United States v. Paul , 175 F.3d 906 ( 1999 )


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  •                                                                                   PUBLISH
    
                         IN THE UNITED STATES COURT OF APPEALS
    
                                 FOR THE ELEVENTH CIRCUIT                       FILED
                                ________________________________
                                                                   U.S. COURT OF APPEALS
                                            No. 97-9302              ELEVENTH CIRCUIT
                                ________________________________          05/13/99
                                                                      THOMAS K. KAHN
                                 D.C. Docket No. 1:97-CR-115-1-GET         CLERK
    
    
    
    UNITED STATES OF AMERICA,
    
                                                        Plaintiff-Appellee,
    
    
           versus
    
    
    SUNONDA G. PAUL,
    
                                                        Defendant-Appellant.
    
    
            _________________________________________________________________
    
                          Appeal from the United States District Court
                              for the Northern District of Georgia
            _________________________________________________________________
    
                                            (May 13, 1999)
    
    Before HATCHETT, Chief Judge, HULL, Circuit Judge, and MOORE*, District Judge.
    
    HATCHETT, Chief Judge:
    
    
    ________________________________
    *
      Honorable William T. Moore, U.S. District Judge for the Southern District of Georgia, sitting
    by designation.
           Appellant Sunonda Paul appeals the district court’s (1) finding that a government witness
    
    was qualified to testify as a handwriting expert, (2) refusal to admit his handwriting expert’s
    
    rebuttal testimony and (3) failure to declare a mistrial due to the prosecutor’s improper remarks.
    
    We affirm.
    
                                                I. FACTS
    
           In May 1996, an unidentified person who stated that he was a bank investigator
    
    telephoned Ed Spearman, branch manager of Wachovia National Bank (Wachovia) at Atlanta,
    
    Georgia, and warned him that someone intended to leave a note at the bank in an attempt to
    
    extort money from the bank. The “investigator” instructed Spearman to follow the directions in
    
    the note. Spearman contacted bank security and the Federal Bureau of Investigation (FBI), who
    
    advised him to contact the agency immediately if he received an extortion demand. On the
    
    following morning, a security camera outside the entrance to Wachovia Bank videotaped a man,
    
    wearing a scarf and sunglasses, place an envelope under the front door of the bank. Inside the
    
    envelope, addressed to Spearman, was an extortion note that directed Spearman to deliver
    
    $100,000 to the men’s restroom of a downtown Atlanta McDonald’s restaurant. The note
    
    threatened violence if Spearman did not follow the instructions and make the payment.
    
    Spearman notified bank security and the FBI.
    
           The investigating agents developed a plan to arrest the extortionist: an FBI agent, acting
    
    as Spearman, would drive Spearman’s car to the McDonald’s and place a briefcase in the men’s
    
    restroom, while surveillance agents would watch the restroom and arrest the person who took the
    
    briefcase.
    
    
    
    
                                                     2
           In executing the plan, FBI Agent Eric Bryant testified that upon his arrival at the
    
    McDonald’s, he entered the men’s restroom, observed appellant Sunonda Paul in a restroom
    
    stall, left a briefcase and exited the restroom. FBI surveillance agents testified that they later
    
    saw Paul sitting at a table near the restroom. As Bryant left the McDonald’s, surveillance agents
    
    observed Paul enter the restroom again and then attempt to leave the establishment with the
    
    briefcase in his backpack. When confronted, Paul told the agents that he was in the area to visit
    
    a nearby gym and had stopped at the McDonald’s for breakfast. He also told them that he
    
    decided to take the briefcase after he found it in the restroom. Paul, however, was dressed in
    
    casual street clothing and had no gym clothes or athletic equipment in his possession. The
    
    agents arrested him.
    
                                     II. PROCEDURAL HISTORY
    
           A grand jury indicted Paul on one count of bank extortion, in violation of 18 U.S.C. §
    
    2113(a), and Paul pleaded not guilty. Prior to trial, Paul moved in limine to exclude FBI
    
    document examiner Larry Ziegler’s testimony regarding handwriting analysis. The district
    
    court, however, denied Paul’s motion at the pretrial hearing.
    
           The demand note left at Wachovia was the key evidence in determining whether Paul
    
    was the extortionist. Although FBI agents examined the videotape to determine the identity of
    
    the person who delivered the note, they could not identify the person conclusively.
    
