Full opinion text
MEMORANDUM OPINION AND ORDER JUDITH C. HERRERA, District Judge. This matter is before the Court on Defendant’s Motion To Exclude DNA and Serology Test Results and Request for Daubert Hearing. [Doc. No. 422, filed April 22, 2012; Doc. No. 442 (Defendant’s (Corrected) Supplemental Memorandum), filed May 10, 2012], Defendant, on numerous grounds, asks the Court to hold a Daubert hearing and to exclude the Government’s DNA test results. The Government filed a Response [Doc. No. 547, filed June 25, 2012], and Defendant filed a Reply [Doc. No. 562, filed July 9, 2012], Both parties also filed voluminous exhibits on CDs submitted to the Court. [May 14, 2012; June 25, 2012] The Government argued that a pretrial Daubert hearing was unnecessary. [Doc. No. 547, pp. 57-58] The Court agrees that a pretrial Daubert hearing is not warranted on most issues, because a sufficient record has already been presented in the hundreds of pages of briefs and thousands of pages of exhibits. On May 6 and 7, 2013, however, the Court held an evidentiary hearing on the admissibility of Low Copy Number (LCN) testing; Defendant was present at the hearing. At that hearing the Court admitted about 100 additional exhibits, for a total of about 3,500 pages of exhibits. The Court has reviewed the parties’ filings, the evidence presented, and the relevant law. The Court grants Defendant’s motion to exclude the results of LCN DNA testing; the Court otherwise denies Defendant’s motion to exclude DNA evidence. The Court concludes that the Government has not carried its burden of demonstrating, by a preponderance of the evidence, that the results of the LCN testing conducted by the New Mexico Department of Public Safety (NMDPS) Laboratory are admissible. The Court thus specifically excludes the DNA evidence on Item 1132313, conceded by the Government to be an LCN result. With respect to the remainder of Defendant’s arguments, the Court concludes that Defendant’s motion is not well taken and is denied. BACKGROUND Several handguns were collected when Tracy Province, and later Defendant and Casslyn Welch, were arrested. Numerous swabs were taken from the Haases’ pickup truck and from items inside the truck. These items and others were tested by Carrie Zais Davis, the Government’s DNA analyst at NMDPS Laboratory. Davis produced a number of reports setting forth her test results, her analyses, and her opinions. These lab reports were provided to Defendant, and Defendant provided them to the Court. [Def s Ex. G6] The Court has four lab reports, from August 30, 2010; September 30, 2010; December 22, 2010; and April 27, 2011. These lab reports list the numerous items examined, the procedures employed, the analyst’s results and conclusions, and in some instances the statistical analysis. The Government proposes to have its DNA analyst, Davis, testify at trial to her results and conclusions from DNA testing. According to the Government’s disclosure, Davis is also expected to testify regarding collection of samples, the strict chain of custody observed, lab controls in place to protect the integrity of the samples, and the peer review process used in the analysis of these samples and subsequent comparison. [Doc. No. 442, p. 19] For instance, the Government asserts that a .40 caliber Smith & Wesson handgun was the murder weapon. [Doc. No. 547, p. 4] Davis tested and analyzed a number of swabs taken from different parts of this handgun, Item 1B22. Davis’s lab report states the procedures and methods used: “the Applied Biosystems AmpFISTR Identifiler PGR Amplification Kit on a GeneAmp PCR System 9700 thermal cycler,” an “Applied Biosystems 3130 Genetic Analyzer,” and “GeneMapper ID software.” [Defs Ex. G6, Sept. 30, 2010 report, p. 2] Davis’s report states that a DNA mixture was obtained from different parts of this handgun and magazine, and states her opinion: “To a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile resolved from these mixtures.” [Id. (referring to Items 1B22A (swab of stains on rear of handgun slide); 1B22B (swab of stain on inside of handgun ejection port); 1B22C (swab of handgun grips); 1B39A (swab of stain on 1 Smith & Wesson magazine)) ] Davis’s report states that a DNA mixture was obtained from a swab (Item 1B22D) of the trigger and trigger guard on the same handgun; the lab report states Davis’s opinion: “John McCluskey and Casslyn Mae Welch cannot be eliminated as possible contributors to this DNA mixture.” [Defs Ex. G6, Sept. 30, 2010 report, p. 2] Davis’s April 27, 2011 lab report states that Davis also analyzed swabs of staining (Item 1B22E) on the underside of the slide above the barrel of the same handgun (Item 1B22) and determined that it was blood; the report states her opinion: “To a reasonable degree of scientific certainty, John McCluskey is the source of the DNA identified on item 1B22E.” [Defs Ex. G6, April 27, 2011 report; see Doc. No. 547, p. 4 (further describing location of stain) ] In addition, Davis analyzed “Touch DNA” swabs from the steering wheel (Item 31 a) and from the gear shifter (Item 31 g) of the Haases’ pickup truck. [Defs Ex. G6, Dec. 22, 2010 report, pp. 1, 3] Davis’s report states that a DNA mixture was obtained from both of these items and states, with respect to both Item 31a and Item 31g: “To a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile resolved from this mixture.” [Id., p. 3] Davis further states her opinion, regarding Item 31a, that Welch, Province, Linda Haas, and Gary Haas are eliminated as contributors to this DNA mixture. [Id.] Regarding Item 31 g, the report states that the minor DNA profile may be used for elimination purposes only, and that Welch, Province, and Linda Haas are eliminated as contributors of the minor DNA profile. [Id.] Davis also analyzed swabs of red stain recovered from the pavement at a Phillips 66 gas station in Santa Rosa, New Mexico, Item R-6. [Doc. No. 547, p. 5; Defs Ex. G6, Dec. 22, 2010 report, pp. 2, 4] Davis’s report states that a DNA mixture was obtained from Item R-6 and states her opinion that Linda Haas and Gary Haas “cannot be eliminated as possible contributors to this DNA mixture.” [Defs Ex. G6, Dec. 22, 2010 report, p. 4] Davis states that Welch, Province, and Defendant “are eliminated as contributors to this DNA mixture.” [Id.] The Court is not currently aware of how many of the results and conclusions from Davis’s lab reports the Government proposes to present at trial. Defendant filed a motion to exclude the results of all of the Government’s DNA testing. [Docs. No. 422, 442] The Government filed a Response [Doc. No. 547], and Defendant filed a Reply [Doc. No. 562]. Both parties also filed voluminous exhibits on CDs. [May 14, 2012; June 25, 2012] The Court admitted about 100 additional exhibits at the May 6-7, 2013, evidentiary hearing. I. ADEQUACY OF DISCLOSURE PROVIDED BY GOVERNMENT Defendant asserts that the Government’s Notice of Intention To Offer Expert Testimony [Doc. No. 261] and the Supplemental Notice of Intent To Offer Expert Testimony [Doc. No. 386] do not comply with Rule 16. [Doc. No. 442, pp. 