Full opinion text
MEMORANDUM OPINION WILLIAM D. QUARLES, JR., District Judge. On February 21, 2008, the grand jury indicted Anthony Fleming, Michelle Hebron, Tavon Mouzone and others for Conspiracy to Participate in a Racketeering Enterprise. Fleming was also charged with Conspiracy to Distribute and Possess with the Intent to Distribute Controlled Substances and Distribution of and Possession with the Intent to Distribute Controlled Substances. Pending are pretrial motions. A hearing was held on November 5, 2009. I. Motions to Sever (Paper Nos. 829, 835) Fleming and Mouzone seek severance from Hebron under Fed.R.Crim.P. 14. They argue that evidence about Hebron’s alleged murder of David Moore is irrelevant to the allegations against them — and thus inadmissible — because there is insufficient evidence connecting them to a conspiracy that involved Moore’s murder. Under Fed.R.Crim.P. 8(b), defendants may be charged in the same indictment “if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions constituting an offense or offenses.” “Barring special circumstances, individuals indicted together should be tried together.” United States v. Singh, 518 F.3d 236, 255 (4th Cir.2008). Indeed, unless a “miscarriage of justice” will result, there is a presumption that co-defendants should and will be tried together. Richardson v. Marsh, 481 U.S. 200, 206-11, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). This presumption is especially strong in conspiracy cases. United States v. Harris, 498 F.3d 278, 291 (4th Cir.2007). Fed.R.Crim.P. 14 permits severance if “joinder of ... defendants ... appears to prejudice a defendant.” Severance is only required when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Fleming, Mouzone and Hebron were properly joined in the Indictment because they “are alleged to have participated in ... the same series of acts or transactions constituting an offense” — ie., the racketeering conspiracy alleged in Count One. Fleming and Mouzone have not overcome the strong presumption that they should be tried together. Harris, 498 F.3d at 291. Their motions allege that there is insufficient evidence that the acts with which they and Hebron are charged are part of the same conspiracy; accordingly, they assert that Hebron’s alleged murder of Moore is irrelevant to the charges against them and thus inadmissible against them. They contend that requiring trial with Hebron would “compromise a specific trial right” by allowing the jury to hear evidence that is only admissible against Hebron. The Indictment alleges that Fleming, Mouzone and Hebron conspired to participate in a racketeering enterprise and did overt acts — including the murder of Moore — in furtherance of the conspiracy. Under Pinkerton v. United States, 328 U.S. 640, 645, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), “a conspirator may be convicted of substantive offenses committed by co-conspirators in the course of and in furtheranee of the conspiracy.” The grand jury found that Moore’s murder and the overt acts with which Mouzone and Fleming are charged were in furtherance of a single conspiracy. Thus, evidence of any of these overt acts is relevant to all co-conspirators. Accordingly, Mouzone’s and Fleming’s motions to sever will be denied. II. Anthony Fleming A. Motion for a Bill of Particulars (Paper No. 593) Fleming seeks a bill of particulars under Fed.R.Crim.P. 7(f). A bill of particulars is appropriate when an indictment fails (1) to provide adequate information to allow a defendant to understand the charges and (2) to avoid unfair surprise. See United States v. American Waste Fibers Co., 809 F.2d 1044, 1047 (4th Cir.1987). A bill of particulars is not a discovery device. United States v. Automated Med. Labs., Inc., 770 F.2d 399, 405 (4th Cir.1985) (“A bill of particulars is not to be used to provide detailed disclosure of the Government’s evidence in advance of trial”). The 49-page Indictment allows the defendants to understand the charges. Each count states the controlling statutes, relevant dates, and facts supporting the charge. Count One, conspiracy to participate in a racketeering enterprise in violation of 18 U.S.C. § 1962(d), describes the history, purpose, and operations of the Tree Top Pirus (“TTP”) (a subset of the Bloods gang), the criminal “enterprise” with which Fleming was allegedly associated. Count One alleges 117 “overt acts” in furtherance of the conspiracy. The overt acts allege dates, details, and each defendant’s connection to the enterprise. The other counts in which Fleming is charged also allege the elements of the charges and the dates on which they occurred. The Government has provided the defendants with thousands of pages of documents, video and audio surveillance, lists of witnesses, expert reports, and defendant statements. Govt. Opp. to Mot. for Bill of Particulars 3-4. Fleming understands the charges against him, and there is little risk of surprise at trial. Accordingly, his motion for a bill of particulars will be denied. B. Motion to Dismiss Count One of the Indictment (Paper No. 568) Fleming has moved to dismiss Count One, Conspiracy to Participate in a Racketeering Enterprise in violation of 18 U.S.C. § 1962(d) (“RICO”). Mouzone has adopted this motion. Paper No. 691. Count One alleges that the TTP is a RICO enterprise. Its 117 “overt acts” demonstrate a pattern of racketeering activity. Fleming moves to dismiss Count One on the grounds that (1) the Government has no evidence of an identifiable structure that could constitute an “enterprise” and (2) even if there is evidence of an enterprise, there is no evidence that Fleming had a role in it. Specifically, Fleming argues that (1) there is “no reliable evidence to suggest” his involvement with the November 17, 2006 murder of Lamont Jackson, which is alleged as Overt Act 3 of Count One, and (2) the other Overt Acts in which he is named are “purely local and/or individual acts,” unconnected to the alleged enterprise. “The longstanding rule of law that courts may not ‘look behind’ grand jury indictments if ‘returned by a legally constituted and unbiased grand jury’ is the touchstone for any inquiry into the legality of indictments.” “If [the indictment is] valid on its face, [it] is enough to call for trial of the charges on the merits.” Id. “The Supreme Court has clearly indicated its unwillingness to second guess the decision of a grand jury to formally accuse an individual brought before it based upon some incriminating evidence.” Id. Fleming does not challenge the facial validity of the indictment or the legality of the grand jury proceedings. The grand jury found sufficient evidence of an enterprise and overt acts connected to that enterprise to indict. As the Court may not “look behind” a valid indictment to assess the sufficiency of the evidence against a defendant, Fleming’s motion must be denied. C. Motion to Exclude Evidence of Pretrial Identification (Paper No. 567) Fleming has moved to exclude two pretrial photo-array identifications in connection with the November 17, 2006 murder of Lamont Jackson, an overt act in Count One. Indictment ¶ 25(3); Hr’g Tr. 88, Nov. 5, 2009. Davon Lindsay and Kowan Brice identified Fleming in photo arrays. Brice also identified Mouzone shortly after the Fleming array. Hr’g Tr. 70. Fleming challenges the April 12, 2007 identification. Hr’g Tr. 75; Gov’t Ex. 5. Baltimore