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.
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 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
to demonstrate that following the stated procedures allows
analysts to produce correct results with acceptable error rates. This ...