of the Government's witnesses using
the Solicitation would not have had any impact on the trial. See, e.g.,
United States v. Perez, 2002 WL 171241, at *27 (3d Cir. 2002) (district
court concluded that "heightened cross-examination . . . that might have
occurred" would not have had an impact on trial).
Significantly, given our ruling at the Daubert hearing, it is doubtful
that we would have admitted the Solicitation for use in cross-examining
the Government's witnesses at trial. The Defense argues that it would
have used the Solicitation to impeach the Government's witnesses on
whether or not there has been sufficient, or any, research into the
validity of using fingerprint identification. However, this kind of
cross-examination would go to the Daubert/Kumho admissibility standard.
Each of the Government's witnesses testified at the Solicitation hearing
that the Solicitation did not change their testimony at the Daubert
hearing. See, e.g., Budowle Direct N.T. 3/20/01 pg. 106, lines 13-16;
Budowle Cross N.T. 3/20/01 pg. 113, lines 6-13; German Direct N.T.
3/20/01 pg. 143, lines 5-9; Meagher Direct N.T. 3/20/01 pg. 217, lines
9-16. Moreover, the Defense had the opportunity to cross-examine the
Government witnesses regarding their participation in drafting the
Solicitation and their understanding of the meaning of the Solicitation
during the post-trial Solicitation hearing. After hearing all of this
evidence, the Court remains convinced that the fingerprint testimony of
these witnesses meets the Daubert/Kumho standards. Neither the wording of
Solicitation nor the fact that some of the Government's witnesses were
involved in the creation of the Solicitation change this Court's Daubert
ruling.*fn5 See, e.g., United States v. Perez, ___ F.3d ___, 2002 WL
171241, at * 28 (3d Cir. 2002) (Third Circuit affirms district court's
determination that "newly discovered" evidence would not have changed
district court's immunity ruling); see also United States v. Plaza, ___
F. Supp. d ___, 2002 WL 389163 (E.D.Pa. March 13, 2002) (allowing
fingerprint identification testimony).
The Daubert issue being decided in favor of the Government, the
Solicitation would not have been admissible or relevant at trial because
the reliability of the fingerprint testimony was no longer at issue. See
N.T. 9/13/99, pgs. 4-5 (we found that only question for trial was whether
or not an identification can be made by examination of the specific
latent prints in this case). Thus, neither the Solicitation or the
Defense's lack of knowledge of the Solicitation could have caused the
Defendant to suffer any unfairness at the trial of this matter.
The evidence at the Solicitation hearing established that the
Solicitation is not material. Therefore, the Government did not commit a
Brady violation, and Mitchell's Motion for a New Trial is denied.*fn6
See Smith v. Holtz, 210 F.3d 186, 196 (3d Cir. 2000) (no Brady violation
unless evidence not disclosed was material) (quoting Strickler, 527 U.S.
An appropriate Order follows.
AND NOW, this day of April, 2002, upon consideration of Defendant Byron
Mitchell's Motion for a New Trial and the Government's response thereto,
and for the reasons set forth in the foregoing Memorandum, it is hereby
ORDERED that the Motion is DENIED.