[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 23

- 14112

Non

- Argument Calendar

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus QUINTON L. PETE,

Defendant

- Appellant.

____________________ Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:22

- cr

- 00048

- TKW

- 1

____________________ USCA11 Case: 23-14112 Document: 29-1 Date Filed: 09/04/2024 Page: 1 of 92 Opinion of the Court 23

- 14112

Before J ILL P RYOR , B RANCH , and B LACK , Circuit Judges.

PER CURIAM: Quinton L. Pete appeals his convictions for attempted Hobbs Act robbery and possession of a firearm and ammunition by a convicted felon. First, Pete a sserts the district court reversibly erred by denying his request for a Daubert 1 hearing to test the admissibility of the G overnment’s ballistics toolmark identification evidence and testimony. Second, Pete contends the court reversibly erred by excluding or restricting testimony from his firearms ballistics expert who was qualified to testify on the subject. Third,
Pete asserts the court violated his rights under the Confrontation Clause by admitting, over his objection, hearsay testimony that an unidentified, independent toolmark examiner reached the same conclusion as the G overnment’s expert toolmark witness

. W e address each of his challenges in turn , and after review, affirm his convictions.

I. DAUBERT HEARING
Rule 702 of the Federal Rules of Evidence allows a witness who is qualified as an expert to give testimony so long as:
(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;

1 Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579 (1993). USCA11 Case: 23-14112 Document: 29-1 Date Filed: 09/04/2024 Page: 2 of 923

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(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.
Fed. R. Evid. 702 (version effective to November 30, 2023) . In this Circuit, scientific expert testimony is admissible if :(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) themethodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert ; and (3) the testimonyassists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
United States v. Ware , 69 F.4th 830 , 845

- 46 (11th Cir. 2023), cert. denied , 144 S. Ct. 1395 (2024) (quotation marks omitted). The partyseeking to introduce the expert opinion has the burden of establishing the three prongs: qualification, reliability, and helpfulness. Id

. at 846. District courts consider four factors within the reliability prong “(1) whether the expert’s theory can be and has been tested;(2) whether the theory has been subjected to peer review and publication; (3) the known or potentia l rate of error of the particularscientific technique; and (4) whether the technique is generally accepted in the scientific community.” Id . (quotation marks omitted). Courts are not required to hold a Daubert hearing in every case where a party challenges the admissibility of expert testimony. USCA11 Case: 23-14112 Document: 29-1 Date Filed: 09/04/2024 Page: 3 of 94 Opinion of the Court 23

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Id . The Daubert inquiry provides the district courts, which are much more familiar with the facts and needs of a case, the flexibility “to manage their dockets and counsels’ time to provide the most efficient and just resolution of issues.” Id.

In Ware , prior to trial, the defendant sought to exclude expert testimony regarding fingerprint evidence because new reports, from the National Research Council ( NRC ) and the President’s Council of Advisors on Science and Technology ( PCAST )
, stated that fingerprint analysis was unreliable and susceptible to cognitive biases. Id . at 840. The district court denied Ware’s motion and determined that a hearing under Daubert was unnecessary, in part, because he failed to present a case from our Court or another district court in the Circuit that favored excluding fingerprint evidence under Daubert

. Id

. Ware asserted the district court abused its discretion by admitting the challenged evidence without holding a formal Daubert hearing. Id . at 835. He challenged thereliability of the fingerprint analysis generally, and not the qualifications of the G overnment’s expert or the helpfulness of his testimony. Id . at 846. This Court held the district court was not required to hold a Daubert hearing before admitting the G overnment’s fingerprint expert and did not abuse its discretion in deciding such a hearing was unnecessary. Id . at 847. Noting the district court had “considered the reports and arguments presented and found that fingerprint evidence was reliable enough as a general matter to be presented to the jury
, ” w e reasoned fingerprint evidence has long been accepted in our Circuit and that the cure for questionable, but admissible, evidence is cross