Police Detective John Riddick showed Lindsay an array with six pictures of young African American men, including Fleming, whose picture was in the top right corner. Hr’g Tr. 76; Gov’t Ex. 5. Riddick informed Lindsay that the array “may or may not contain a picture of the person who committed the crime being investigated.” Id. He then placed the array face-down and instructed Lindsay to turn it over when ready. Hr’g Tr. 76. Lindsay turned the array over, identified Fleming, and signed above Fleming’s picture. Id. 76-77. On the reverse of the array, Lindsay wrote, “This is the person shoot Lamont.” Id. 78; Gov’t Ex. 5. Riddick testified that he did not say or do anything to influence Lindsay’s identification or statement. Id. 78. On April 25, 2007, Riddick and a Baltimore County Police detective met with Brice at the Baltimore County Detention Center, where he was incarcerated, and showed him two arrays. Id. 78. The first array contained six pictures of young African American men, including Fleming, whose picture was in the center of the bottom row. Id. 83; Gov’t Ex. 7. Riddick read Brice the same statement he had read to Lindsay and placed the array face-down in front of Brice. Id. 80. Brice turned the array over and identified Fleming. Id. 80. He signed above Fleming’s photo and wrote, “I gave Mo a lift to east B-more and something down there happen. In a gray Dodge dargo [sic].” Id. 81. Riddick testified that he did not say or do anything to influence Brice’s identification or statement. Id. Four minutes later, Riddick showed Brice a second array of six pictures of young African American men, including Mouzone, whose picture was in the bottom left corner. Id. 81-83; Gov’t Ex. 6. Rid-dick again explained that the array may or may not contain a picture of the person who committed the crime and placed the array face-down in front of Brice. Id. 82. Brice turned the array over and identified Mouzone. Id. He signed above Mouzone’s photo and wrote, “This is Batman. I gave them a lift.” Id. 84. Riddick testified that he did not say or do anything to influence Brice’s identification or statement. Id. Exclusion of pretrial identifications requires a showing that the identification procedures were “impermissibly suggestive.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The Court must then determine whether the pretrial identifications were reliable under the totality of the circumstances. Id. at 114-17, 97 S.Ct. 2243. The exclusion of identification evidence is a “drastic sanction” that should be “limited to identification testimony which is manifestly suspect.” Harker v. Maryland, 800 F.2d 437, 443 (4th Cir.1986). Evidence that does not give rise to a substantial likelihood of irreparable misidentification should be left for the jury to weigh. See Manson, 432 U.S. at 116, 97 S.Ct. 2243 (“[Evidence with some element of untrustworthiness is customary grist for the jury mill.”). Mouzone and Fleming have not identified any “impermissibly suggestive” aspect of the identifications. Nor did Detective Riddick’s testimony reveal that he used impermissible procedures during any of the identifications. Because the defendants have failed to show that the identification procedures were impermissibly suggestive, their motions will be denied. D. Motion to Suppress Evidence and Dismiss Overt Act 24 from the Indictment (Paper No. 574) Overt Act 24 alleges that on April 24, 2007, Fleming possessed with the intent to distribute two ounces of cocaine base. Indictment ¶ 25(24). Fleming moves to strike this portion of the Indictment because the Government has no evidence that the alleged possession was connected to the RICO conspiracy. As noted above, the Court does not make pretrial assessments of the evidence against a defendant. The grand jury found sufficient evidence to charge the alleged possession as an overt act in furtherance of the RICO conspiracy. The Court will not “look behind” this determination. Fleming also moves to suppress the drugs on the ground that their recovery violated his Fourth Amendment rights. At the November 5, 2009 hearing, Detective Zachary Wein of the Baltimore Police Department testified that on April 24, 2007, he received a tip from a paid confidential informant that a man was distributing “packs” in front of a McDonald’s restaurant on Greenmount Avenue in Baltimore. Hr’g Tr. 47-57. Wein understood “packs” to mean large packages of drugs meant for street-level distribution. Id. 49-50. The informant described an African American male wearing a black T-shirt, a black Chicago Bulls cap, and having a black cell phone case on his right hip. Id. 50. Wein and Detective Lamont Pride soon went to the McDonald’s, and saw Fleming — who matched the informant’s description — standing in front. Id. 52-53. The detectives were in an unmarked car, in plain clothes, with their badges around their necks. Id. 51-52. When Wein arrived at the scene, he had planned to interview Fleming, id. 51, but as he approached, he saw that the cell phone case on Fleming’s hip was “bulging,” and a plastic bag containing a “white rock substance” was protruding from the case, id. 52. Wein decided to arrest Fleming. Id. 53. A search of the cell phone case revealed two plastic bags of cocaine base. Id. Fleming argues that the drugs must be suppressed because there was no probable cause to search him. The Government contends that Wein had probable cause to believe that a crime was being committed because Wein could see that Fleming possessed drugs, and was able to make a warrantless arrest and conduct a search incident to that arrest. The tip from a reliable informant about the distribution of drugs in front of a McDonald’s, the detailed description of the seller, Wein’s observation that the informant’s description matched Fleming, and Fleming’s phone case bulging with what appeared to be cocaine gave Wein probable cause to arrest Fleming. Because Wein had probable cause to arrest Fleming, the search incident to his arrest was permissible. See Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Accordingly, Fleming’s motion to suppress will be denied. E. Motion in Limine to Exclude Recorded 911 Calls (Paper No. 790) Fleming has moved to exclude 911 calls about the Jackson murder. The motion was filed after the November 5, 2009 hearing, and the Court has not received recordings of the calls. The Court will defer ruling on their admissibility until the Government proffers them. Counsel should refrain from referring to the calls in their opening statements. F. Motion for a Pretrial Hearing to Determine the Admissibility of Out of Court Statements (Paper No. 885) Fleming seeks a pretrial hearing to determine whether a witness’s testimony about statements Fleming made to the witness is admissible. Fleming quotes the Government’s paraphrase of the witness’s probable testimony and argues that the testimony will be so unreliable as to be irrelevant. He also argues that even if the statements are relevant, their probativeness is substantially outweighed by their prejudicial effect. Fleming requests a pretrial hearing for the Court to determine the admissibility of this testimony. The Court will defer ruling on this motion until the Government proffers the testimony. Then, the Court will assess whether it is necessary to hold a hearing outside the presence of the jury. Counsel should refrain from referring to the testimony in their