United States v. Williams , 235 F. App'x 925 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-7-2007
USA v. Williams
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4267
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4267
UNITED STATES OF AMERICA
v.
DARRYL WILLIAMS,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 03-cr-00700)
District Judge: Honorable Michael M. Baylson
Submitted Under Third Circuit LAR 34.1(a)
May 10, 2007
Before: RENDELL, JORDAN and ALDISERT, Circuit Judges
(Filed: June 7, 2007 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
Darryl Williams was convicted by a jury of two counts of bank robbery in violation
of 18 U.S.C. § 2113(a). After an initial mistrial due to a hung jury, a new trial yielded a
guilty verdict. Williams was sentenced to a term of imprisonment of 108 months, 3 years
supervised release, a $1,000 fine, restitution in the amount of $862, and a $200 special
assessment. Williams appeals his conviction. He argues that the District Court erred in
admitting the testimony of a “reverse projection photogrammetry” expert because the
government failed to demonstrate that the expert’s technique satisfies any of the
admissibility criteria set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), or possesses any other indicia of reliability. We have jurisdiction over
Williams’ appeal pursuant to 28 U.S.C. § 1291 and we will affirm.
I.
Williams was charged with robbing two banks in June 2003. In the first robbery
on June 6, a man entered Sovereign Bank in Folsom, Pennsylvania, demanded money
from a teller and ran out after receiving $640. This robbery was captured on the bank’s
surveillance camera. In the second robbery on June 18, a man who, witnesses say, bore a
resemblance to the Sovereign robber, entered a Citizens Bank in Glenolden,
Pennsylvania. This man demanded money from the teller station but grabbed $422 from
the teller before she could comply.
The primary issue at trial was the height of the bank robber in each of these
robberies. Witnesses to the robberies testified that the robber was anywhere from 5'2" to
5'7" tall. Williams is 6' tall. The government sought to introduce the expert testimony of
FBI agent Paul Smith concerning the height of the Sovereign Bank robber. Based on the
video footage from the surveillance camera, Smith determined that the suspect was closer
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to 5'11" than 5'2" by applying “reverse projection photogrammetry.” This method is on
occasion employed by the FBI to determine the height of individuals depicted on
surveillance cameras like the one that captured images of the Sovereign Bank robber.
Smith testified that there is an error rate of about 1" in this type of height analysis. After
holding a Daubert hearing to determine the admissibility of this evidence, the District
Court determined that Smith’s testimony was admissible.
Williams challenges the District Court’s admission of Smith’s testimony
concerning reverse projection photogrammetry on the grounds that the technique fails to
satisfy any of the five Daubert criteria for admission of expert testimony. The District
Court found under the preponderance standard that Smith’s testimony met the
requirements of Federal Rule of Evidence 702. Specifically, the Court found that the
testimony was based on sufficient facts or data as recounted by the expert, the testimony
was a product of reliable principals and methods, that the expert had adequate training in
the technique and that he has review within the FBI, which, in the trial judge’s opinion,
was sufficient under the applicable test. Additionally, the District Court found that the
witness applied the principals and methods reliably to the facts of the case.
II.
We review the District Court’s decision for abuse of discretion. United States v.
Velasquez, 64 F.3d 844, 847 (3d Cir. 1995). Although the Supreme Court has made clear
that federal trial judges, pursuant to Fed. R. Evid. 702, have a “gatekeeping” obligation to
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insure that only reliable and relevant expert testimony be presented to jurors, the trial
judge is granted a certain degree of latitude to determine whether the Daubert factors or
any other set of reasonable reliability criteria are reasonable measures of reliability in a
particular case. Daubert, 509 U.S. at 593.
Rule 702 sets forth requirements for the admission of expert testimony: (1) the
proffered witness must be an expert; (2) the expert must testify to scientific, technical or
specialized knowledge; and (3) the expert’s testimony must assist the trier of fact.
Velasquez, 64 F.3d at 848. The overriding consideration with regard to these three factors
is that expert testimony should be admitted if it will assist the trier of fact. Id. at 849.
