Judge Sandra Townes

Sebbern and Waiters dropped handguns as they fled police responding to the shooting death of Dickerson. Bullets fired from the retrieved guns by examiners in the New York City Police Laboratory’s Firearms Analysis Section were compared against a 9-millimeter bullet recovered from Dickerson’s body. The examiners’ report—provided to Sebbern—found the recovered bullet and several casings came from Waiters’ 9-millimeter pistol. District court denied Sebbern’s motion under Federal Rule of Evidence 702 to preclude introduction of expert ballistics testimony, which relied on the so-called “AFTE Theory”—a theory of toolmark identification criticized as subjective—explained in United States v. Otero. His preclusion motion did not apply the four factors in Daubert v. Merrell Dow Pharmaceuticals. United States v. Green and United States v. Glynn, on which Sebbern relied, permitted the government’s ballistics expert to testify with restrictions as to their opinions. Although a separate Daubert hearing was unnecessary, the court granted Sebbern a hearing at which the government was required to provide the sort of “exhaustive foundation” supplied to the district court in United States v. Williams for admitting its ballistics expert’s testimony.