- examination, not USCA11 Case: 23-14112 Document: 29-1 Date Filed: 09/04/2024 Page: 4 of 923

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exclusion. Id . at 847

- 48. This Court added the PCAST and NRC reports may cast doubt on the error rates of the fingerprint analysis but they go to the weight given to the analysis rather than the legitimacy of the practice. Id . at 848.
T he district court did not abuse its discretion in denying Pete’s request for a Daubert hearing regarding the admissibility of the G overnment’s ballistics toolmark identification evidence and testimony. See Ware , 69 F.4th at 845 (reviewing the district court’s decisions regarding the admissibility of expert testimony
, the reliability of an expert opinion , and the denial of a Daubert hearing for abuse of discretion )

. The court held a conference on the issue, permitted the parties to submit any additional d ocuments and arguments on the issue, and decided the issue in a detailed order discussing each of the Daubert factors. The court also determined the parties’ schedules did not permit time for a Daubert hearing prior to trial , and, therefore, the trial would have been pushed back if the court had conducted a Daubert hearing

. Although Ware revolved around the admissibility of fingerprint evidence, the court did not err in relying on Ware in deciding whether to hold a Daubert hearing, because Ware also involved a challenge to the reliability of a commonly use d forensic science method. Ware , 69 F.4th at 846. In the order, the court looked to Ware on the issue, but conducted its own detailed Daubert analysis based on the unique facts, evidence, and arguments the parties presented. Ware supports the district court’s finding that Firearm Toolmark Identification ( FTI ) evidence is sufficiently reliable to present to the jury and that cross

examination was the proper means to attack the expert testimony’s USCA11 Case: 23-14112 Document: 29-1 Date Filed: 09/04/2024 Page: 5 of 96 Opinion of the Court 23

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reliability. Id. at 847

- 48. Particularly, F T I evidence continues to be used in federal courts after the PCAST Report and NRC Reportcriticized the existing studies of its reliability, and Pete did not provide a federal court decision that prohibited FTI evidence based on Daubert

. Additionally, other courts of appeals have upheld the admissibility of FTI evidence. See United States v. Hunt , 63 F.4th 1229,
1249 (10th Cir. 2023) ; United States v. Brown , 973 F.3d 667, 704 (7th Cir. 2020) ; United States v. Johnson , 875 F.3d 1265, 1280

- 81 (9th Cir. 2017) ; United States v. Williams , 506 F.3d 151, 162 (2d Cir. 2007)

. In his motion for a Daubert hearing and to exclude the Government’s FTI evidence, Pete attacked the reliability of FTI broadly and contended it was not credible enough to meet the Daubert reliability requirements. The court adequately addressed that argument in analyzing the proposed evidence under each of the Daubert considerations. The court found that Andrew Pike was qualified to provide the FTI testimony of his findings because of his training and experience, including his role as a firearms toolmark examiner with Bureau of Alcohol, Tobacco, Firearms and Explosives ( ATF )

.It found that Pike’s testimony on the connection between the firearm found in Pete’s possession and the shell casings found at the scene of the shooting would help the jury , particularly becausesuch information was relevant to the crimes charged and was beyond the expertise of the jury

. See Fed. R. Evid. 702; Ware , 69 F.4th
at 845

- 46. The court’s extensive reliability analysis considered the four factors under the reliability prong

. Ware , 69 F.4th at 846. While acknowledging the critiques, the court found the methodology had been tested, subjected to peer review and publication, and USCA11 Case: 23-14112 Document: 29-1 Date Filed: 09/04/2024 Page: 6 of 923

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had a known error rate. The court found the Association of Firearm Toolmark Examiners methodology continued to be generally accepted in the firearm expert community, despite the criticisms raised in the report and studies on which Pete relied. In sum, the district court did not apply an incorrect legal standard, follow improper procedures in making its determination, or make findings of fact that were clearly erroneous. See United States v. Harris , 989 F.3d 908, 911 (11th Cir. 2021) ( “A district court abuses its discretion if it applies an incorrect legal standard, followsimproper procedures in making the determination, or makes findings of fact that are clearly erroneous.” (quotation marks omitted) )

. Accordingly
, we affirm as to this issue.