    Consequently, the FBI conducted fingerprint and handwriting analysis tests on the note to
    
    establish the identity of the extortionist. A fingerprint expert concluded that the latent prints on
    
    the note and envelope did not match Paul’s fingerprints.
    
    
    
    
                                                      3
           Ziegler, the FBI document examiner, compared the handwriting on the note and the
    
    envelope to Paul’s handwriting samples and concluded that Paul was the author of both.
    
    Specifically, Ziegler asked Paul to write the word restaurant. In the presence of an FBI agent,
    
    Paul misspelled the word as follows: “resturant.” In the extortion, note the extortionist
    
    misspelled the word restaurant the same way. Ziegler also asked Paul to write out “Spearman.”
    
    Paul spelled it “Sperman,” the same way the extortionist had addressed the envelope.
    
           In June 1997, a jury could not reach a unanimous verdict; therefore, the court declared a
    
    mistrial. On August 6, 1997, at the retrial, the district court orally granted the government’s
    
    motion in limine to exclude the testimony of Mark Denbeaux, a law professor, pursuant to
    
    Federal Rule of Evidence 702 because the district court thought his testimony would be
    
    confusing to the jury.1 The court also denied Paul’s renewed motion to exclude Ziegler’s
    
    testimony regarding handwriting analysis. The second jury found Paul guilty of extortion, in
    
    violation of 18 U.S.C. § 2113(a), and the district court sentenced Paul to 63 months
    
    imprisonment, with a 3-year term of supervised release.
    
                                               III. ISSUES
    
           The issues we discuss are whether: (1) the district court abused its discretion in
    
    qualifying Ziegler as an expert and allowing the government to present handwriting analysis
    
    evidence; (2) the district court abused its discretion in excluding Denbeaux’s rebuttal testimony;
    
    and (3) the prosecutor’s closing argument improperly shifted the burden of proof to Paul.
    
                                    IV. STANDARD OF REVIEW
    
    
           1
               The district court noted that it had been willing to exclude Denbeaux’s testimony from
    the first trial, but the court allowed it when the Assistant United States Attorney who initially
    tried the case asked that the court admit the testimony.
    
                                                     4
           This court reviews the district court’s decision to exclude expert testimony under Federal
    
    Rule of Evidence 702 for abuse of discretion. General Electric Co. v. Joiner, 
    522 U.S. 136
    , 139
    
    (1997); United States v. Gilliard, 
    133 F.3d 809
     (11th Cir. 1998). To the extent that a ruling of
    
    the district court turns on an interpretation of a Federal Rule of Evidence, our review is plenary.
    
    Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
     (1993). As to expert testimony,
    
    however, we review for abuse of discretion. See General Electric, 522 U.S. at 139. In reviewing
    
    a claim of prosecutorial misconduct, we assess (1) whether the challenged comments were
    
    improper and (2) if so, whether they prejudiced the defendant’s substantial rights. United States
    
    v. Delgado, 
    56 F.3d 1357
    , 1368 (11th Cir. 1995).
    
                                             V. DISCUSSION
    
    A. Ziegler’s Testimony
    
           Paul contends that the district court abused its discretion in admitting Ziegler’s testimony
    
    as an expert document examiner because: (1) his handwriting analysis failed to meet the
    
    reliability requirements of Daubert; (2) Ziegler’s testimony did not assist the trier of fact; and (3)
    
    Ziegler’s testimony was more prejudicial than probative under Federal Rules of Evidence 403.
    
           1. Admissibility of Handwriting Analysis
    
           Paul argues that Ziegler’s testimony is not admissible under the Daubert guidelines
    
    because handwriting analysis does not qualify as reliable scientific evidence. His argument is
    
    without merit.2 In Daubert, the Supreme Court held that Federal Rule of Evidence 702 controls
    
    
    
           2
            Courts have long received handwriting analysis testimony as admissible evidence. See
    United States v. Jones, 
    107 F.3d 1147
    , 1160-61 (6th Cir. 1997) (handwriting expert’s testimony
    admissible to show that signatures on numerous documents were defendant’s); United States v.
    Velasquez, 
    64 F.3d 844
    , 848-50 (3d Cir. 1995) (handwriting expert witness admissible).
    