opening statements. III. Tavon Mouzone A. Motion to Exclude Firearms Testimony Among the overt acts alleged in furtherance of the RICO conspiracy are two homicides involving Mouzone on November 17, 2006 in Baltimore, Maryland, and December 17, 2006 in Essex, Maryland. Indictment ¶ 25(3), (6). Investigators found cartridge casings at both crime scenes, and a Baltimore County firearms examiner, Sgt. Mark Ensor, concluded that the cartridges “matched,” i.e., that it was highly likely they were discharged from the same gun. The Government intends to call Ensor as an expert witness. On August 10, 2009, Mouzone moved to exclude Ensor’s testimony, arguing that the basis for his conclusion — “firearm tool-mark identification” — is unreliable and scientifically invalid. Paper Nos. 566, 639; Fed.R.Evid. 702. Mouzone also moved to exclude the testimony under Fed. R.Crim.P. 16 because the Government’s summary of Ensor’s opinions did not describe the bases and reasons for those opinions, as Rule 16 requires. Paper No. 565, 640. Chief Magistrate Judge Paul W. Grimm conducted a hearing on October 26, 2009 and issued a Report and Recommendation (the “Report”) on October 29, 2009, recommending that Mouzone’s motions be granted in part and denied in part. See generally Report, infra. Judge Grimm conducted thorough research and careful analysis of the complex issues raised by these motions. Judge Grimm recommended that Mouzone’s Rule 702 motion to exclude Sgt. Ensor’s testimony as unreliable and scientifically invalid be denied, and that Sgt. Ensor be permitted to testify to his conclusions. Id. As Judge Grimm noted, his recommendation is consistent with every reported federal decision to have addressed the admissibility of toolmark identification evidence. Id. at 556-57 (collecting cases). However, in light of two recent National Research Council studies that call into question toolmark identification’s status as “science,” Judge Grimm concluded that toolmark examiners must be restricted in the degree of certainty with which they express their opinions. Id. at 557-58. With regard to Ensor’s prospective testimony, Judge Grimm found that a complete restriction on the characterization of certainty was warranted because at least some of Ensor’s conclusions relied on an examination of a Baltimore City examiner, whose qualifications, proficiency and adherence to proper methods are unknown. Id. at 562-63. Judge Grimm thus departed from recent cases in which firearm and toolmark examiners have been permitted to state their opinions to “a reasonable degree of certainty in the ballistics field.” See, e.g., United States v. Diaz, 2007 WL 485967, at *4 (N.D.Cal. Feb. 12, 2007); United States v. Monteiro, 407 F.Supp.2d 351, 355 (S.D.N.Y.2006). In its October 30, 2009 letter to the Court, the Government stated that, consistent with Judge Grimm’s recommendation, it would not seek to have Ensor state his conclusions with any degree of certainty. Paper No. 733. The Government also stated that it did not object to the Report. Id. The same day, Mouzone filed objections to the Report. Paper No. 732. After de novo review of the portions of the Report to which Mouzone has objected, the Court will overrule the objections and—with the exception of those recommendations that are moot—will adopt the Report and Recommendation. B. Motion in Limine to Exclude Certain Alias or Nickname (Paper No. 763) Each defendant has at least one alias listed in the style and text of the Indictment. Mouzone is referred to as “TAVON MOUZONE, a/k/a Batman, a/k/a Bloody Batman” in the style. He requests that the Government be prevented from referring to him as “Bloody Batman” until evidence has been presented that he was known by it. “If the Government intends to introduce evidence of an alias and the use of that alias is necessary to identify the defendant in connection with the acts charged in the indictment, the inclusion of the alias in the indictment is both relevant and permissible, and a pretrial motion to strike should not be granted.” United States v. Clark, 541 F.2d 1016, 1018 (4th Cir.1976). “However, if the prosecution either fails to offer proof relating to the alias or the alias, though proven, holds no relationship to the acts charged, a motion to strike may be renewed, the alias stricken and an appropriate instruction given the jury.” Id. The Government has indicated that it will introduce evidence of the defendants’ aliases because they rarely used their real names when communicating with each other. For example, the Government intends to use intercepted prison mail in which the defendants and their associates refer to each other by aliases. Because this evidence is relevant, Mouzone’s motion will be denied. “[S]hould the Government fail to offer proof relating to the alias or the alias, though proven, holds no relationship to the acts charged,” the motion may be renewed and an appropriate jury instruction will be given. C. Motion in Limine to Voir Dire “Gang Expert” (Paper No. 793) The Government intends to call Detective Christopher Hodnicki of the Baltimore County Police Department as an expert who will testify about the formation of gangs in Maryland and the history, practices, structure and symbology of the TTP. Mouzone requests a pretrial Daubert hearing so that he may have voir dire on Hodnicki’s qualifications and expertise, and the Court may determine whether his testimony will be admissible. As noted above, expert testimony is admissible under Rule 702 if “it rests on a reliable foundation and is relevant.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786. “[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). At trial, after the Government has tendered Hodnicki as an expert, Mouzone will be permitted voir dire on qualifications. The Court will then determine whether Hodnicki qualifies as an expert. If Hodnicki is permitted to testify, Mouzone will have the opportunity to test his knowledge and credibility on cross-examination. Accordingly, to the extent that Mouzone’s motion requests voir dire, it will be granted. However, his request for a pretrial hearing will be denied. ORDER For the reasons discussed in the accompanying Memorandum Opinion, it is, this 23rd day of March 2010, ORDERED that: 1. Fleming’s motion to adopt co-defendant motions (Paper No. 642) BE, and HEREBY IS, GRANTED; 2. Fleming’s motions: a. To sever (Paper Nos. 595, 829); b. For a bill of particulars (Paper No. 593); d. To strike Overt Act 3 (Paper No. 572); e. To exclude pretrial identifications (Paper No. 567); f. To suppress tangible evidence and dismiss Overt Act 24 (Paper No. 574); g. For disclosure of all confidential informants (Paper No. 594); BE, and HEREBY ARE, DENIED; c. To dismiss Count One of the Indictment (Paper No. 568); 3. Fleming’s adopted motions: a. To suppress firearms identification evidence (Paper No. 571, 657, 685); b. For disclosure under Fed.R.Crim.P. 12 (Paper No. 685); c. For disclosure under FRE 404(b) (Paper No. 685); d. For disclosure under FRE 801(d)(2)(E) (Paper No. 685); BE, and HEREBY ARE, GRANTED IN PART and DENIED IN PART; 4. Mouzone’s motions: a. To suppress firearms testimony (Paper Nos. 565, 566, 639); and b. To voir dire “gang expert” (Paper No. 793) BE, and HEREBY ARE, GRANTED IN PART and DENIED IN PART; 5. Mouzone’s motions: a. For disclosure under Rule 16 (Paper No. 630, 640); and b. To exclude alias (Paper