for a new trial on "newly discovered evidence" in the form of the NIJ Solicitation seeking research proposals on fingerprint technology. Following the second jury trial, we held an evidentiary hearing regarding the creation of the Solicitation, its possible suppression, and its impact on the testimony of the Government's witnesses (the "Solicitation Hearing"). We now consider whether the Government committed a Brady violation regarding the Solicitation.


Legal Standard

Pursuant to Federal Rule of Criminal Procedure 33, "[o]n defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require." Fed.R.Crim.P. 33; see also United States v. Bevan, 728 F. Supp. 340, 343 (E.D.Pa. 1990), aff'd 914 F.2d 244 (3d Cir. 1990). "`The decision whether to grant a motion for a new trial under Rule 33 is committed to the sound discretion of the trial court, which may set aside the verdict and order a new trial if it ascertains that the verdict constitutes a miscarriage of justice.'" United States v. Zimmerman, No. CRIM.A. 99-781-2, 2001 WL 706256, at *3 (E.D.Pa. June 21, 2001) (internal citations omitted).

The Solicitation

The NIJ is one of many components of the Office of Justice Programs (OJP), an agency of the United States Department of Justice (DOJ). Its primary functions are research and evaluation. See 42 U.S.C. § 3722(c), § 3766. The NIJ does not conduct research itself; rather, it issues invitations for proposals to perform research and awards grant money to those proposals that best meet the research guidelines. See N.T. 3/20/01 Boyd Direct pg. 38, lines 5-20. These invitations for research proposals are called solicitations. Id. at pg. 85, lines 12-14 (solicitation is declaration of intent to do research). The parties did not provide the Court with any statutory sections or regulations specifically defining the term solicitation for NIJ purposes, and the Court was unable to locate such a definition through its independent research. However, the C.F.R. entries defining solicitation for research purposes for the Department of Energy and the Department of Agriculture confirm that a solicitation is an invitation to submit research proposals. See, e.g., 10 C.F.R. § 473.2 (Department of Energy) ("`Solicitation' means a formal, written request for proposals to perform research and development under a grant, cooperative agreement, or contract, typically including evaluation criteria and a statement of the work to be done."); 7 C.F.R. § 3403.2 (Department of Agriculture) ("Program solicitation is a formal request for proposals whereby an agency notifies the small business community of its research or research and development needs and interests in selected areas and invites proposals from small business concerns in response to those needs."); see also 64 F.R. 45569 (Federal Registry entry discussing NIJ solicitation regarding Forensic DNA Research and Development; confirming definition of solicitation as invitation for research proposals).

The Solicitation at issue sets forth background information regarding fingerprint technology, sets parameters for those applying for research funds, and sets forth the procedures for applying for funds.*fn1 The specific language of the Solicitation questioned by the Defense states that the field needs "[b]asic research to determine the scientific validity of individuality in friction ridge examination . . ." and "[p]rocedures comparing friction ridge impressions that are standardized and validated." The Defense also focuses on the language of the Solicitation which states that "procedures must be tested statistically in order to demonstrate that following the stated procedures allows analysts to produce correct results with acceptable error rates. This ...

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