                                                      5
    decisions regarding the admissibility of expert testimony.3 The Supreme Court declared that
    
    under rule 702, when “[f]aced with a proffer of expert scientific testimony . . . the trial judge
    
    must determine at the outset pursuant to Rule 104(a), whether the expert is proposing to testify to
    
    (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in
    
    issue.” Daubert, 509 U.S. at 592. The Supreme Court stated that “[t]he inquiry envisioned by
    
    Rule 702 is, we emphasize, a flexible one” and that “Rule 702 . . . assign[s] to the trial judge the
    
    task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to
    
    the task at hand.” Daubert, 509 U.S. at 594, 597. The Court also listed several factors to assist
    
    in the determination of whether evidence is scientifically reliable.4 See Daubert, 509 U.S. 592-
    
    95.
    
           Many circuits were split at the time of trial, however, on whether Daubert should apply to
    
    nonscientific expert testimony. Some held that the application of Daubert is limited to scientific
    
    testimony, while others used Daubert’s guidance to ensure the reliability of all expert testimony
    
    presented at trial. Compare McKendall v. Crown Control Corp., 
    122 F.3d 803
     (9th Cir. 1997)
    
    (limiting the application of Daubert to the evaluation of scientific testimony); with Watkins v.
    
    Telsmith, Inc., 
    121 F.3d 984
     (5th Cir. 1997) (holding that the application of Daubert is not
    
    limited to scientific knowledge).
    
    
           3
             Federal Rule of Evidence 702 provides: “If scientific, technical or other specialized
    knowledge will assist the court to understand the evidence or to determine a fact in issue, a
    witness qualified as an expert by knowledge, skill, experience, training, or education, may testify
    thereto in the form of an opinion or otherwise.” Fed. R. Evid. 702.
           4
             The Daubert factors include: (1) whether the theory or technique the expert employs is
    generally accepted in the scientific community; (2) whether the theory has been subject to peer
    review and publication; (3) whether the theory can and has been tested; and (4) whether the
    known or potential rate of error is acceptable. Daubert, 509 U.S. at 592-95.
    
                                                      6
           Recently, however, in Kumho Tire Company, LTD. v. Carmichael, the Supreme Court
    
    held that Daubert’s “gatekeeping” obligation, requiring the trial judge’s inquiry into both the
    
    expert’s relevance and reliability, applies not only to testimony based on “scientific” testimony,
    
    but to all expert testimony. Kumho, 
    119 S. Ct. 1167
    , 1174 (1999). The Court further noted that
    
    rules 702 and 703 give all expert witnesses testimonial leeway unavailable to other witnesses on
    
    the presumption that the expert’s opinion “will have a reliable basis in the knowledge and
    
    experience of his discipline.” Kumho, 119 S. Ct. at 1174 (citing Daubert, 509 U.S. at 592).
    
    Moreover, the Court held that a trial judge may consider one or more of the specific Daubert
    
    factors when doing so will help determine that expert’s reliability. Kumho, 119 S. Ct. at 1175.
    
    But, as the Court stated in Daubert, the test of reliability is a “flexible” one, and Daubert’s list of
    
    specific factors neither necessarily nor solely applies to all experts or in every case. Kumho, 119
    
    S. Ct. at 1175 (citing Daubert, 509 U.S. at 594). Alternatively, Kumho declares that “the law
    
    grants a district court the same broad latitude when it decides how to determine reliability as it
    
    enjoys in respect to its ultimate reliability determination.” Kumho, 119 S. Ct. at 1171 (citing
    
    General Electric Co. v. Joiner, 
    522 U.S. 136
    , 143 (1997) (stating that courts of appeals are to
    
    apply “abuse of discretion” standard when reviewing district court’s reliability determination)).
    
           2. Testimony Assists Trier of Fact
    
           Paul also asserts that Ziegler’s testimony was inadmissible because it did not assist the
    
    jury’s understanding of the evidence. Properly qualified expert witnesses may testify regarding
    
    their specialized knowledge in a given field if it “would assist the trier of fact to understand the
    
    evidence or to determine a fact in issue.” Fed. R. Evid. 702; see also United States v. Rouco,
    
    
    765 F.2d 983
    , 995 (11th Cir. 1985) (arguing that counsel may use an expert if the expert’s
    
    
                                                       7
    testimony can offer something “beyond the understanding and experience of the average
    
    citizen”), cert. denied, 
    475 U.S. 1124
     (1986); United States v. Burchfield, 
    719 F.2d 356
     (11th
    
    Cir. 1983) (explaining that expert testimony is admissible where it is “the kind that enlightens
    
    and informs lay persons without expertise in a specialized field”).
    