No. 763) BE, and HEREBY ARE, DENIED; 6. Mouzone’s adopted motions to: a. To sever (Paper Nos. 600, 835); b. For disclosure of confidential informants (Paper No. 600, 691); c. To dismiss Count One of the Indictment (Paper No. 691); d. To strike Overt Act 3 of the Indictment (Paper Nos. 576, 691); e. To exclude pretrial identification (Hr’g Tr. 70, Nov. 5, 2009); f. For disclosure of government agent interview notes (Paper No. 691); g. For disclosure under Fed.R.Evid. 404(b); h. To strike alias (Paper No. 691);and i. For disclosure under Fed.R.Evid. 801(d)(2)(E) (Paper No. 691) BE, and HEREBY ARE, GRANTED IN PART and DENIED IN PART; 7. Judge Grimm’s Report (Paper No. 721) BE, and HEREBY IS, ADOPTED AS AN ORDER OF THE COURT: a. Sgt. Ensor shall not opine that it is a “practical impossibility” for a firearm to have fired the cartridges other than the common “unknown firearm” to which Sgt. Ensor attributes the cartridges; b. Sgt. Ensor shall state his opinions and conclusions without any characterization as to the degree of certainty with which he holds them; c. Additional funds shall be approved under the Criminal Justice Act to pay for the time of a rebuttal expert, if Mouzone so requests; and 8. The Clerk of the Court shall send copies of this Memorandum Opinion and Order to counsel for the parties. REPORT AND RECOMMENDATION PAUL W. GRIMM, United States Magistrate Judge. On February 21, 2008, Defendants Tavon Mouzone, Anthony Fleming, Sherman Pride, Keili Dyson, Ronnie Thomas, and Jerrod Fenwick were indicted on charges of violating 18 U.S.C. § 1962(d), Conspiracy to Participate in a Racketeering Enterprise. Paper No. 1. Alleged involvement in homicides underlay the Defendants’ charges. Id. On August 10, 2009, Defendant Mouzone filed a Motion to Suppress Firearms Identification on the Basis of Scientific Invalidity (“Def.’s R. 702 Mot.”), Paper No. 566, and a Motion to Suppress Firearms Identification (“Def.’s R. 16 Mot.”), Paper No. 565. In addition, on September 24, 2009, he filed a Supplementary Affidavit in Support of Defendant Mouzone’s Motion to Suppress Firearms Identification of the Basis of Scientific Invalidity and Motion to Suppress Firearms Identification, and an Affidavit of Adina Schwartz (“Aff.”). Paper Nos. 639, 639-1, & 639-2. To the Affidavit, Professor Schwartz attached Sergeant Mark K. Ensor’s laboratory reports of August 10, 2007 (“Report 1”); September 27, 2007 (“Report 2”); and July 23, 2008 (“Report 3”). Aff., Exs. A-C; Paper Nos. 639-3-639-5. On August 13, 2009, Defendant Anthony Fleming filed a Motion to Adopt Motion to Suppress Firearms Expert Testimony, Paper No. 571, and on October 10, 2009, Defendant Fleming filed a Motion to Adopt and Join Motion to Suppress Firearms Testimony, Paper No. 657, which Judge Quarles granted on October 14, 2009, Paper No. 663. On October 16, 2009, the Government filed the Government’s Memorandum of Law in Opposition to Defendant Tavon Mouzone’s Motion to Suppress Firearms Identification on the Basis of Scientific Invalidity. Paper No. 676. On October 21, 2009, Defendant Mouzone filed his Response to Government’s Reply to Defendant’s Motion to Suppress Firearms Identification. Paper No. 689. Additionally, Judge Quarles issued an order, Paper No. 688, on October 21, 2009, permitting any other co-defendant to join in Mouzone’s motion. Defendants Sherman Pride, Keili Dyson, Ronnie Thomas, and Jerrod Fenwick did so. Paper Nos. 679, 681, 684, 690. On October 9, 2009, and October 16, 2009, in accordance with 28 U.S.C. § 636 and Local Rules 301 and 302, Judge Quarles referred this case to me to conduct a hearing and prepare a Report and Recommendation with regard to these motions to suppress evidence. Paper Nos. 655 & 678. For the reasons stated herein, I recommend that Defendant Mouzone’s motion be GRANTED IN PART and DENIED IN PART and, if adopted by Judge Quarles, this Report and Recommendation will address the same issues adopted by all co-defendants who joined in Mouzone’s motion. This Report and Recommendation addresses Paper Nos. 565, 566, 571, 639, 657, 676, and 689, as well as Paper Nos. 679, 681, 684, and 690, to the extent they pertain to Defendant Mouzone’s motions. I. Defendant Mouzone’s Rule 702 Motion As noted, the Defendant Mouzone’s charges stem from the allegation that he participated in two homicides, one of which occurred on November 17, 2006, on Streeper Street in Baltimore City, and the other of which occurred on December 17, 2006, on Rumelia Circle in Essex, Baltimore County, Maryland. Def.’s R. 16 Mot. ¶ 1. The Government informed the Defendant that “a Baltimore County firearms examiner ... concluded that a “match” exists between the cartridge casings found at the two scenes.” Id. ¶ 2. Anticipating that “the government will wish to introduce this testimony to a reasonable degree of scientific certainty,” Defendant Mouzone contends that such testimony is inadmissible under Fed. R.Evid. 702 because “comparisons of cartridge easing-to-cartridge easing are unreliable” and “scientifically invalid.” Def.’s R. 702 Mot. ¶¶ 4, 8-9. Defendant Mouzone’s objections to the evidence appear in Professor Schwartz’s Affidavit. Paper No. 639-2. Professor Schwartz is a Professor at John Jay College of Criminal Justice and The Graduate Center, City University of New York, and she has testified at hearings and provided affidavits in numerous cases addressing this issue. E.g., United States v. Taylor, 663 F.Supp.2d 1170 (D.N.M.2009); United States v. Glynn, 578 F.Supp.2d 567 (S.D.N.Y.2008); United States v. Diaz, No. 05-167, 2007 WL 485967 (N.D.Cal. Feb. 12, 2007) (unpublished); United States v. Monteiro, 407 F.Supp.2d 351 (D.Mass.2006). The Affidavit challenges the admissibility of firearm toolmark identification evidence in general and the admissibility of the findings and opinions of Baltimore County firearms examiner Sergeant Mark Ensor in particular. Aff. 4-49. Professor Schwartz asserts in her affidavit: 1. The assumption that firearm tool-marks are unique and reproducible “has not yet been fully demonstrated.” Aff. 7, ¶ 9. 2. Even if the required research were done, and it showed that firearm toolmarks were unique and reproducible, that still would not be sufficient to make toolmark identification a “science” because toolmark examiners have no reliable methods for determining whether different toolmarks were created by the same weapon. Aff. 9, ¶ 10. 3. Toolmark identification methods are unreliable because toolmark examiners are unable to isolate and identify toolmarks with individual characteristics from those with class or subclass characteristics. Aff. 10-11, ¶¶ 11-12. 4. There are three major difficulties preventing the reliable identification of “one and only one” weapon as the source of a specific toolmark. Aff. 12, ¶ 14. 5. The first difficulty is the practice of referring to different, overlapping types of marks as “individual characteristics.” For example, sometimes the term “individual characteristics” is used to refer collectively to the microscopic markings that comprise a unique tool-mark; at other times “individual characteristics” is used to refer to the individual components that, while not unique to any one tool, come together to comprise an allegedly unique toolmark. Aff. 12, ¶ 14. 