The parties do not dispute that Smith’s testimony satisfies the first and third
requirements of Rule 702. Here, Smith presented evidence that the FBI trained him in the
reverse projection photogrammetry technique and that he has employed the technique on
numerous prior occasions. Additionally, it is clear that Smith’s testimony is relevant to
the primary issue of height in this case and that admission of his testimony would aid the
trier of fact in making a determination of height.
The second requirement, that the expert testify to scientific, technical or
specialized knowledge, is at issue here. The Supreme Court clarified in Daubert that this
requirement is intended to ensure the reliability or trustworthiness of the expert’s
testimony. See Velasquez, 64 F.3d at 849 (citing Daubert, 509 U.S. at 590). Daubert
enumerates a number of factors to be considered by a district court in its assessment of
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whether the testimony’s underlying reasoning or methodology is scientifically valid and
properly can be applied to the facts at issue. Daubert, 509 U.S. at 590. These factors are:
(1) whether a method consists of a testable hypothesis; (2) whether the method has been
subject to peer review; (3) the known or potential rate of error; (4) the existence and
maintenance of standards controlling the technique’s operation; (5) whether the method is
generally accepted; (6) the relationship of the technique to methods which have been
established to be reliable; (7) the qualifications of the expert witness testifying based on
the methodology; and (8) the non-judicial uses to which the method has been put. In re
Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994).
Williams argues that the District Court erred in admitting Smith’s testimony
because the government failed to proffer evidence demonstrating the reliability of Smith’s
reverse projection photogrammetery technique as it was used in this case, including
evidence that the technique has been published or subjected to peer review, evidence as to
the technique’s error rate, evidence as to the standards controlling the technique’s
operation, or evidence that the technique, as used in this case, is accepted by anyone
outside of the FBI. We disagree.
The trial judge is granted a certain degree of latitude to determine whether the
Daubert factors or any other set of reasonable reliability criteria are appropriate measures
of reliability in a particular case. Daubert, 509 U.S. at 593. All of the Daubert factors do
not necessarily apply to each case nor are these factors a comprehensive list of all
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possible measures of reliability. “Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999). Moreover, depending on the facts of each particular case, the
factors do not have to be weighed equally. The factors merely guide the judge’s
determination of the admissibility of evidence, a determination to which we afford great
deference.
Under the liberal Daubert standard, the plaintiffs do not have to prove to the judge
by a preponderance of the evidence that their expert’s testimony is correct, they must only
show that it is reliable. The requirement of reliability is lower than the standard of
correctness. A judge can find an expert opinion reliable if it is based on “good grounds”
or methods and procedures of science rather than on subjective belief or unsupported
speculation. Daubert, 509 U.S. at 590. The judge does not have to determine that these
methods are necessarily the best grounds to ascertain certain facts, but only that the
evidence presented will help the trier of fact.
Additionally, the reliability factor is not a strict requirement that should be used to
exclude all questionably reliable evidence. “The reliability of evidence goes ‘more to the
weight than to the admissibility of the evidence.’” Velasquez, 64 F.3d at 849 (citing
United States v. Jakobetz, 955 F.2d 786, 800 (2d Cir. 1992)). In order to be admissible,
evidence need only be sufficiently reliable to help the trier of fact. In re Paoli R.R., 35
F.3d at 744.
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Here, the government proffered a detailed explanation of the technique of reverse
projection photogrammetery. Smith testified about the methodology used in the
technique and detailed how the methods were applied in this case. He also testified that
he has published articles about the technique and that it is employed by the FBI and by a
few other law enforcement agencies.
We conclude that the District Court did not abuse its discretion in determining,
based on this evidence, that the reverse projection photogrammetry technique is
sufficiently reliable to satisfy the admission requirements of Rule 702. Because Smith’s
evidence spoke to the paramount concern in the case – the height of the robber – and
because the District Court found Smith’s technique to be sufficiently reliable, the District
Court did not abuse its discretion in admitting Smith’s testimony.
Once the foundation for admissibility required by Daubert has been established,
concerns about the validity of an expert’s conclusions should not result in the exclusion of
the expert’s testimony. Rather, such concerns should be presented to the jury through
cross examination, presentation of contrary evidence and careful instruction on the burden
of proof. Rock v. Arkansas, 483 U.S. 44, 61 (1987).
III.
For the reasons set forth above, we will affirm Williams’ conviction.
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