           Paul has not challenged on appeal Ziegler’s qualifications as an expert on handwriting
    
    analysis. In fact, at the time of the trial, Ziegler: (1) was a full time handwriting examiner for 30
    
    years; (2) was a member of four professional handwriting analysis organizations; (3) established
    
    both the Secret Service’s and the Naval Investigative Service’s “questioned document”
    
    laboratories; (4) lectured and taught extensively in the field of handwriting analysis; and (5)
    
    trained new “questioned document” examiners for several law enforcement organizations.
    
    Consequently, we hold that Ziegler’s expert testimony could assist the jury.
    
           3. Testimony More Probative than Prejudicial
    
           Paul asserts that the district court should have excluded Ziegler’s testimony under
    
    Federal Rule of Evidence 403 as prejudicial because he claims the jury would have believed that
    
    Ziegler’s analysis was scientific when it was not.5 Paul, however, cites no authority excluding
    
    testimony from an expert handwriting examiner on the basis that it sounded scientific, but was
    
    not. To the contrary, the Sixth Circuit in United States v. Jones concluded that the ability of the
    
    jury to perform the same visual comparisons as the expert “cuts against the danger of undue
    
    prejudice from the mystique attached to ‘experts.’” 
    107 F.3d 1147
    , 1160-61 (6th Cir. 1997). As
    
    
    
           5
              Federal Rule of Evidence 403 provides: “Although relevant, evidence may be excluded
    if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
    the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
    presentation of cumulative evidence.” Fed. R. Evid. 403.
    
                                                     8
    was true in Jones, Ziegler specifically identified points of comparison that he recognized
    
    between the writing of the extortion note and the handwriting examples that Paul provided. The
    
    jury was free to conduct its own comparison and reach its own conclusion regarding the author
    
    of the extortion note.
    
           Moreover, Ziegler acknowledged on cross-examination that no licensing board existed
    
    for questioned documents examiners, and the profession is not subject to standards that quantify
    
    or measure the work of individual examiners. Given Ziegler’s admissions, the jury would not
    
    have been confused whether handwriting analysis is scientific or is unassailable. Therefore, this
    
    court cannot conclude that Ziegler’s qualifications prejudiced Paul. Consequently, we hold that
    
    the district court did not err in admitting Ziegler’s testimony.
    
    B. Denbeaux’s Testimony
    
           Paul argues that the district court abused its discretion in not admitting Denbeaux’s
    
    rebuttal testimony. Specifically, Paul contends that if Ziegler’s testimony was admissible under
    
    rule 702, then Denbeaux’s testimony was also admissible pursuant to rule 702 because
    
    Denbeaux’s testimony was critical for the jury to understand the limitations of Ziegler’s
    
    testimony.
    
           The government asserts two grounds for excluding Denbeaux’s testimony: (1) Paul
    
    cannot show that Denbeaux was an expert on handwriting analysis; and (2) the court’s exclusion
    
    of Denbeaux’s testimony did not prejudice Paul.
    
           Denbeaux was not qualified to testify as an expert in handwriting analysis because he:
    
    (1) did not possess an acceptable degree of “knowledge”; (2) would not have assisted the jury;
    
    and (3) was not a qualified expert. Fed. R. Evid. 702. The record reflects that Denbeaux had no
    
    
                                                      9
    skill, experience, training or education in the field of handwriting analysis. The record shows
    
    that Denbeaux has a law degree and that he is a law professor who teaches evidence. Before
    
    1989, he reviewed the literature in the field of questioned document examinations, and then
    
    coauthored a law review article critical of forensic document examiners’ ability to reach the
    
    correct conclusion in questioned document examinations. See D. Michael Risinger, Mark
    
    Denbeaux and Michael J. Saks, Exorcism of Ignorance as a Proxy for Rational Knowledge: The
    
    Lessons of Handwriting Identification Expertise, 137 U. Pa. L. Rev. 731 (1989). His skill,
    
    experience, training and education as a lawyer did not make him any more qualified to testify as
    
    an expert on handwriting analysis than a lay person who read the same articles.
    