6. The second difficulty is that misidentifieations occur when an examiner presumes that the resemblance between the non-unique, overlapping, individual marks of the test and evidence tool-marks is proof that the toolmarks were produced by the same weapon, when such resemblance is possible in marks made by different weapons. Aff. 13, ¶ 15. 7. The third difficulty is that tool-marks produced by the same tool are not always the same. Aff. 15, ¶ 17. 8. A toolmark can change overtime as the surface of an individual tool changes due to use, damage, and corrosion. Aff. 16, ¶ 17. 9. As a result, sometimes differences in toolmarks are correctly attributed to changes in the surfaces of a particular tool. At other times such a conclusion is wrong, such as when differences in tool-marks exist because the marks were made by different, albeit very similar, tools. Aff. 18, ¶ 18. 10. Differences in toolmarks made by the same tool may also occur because the “pressure and velocity involved” when the tool and ammunition interact at firing “are subject to intrinsic variation from shot to shot.” Aff. 17, ¶ 17. 11. Subclass characteristics that are made by more than one tool, such as microscopic striations on bullets, may be confused with individual characteristics that can be created by one and only one tool. Aff. 19, ¶ 19. 12. As the manufacturing process continues to improve, the shared subclass characteristics of large numbers of weapons will increase the risk of misidentifications. Aff. 23, ¶ 22. 13. Presently, no “strict rules” exist for determining whether a toolmark is made by a subclass or individual characteristic. Aff. 21, ¶ 20. 14. Moreover, notwithstanding the “rules of thumb” present in some publications, there exists no authoritative guidance regarding which tools or manufacturing processes produce tools that create toolmarks with subclass characteristics; instead, examiners rely on their personal familiarity and experience with various tools, finishes, and forming. Aff. 21, ¶ 20. 15. There is an even greater risk of confusing these two classes of characteristics when an examiner compares tool-marks from various component parts of ammunition to determine whether they were produced by the same gun. Aff. 22, ¶21. 16. Because of the difficulties associated with reliably identifying whether a particular toolmark has been created by a specific weapon, especially when tool-marks from different weapons are sometimes very similar, and toolmarks from the same weapon are occasionally somewhat different, identifications are naturally probabilistic. Aff. 24, ¶ 23. 17. The necessary empirical and statistical work required to overcome the unreliability of the methods presently used has yet to be done. Aff. 26, ¶ 25; Aff. 27 ¶ 26. 18. Examiners are unable to articulate the criteria upon which they base their conclusions; they rely instead on their experience, making each identification a subjective determination. Aff. 26, ¶ 25. 19. Toolmark examiners may disagree with each other if they are applying different criteria for concluding that a match exists. Aff. 35, ¶ 37. 20. The same toolmark examiner might even reach different conclusions in a particular case over time by applying different “mind’s eye identification criteria” to the same evidence. Aff. 35, ¶ 37. 21. Many examiners are not trained scientists, but rather technicians; therefore, they do not understand empirical and statistical studies regarding firearm toolmarks and the probabilities regarding the likelihood that another firearm could have made the toolmarks observed. Aff. 35, ¶ 36. 22. The Association of Firearm and Tool Mark Examiners (“AFTE”) theory of firearm toolmark identification provides no “objective guidance” regarding when an examiner should declare a match. Aff. 28, ¶ 27. 23. Examiners in different parts of the United States, based on their various experiences with differing weapons, will likely arrive at different conclusions regarding identifications. Aff. 29, ¶27. 24. Some examiners, but not a majority of them, rather than using the wholly subjective approach, employ the consecutive matching striae (“CMS”) criteria when attempting to identify tool-marks. Aff. 29, ¶ 28. 25. CMS, though better than the traditional subjective approach to toolmark identification, is nonetheless a “highly imperfect attempt to incorporate statistical empirical data into toolmark identifications.” Aff. 32, ¶ 32. 26. There are questions regarding whether the CMS criteria were derived from databases that are relevant to and representative of firearm toolmarks. Aff. 33, ¶ 34. 27. CMS may not be a more objective method of toolmark identification, but rather a way for examiners to describe their subjective observations when comparing striated toolmarks. Aff. 31, ¶ 30. 28. Some argue that CMS is a subjective process because it essentially amounts to line-counting. Aff. 33, ¶ 34. 29. CMS applies only to striated toolmarks, and not to breech face marks or firing pin impressions, and only to individual, as opposed to subclass, characteristics. Aff. 32, ¶ 33. 30. Misapplication of the CMS criteria may result in misidentifications. Aff. 33, ¶ 33. 31. Without objective, strict criteria for determining whether toolmark identifications are correct in a given case, it is impossible to calculate an error rate for the discipline of firearm toolmark identifications. Aff. 36, ¶ 38. 32. The only widely used proficiency tests for firearm toolmark examiners, the Collaborative Testing Services (¡¡GTS”) tests, cannot provide an accurate error rate because the tests are declared, as opposed to blind, thereby introducing the potential for bias, and the proficiency test problems are simpler than the “real”. firearm toolmark identifications the examiners encounter in actual cases. Aff. 37, ¶ 39. 33. Because the only firearm the examiner is given is the one believed to be evidence of a crime, confirmation bias also undermines the validity of toolmark identifications. Aff. 40, ¶ 41. 34. Bias also can play a role in identifications if peer review of the original examiner’s work is performed only when identifications are reached. Aff. 41, ¶ 41. 35. Because examiners work closely with law enforcement and prosecution, bias can affect the examiners’ conclusions. Aff. 41, ¶ 42 36. Scrutiny by the scientific community at large might resolve some of the problems surrounding toolmark identification, but access to firearm toolmark publications is not largely accessible. Aff. 42, ¶ 43. 37. Many articles published in the AFTE Journal are not available on-line to the public, even those willing to pay for it. On-line access is limited to AFTE members, who must be practicing or students in the field of firearm tool-marks, and to honorary members. Nonmembers may access hard copies of the AFTE Journal, but it is only available at one school on the West Coast, and two on the East Coast. Aff. 42-43, ¶ 43. 38. The specific procedures in this case departed greatly from the widely accepted practices within the field. Aff. 43, ¶44. 39. Sgt. Ensor failed to provide the documentation in support of his conclusions that would make possible any meaningful peer review. Aff. 43, ¶ 44. 40. The three laboratory reports list “multiple, bare bones cartridge case and bullet identification conclusions,” but fail to include “bench notes, diagrams, photomicrographs or narrative descriptions” as to how the conclusions were reached. Aff. 46, ¶ 44. 