17-23] Defendant quotes the page-long summary of the Supplemental Notice regarding Carrie Zais (Davis), Supervising Forensic Scientist. [Doc. No. 442, pp. 18-20] This summary states that the Government provided Defendant with Davis’s reports and “approximately 70 pages of methodology, testing analysis, results, notes, and national match detail report.” [Doc. No. 442, p. 19] Defendant acknowledges that he received at least eleven pages from Davis’s laboratory reports, together with “voluminous foundational material.” [Doc. No. 442, pp. 20-23; Defs Ex. G6] Defendant asserts, however, that these documents do not “tell us what [her] conclusions are” and do not “begin to describe ‘the bases and reasons for those opinions,’ ” as required by Rule 16. [Doc. No. 442, p. 20] The Government responds that its disclosures meet the requirements of Rule 16 and satisfy the intent of the discovery requirements. [Doc. No. 547, pp. 5-6] The Government asserts that it has provided more than Rule 16 requires — including Davis’s lab reports, the foundational data including protocols and standard operating procedure, internal and external audits, and proficiency tests. [Doc. No. 547, p. 6] The Government was required to disclose expert evidence to be presented at trial under Rules 702, 703, or 705. In civil cases, Rule 26 requires a “written report” containing “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(B)(i). The requirements in criminal cases are more limited; Rule 16 requires the Government to give Defendant only “a written summary” including “the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.” Fed.R.Crim.P. 16(a)(1)(G). Rule 16 disclosure is designed to give the opposing party notice, permitting preparation for cross-examination and presentation of opposing experts. See Fed. R.Crim.P. 1 advisory committee’s notes to 1993 amendment. Detailed, extensive discussion is not required in the Rule 16 summary: “Although the summary required by Rule 16 provides the defense with some notice, the requirement of setting forth ‘the bases and reasons for’ the witnesses’ opinions does not track the methodological factors set forth by the Daubert Court.” Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 Minn. L.Rev. 1345, 1360 (1994). The Government provided Defendant with a curriculum vitae for Carrie Zais (Davis), which Defendant provided to the Court as an exhibit. [Defs Ex. X6] Provision of the expert’s curriculum vitae satisfies the requirement of Rule 16 to include a description of the witness’s qualifications. United States v. Mehta, 236 F.Supp.2d 150, 155 (D.Mass.2002). The Government provided Defendant with Davis’s laboratory reports, eleven pages of which were provided to the Court by Defendant. [Defs Ex. G6] These reports sufficiently notified Defendant of Davis’s opinions. For instance, the September 30, 2010 report, at page 2, informs Defendant that Davis can be expected to testify to her opinion that, “[t]o a reasonable degree of scientific certainty, John McCluskey is the source of the major DNA profile” obtained from items 1B22A, 1B22B, 1B22C, and 1B39A. The “voluminous foundational material” Defendant acknowledges receiving — including the methodology, testing analysis, results, notes, and national match detail report — was sufficient to describe “the bases and reasons for those opinions” under Rule 16. In addition, the Government’s disclosure notice informed Defendant that Davis is also expected to testify regarding collection of samples, the chain of custody, lab controls in place to protect the integrity of the samples, and the peer review process used in the analysis of these samples and subsequent comparison. [Doc. No. 386; see Doc. No. 442, p. 19] The Tenth Circuit rejected similar arguments that a Rule 16 disclosure failed to sufficiently convey an expert’s opinions and the bases and reasons for those opinions. In Brown, the government provided a fingerprint examiner’s CV and report, and the summary of testimony stated that the expert “will testify that she compared the defendant’s known fingerprints found on fingerprints [sic] cards with a latent fingerprint found” on a job application, and “will testify the latent fingerprint on the job application is the defendant’s fingerprint.” United States v. Brown, 592 F.3d 1088, 1089 n. 2 (10th Cir.2009). At trial, the expert testified that she found fourteen identical points of comparison between the defendant’s known print and the latent print found at the crime scene. Id. at 1089. The Tenth Circuit “was unpersuaded by Brown’s argument that because the government’s summary failed to mention fourteen identical points of comparison or specifically describe the expert’s methodology, the summary was deficient.” Id. at 1091. The Tenth Circuit held that the government’s disclosure substantially complied with Rule 16 because the summary and report stated the expert’s opinion and described the anticipated testimony — that “the fingerprint found at the scene of the crime matched Brown’s.” Id. at 1091. The Tenth Circuit opinion in Brown shows that Rule 16 disclosures are not required to include the extensive and exhaustive level of detail and information for which Defendant is arguing. The Court finds that the Government’s disclosures meet the requirements of Rule 16. Defendant also asserts that the Government’s notice was late, under the Court’s Scheduling Order. [Doc. No. 442, p. 18] It is not necessary for the Court to consider this issue further other than to observe that it is Defendant’s burden to “demonstrate” prejudice — either from the timing or the adequacy of the Government’s disclosure. See United States v. Kenyon, 481 F.3d 1054, 1062 (8th Cir.2007). Summarily asserting prejudice does not satisfy Defendant’s burden to demonstrate prejudice. See United States v. Apperson, 441 F.3d 1162, 1204 (10th Cir.2006) (regarding denial of motion to continue). The purposes of Rule 16 include minimizing surprise from unexpected expert testimony and allowing a party to prepare for cross-examination and presentation of opposing experts. Fed.R.Crim.P. 16 advisory committee’s note to 1993 amendment. Defendant has not demonstrated that the purposes of the Rule are frustrated. See United States v. Thornton, 642 F.3d 599, 606 (7th Cir.2011); United States v. Stevens, 380 F.3d 1021, 1026 (7th Cir.2004) (prejudice under Rule 16 requires showing of undue surprise and inadequate opportunity to prepare defense). Defendant’s very thorough pleadings and exhibits in support of his motion to exclude DNA evidence show that Defendant has had adequate notice to enable him to prepare a defense. In addition, the Court does not find any indication that the Government has acted in bath faith. The Court finds that the Government’s disclosure satisfies Rule 16. Even if the Court had found any violation, the Court would have been required to impose the least severe sanction that would fulfill the purposes of Rule 16. Brown, 592 F.3d at 1090. Rule 16(d)(2) provides a variety of possible sanctions. “In selecting a proper sanction, a court should typically consider (1) the reasons