Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kamahele

United States District Court, Tenth Circuit

September 19, 2011

ERIC KAMAHELE, et al., Defendants.


          TENA CAMPBELL, U.S. District Court Judge.


         In an earlier order, the court held that Officer Break Merino is qualified to testify as an expert on general subjects covering the background, structure and organization of the Tongan Crip Gang (TCG), that is, 1(A) through 1(N) of the United States' Supplemental Notice (Dkt. No. 517). But the court took under advisement whether Officer Merino may offer expert testimony on the issue of the individual Defendants' membership in or association with TCG. On September 9, 2010, the court held another evidentiary hearing on the question of Officer Merino's proposed testimony on the eight Defendants and their association with TCG. Now, after reviewing the testimony, hearing oral arguments, and reading the parties' memoranda, the court holds that Officer Merino is qualified to give his opinions about the Defendants and their association with TCG. But, as explained below, in making this decision the court excludes some of the proposed bases of Officer Merino's testimony. Accordingly, Officer Merino may not rely on these excluded bases when testifying at trial.


         Following the Daubert hearings involving Officer Merino on May 6 and July 13, 2011, Defendant David Kamoto filed a Motion To Compel Gang Records (Docket No. 691), seeking production of the gang field cards that Officer Merino testified he relied on in forming his opinion that the Defendants are members or associates of TCG. On August 17, 2011, United States Magistrate Judge Samuel Alba granted Mr. Kamoto's Motion To Compel and ordered compliance by the Government no later than August 25, 2011 (Docket No. 772). The Government did not object to Judge Alba's order. On August 26, 2011, Mr. Kamoto filed a Motion For Order To Show Cause Regarding Violation of Order To Provide Gang Information (Docket No. 833), contending that the Government had not produced the gang records as required by Judge Alba's order.

         On September 2, 2011, after holding a hearing on the matter, Judge Alba granted Mr. Kamoto's Motion For Order To Show Cause. Specifically, Judge Alba ordered "that copies of the flash drive containing the gang records in question be duplicated and a copy is provided to each defendant's counsel by 5:00 p.m. on 9/2/2011." (Docket No. 902.) The Government objected to Judge Alba's order (Docket No. 905) and requested a stay pending review of its objection (Docket No. 904). That Friday afternoon, the court affirmed Judge Alba's order but temporarily limited the way in which the disclosed information could be used. (Docket No. 911.) The next Tuesday, September 6, 2011, the court held a follow-up hearing, after which the court amended its previous order and required that the unredacted information be viewed by attorneys only and that if counsel for the Defendants were to make any hard copies of the information, they must redact the copies. The copies could then be used during trial but the information may not be used to contact victims or witnesses. (Docket No. 942.)

         In preparation for the September 9, 2011, Daubert hearing, the Government produced a list of factors that support Officer Merino's opinion that each Defendant is a member or associate of TCG (Daubert Ex. 3). During the hearing, the Defendants were able to cross-examine Officer Merino about the listed bases for his opinions.


         A. Standard of Review

         The court initially believed that it would consider all the types of information cited by Officer Merino as forming the basis of his opinion when the court acted as a "gatekeeper, " that is, when the court decided whether Officer Merino could testify as an expert on this issue. Then the court would make a separate determination about the information Officer Merino could use when testifying at trial.

         The court has since changed its view of the procedure it must follow. The court must decide the appropriate bases of Officer Merino's proposed opinions when the court undertakes its gatekeeper analysis. Then, during trial, Officer Merino may rely on the approved bases when testifying. To proceed otherwise would not be helpful to the jury or to counsel. But the court cautions all parties that even if the court allows Officer Merino to base his opinion on certain information, that does not necessarily mean that this information can be disclosed to the jury. Federal Rule of Evidence 703 allows an expert to base opinions on inadmissible facts or data.

         B. Prohibited and Approved Bases

         There is one category of information on which Officer Merino cannot base his opinions: information that has not been provided, in some form, to the Defendants. But the court has carefully considered the bases which are left and finds them, relevant and reliable and, as discussed in the court's first Daubert order (Docket No. 876), finds that Officer ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.