41. The lack of documentation makes it impossible to determine the types of toolmarks upon which the conclusions were based; the particular lands or grooves on the various bullets on which the identifications were based; the extent of the resemblances and differences between the toolmarks found on the various bullets and casings; whether and how the toolmarks were differentiated by class, subclass, and individual characteristics; and what criteria he relied upon in determining whether the resemblances were sufficient to support his conclusions. Aff. 46, ¶ 45. 42. Nothing in the documentation explains why or how Sgt. Ensor came to different conclusions on different dates, August 10, 2007 and September 27, 2007, regarding the same cartridge cases. Aff. 46, ¶ 45. 43. The only evidence of any peer review performed on Sgt. Ensor’s work is the signature of one other officer on the August 10, 2007 report. There exists no evidence that either the July 23, 2008 laboratory report, or the September 27, 2007 report was ever peer reviewed. Aff. 48, ¶ 46. 44. The peer review of the August 10, 2007 report did nothing to correct Sgt. Ensor’s failure to document the reasons for his conclusions, and there is no indication that the peer review was blind. Aff. 48, ¶ 46. 45. Because only one individual peer reviewed Sgt. Ensor’s laboratory report, the laboratory failed to follow operating procedures that provide that peer review should be performed “by a minimum of two personnel.” Professor Schwartz testified during the hearing held October 26, 2009, and her testimony was consistent with her Affidavit, though it referred to additional reference materials. Hr’g Tr. 10/26/09. While her Affidavit, which preceded the Defense’s receipt of the underlying documentation from the Government, addressed the deficiencies in Sgt. Ensor’s methodology, her testimony focused on the unreliability of firearm toolmark identification in general. The Government contends that the Court should deny Defendant Mouzone’s motion and “allow the government’s firearms experts to state their opinions as they wish,” because it would be “consistent with the weight of authority ... to allow the government’s firearms identification witness to state an opinion to a reasonable degree of ballistic certainty....” Gov.’s Opp’n 1, 5. The Government contends that its experts “have extensive professional and training qualifications, work in labs with thorough peer review, and maintained notes and reports concerning their findings.” Gov.’s Opp’n 4 n. 3. The Government also filed a motion on October 23, 2009, seeking to disqualify Professor Schwartz from testifying. Paper No. 695. Defendant Mouzone has not had an opportunity to file an opposition. However, as I stated at the hearing, this motion has not been referred to me for a report and recommendation, and is not directly addressed herein. Hr’g Tr. 10/26/09. The hearing was held on October 26, 2009. Sgt. Ensor testified as a witness for the Government, and Professor Schwartz testified for the defense. Hr’g Tr. 10/26/09. On October 23, 2009, Defendant Mouzone had filed documents in anticipation of the hearing, including National Research Council’s Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United States: A Path Forward 85-110, 127-82 (National Academies Press 2009) (“NRC Forensic Science Report”); Adina Schwartz, A Systemic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification, 6 Colum. Sci. & Tech. L.Rev. 2 (2005) (“Schwartz”); Alfred Biasotti, John Murdock, & Bruce R. Moran, Scientific Issties, in 4 Modern Scientific Evidence 592-627 (2008-09); M.S. Bonfanti & J. De Kinder, The influence of manufacturing processes on the identification of bullets and cartridge cases — a review of the literature, Science & Justice 39(1): 3-10 (1999) (“Bonfanti”); and Professor Schwartz’s curriculum vitae. Paper No. 694, Ex. 1, 4-8 (Paper Nos. 694-2, 694-5-694-9). The Defense also submitted a series of additional exhibits at the hearing, including: Alfred A. Biasotti & John Murdock, “Criteria for Identification” or “State of the Art” of Firearm and Toolmark Identification, 16(4) AFTE Journal 16-34 (1984), Ex. 4; Standardization of Comparison Documentation, 38(1) AFTE Journal 72-73 (2006); and Detroit Police Department Firearms Unit: Preliminary Audit Findings as of September 23, 2008, Ex. 5. Despite the offering of these exhibits on the eve of the hearing and at the hearing, all were received as part of the record. Hr’g Tr. 10/26/09. A. Firearm Toolmark Identification Evidence The evidence that Defendant Mouzone seeks to suppress is expert testimony regarding identifications of toolmarks made by a firearm. A toolmark is a mark “generated when a hard object (tool) comes into contact with a relatively softer object,” such as the marks that result “when the internal parts of a firearm make contact with the brass and lead that comprise ammunition.” NRC Forensic Science Report at 150. A firearm’s internal components include the barrel, the chamber, the breech face, the firing pin, the extractor, and the ejector, and these components have “ ‘individual characteristics’ ” that result from manufacturing processes such as “ ‘cutting, drilling, grinding, hand-filing, and, very occasionally, hand-polishing.’ ” Monteiro, 407 F.Supp.2d at 359 (citation omitted). Most “individual characteristics” on a spent bullet stem from the process that renders a gun barrel from a piece of solid steel: A first step of the process, drilling, results in a comparatively rough hole of uniform diameter extending from one end of the barrel to the other. Next the barrel is bored with a reamer, designed to produce as smooth a surface as possible on the inside of the barrel. The interior surface or bore bears numerous scars and scratches from this drilling process; it is these random imperfections — more so than subsequent steps— that are said to account for individual characteristics on fired bullets. Barrels [usually] are further subjected to a rifling process, creating a pattern of grooves on the inside the barrel. ... [T]he bullet impacts with the barrel rifling and is given a rotation ... that gives the bullet a more direct flight.... The rifling may be created by forcing a carbide button through the reamed barrel; it is the normal wear on this button, as many riflings are performed, that is said to impart individual microscopic variability in markings in the barrel (along with residual scars or imperfections from the original drilling). National Research Council’s Committee to Assess the Feasibility, Accuracy and Technical Capability of a National Ballistics Database, Ballistic Imaging 31 (Nat’l Academies Press 2008) (“NRC Ballistic Imaging Report”) (citations omitted). The NRC Ballistic Imaging Report also defined the other components of a firearm and described their interactions with each other and the ammunition: The rear section (away from the muzzle) of the barrel bore is known as the chamber; it is designed and sized to fit a specific caliber of cartridge. The part of the firearm against which a cartridge sits when it is placed in the chamber is the breech, and the whole assembly may be referred to as the. breechblock or breech bolt. The specific surface of the breech that makes contact with the base of the cartridge is the breech face .... The exact steps used to form the breech assembly can vary by manufacturer, and the breech face may vary in terms of the amount of filing or polishing done on it and whether any paint or other