the government delayed producing requested materials, including whether the government acted in bad faith; (2) the extent of prejudice to defendant as a result of the delay; and (3) the feasibility of curing the prejudice with a continuance.” United States v. Charley, 189 F.3d 1251, 1262 (10th Cir.1999) (internal quotation marks omitted). “Frequently it mil be found that the party who requested disclosure has not been prejudiced and that no sanction is needed.” Id. (internal quotation marks omitted). The record before this Court shows that Defendant has been provided, well in advance of trial, lab reports and extensive foundational material; Defendant thus knows “well in advance of trial who [is] going to testify and the nature and purpose of the expected testimony.” Charley, 189 F.3d at 1262. Exclusion of expert evidence “is almost never imposed in the absence of a constitutional violation or statutory authority for such exclusion.” Id. (internal quotation marks omitted). The extreme sanction of exclusion would not be warranted in this case, even if the Court had found any violation. Since the purposes of Rule 16 have been satisfied, and the Court finds no evidence of bad faith in any delays, there is no basis for any sanction. See id. In addition, since Defendant has requested, and been granted, a continuance of the trial date, the Court finds that any prejudice from any failure to fully comply with disclosure will be cured. Charley, 189 F.3d at 1262. The Court finds that Defendant has sufficient time to prepare for trial, there is no unfair surprise, and no sanctions are warranted. II. NO NECESSITY FOR A SEPARATE, PRETRIAL DAUBERT HEARING Defendant asks the Court to hold a Daubert hearing. [Doc. No. 442, p. 98] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Government argues that a pretrial Daubert hearing is unnecessary. [Doc. No. 547, pp. 57-58] The Court agrees that a separate, pretrial Daubert hearing is not warranted — except for a hearing on LCN testing, which was held on May 6-7, 2013; a sufficient record on other issues has already been presented in the hundreds of pages of briefs and thousands of pages of exhibits. “ ‘The most common method for fulfilling [the gatekeeper function] is a Daubert hearing, although such a process is not specifically mandated.’ ” United States v. Turner, 285 F.3d 909, 913 (10th Cir.2002) (quoting Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir.2000)). “Daubert challenges, like other preliminary questions of admissibility, are governed by Fed.R.Evid. 104.” United States v. Nichols, 169 F.3d 1255, 1263 (10th Cir.1999). Rule 104 “provides that a hearing outside the presence of the jury ‘shall be ... conducted when the interests of justice require.’” Id. (quoting Fed. R.Evid. 104 (amended 2011, see Fed. R. Evid. 104 advisory committee’s note (explaining that 2011 amendments are part of the restyling of the Rules and intended to be stylistic only; there is no intent to change any result in any ruling))). “The requirement of the ‘interests of justice’ implies discretion on the part of the trial court to be reviewed only for an abuse.” Id. The Court is required to make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S. Ct. 2786. The Court must also determine whether the proffered witness is qualified as an expert. The opinions give this Court “considerable leeway” in “deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); see Turner, 285 F.3d at 913. “The trial court enjoys broad latitude in executing its gate-keeping function; there is no particular procedure it is required to follow.” United States v. Vargas, 471 F.3d 255, 261 (1st Cir.2006). The Supreme Court has emphasized the importance of “considerable leeway,” because broad discretion is needed to allow the Court both to avoid “unnecessary ‘reliability’ proceedings” and to require “appropriate proceedings” when necessary. Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167; see Nichols, 169 F.3d at 1262-63; Vargas, 471 F.3d at 261-62. In Nichols, the defendant challenged the admissibility of opinions by a forensic explosives expert about the type and size of the bomb that destroyed the Murrah building in Oklahoma City. The defendant challenged the FBI laboratory’s protocol and procedures, and also challenged the manner in which the lab work was performed; the defendant’s challenges included arguments that the FBI laboratory lacked proper protocols and prescribed procedures, that the testing methodologies used were inappropriate, that unqualified persons participated in performing the test, that the equipment was not properly maintained, and that discovery information suggested the possibility of contamination. Nichols, 169 F.3d at 1262-63. “In sum, the defense argue[d] that the government must prove to the court, outside the presence of the jury, that appropriate scientific methods were properly applied before the test results and conclusions drawn from them can be admitted as relevant and reliable scientific evidence.” Id. at 1262 (internal quotation marks omitted). The district court in Nichols declined to hold a pretrial Daubert hearing and reserved ruling on admissibility until the testimony was offered at trial. Id. The Tenth Circuit held that the court did not abuse its discretion, because a separate, pretrial hearing is not required in order for a district court to properly fulfill its gatekeeping function. Id. at 1263. The district court in Nichols stated that the evidence did not involve “any new scientific theory and the testing methodologies are neither new nor novel.” Id. at 1263. The district court stated that “the contentious issue was whether the test results were undercut by flaws in the laboratory tests, a matter involving the credibility of witnesses and weighing of the evidence, both of which were more suitable for resolution by the jury.” Id. The district court in Nichols reasoned that the showing required to determine admissibility was also evidence that must be presented to the jurors to allow them to assess the weight and credibility of the expert opinion evidence. Id. at 1263-64. The Tenth Circuit agreed, quoting the Advisory Committee Notes to Rule 104: “ ‘Not infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility----’” Id. at 1264. The district court concluded: “Because the accused has the right to have the jury hear evidence relevant to the weight and credibility of opinion evidence, the necessary foundation for admission should be presented to the jury”; and “That procedure avoids the duplication that would result from a pretrial hearing.” Id. at 1263-64. Again the Tenth Circuit agreed, stating that the district court’s “method of conserving judicial resources” was consistent with the Advisory Committee Notes to Rule 104: [T]ime is saved by taking foundation proof in the presence of a jury. Much evidence on preliminary questions, though not relevant to jury issues, may be heard by the jury with no adverse effect. A great deal must be left to the discretion of the judge who will act as the interests of justice require. Nichols, 169 F.3d at 1264 (quoting Fed. R.Evid. 104 advisory committee’s note). The district court in Nichols ruled that the necessary foundation would be proved, and the district court would determine the adequacy of that showing, before the expert would be permitted to give opinions and conclusions. Id. at 1263. The district court also stated that if voir dire would be too prolonged or would include matters inappropriate for the jury to hear, the voir dire could be conducted outside the jury’s presence. Id. The Tenth Circuit stated that the district court’s actions in Nichols were “flawless.” Id. at 1264. The Tenth Circuit held that “Daubert does not mandate an evidentiary hearing,” and, on appeal, the Court “simply require[s] ‘a sufficiently developed record in order to allow a determination of whether the district court properly applied the relevant law.’ ” Nichols, 169 F.3d at 1262 (quoting United States v. Call, 129 F.3d 1402, 1405 (10th Cir.1997)). The Tenth Circuit observed that the procedure followed by the district court in Nichols was consistent with the Tenth Circuit’s opinion in Davis. Nichols, 169 F.3d at 1264. In Davis, there was a lengthy hearing on the DNA evidence before the jury and without objection from the defendant; the expert witness was examined, and cross-examined, about compliance with protocol before she gave her opinion. United States v. Davis, 40 F.3d 1069, 1075 (10th Cir.1994). The court then overruled the defendants’ objection and allowed the witness to give her opinion. Id. “The district court thus had the opportunity to determine whether protocol was followed before [the expert witness] testified that the samples matched [the defendants] and explained her statistical calculations.” Id. The Tenth Circuit approved this procedure, stating that the district court in Davis “thus conducted the functional equivalent of a preliminary hearing.” Id. More recently, the Tenth Circuit again held that a separate, pretrial Daubert hearing is not specifically mandated. United States v. Nacchio, 555 F.3d 1234, 1253-54 (10th Cir.2009) (en banc). A party has “no entitlement to a particular method of gatekeeping by the district court.” Id. at 1245. The Tenth Circuit stated, “Other circuits are in accord with the Tenth Circuit view.” Id. at 1254 n. 18 (citing additional cases); see United States v. Alatorre, 222 F.3d 1098, 1099-1104 (9th Cir.2000). In determining that a separate, pretrial hearing is not required under Daubert, the Court observes that a number of courts have held that judicial notice of the reliability of PCR/STR DNA analysis can be taken. See, e.g., United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996); State v. Butterfield, 27 P.3d 1133, 1143 (Utah 2001). The Court does not take judicial notice in this case, but rather determines on the basis of the record before the Court, that the Government’s DNA evidence is admissible (with the exception of LCN evidence); however, cases holding that courts may take judicial notice of the reliability of PCR/STR DNA evidence further support the Court’s determination that a separate, pretrial Daubert hearing is not necessary in this case. In the case before the Court, the briefs on the DNA evidence are more than two hundred pages long and the exhibits submitted by the parties exceed three thousand pages (plus additional exhibits on LCN testing). The parties have cited numerous additional authorities. The parties have fully briefed the issues. The Court has not placed a limitation on the information upon which to base the Daubert decision. Compare Dodge, 328 F.3d at 1223-24, 1228 (district court has discretion to limit information, but abused discretion in rejecting 47-page motion with several-thousand-page appendix and imposing 20-page limit on brief plus appendix, and declining to accept proffers of reports and studies; taken together with other limitations, court severely and unreasonably limited information), with Nacchio, 555 F.3d at 1250 (no unreasonable limitation of information). The parties were allowed to exceed normal page limits in their briefs and to present written submissions. See Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 761 n. 3 (8th Cir.2003). In this case, the Court has granted generous page extensions, allowing Defendant his requested extension to 144 pages for the motion to exclude DNA evidence. [Doc. No. 428] In addition, despite concluding that Defendant exceeded the page extension granted, the Court denied the Government’s motion to strike [Doc. No. 443, filed May 11, 2012]; the Court accepted and fully reviewed Defendant’s motion. [Doc. No. 1008, filed June 7, 2013] The Court finds that there is a sufficient record for decision and that the parties have been provided ample opportunity to be heard. The Court held an evidentiary hearing on LCN testing; the Court finds that a separate, pretrial Daubert hearing is unnecessary on other DNA issues. The Federal Rules seek to avoid “unjustifiable expense and delay” as part of their search for truth and the just determination of proceedings. Kumho, 526 U.S. at 153, 119 S.Ct. 1167 (quoting Fed.R.Evid. 102). But, more important, the Court finds that the foundation for admissibility under Daubert is the same information that must be presented to the jurors to allow them to determine the weight and credibility of the expert evidence; Defendant therefore has the right to have the jury hear this evidence. See Nichols, 169 F.3d at 1263-64. The evidence which would be presented at a separate, pretrial Daubert hearing can be presented to the jury at trial. The Court emphasizes that the Government must lay the foundation for admissibility under Daubert before any expert opinions or conclusions are given. See Nichols 169 F.3d at 1263; Fed.R.Evid. 705 (court can order that expert first testify to underlying facts or data, before giving opinion). This ruling applies to all DNA evidence; in addition, with regard to evidence from mixed samples, the Government is ordered to lay a foundation demonstrating that the DNA result does not constitute LCN testing with respect to any contributor for whom the Government wants to introduce a DNA result. Defendant’s motion for a separate, pretrial Daubert hearing on issues other than LCN testing is denied. III. DNA TESTING IN THIS CASE The Government states that the NMDPS DNA Laboratory used the following in this case: Quantifiler Duo DNA Quantification Kit; AmFISTR Identifier PCR Amplification Kit; Applied Biosystems 7500 Real-Time PCR SDS Software, version 1.2.3.; Applied Biosystems 3130 Genetic Analyzer Data Collection Software, version 3.0; Applied Biosystems GeneMapper ID Software, version 3.2; FBI Popstats software, version 5.7.4; ABI Prism 3130 Genetic Analyzer. [Doc. No. 547, pp. 7-8] The Identifier kit amplifies fifteen STR loci, including the thirteen core DNA markers used in the Combined DNA Index System (CODIS), and two internationally accepted STRs. [Gov’s Ex. 14 (6/25/12) ] As the Government points out, some of Defendant’s arguments and challenges concern procedures not used in this case, and they need not be addressed by this Court. IV. ADMISSIBILITY OF DNA EVIDENCE A. Legal Standard Governing Admissibility Under Daubert and Rule 702 The admission of expert testimony is governed by Federal Rule of Evidence 702 and the Rule’s interpretation by the Supreme Court in Daubert, Joiner, and Kumho Tire. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Rule 702 was amended in 2000 in response to Daubert and Kumho Tire. Fed.R.Evid. 702 advisory committee’s note. The 2000 amendment affirms the trial court’s role as gatekeeper, excluding unreliable expert testimony. Id. Rule 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. The proponent of the evidence has the burden of showing that expert evidence is admissible, by a preponderance of proof. Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786; United States v. Orr, 692 F.3d 1079, 1091 (10th Cir.2012); Fed.R.Evid. 702 advisory committee’s note to 2000 amendment. The trial court has “wide latitude” in exercising its discretion to admit or exclude expert testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir.2004); see Kumho, 526 U.S. at 147, 119 S.Ct. 1167 (“broad latitude” in determining how to determine reliability and in ultimate reliability determination). The trial court “ ‘generally must first determine whether the expert is qualified.’ ” United States v. Avitia-Guillen, 680 F.3d 1253, 1256 (10th Cir.2012) (quoting United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.2009) (en banc)). “If the expert is sufficiently qualified, then ‘the court must determine whether the expert’s opinion is reliable by assessing the underlying reasoning and methodology.’ ” Id. (quoting Nacchio, 555 F.3d at 1241). Trial courts have the responsibility of ensuring that scientific testimony or evidence is both relevant and reliable. Daubert, 509 U.S. at 589, 113 S.Ct. 2786. “Relevant evidence ‘means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” Bitler, 400 F.3d at 1234 (quoting Fed.R.Evid. 401). The trial court acts as gatekeeper, making “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. The gatekeeping function requires a “ ‘sufficiently developed record’ ” to allow a determination of whether the trial court “ ‘properly applied the relevant law.’ ” Avitia-Guillen, 680 F.3d at 1258 (quoting Nichols, 169 F.3d at 1262). Daubert sets forth a non-exclusive list of factors that may be considered, including: (1) whether the theory or technique can be, and has been, tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the theory is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. The trial court need not apply all of these factors. Avitia-Guillen, 680 F.3d at 1258. The trial court may consider additional relevant factors. Kumho Tire, 526 U.S. at 149-50, 119 S.Ct. 1167. The Daubert Court emphasized that the inquiry under Rule 702 is “a flexible one.” Daubert, 509 U.S. at 594, 113 S.Ct. 2786. “Its overarching subject is the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission.” Id. at 594-95, 113 S.Ct. 2786. “The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Id. at 595, 113 S.Ct. 2786. Joiner added that “conclusions and methodology are not entirely distinct from one another.” Joiner, 522 U.S. at 146, 118 S.Ct. 512. A court need not admit opinion evidence “that is connected to existing data only by the ipse dixit of the expert.” Id. “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. The Federal Rules encourage the admission of expert testimony. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 702.02[1], at 702-5 (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.2012). The Dauberb Court recognized the “liberal thrust” of the Federal Rules and their “general approach of relaxing the traditional barriers to ‘opinion’ testimony.” Daubert, 509 U.S. at 588, 113 S.Ct. 2786 (internal quotation marks omitted). “The presumption under the Rules is that expert testimony is admissible.” 4 Weinstein & Berger, Weinstein’s Federal Evidence § 702.02[1], at 702-5. “A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee’s note to 2000 amendment. As the Advisory Committee explained, “‘the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversary system.’ ” Id. (quoting United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir.1996)). “As the Court in Daubert stated: ‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ ” Id. (quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786). These conventional devices, rather than exclusion under the restrictive and elevated standard set by Frye, are “the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. “As the ultimate fact-finder, it is the jury that must determine, finally, where the truth in any case lies, and the district judge as gatekeeper may not usurp this function.” United States v. Frazier, 387 F.3d 1244, 1272 (11th Cir.2004). B. Qualifications of Government’s Witness, Carrie Zais Davis The Government provided Defendant with the curriculum vitae of its proposed DNA expert, Carrie Zais Davis. [Def's Ex. X6; Gov’s Ex. 4 (5/6/13) (updated CV) ] At the May 6, 2013 evidentiary hearing, additional information was provided about Davis’s qualifications; without objection from Defendant, Davis was qualified to testify as an expert in DNA analysis. [Tr. 5/6/13, p. 130] Davis obtained a B.A. in Biology from the University of Texas, Austin, in 2000. In 2003-2004, Davis took courses in: statistical analysis of forensic DNA evidence, population genetics, and biochemistry. [Tr. 5/6/13, p. 120; Defs Ex. X6] Between 2003 and 2011, Davis attended twelve seminars or workshops. She testified, however, that she did not believe she had ever attended a class on LCN testing. [Tr. 5/6/13, p. 169] She is a member of the American Academy of Forensic Sciences. Davis worked as a paternity laboratory technician at Orchid GeneScreen for one year. She then worked at Orchid Cell-mark as a CODIS DNA analyst for eight months and as a Forensic DNA Analyst for the next five years. For the following three years, Davis worked at the New Mexico Department of Public Safety Laboratory as a “Forensic Scientist, Advanced,” in the Biology/DNA Unit. From October, 2010, to the present Davis was the “Supervising Forensic Scientist, Advanced.” The Government’s Response states that Davis “has been responsible for and qualified to perform, DNA extractions, mixed stains analysis, STR/PCR analysis, serological evaluation, report writing and statistical interpretation, paternity testing, and database (CODIS) analysis.” [Doc. No. 547, p. 3] Davis testified that she had worked on about 1500 DNA analyses. [Tr. 5/6/13, p. 119] The Government states that Davis “completed extensive in-house training on both the AmpFlSTR Identifiler Amplification Kit” and the 3130 Genetic Analyzer. [Doc. No. 547, p. 3] Davis takes two proficiency tests per year, as required in a CODIS-participating lab; Defendant was provided with the results of five proficiency tests. [Tr. 5/6/13, p. 123; Doc. No. 547, p. 6 n. 6] Davis has testified as a DNA expert eleven times. [Tr. 5/6/13, pp. 129-30] In a case involving a witness with similar, though lesser, qualifications than