DOJ-OGR-00005790.jpg

Case 1:20-cr-00330-PAE Document 397 Filed 10/29/21 Page 7 of 84 579, 588 (1993) (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)). Under Daubert, a district court must first determine whether an expert is qualified. See Fed. R. Evid. 702 (“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 .. . .”); United States v. Kidd, 385 F. Supp. 3d 259, 263 (S.D.N.Y. 2019) (“At the first step of the Daubert inquiry, courts are instructed to consider the expert’s qualifications.”). Courts then must determine whether the testimony “will be not only relevant, but reliable.” United States v. Romano, 794 F.3d 317, 330 (2d Cir. 2015); see Daubert, 509 U.S. at 597 (explaining that courts must ensure “that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand”). On reliability, Rule 702 identifies three “indicia of reliability”: (1) “that the testimony is grounded on sufficient facts or data; (2) that the testimony is the product of reliable principles and methods; and (3) that the witness has applied the principles and methods reliably to the facts of the case.” United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007) (quoting Amorgianos v. Nat’l RR. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002)). “[T]hese criteria,” however, “are not exhaustive.” Jd. Daubert itself, which “dealt with a scientific theory,” offered additional factors, such as whether the theory “‘has been subjected to peer review and publication,’” and the “known or potential rate of error.”” Romano, 794 F.3d at 330 (quoting Daubert, 509 U.S. at 593-94). And “there are many different kinds of experts, and many different kinds of expertise.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). “[W]hether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a DOJ-OGR-00005790