materials is applied to it. Basic filing can create gross striation marks in linear arrangements; in others, a rotary milling operation may be applied to the breech face surface, creating a pattern of concentric circles. These steps are crucial to the theory of firearms identification as it is random imperfections created in these machining and filing processes that is said to make the surface (and the negative impressions of said surface, left on fired cartridge casings) unique. A hole drilled through the breech assembly holds the firing pin, a very hard steel rod that can be forced to protrude from the breech to strike the primer of a cartridge seated in the chamber. While most firing pins have a small rounded end or nose, some have more distinctive shapes .... Firing pins are generally made on a standard screw machine. Like the breech face, the tip of the firing pin is subject to machining and filing steps that impart microscopic imperfections. Both revolvers and pistols make use of an extractor, typically a small arm that fits over the rim of the cartridge. As the name implies, the extractor serves to pull a spent cartridge from the chamber so that a new cartridge can take its place. In a revolver, the extractor — which can remove all cartridges simultaneously by depressing the ejection rod (or extractor rod) — also has ratchet notches that advance the cylinder to the next chamber. In a semiautomatic pistol, however, the extractor removes the cartridge so that it makes contact with the ejector, typically a fixed protuberance that strikes the rim of the cartridge. Because these steps are performed very quickly, and with some speed and force, both the extractor and ejector mechanisms can leave marks on expended cartridge casings. Id. at 32-35 (citations and internal cross references omitted). To be sure, mass production of guns has replaced hand-manufacturing, and “guns are mass-produced with even greater precision.” Glynn, 578 F.Supp.2d at 572. Nonetheless, “the final step in production of most firearm parts requires some degree of hand-filing which imparts individual characteristics to the firearm part.” Monteiro, 407 F.Supp.2d at 359. In Monteiro, Judge Saris explained how these components and their characteristics cause toolmarks on bullets and cartridge casings: When a round (a single “shot”) of ammunition is fired from a particular firearm, the various components of the ammunition come into contact with the firearm at very high pressures. As a result, the individual markings on the firearm parts are transferred to the ammunition. The ammunition is composed primarily of the bullet and the cartridge case. The bullet is the missile-like component of the ammunition that is actually projected from the firearm, through the barrel, toward the target.... The cartridge case is the part of the ammunition situated behind the bullet containing the primer and propellant, the explosive mixture of chemicals that causes the bullet to be projected through the barrel. In the case of a semiautomatic handgun, once a round of ammunition is loaded into the chamber, and the gun is cocked, the shooter pulls the trigger, and the firing pin is released. The firing pin strikes the back of the cartridge case, igniting the primer in the ammunition, thus starting a chemical reaction, leading to the bullet being pushed down the barrel by the expanding gases. These gases also exert an equal and opposite force on the cartridge case which forces the slide and breechblock to the rear. This ejects the spent cartridge case through a port in the side, or occasionally top, of the slide. During this process, which occurs in a fraction of a second, the cartridge case comes into contact with several parts of the firearm, most notably the firing pin, as explained above, and the breech face, a flat surface behind the cartridge case against which the cartridge case is pushed by the expanding gases. When the cartridge case is “slammed into the standing breech face,” some of the individual toolmarks left on the breech face in the manufacturing process are replicated on the surface of the cartridge case. These toolmarks are referred to as “impressed” toolmarks. Other marks might be left on the ammunition when parts of the firearm, like the firing pin, the extractor, or the ejector, are moved across the cartridge case, and these are referred to as “striated” toolmarks. Id. at 359-60 (citations omitted); see Diaz, 2007 WL 485967, at *1-2; NRC Ballistic Imaging Report at 30-51; Brian J. Heard, Handbook of Firearms and Ballistics 127 (1997). In addition, “the inner barrel of the gun imparts ‘rifling’ on the bullet.” Specifically, the lands make “depressed ‘land impressions’ ” and the grooves make “raised ‘groove impressions.’ ” Diaz, 2007 WL 485967, at *1. And, there is a left or right “twist imparted on a bullet ..., depending on the direction of the lands and grooves.” Id. Firearm toolmarks are associated with a weapon’s class, subclass, and individual characteristics. Monteiro, 407 F.Supp.2d at 360; NRC Forensic Science Report at 152. Class characteristics are “ ‘family resemblances which will be present in all weapons of the same make and model.’” Monteiro, 407 F.Supp.2d at 360. Examples of class characteristics include the bullet’s weight and caliber; number and width of the lands and grooves in the gun’s barrel; and the “twist” (direction of turn, i.e., clockwise or counterclockwise, of the rifling in the barrel). Diaz, 2007 WL 485967, at *2. Class characteristics that cause toolmarks on spent cartridge casings include the “caliber, type of breech face, and type of firing pin.” Id. A breech face may be “parallel, arched, smooth, granular, or circular,” and a firing pin can leave an impression that is “circular, rectangular, [or] elliptical.” Id. Subclass characteristics “are ‘produced incidental to manufacture’ and ‘can arise from a source which changes over time,’ and therefore “may be present on a group of guns within a certain make or model, such as those manufactured at a particular time and place.” Monteiro, 407 F.Supp.2d at 360; Diaz, 2007 WL 485967, at *2; see NRC Ballistic Imaging Report, supra, at 58 (defining subclass characteristics as having three characteristics: they are “ ‘[produced incidental to manufacture’ ”; (2) “ ‘they relate to a small group source,’ ” i.e., “ ‘a subset of the class to which they belong’ ”; and (3) they “ ‘[c]an arise from a source which changes over time’ ”) (citation omitted). An example would include imperfections “on a rifling tool that imparts similar toolmarks on a number of barrels before being modified either through use or refinishing.” Ronald G. Nichols, Defending the Scientific Foundations of the Firearms and Tool Mark Identification Discipline: Responding to Recent Challenges, 52 J. Forensic Sci. 586, 587 (2007) (“Nichols”). Individual characteristics are “ ‘[Random imperfections produced during manufacture or caused by accidental damage ... which are unique to that object and distinguish it from all others.’” Monteiro, 407 F.Supp.2d at 360; see Diaz, 2007 WL 485967, at *2. However, non-unique marks may comprise individual characteristics, and wear and tear cause individual characteristics to change over time to some extent. Monteiro, 407 F.Supp.2d at 360-61. Thus, the toolmarks made on a bullet or cartridge casing include marks imposed by all weapons of the make and model that fired