Davis, the Tenth Circuit held “meritless” a claim that the witness was not qualified as a DNA expert. Wilson v. Sirmons, 536 F.3d 1064, 1102 (10th Cir.2008) (opinion reinstated after rehearing en banc, sub nom. Wilson v. Workman, 577 F.3d 1284, 1287 (10th Cir.2009)). The witness in Wilson had worked as a criminalist with the Oklahoma State Bureau of Investigation for seven and one-half years; she had a B, Sc. in chemistry, had received training in DNA testing, and had testified six times as a DNA analyst. Id. The Tenth Circuit held that the claim was “meritless,” and that the petitioner had not demonstrated “any error” in qualifying the witness as an expert. Id. (emphasis added). The Tenth Circuit was reviewing a due process claim of plain error in a federal habeas case, so could have affirmed based on a lower standard; the language used by the Tenth Circuit, however, shows that the court would have reached the same conclusion on the standard applicable for a preserved claim under Rule 702. Davis has twelve years of experience in DNA analysis. Davis holds the position of Supervising Forensic Scientist, Advanced — apparently a higher title than the witness in Wilson. The Tenth Circuit’s opinion in Wilson constitutes persuasive authority that Davis is qualified as a DNA expert. See also Vargas, 471 F.3d at 258-60, 262 (witness qualified as fingerprint expert on basis of many years of experience, though witness lacked degrees in science); Butterfield, 27 P.3d at 1140 (lab supervising criminalist, with only B.Sc. in medical technology, was qualified as expert in DNA analysis largely by extensive experience together with further training and short courses); Patterson v. State, 729 N.E.2d 1035, 1040 (Ind.Ct.App.2000) (DNA supervisor, with only bachelor’s degree in biochemistry, was qualified as expert in DNA analysis by 10 years in forensic serology department and about 5 years in DNA Unit, and several classes in PCR analysis). A witness may even be qualified as an expert on the basis of experience alone, as the text of the rule states. Fed.R.Evid. 702 advisory committee’s note to 2000 amendment (“Nothing in this [2000] amendment is intended to suggest that experience alone — or experience in conjunction with other knowledge, skill, training or education — may not provide a sufficient foundation for expert testimony.”). Defendant’s motion raises a number of questions about Davis’s qualifications: (1) In his 2012 motion to dismiss, Defendant observes that the documents that had been provided by that time did not show whether Davis had met continuing-education requirements. [Doc. No. 442, pp. 106-07] At the May 6, 2013 hearing, however, Davis testified that she always fulfilled or exceeded her continuing-education requirement of eight hours per year. [Tr. 5/6/13, p. 120] (2) Defendant raises a question regarding forms showing “K. Zais” or “Katherine Zais” working as “technical support personnel.” [Doc. No. 442, p. 106 (regarding forms included in Def s Ex. X6) ] The Government responds that those documents do not concern Carrie Zais Davis, but her sister Katherine Zais. [Doc. No. 547, p. 3 n. 3] (3) Defendant speculates that Davis may not be sufficiently familiar with the Identifiler kit. [Doc. No. 442, p. 107] This speculation is, at most, a suggestion of a gap in Davis’s qualifications or knowledge. But “[g]aps in an expert witness’s qualifications or knowledge generally go to the weight of the witness’s testimony, not its admissibility.” Robinson v. GEICO General Ins. Co., 447 F.3d 1096, 1100 (8th Cir.2006) (internal quotation marks omitted). Davis’s familiarity with the Identifiler kit is a subject Defendant may explore on cross-examination at trial; any lack of familiarity would not be a reason to refuse to qualify her as a DNA expert. See First Union Nat’l Bank v. Benham, 423 F.3d 855, 862 (8th Cir.2005) (factual basis goes to credibility, not admissibility). The Court observes that the Government states that Davis “completed extensive in-house training” on the Identifiler kit. [Doc. No. 547, p. 3] (4) Defendant suggests that Davis may be biased, because she works for a lab closely aligned with a police department. [Doc. No. 442, pp. 85-86, 107] This, again, is a proper subject for cross-examination; evidence of bias would not be a proper basis for exclusion of expert testimony. Cruz-Vazquez v. Mennonite Gen. Hosp., 613 F.3d 54, 59 (1st Cir.2010); see United States v. Baldridge, 559 F.3d 1126, 1135 (10th Cir.2009) (proper subject for cross-examination of any witness is question of bias). The issues to which the Court must apply its gatekeeping role under Daubert must be distinguished from the issues properly left to the jury. It is the Court’s role to make a preliminary determination of whether Davis has sufficient specialized training or knowledge to qualify as an expert. But it is the jury’s role to assess any potential bias and the impact of any bias on the weight to give her testimony. Cruz-Vazquez, 613 F.3d at 59. (5) Defendant suggests that, although he was provided with the results of five successful proficiency tests, blind proficiency tests would have provided better quality assurance. [Doc. No. 442, pp. 145-47] Defendant also suggests that a DNA analyst should be certified, citing National Research Council, Strengthening Forensic Science in the United States: A Path Forward, p. 208 (2009) [hereinafter NRC (2009) ]. [Doc. No. 442, pp. 105-06, 144-45] Defendant argues that Davis may be qualified “to testify to the procedures she used in this case,” but that her CV does not demonstrate that she is qualified “to testify about molecular biology, to make estimates of population frequencies, or to establish that a biological methodology or an estimation procedure is valid evidence or generally accepted.” [Doc. No. 442, p. 106] Certification may indicate that an expert’s opinion is entitled to greater weight, but such certification is not a prerequisite to qualification as an expert witness. Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d 109, 114 (1st Cir.2010). A court abuses its discretion if it refuses to qualify a witness as an expert solely because the expert does not have the degree or specialization that the court considers to be most appropriate. Id. As indicated by the use of the disjunctive “or” in Rule 702, any one of the five bases listed in the Rule may be sufficient. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 176 (5th Cir.1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075 n. 14 (5th Cir.1994); 4 Weinstein & Berger, Weinstein’s Federal Evidence § 702.04[l][c], at 702-57; 29 Charles Alan Wright et al., Federal Practice and Procedure: Evidence § 6265 (1997 & 1st ed.2012). A witness may be qualified as an expert on the basis of experience alone. Nacchio, 555 F.3d at 1258; Fed.R.Evid. 702 advisory committee’s note to 2000 amendment. Similarly, if Davis had taken blind proficiency tests, passing them might have bolstered her qualifications more than the proficiency tests administered by NMDPS, which are not “blind.” See People v. Lehmkuhl, 117 P.3d 98, 103-04 (Colo.Ct.App.2004). But open proficiency tests satisfy TWGDAM guidelines. National Research Council, The Evaluation of Forensic DNA Evidence, p. 79 (1996) [hereinafter NRC II]. The Court finds that Defendant’s arguments go to the weight of Davis’s testimony, not to its admissibility. Additional attributes might have bolstered Davis’s qualifications, but they are not necessary for a witness to qualify as an expert. The Court concludes that Carrie Zais Davis is qualified to testify as an expert in DNA analysis. Davis’s qualifications meet or exceed those of the witness determined to be qualified by the Tenth Circuit in Wilson, 536 F.3d at 1102. The Court places considerable emphasis on Davis’s extensive practical experience. C. Reliability of PCR/STR Methodology The PCR/STR method of DNA analysis was used in this case. [Doc. No. 547, p. 8; Def s Ex. G6] Defendant states that he is raising the issue of whether PCR/STR testing is generally reliable. [Doc. No. 442, p. 97] Back in 1997, the Shea court observed that “although PCR is a relatively new technology, it is based on sound scientific methods and it has quickly become a generally accepted technique in both forensic and non-forensic settings.” United States v. Shea, 957 F.Supp. 831, 338 (D.N.H1997), aff'd, 159 F.3d 37 (1st Cir.1998). “The PCR Typing methods used by the FBI in this case readily satisfy Rule 702’s reliability requirement.” Id. In concluding that the methodology is reliable, courts rely on relevant scientific and forensic literature including NRC II, published in 1996. Lemour v. State, 802 So.2d 402, 405 (Fla.Dist.Ct.App.2001). “Perhaps the strongest evidence on this point is the conclusion reached by the National Research Council’s Committee on Forensic DNA Science that ‘the molecular technology [on which PCR is based] is thoroughly sound and ... the results are highly reproducible when appropriate quality-control methods are followed.’” Shea, 957 F.Supp. at 338-39 (quoting NRC II, p. 23 (1996)). “In addition, the NRC’s conclusion is supported by numerous studies published in both scientific and forensic journals which show widespread use of the STR technique in DNA analysis.... ” Lemour, 802 So.2d at 405-06 (internal quotation marks omitted). By 2001, many more opinions held that PCR/STR testing was reliable and admissible, both under Frye and under Rule 702. Lemour, 802 So.2d at 405. The Lemour court concluded that the PCR/STR method is “generally accepted by the relevant scientific community” — thus meeting the elevated Frye standard applicable in Florida courts. Id. at 406. PCR/STR testing had achieved widespread acceptance and “overwhelming endorsement” in both scientific and forensic journals. Butterfield, 27 P.3d at 1142-43 (citing articles); see United States v. Trala, 162 F.Supp.2d 336, 347-48 (D.Del.2001) (PCR/STR profiling is generally accepted by the relevant scientific community, widely accepted in the U.S. and internationally), aff'd, 386 F.3d 536 (3d Cir.2004); Stills v. Dorsey, 7 Fed.Appx. 856, 859 (10th Cir.2001) (unpublished) (concluding N.M. Supreme Court’s holding that PCR testing is admissible under Daubert not contrary to federal law). The Utah Supreme Court observed in 2001 that “PCR-based testing, which encompasses STR testing, has been held to be a scientifically correct and reliable technique by a vast majority of courts in other jurisdictions.” Butterfield, 27 P.3d at 1143 (citing cases). The Colorado Supreme Court concluded in 2001: “The majority of courts in other jurisdictions that have considered the issue have held that DNA evidence derived from the PCR testing method satisfies the standards for admissibility under either Frye or Rule 702.” People v. Shreck, 22 P.3d 68, 79 (Colo.2001) (en banc) (citing cases). By 2003, additional cases observed that the majority of jurisdictions addressing the issue held that PCR/STR testing was scientifically rehable and admissible. State v. Whittey, 149 N.H. 463, 821 A.2d 1086, 1094 (2003); see State v. Traylor, 656 N.W.2d 885, 891, 900 (Minn.2003) (holding, under the restrictive Frye test, that PCR/STR testing is “generally accepted in the relevant scientific community”). The Whittey court observed that “PCR-based STR DNA testing is recognized and used in virtually every State and by the Federal Bureau of Investigation.” Whittey, 821 A.2d at 1094. A New Jersey court observed: “It would appear that every appellate court in the nation that has addressed the issue has accepted the scientific reliability of STR technology.” State v. De loatch, 354 N.J.Super. 76, 804 A.2d 604, 613 (N.J.Super.Ct. Law Div.2002) (applying Frye); see Wilson v. Sirmons, 536 F.3d 1064, 1102 (10th Cir.2008) (“Numerous federal and state courts as well as scientific investigators have found that PCR DNA analysis is reliable.”). Acceptance of PCR/STR testing by the courts indicates that this evidence is reliable. United States v. Goxcon-Chagal, 885 F.Supp.2d 1118, 1137 (D.N.M.2012). Although a reliability assessment under Daubert does not require determination that the methodology is “generally accepted” in the relevant scientific community, the Daubert Court stated that widespread acceptance is one of the factors in favor of admissibility under Rule 702. Daubert, 509 U.S. at 594, 113 S.Ct. 2786. For this reason, cases holding that PCR/STR testing is “generally accepted” under the elevated Frye test are persuasive support for the conclusion that this methodology is reliable under Rule 702 and Daubert. In 2009, the National Research Council stated that “nuclear DNA analysis ... has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” NRC (2009), p. 7. DNA typing is “universally recognized as the standard against which many other forensic individualization techniques are judged.” Id. at 130. “DNA enjoys this preeminent position because of its reliability and the fact that, absent fraud or an error in labeling or handling, the probabilities of a false positive are quantifiable and often minuscule.” Id. at 130. Daubert recognized that “theories that are so firmly established as to have attained the status of scientific law, such as the laws of thermodynamics, properly are subject to judicial notice.” Daubert, 509 U.S. at 592 n. 11, 113 S.Ct. 2786. On this basis, a number of courts have held that it is proper to take judicial notice of the reliability of PCR/STR analysis, even under the restrictive Frye test. See, e.g., United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996); Butterfield, 27 P.3d at 1142-43. Considering the Daubert factors, it is clear that the PCR/STR method can be and has been extensively tested, it has been subjected to peer review and publication, there is a low error rate according to NRC (2009), and there are controls and standards in place. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; see Trala, 162 F.Supp.2d at 347, 350 (FBI’s PCR/STR methodology has low to zero error rate, and controls are followed). As shown by the citations of cases and scientific authorities above, the PCR/STR method has gained extremely “widespread acceptance” — which is “an important factor” in reaching the conclusion that this is a method reliable enough to meet the standard for admissibility under Daubert and Rule 702. Daubert, 509 U.S. at 594, 113 S.Ct. 2786. Based on overwhelming scientific and forensic acceptance, as well as acceptance by the vast majority of courts, this Court concludes that the PCR/STR method of DNA typing is reliable and admissible under Rule 702 and Daubert. D. Application of PCR/STR Methodology 1. Legal Standard Defendant raises the issue of how intensively and extensively the trial court reviews proposed expert evidence in its gatekeeping function. The Government distinguishes between review of the methodology itself (i.e.,-.the PCR/STR method of DNA testing); and review of the application of that methodology (e.g., the kits, software, hardware, and statistics). The Government’s position is that once the PCR/STR methodology is held admissible under Daubert and Rule 702, challenges to the particular procedures and instrumentalities used in applying that method go primarily to the weight of the DNA evidence and not to admissibility. Defendant essentially argues that no distinction should be made between methodology and application, and that exactly the same analysis under Daubert applies to the PCR/STR methodology and to each part of the procedure. Defendant argues that, before DNA evidence can be admitted, the Government must prove that each step in the procedure and each item used in the procedure meet the Daubert test for scientific reliability. [Doc. No. 442, pp. 87-99] The Court concludes that the caselaw, together with the policy and principles underlying Rule 702 and Daubert, supports the Government’s position. As the Court concludes in Section IV(C) above, the PCR/STR methodology is reliable and admissible under Rule 702 and Daubert; Defendant’s challenges to the application of that methodology go primarily to the weight of the DNA evidence, not its admissibility. (a) Tenth Circuit caselaw The Government states that the NMDPS Laboratory used: Quantifiler Duo DNA Quantification Kit; AmFISTR Identifiler PCR Amplification Kit; Applied Biosystems 7500 Real-Time PCR SDS Software, version 1.2.3.; Applied Biosystems 3130 Genetic Analyzer Data Collection Software, version 3.0; Applied Biosystems GeneMapper ID Software, version 3.2; FBI Popstats software, version 5.7.4; ABI Prism 3130 Genetic Analyzer. [Doc. No. 547, pp. 7-8] The Government states that the “systems and machines” used are “the industry standard for DNA testing.” [Doc. No. 547, p. 4] Defendant argues that “forensic DNA testing requires a series of distinct steps, and that the methods employed at each major step are independently reviewable under Daubert ”; these “steps” and “methods” include all of the kits, software, and hardware listed in the preceding paragraph and, in addition, the statistical methods, population databases, and capillary electrophoresis. [Doc. No. 442, pp. 87, 90-91, 94-96] Defendant cites a number of Tenth Circuit cases — including Dodge, Tyson Foods, and Davis — in support of this argument. Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir.2003); Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir.2009); United States v. Davis, 40 F.3d 1069 (10th Cir.1994). [Doc. No. 442, pp. 68, 87-90, 93-94, 97, 99; Doc. No. 562, pp. 7-8] Defendant’s argument relies heavily on language quoted by the Tenth Circuit in Dodge: Under Daubert, “ ‘any step that renders the analysis unreliable ... renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.’ ” Mitchell, 165 F.3d at 782 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir.1994)). [hereinafter Paoli II] Dodge, 328 F.3d at 1222; see Tyson Foods, 565 F.3d at 780 (quoting same language). [Doc. No. 442, p. 89] Relying on this “any step” language, Defendant argues that “the methods employed at each major step are independently reviewable under Daubert; each step must be scientifically valid.” [Doc. No. 442, p. 90] Defendant argues that several Tenth Circuit cases have addressed this issue and some have cited the “any step” language from Paoli II. The Court concludes that this “any step” language does not mean what Defendant takes it to mean — that Daubert requires the same level of scrutiny for every step in the procedure as for review of the PCR/ STR methodology itself. The Tenth Circuit cases cited by Defendant — Dodge, Davis, and Tyson Foods — do not support Defendant’s argument. Although Dodge quotes the “any step” language, that principle was not determinative in Dodge so it was unnecessary for the Tenth Circuit to extensively consider the point. Dodge acknowledges Daubert’s exhortation: “The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786. Dodge then cites Joiner’s principle that there may be “simply too great an analytical gap between the data and the opinion proffered.” Joiner, 522 U.S. at 146, 118 S.Ct. 512. [Doc. No. 442, pp. 88-89] Dodge finally cites the often quoted passage from the Third Circuit’s opinion in Paoli II: “Under Daubert, ‘any step that renders the analysis unreliable ... renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.’ ” Dodge, 328 F.3d at 1222 (quoting Mitchell v. Gencorp Inc., 165 F.3d 778, 782 (10th Cir.1999) (quoting Paoli II, 35 F.3d at 745)). Although the Dodge court cited these propositions, the holding did not rest on clarifying or applying them. Instead, the Tenth Circuit reversed because the trial court had not performed its gatekeeping function-fading to make specific, detailed findings that the expert opinions were based on valid reasoning and reliable methodology. Id. at 1225-28. An additional and alternative ground for reversal was the trial court’s unreasonable limitation of the information upon which it made its Daubert decisions. Id. at 1228-29. Dodge therefore does not aid Defendant. Nor does the Tenth Circuit opinion in Davis support Defendant’s argument. In Davis, the defendants argued that because the trial court did not adequately investigate whether the government had followed protocol, the government had not established the reliability of the RFLP DNA analysis. Id. at 1073. The Davis court stated the inquiry under Daubert as a two-part test: (1) “ ‘whether the reasoning or methodology underlying the testimony is scientifically valid,’ ” and (2) “ “whether that reasoning or methodology properly can be applied to the facts in issue.’ ” Id. at 1074 (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786). Only the second part was at issue in Davis. Id. at 1074, 1072 (at trial the parties, then proceeding under Frye, had stipulated RFLP DNA testing was “generally accepted”). The Tenth Circuit identified a split in the circuits. The Court suggested that the Eighth Circuit “concluded that Daubert has raised the standard” by requiring the trial court “to make a specific finding that ‘the testimony was derived from the application of a reliable methodology’ ” before admitting scientific evidence. Davis, 40 F.3d at 1074 (quoting Martinez, 3 F.3d at 1198). In contrast, the Second and Ninth Circuits held that adherence to protocol was normally an issue for