II. LIMITING EXPERT TESTIMONY
Daubert ’s gatekeeping function applies to all expert testimony. Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 1 47 (1999)

. The helpfulness prong of the Daubert analysis looks to whether expert testimony “concerns matters that are beyond the understanding of the average lay person.” United States v. Frazier , 387 F.3d 1244, 1262 (11th Cir. 2004). Further, “[p]roffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.” Id . at 1262

- 63.
T he district court did not abuse its discretion in limiting J. Christopher McKee’s expert testimony. The district court followed the Daubert analysis, conducted a hearing on the issue, and made reasonable findings that some of McKee’s proposed testimony was USCA11 Case: 23-14112 Document: 29-1 Date Filed: 09/04/2024 Page: 7 of 98 Opinion of the Court 23

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beyond his expert scope and some of it was unhelpful to the jury, and therefore, the court did not apply an incorrect legal standard, follow improper procedures in making its determination, or make findings of fact that were clearly erroneous. See Harris , 989 F.3d at
911. Additionally, on appeal, Pete asserts new topics on which McKee would have testified that he failed to raise in the district

court. Accordingly, we affirm as to this issue.

III. CONFRONTATION CLAUSE

We examine whether a statement is testimonial under the Confrontation Clause de novo

. United States v. Caraballo , 595 F.3d 1214, 1226 (11th Cir. 2010). We will excuse a violation of the Confrontation Clause if the error is harmless beyond a reasonable doubt. Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986). Whether error is harmless depends upon numerous factors, including “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence ofevidence corroborating or contradicting the testimony of the witness on material points, the extent of cross

- examination otherwise permitted, and . . . the overall strength of the prosecution’s case.” Id. Further, “[t]o require a new trial . . . [a] significant possibility must exist that, consider ing the other evidence presented by both the prosecution and the defense, the . . . statement had a substantial impact upon the verdict of the jury.” United States v. Ransfer
, 749 F.3d 914, 927 (11th Cir. 2 014) (quotation marks omitted). Even assuming without deciding that Pete’s rights under the Confrontation Clause were violated when Pike testified on redirect USCA11 Case: 23-14112 Document: 29-1 Date Filed: 09/04/2024 Page: 8 of 923

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examination that an unidentified, independent toolmark examiner reached the same conclusion as he did , any potential error was harmless beyond a reasonable doubt, because the G overnment presented substantial evidence of Pete’s guilt. The G overnment’s evidence included information extracted from Pete’s cellphone that the phone was in the parking lot of the Coyote Sports Bar at the time of the shooting and then traveled west. The phone also showed a google search for “Two Shot Outside of Pen sacola Bar”

arou nd 5:30 p.m. on the day of the shooting and revealed that two articles on the Coyote Sports Bar shooting were viewed. Pete was also found with the same type of gun and ammunition that was used in the shooting, and he met the general description provided b y the victims. There is not a significant possibility that Pike’s statement confirming the peer

- reviewer’s findings at the end of his

re

- direct examination had a substantial impact on the guilty verdict, such that a new trial should be required. See Rans fer , 749 F.3d
at 927. Notably, Pete does not challenge any other portion of Pike’s testimony as violating the Confrontation Clause, and therefore, the jury properly heard Pike’s finding, as an ATF examiner, that the gun found at Pete’s arrest was the gun used to shoot the victi ms. Based on the overall strength of the prosecution’s case, any potential Confrontation Clause violation was harmless beyond a reasonable doubt. Accordingly, we affirm as to this issue.

AFFIRMED. USCA11 Case: 23-14112 Document: 29-1 Date Filed: 09/04/2024 Page: 9 of 9