the ammunition (class characteristics), marks common only to a subset of that make and model (subclass characteristics), and marks unique to the weapon that fired the ammunition (individual characteristics). Id. Sgt. Ensor testified that firearms toolmark examiners will not declare a “match” based on class characteristics, and they endeavor not to make a match based on subclass characteristics. Instead, they seek to make a match only on individual characteristics. At the base of firearms identification is the theory that, based on correspondence among toolmarks, a firearms examiner can discern matches among bullets, cartridge casings, and their weapon of origin “[b]y using a ‘comparison microscope’ to compare ammunition test-fired from a recovered gun with spent ammunition from a crime scene.” Monteiro, 407 F.Supp.2d at 359; see Diaz, 2007 WL 485967, at *3; NRC Forensic Science Report at 153; see also Glynn, 578 F.Supp.2d at 572 (“Firearm and toolmark analysis rests on the twin assumptions that the surface contours of every gun are unique and that, every time that gun is fired, some of those unique markings, along with markings caused by the act of firing itself, are transferred to the shell casing and bullet, leaving distinctive patterns on each of them.”). Comparison microscope images of breech face and firing pin marks on a cartridge (l) and rifling marks on a bullet (r). Courtesy of Maine State Police Crime Lab. The process for subjective traditional pattern matching — the pervasive method of ballistic toolmark analysis, see Diaz, 2007 WL 485967, at *9 — is as follows: [A] firearms examiner presented with a handgun and spent cartridge cases will test fire the weapon using the same type of ammunition as that recovered in the case. The examiner will look at the test-fired cartridge cases and the recovered cartridge cases simultaneously using an instrument called a comparison microscope, which is necessary to overlay the images of the two shell casings. First put into use in 1925, the comparison microscope allows the examiner to compare the tiny markings left on the two cartridge cases. In theory, if the test cartridges and recovered cartridges were fired from the same gun, the examiner would see sufficient patterns of matching marks, supposedly leading to “a result as conclusive as fingerprints.” Monteiro, 407 F.Supp.2d at 361; see Julian S. Hatcher, Frank J. Jury & Jac Weller, Firearms Investigation, Identification, and Evidence 15 (2d ed.1957) (identified in Monteiro, 407 F.Supp.2d at 368 as “the leading treatise in the field”). The examiner may reach one of three conclusions: The examiner can make: (1) an “identification” of the components, concluding that they came from the same source; (2) an “elimination” of the components, concluding that they did not come from the same source; and (3) “inconclusive,” meaning that there is not enough evidence to identify whether the components either do or do not come from the same source. In the parlance of firearm examiners, if there is sufficient agreement to make an identification, a firearm examiner often states that the chance that another firearm could have made the mark is a “practical impossibility.” Diaz, 2007 WL 485967, at *3. “A perfect correspondence between the lines on a test-fired cartridge and the evidence recovered from the scene is impossible; in the real world, there is no such thing as a ‘perfect match.’ ” Monteiro, 407 F.Supp.2d at 362 (quoting Alfred A. Biasotti, A Statistical Study of the Individual Characteristics of Fired Bullets, 4 J. Forensic Sci. 34, 44 (1959) (“Biasotti: 1959”) (noting the “erroneous conception of a ‘perfect match’ which is actually only a theoretical possibility and a practical impossibility”)). Indeed, Biasotti’s 1959 study revealed that “only 21-38 percent of the marks will match up on bullets fired from the same gun.” Id. at 362. The significance of that figure comes to light when it is noted that a correspondence between 15-20 percent of the marks of “bullets fired by two different .38 special Smith & Wesson revolvers of the same make and model” has been observed. Id,.; see Diaz, 2007 WL 485967, at *12 (“According to Schwartz, Biasotti found that there was a 15-24% overlap in matching striae between bullets fired from different guns.”). Thus, according to the AFTE, a match exists “when the unique surface contours of two toolmarks are in ‘sufficient agreement.’” Monteiro, 407 F.Supp.2d at 363 (quoting Theory of Identification, 30 AFTE J. 86, 86 (1998) (“AFTE Theory”)); see Glynn, 578 F.Supp.2d at 571-72; NRC Forensic Science Report at 153. “Sufficient agreement” is defined in terms of “ ‘the significant duplication of random toolmarks,’ ” and “ ‘Agreement is significant when it exceeds the best agreement demonstrated between tool marks known to have been produced by different tools and is consistent with the agreement demonstrated by tool marks known to have been produced by the same tool.’” Monteiro, 407 F.Supp.2d at 363 (quoting AFTE Theory at 86). Put another way, among those who subscribe to the AFTE theory of toolmark identification, “[t]he statement that ‘sufficient agreement’ exists between two toolmarks means that the likelihood that another tool could have made the mark is so remote as to be considered a practical impossibility.” Id. (quoting AFTE Theory at 86); see Nichols, supra, at 589. The AFTE acknowledges that “ ‘the interpretation of individualization/identifieation is subjective in nature, founded on scientific principles and based on the examiner’s training and experience.’” Monteiro, 407 F.Supp.2d at 363 (quoting AFTE Theory at 86). At the hearing, Sgt. Ensor agreed that the interpretation of observed characteristics by a toolmark examiner is a subjective process. Hr’g Tr. 10/26/09. Agreeing that it “is largely a subjective determination,” Monteiro, 407 F.Supp.2d at 355, the Monteiro court elaborated: “This conclusion is not based on any quantitative standard for how many striations or marks need to match or line up. Instead, it is based on a holistic assessment of what the examiner sees.” Id. at 364. In Glynn, the court observed that the requirement that “sufficient agreement” must exist for an examiner to declare a match “is inherently vague,” and “ballistics opinions are significantly subjective.” 578 F.Supp.2d at 572; cf. Diaz, 2007 WL 485967, at *1, 8 (“the standards and criteria for traditional pattern matching are subjective,” but “it is the subjective judgment of trained professionals with a keen practiced eye for discerning the extent of matching patterns”). The subjective evaluation leaves substantial latitude in reaching conclusions. Indeed, the AFTE’s most ardent supporter, Ronald Nichols of the Bureau of Alcohol, Tobacco, Firearms and Explosives Laboratory Services (“ATF Bureau”), San Francisco, acknowledges the subjective component of toolmark examiners undertaking to discern “sufficient agreement” in a toolmark identification, stating that “there is no universal agreement as to how much correspondence exceeds the best-known nonmatching situation.” Nichols, supra, at 589. In an effort to bridge the gap in this subjective process to bolster findings of “sufficient agreement,” the AFTE “established standards for intellectual rigor” and accepted methodology mandate (1) the “documentation of the reasons for concluding there is a match” in a particular examination (incl