           At the time of the trial, Denbeaux had done virtually no further research or writing on the
    
    subject of the reliability of handwriting expertise since the University of Pennsylvania published
    
    his law review article in 1989. During cross-examination, he admitted that he was not a
    
    questioned documents examiner, had received no formal training in the field, had never attended
    
    seminars on handwriting analysis, had never worked in a questioned documents laboratory and
    
    was not a member of any professional organizations in the field. Further, because Denbeaux was
    
    not an expert on the limitations of handwriting analysis, the district court’s exclusion of his
    
    testimony did not prejudice Paul. Denbeaux’s background did not qualify him as an expert, and
    
    his knowledge of the subject matter is so limited that it was not an abuse of discretion for the
    
    district court to exclude his testimony under rule 702. See Fed. R. Evid. 702.
    
    C. Prosecutorial Misconduct
    
           Paul asserts that the prosecutor’s closing argument was improper and unlawfully shifted
    
    the burden of proof. “Prosecutorial misconduct requires a new trial only if [the court] find[s] the
    
    
                                                     10
    remarks (1) were improper and (2) prejudiced the defendants’ substantive rights.” United States
    
    v. Delgado, 
    56 F.3d 1357
    , 1368 (11th Cir. 1995) (citing United States v. Cole, 
    755 F.2d 748
    , 767
    
    (11th Cir. 1985)).
    
           In his closing argument, the prosecutor stated: “Remember[,] the defense has the
    
    resources and has the opportunity to produce evidence themselves, as you saw the defendant do.”
    
    Paul’s lawyer objected and the court overruled the objection stating, “He [the government] didn’t
    
    say you had a burden as I understood him. He merely said opportunity.”
    
           The government’s statement did not prejudice Paul’s substantive rights in shifting the
    
    burden of proof. The government told the jury that Paul had the opportunity to produce a
    
    handwriting expert to rebut Ziegler’s testimony -- not that Paul had any burden to produce a
    
    rebuttal expert. Additionally, the prosecutor, Paul’s lawyer and the court repeatedly reminded
    
    the jury that the government bore the burden of proof. Furthermore, the district court’s
    
    instruction on the burden of proof cured any prejudice. See Duncan v. Stynchcombe, 
    704 F.2d 1213
    , 1216 (11th Cir. 1983).
    
                                          VI. CONCLUSION
    
           For the foregoing reasons, we affirm the judgment of the district court.
    
                                              AFFIRMED.
    
    
    
    
                                                   11
    

Document Info

DocketNumber: 97-9302

Citation Numbers: 175 F.3d 906

Filed Date: 5/13/1999

Precedential Status: Precedential

Modified Date: 4/16/2017

Authorities (12)

Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 ( 1993 )

General Electric Co. v. Joiner , 522 U.S. 136 ( 1997 )

United States v. Wendell Cole, Howard Masters, B.K. Taylor, ... , 755 F.2d 748 ( 1985 )

Kumho Tire Co. v. Carmichael , 526 U.S. 137 ( 1999 )

Harry Duncan, Jr. v. Leroy Stynchcombe, Sheriff, Arthur K. ... , 704 F.2d 1213 ( 1983 )

United States v. Eugene Neal Burchfield, George S. Varisco, ... , 719 F.2d 356 ( 1983 )

United States v. Eduardo Jaime Rouco , 765 F.2d 983 ( 1985 )

62-cal-comp-cases-1100-47-fed-r-evid-serv-1-prodliabrep-cch-p , 122 F.3d 803 ( 1997 )

United States v. Kathleen Kremser Jones , 107 F.3d 1147 ( 1997 )

United States v. Juan Delgado, Emilio Albelo, Juan Carlos ... , 56 F.3d 1357 ( 1995 )

United States of America Government of the Virgin Islands v.... , 64 F.3d 844 ( 1995 )

48 Fed. R. Evid. Serv. 832, 11 Fla. L. Weekly Fed. C 975 ... , 133 F.3d 809 ( 1998 )

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